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NEW YORK — Just before 1 p.m. on Dec. 24, 2009, two friends named Jose and Domingo stood talking at the corner of Central and Jefferson Avenues in Brooklyn when a stranger knocked Jose to the ground and stabbed him twice with a knife in the head and shoulder. The assailant got up and ran.
Victor Carrero, then 24, was soon arrested at his home five blocks away. Carrero was arraigned in February 2010 and charged with attempted assault in the first degree. His bail was set at $10,000.
Carrero’s sister says he has a history of schizophrenia dating back to age 16. In April 2010, as he waited on Rikers Island, the city’s main jail complex, for his trial, Judge Danny Chun of the Brooklyn Supreme Court ordered a psychological evaluation to determine if Carrero was sane enough to be tried. In May, two doctors found him unfit to proceed to trial, and in June 2010, he was committed for treatment to Kirby Forensic Psychiatric Center on Wards Island in the East River.
He was treated at Kirby and returned to Rikers in October 2010, fit to proceed. Then he waited. Months passed. His lawyer visited him in March and then told the court that Carrero had “decompensated,” or deteriorated, and that he might no longer be competent to stand trial. Another two weeks went by. On March 30, 2011, a second psychological evaluation was ordered. Two more doctors found that he was not fit to be tried. In June, he returned to Kirby for another round of treatment.
Delays plague New York City’s system for evaluating, treating and trying felony defendants found incompetent to stand trial due to mental illness. Because of these delays, people who have attained competency in the state’s mental hospitals frequently decompensate while waiting to appear in court, bouncing back and forth between psychiatric facilities and Rikers sometimes for years without trial.
The delays in New York’s competency restoration process are not unique. In a 2014 survey of forensic psychiatric services across the country by the National Association of State Mental Health Program Directors, or NASMHPD, 31 of 40 responding states reported wait times averaging a month or more for patients with criminal charges to get hospital beds. Washington state’s Department of Social and Health Services called decompensation of restored defendants in jail “a continuing expensive and time-consuming problem” in a 2006 report to the state legislature.
In New York, the state Office of Mental Health, or OMH, has been aware of the problem for at least three years, but hasn’t acted on policy recommendations to address the cycle. New York City Mayor Bill de Blasio announced a plan in April to reduce case processing times, which are twice as long for defendants with mental illness as they are for those without. Still, no state or city agency has addressed the delays specific to the competency restoration process, and other recent reforms around medical care and use of force against inmates on Rikers have so far done little to change the likelihood of decompensation for defendants waiting on the island.
Defendants involved in the competency restoration system in New York state are commonly called 730s after the state’s Criminal Procedure Law Section 730, which governs the process. Doctors, lawyers and advocates with whom Al Jazeera America discussed this issue — all of whom have inside knowledge of the system and direct contact with defendants involved in competency proceedings — estimate that between one-quarter and two-thirds of all defendants committed for competency restoration under Section 730 end up going through the system multiple times on the same charge — hundreds of people each year.
‘In the end, Rikers isn’t designed to treat people. The best you can hope for on Rikers is to make sure people are gonna be OK.’
Urban Justice Center
In 2013, OMH began tracking the number of readmissions of Section 730 patients that occur within a year of their release from the restoration facility. That number, which would not include 730s who experience especially long court delays, held steady at around 20 percent from 2013 to mid-May 2015.
OMH’s 730 numbers don’t distinguish between misdemeanors and felonies, although misdemeanor charges are dropped when defendants are found incompetent to stand trial. In June 2012, OMH contacted the Vera Institute of Justice, a Manhattan-based nonprofit, to research alternative competency restoration models that might address the prevalence of delays and the risk of decompensation in New York’s current system. Vera’s researchers reported that “in approximately 80 percent of felony  cases, people who are successfully restored … subsequently decompensate to the point of being incompetent while held in the jail awaiting their next court date.”
As happened in Carrero’s case, this cycle can keep defendants shuttling between jails and hospitals for much longer than they would have served if they had been found guilty of their charge. Some are found innocent after years of pretrial incarceration in the 730 process. Mary Beth Anderson, director of the Mental Health Project of the Urban Justice Center, calls the system of restoration and decompensation “the merry-go-round.”
Each pass through the merry-go-round takes an average of about eight months, according to OMH’s response to the NASMHPD survey, obtained by Al Jazeera America through a Freedom of Information Law request, and testimony from sources knowledgeable about the process. At that rate, combining the costs of treatment in OMH facilities and time spent on Rikers, each rotation costs the state more than $125,000.
During a phone call with Al Jazeera America in May, Dawn Mulder, principal attorney of the Mental Hygiene Legal Service at Mid-Hudson Forensic Psychiatric Center in New Hampton, New York, scanned her caseload for clients who’ve been through the merry-go-round multiple times. She counted them off: “Here’s one on his third admission, here’s one on his second.” Another was on his fifth rotation through the cycle.
She laughed sharply. “I’m only three patients in and all three have been here before.”
In total, Mulder had 36 defendants on her ward. Eight of them, she said, were readmissions.
In New York state, there are two facilities that provide competency restoration treatment for felony defendants: Kirby Forensic Psychiatric Center and Mid-Hudson Forensic Psychiatric Center, which lies in Orange County about 60 miles north of New York City. The two hospitals are what OMH calls “secure facilities”; although all psychiatric hospitals in the state take security measures — installing locks, gates and razor wire fences — Kirby and Mid-Hudson are “more like maximum security,” says Michael Neville, director of the Second Judicial Department of the Mental Hygiene Legal Service, the state’s public defender service for psychiatric patients. All felony defendants, violent and nonviolent, are treated at one of the two hospitals, not for legal reasons but because of OMH policy.
Competency restoration treatments at Kirby and Mid-Hudson are primarily psychopharmaceutical. But the side effects of antipsychotic medications can be debilitating, and 730 defendants often stop taking the medication when they’re back on Rikers Island. Many antipsychotics cause weight gain or a Parkinson’s-like muscular condition called tardive dyskinesia. Most are sedative, which can be a problem for Rikers inmates who feel the need for vigilance in a dangerous environment.
In the hospitals where New York’s restoration treatments take place, doctors can secure court orders to medicate patients over their objection. But Rikers isn’t a clinical setting, and while legal processes exist to order medication over a defendant’s objection on the island, it’s never done. To treat mental illness, a nurse comes with a cart to the door of the dormlike mental observation unit, calls out an inmate’s name — “a HIPAA violation right there,” notes Anderson of the Urban Justice Center — and the patient comes forward to get the medication. (The Health Insurance Portability and Accountability Act established privacy rules for medical information). Nothing compels inmates to collect their medication from the nurse when called or to take it immediately if they collect it. In December 2005, Miguel Carrasquillo saved up enough of the antipsychotic Seroquel to commit suicide in his cell.
“In the end, Rikers isn’t designed to treat people,” says Alex Abell, who also works at the Urban Justice Center and visits Rikers twice a week to interview people incarcerated there. “The best you can hope for on Rikers is to make sure people are gonna be OK.”
No system currently exists to expedite trials for 730 patients at risk of decompensation.
When inmates with serious psychosis go off their medication on Rikers, it’s a matter of time before they decompensate and regress to being unfit to stand trial. The speed of decompensation is unpredictable. “They may become psychotic in two days, or they may not for months,” says one doctor involved in the New York City competency evaluation and restoration process.
While the typical range in New York is four to six weeks from the time a case is put on the court calendar until the trial occurs, some cases move much more slowly. In April, de Blasio announced a plan to prioritize approximately 1,500 cases that have been pending for more than a year. No system currently exists to expedite trials for 730 patients at risk of decompensation. David Bookstaver, communications director for New York state’s court system, says defendants who have undergone competency restoration are dealt with through the normal court calendaring system. “It’s no different than anyone else,” he says.
The procedures under Section 730 also involve administrative and legal checks that can extend the trial process further. Defendants have to be re-evaluated after they return from the mental health facilities by a team of two psychiatrists or psychologists to make sure they’re fit to be tried. The city’s evaluators aim to submit their reports in about a month, but recent internal research requested by OMH found that 30 percent of the reports are delayed across the city. Evaluation delays average between 20 to 25 days, although that number includes both felony and misdemeanor reports. Misdemeanor evaluations often conclude ahead of schedule, while complicated felony cases occasionally cause massive delays.
An irregular court called Special Term Part XI, or Special 11, handles all of Brooklyn’s competency hearings under Section 730. It’s part of the Brooklyn Mental Health Court, which provides alternatives to incarceration and links to treatment for defendants with mental illness. Other boroughs don’t have courts like Special 11, and gathering evaluators for hearings without a regular schedule can compound delays.
Judge Matthew D’Emic, who presides over the Brooklyn Mental Health Court, says that the time it takes for defendants to be evaluated and get to their competency hearing after returning to Rikers has increased in recent years. It used to be about two to three weeks, he says, but now it’s “three to four weeks, sometimes longer.”
'She was somebody in her mid-60s who had been arrested 20 years or so before for petty larceny but other than that, you know, [she] was a law-abiding citizen. And she just kept getting sent back and forth because she couldn’t maintain stability.
Mary Beth Anderson
Urban Justice Center
In April 2014, Carrero’s case went to trial and he pleaded guilty to second degree assault. He received a three-year sentence. By April 18, 2014, when he was sent to Downstate Correctional Facility in Fishkill, New York, he had been confined for four years, three months and 25 days — almost one and a half times his sentence. He left prison a little over two weeks later on May 5, 2014, his pretrial incarceration counting toward his time served. His sister Karen Wheeler says he went through seven rounds of competency restoration over the course of his case.
A provision of Section 730 ensures that charges are dismissed if a defendant’s trial has been delayed by two-thirds of the maximum possible sentence of the most serious felony in the indictment — 10 years in Carrero’s case. The two-thirds limit only counts time spent in the hospital, however, so defendants may serve longer than the limit including their time on Rikers.
In cases where life sentences are possible, the two-thirds limit doesn’t apply. Anderson mentions a case of hers in which a client facing murder charges remained unfit for 19 years before retaining competency long enough to plead guilty to manslaughter. Another client, charged with attempted murder after pushing someone onto the subway tracks, spent almost 17 years bouncing back and forth between Rikers and the hospitals, in part because the antipsychotic medication that worked for her in the hospital wasn’t available in the jail. “She was somebody in her mid-60s who had been arrested 20 years or so before for petty larceny,” says Anderson, “but other than that, you know, [she] was a law-abiding citizen. And she just kept getting sent back and forth because she couldn’t maintain stability.”
In June 2012, OMH contacted the Vera Institute for research and policy recommendations on two related problems: long waitlists for hospital beds for patients requiring competency restoration and the readmission of those patients after decompensation. Three researchers from Vera spent eight months conducting reviews of alternative competency restoration models and interviewing lawyers, doctors and judges about New York’s system.
They presented their findings to OMH and the New York City Department of Health and Mental Hygiene (DOHMH), which also expressed interest and helped fund the research, in early 2013. A redacted copy of Vera’s report obtained by Al Jazeera America stated that “there are usually about 60 people waiting for a bed at Kirby, and it takes about one or two months to be transferred from Rikers Island to Kirby,” despite New York’s legal mandate that defendants be transferred within 48 hours.
The waitlist “incentivizes hospital staff to return successfully restored patients to Rikers quickly, often several weeks in advance of their next court date,” Vera’s report continues. An early return leads to more time in jail and a greater chance of decompensation.
Vera made eight policy recommendations to OMH and DOHMH, including increasing bed capacity and establishing transitional units for 730s on Rikers. Ben Rosen, OMH public information officer, wrote in an email that “OMH has acted decisively, adding 25 beds to the system in 2013 and soon to be another 29 in July 2015.” DOHMH has also secured funding for four small units on Rikers to provide intensive treatment for inmates with serious mental illness.
Vera’s most ambitious recommendation was that the state develop an outpatient competency restoration program, or OCR: a system that provides care in a community setting and keeps defendants out of both Rikers and the secure psychiatric hospitals during their restoration and trial. They would live at home and receive treatment through a local clinic with court supervision. Vera notes that “maintaining defendants in the community can decrease the likelihood of decompensation.”
Outpatient restoration can also be dramatically cheaper. Vera reports that Wisconsin’s OCR system costs about $12,000 per client, compared with $80,000 to $100,000 for a hospital-based restoration program. And while the potential qualification requirements for OCR — housing, lack of substance abuse, a nonviolent offense — could mean that only 35 to 40 felony 730 cases per year would be eligible for the program, the researchers note that this would “free up scarce hospital beds for other patients with more severe needs who require inpatient care.”
In March 2012, shortly before OMH reached out to Vera, the New York State Legislature amended Section 730 to allow for the use of OCR. OMH issued guidelines for the implementation of OCR in October 2013.
Since the guidelines were issued, OMH has not made progress on implementing an outpatient restoration program. When asked what systems, if any, have been put in place for outpatient competency restoration, Rosen wrote that “OMH supported the modification of Criminal Procedure Law 730 in 2012 to allow for outpatient restoration of individuals found unfit to stand trial,” and he provided a link to the October 2013 guidelines.
So far, no 730 defendant has been restored to competency successfully in an outpatient setting. But that may change soon.
Even in the absence of an established structure for outpatient restoration, the change to CPL Section 730 is starting to have some effect. Since 2012, Brooklyn’s Mental Health Court has diverted a handful of defendants to outpatient competency restoration on a case-by-case basis. But without resources from OMH or other government agencies, it’s up to judges and lawyers to create individual outpatient programs for handpicked defendants. The only possible candidates are defendants with minimal clinical needs and a low risk of violence or further criminality — people who don’t need the intensive care and supervision that the court doesn’t have the resources to provide.
So far, no 730 defendant has been restored to competency successfully in an outpatient setting. But that may change soon. R, whose mental health status is such that she couldn’t consent to having her name used in this story, is a middle-aged woman facing a class E felony for minor property damage. She was found unfit in late 2013, and since then she has been living with her daughter and receiving treatment for an unspecified psychosis at a clinic in Brooklyn. Both defense and prosecuting attorneys expect R to be the first successful case of outpatient competency restoration in New York.
R’s case came in front of Special 11 recently after being delayed by an overdue doctor’s report. R arrived early to court, waiting in the hallway before the chamber opened. Just before her case was called, her lawyer arrived and said that the doctor had unexpectedly found her unfit to proceed and that they would have to schedule another examination and adjourn the hearing again. R heard the news through her Creole interpreter, smiled and continued to talk with him as she left. Unlike most 730 defendants, she would wait out the delay at home.
After she left, another case came up for a competency hearing. The defendant, who faces a 2013 criminal contempt charge, entered through a side door of the court that leads to the holding cells. Two doctors stood and testified that they had examined him three times —on April 30, May 14 and June 11. Both said they thought he was fit when they saw him on April 30, but that he refused to talk at the second evaluation. One of the doctors noted that the patient was housed in the general population on Rikers and wasn’t taking medication. By the third evaluation, said the other doctor, “his mental status [had] changed … his thinking [had] become disorganized.”
Defendants are allowed an opportunity to testify about their fitness in Special 11. When the doctors had finished, the defendant stood to say that he didn’t want to talk. “I know this is not my lawyer,” he said, gesturing at the Legal Aid attorney who represented him. “If I’m physically fit, I’m fine,” he said and sat down.
Judge Michael Brennan, who oversees Special 11, emphasized the words “at this time” when he issued his ruling that the defendant was currently unable to aid in his defense and said that an order of commitment would be signed in this case. The defendant stood and left through the side door with his hands cuffed, returning to the holding cells and then to Rikers Island to wait for a hospital bed.