Kenneth Carver, Jr. waited 773 days in the Adams County Jail before Mississippi transferred him to the forensics unit at its state hospital for a four-hour evaluation. Another year passed before a psychologist determined him competent enough to stand trial. By the time Carver pleaded guilty to the murder of a store clerk in September 2017, he had spent more than four-and-a-half years in county jail.
Carver’s story is far from unique. For years, Mississippians waiting on a forensic mental health evaluation have languished in local jails. Sheriffs and their deputies have argued that caring for these vulnerable people takes resources they don’t have. Attorneys have argued that indefinitely holding vulnerable people in jail violates their rights.
Federal law limits the wait for these evaluations—in which a psychologist determines whether someone accused of a crime and suspected of mental illness or intellectual disability is competent to stand trial—to 30 days. But by the fall of 2017, when Carver went to prison, the average wait in Mississippi exceeded a year.
“It’s probably the only criminal justice issue where everyone has been in total agreement that this is a first order of magnitude problem, whether you call it constitutional or humanitarian or public safety,” said Paloma Wu, a senior staff attorney with the Southern Poverty Law Center. “How we’ve been dealing with these people as a state wasn’t working for anybody.”
But for years, the Department of Mental Health, which runs the forensics unit at Mississippi State Hospital, has said it was powerless to change anything without more money. Testifying before a legislative budget committee in 2016, the agency’s executive director, Diana Mikula, pointed out that these patients posed an extremely high security risk.
“The forensic unit is the highest level of security,” Mikula said. “We could look at retrofitting a building, but the cost to the state would be enormous.”
That money never came, at least not in a direct appropriation. In fact, over the last three years lawmakers slashed $20 million from the agency’s budget.
But dramatic changes have come. As the state waged a very public defense in federal court this summer over its scattershot approach to community mental health, the Department of Mental Health was quietly working on ways to reduce its forensic services waiting list.
In 2017, the agency piloted a competency program in the county jails, where most patients would be forced to wait until a bed opens up at Mississippi State Hospital. Last year, the agency spent $30,000 to convert a 21-bed unit on the campus into forensic beds, for a total of 56 beds statewide. In the meantime, the waiting list has dropped significantly, to just six people waiting an average of 19 days for their initial evaluations.
And in February, the agency said it plans to break ground on a $19.3 million, 83-bed unit.
“(The Department of Mental Health) had requested for several years funding to help expand that forensic unit and address those wait times. That’s been a topic that DMH has wanted to address for several years,” said Adam Moore, director of communications for the agency.
Ultimately, the agency said the $20 million was a “blending of funding” from a variety of sources–a $1 million bond from the Legislature, consolidation of departments and services within the agency, reprioritizing previously-planned projects and one-time money from the Division of Medicaid.
The agency declined to give Mississippi Today a more specific breakdown of the funds used.
So instead of a legislative appropriation, the impetus turned out to be a unique collaboration begun in 2017 with attorneys from MacArthur Justice Center and the Southern Poverty Law Center–and a desire that may seem anathema for organizations more accustomed to suing the state than collaborating with it: avoiding a lawsuit.
“Because of our partnership, we are moving forward and hopeful Mississippi can become a model in the area of forensic services for other states,” said Wendy Bailey, Chief of Staff for the Department of Mental Health, in an emailed statement.
If it seems surprising that change could come so quickly without a court mandate, advocates say it shouldn’t. Lawsuits are notoriously clunky. The Department of Justice’s lawsuit over Mississippi’s community mental health services took three years to make it into the courtroom. Cliff Johnson, who runs MacArthur and, along with Wu, was one of the two attorneys who approached the agency about its forensics unit, said that speed was precisely the reason they wanted to avoid the courtroom.
“In other states, they’d tried the litigation route,” Johnson said. “The litigation had taken a long time and many of those states were not in a significantly better position after it went through the courts.”
But by gaining flexibility, Johnson acknowledges he’s traded some certainty. Court orders are legally binding. Here, he admits, the Department of Mental Health isn’t bound by more than a verbal agreement to follow through on these changes. If that happens, litigation is always possible.
“And we haven’t agreed nor have we been asked to agree that we wouldn’t file litigation,” Johnson said. “But as long as we’re working on a remedy we want to keep moving in that direction. At any point the Department of Mental Health could stop working on this, but that’s not been the tenor of this conversation.”
Doing more with less
Mississippi State Hospital’s forensics unit sits at the intersection of the state’s mental health and criminal justice systems, and for years has suffered from the same lack of resources that plague both.
Staff turnover in the unit is high, and the ones who remain are often stretched thin. In her legislative testimony in 2016, Mikula described a crumbling mid-century facility, last renovated during the Reagan Administration.
“Eventually it should be torn down. It’s not good space, it’s not particularly therapeutic, and at least from what I could tell, I wondered if it was adequately staffed to provide treatment,” said Dr. Joel Dvoskin, the forensic psychologist hired by MacArthur and the Southern Poverty Law Center to consult with the Department of Mental Health. “(Patients) were just sitting around a lot.”
The Department of Mental Health said that the older 35-bed unit would be torn down when the new 83-bed unit opens, though it did not provide a projected completion date for that project.
The forensic unit plays two roles before a trial. First, people charged with a crime are evaluated in the unit to see if they’re able to understand the charges against them and help their lawyers with their defense. If they’re competent, they proceed to trial. If they’re not, the state provides “restoration” services to get them to a place where they can stand trial. For someone with severe mental illness, this often involves medication. For someone with intellectual disability, it can involve education about the court system.
Either way, it can be a long process, and when fewer than 15 beds were available for restoration services, many people found themselves returned to county jail.
“It puts an enormous strain on me and on my agency,” said Adams County Sheriff Travis Patten. “That’s extra staff that we need to monitor people, and that’s a lot of overtime hours. You can imagine the cost.”
Initially, Wu and Johnson had batted around the idea of a lawsuit. The Constitution guarantees people the right to a speedy trial, and it also guarantees that people are innocent until proven guilty. The years of backlog that the forensics unit had added to the criminal justice system violated both of those guarantees.
“So here we were in this situation where we were broken, and people with mental health issues were paying the price and local jails, literally counties, were paying the price,” Johnson said.
“And there was no way the state of Mississippi could defend themselves in a lawsuit. There’s no question that the state of Mississippi was running afoul of the Constitution and this would be a conversation entirely about remedy. How can we fix it?”
With little doubt even within the Department of Mental Health, that the current system was broken, Wu and Johnson said they decided to skip forward to solution. They brought in an outside consultant, Dvoskin, with years of experience with forensic mental health systems in other states. And then, Johnson said, “the lawyers got out of the way. We let the clinical people talk it out.”
The answer that the clinical people—specifically Dvoskin and Dr. Thomas Recore, a forensic psychiatrist at Mississippi State Hospital—settled on quickly became the lack of beds.
But that brought them back to the initial problem—funding.
The Department of Mental Health said the Legislature’s decision to provide level funding for the last two years after back-to-back cuts in 2017 and 2018 helped.
“Our agency takes serious our charge to be good stewards with the resources made available. With level funding over the last two years, we have been able to shift resources and achieve successful outcomes. We met with state leaders and assured them we would find the most cost-effective way to improve Forensic Services and that’s what we did,” Bailey said in an email.
Lt. Gov. Tate Reeves, who chaired that 2016 budget hearing, and has long exhorted state agencies to “do more with less” funding, praised the Department of Mental Health’s ability to find nearly $20 million in its budget.
“The decision to update an existing building with existing resources for an important need is exactly what Lt. Gov. Reeves has wanted agencies to do,” said his Director of Communications, Laura Hipp. “Mississippi taxpayers can’t afford to send more money to Jackson, and state agencies should rely on the tax dollars budgeted to meet their needs.”
While Johnson said he’s happy with how the agency has addressed the problem, he mentioned the Justice Department lawsuit this summer, noting the agency still needs funding.
“They still need a lot of money. It’s going to take a massive investment and creative solutions, but the notion that because they fixed this discreet problem, that they can also fix all those issues raised in the trial, is a gross oversimplification,” Johnson said.