September-October 2012

Hoping to close the revolving door

Krystal Muller

Paralegal in the Travis County District ­Attorney’s Office

Travis County operates a docket dedicated to defendants with mental health issues, which (in its three years of operation) has opened up jail beds, cleared up other dockets, and saved the county money. Here’s how it works.

Jails and prisons are rapidly becoming America’s largest system of mental health care providers. People with mental health concerns, substance abuse, homelessness, and other issues often find themselves wrapped up in the revolving door of the criminal justice system. Because our jails are not specifically designed to treat these issues, inmates’ mental health can decompensate while in custody. Decompensation and the added requirements of addressing mental illness within a criminal justice setting slow down the adjudication process and as a result, mentally ill inmates spend more time incarcerated than the average inmate. Once adjudicated, there is a lack of resources for this population, and many times a gap exists between these minimal resources and connecting an individual to services.
    Our goal at the Travis County District Attorney’s Office in forming a Mental Health Unit was not to excuse these actions, but rather to reduce recidivism by alleviating the cause of these actions. Our dispositions are tailored to provide medication, housing, treatment, and counseling. Everyone’s needs are different and unique, but many of these needs can be addressed through services that already exist in our community. While there may not always be enough services to go around, we have to try to connect the dots where and when we can.
       Planning for the Mental Health Unit began in 2008 after newly elected District Attorney Rosemary Lehmberg took office. Lehmberg quickly appointed then-assistant district attorney Karen Sage (now a Travis County district judge) to create this unit from the ground up. Staffed with a paralegal and a legal secretary, Sage set to work. Planning began, and in less than 30 days a docket was formed. Lehmberg, a believer in therapeutic justice, quickly recognized that there is a fine balance between treating the cause of criminal behavior and keeping our community safe. Because we were still learning as we went along, we started our docket with only lower-level drug and property cases of defendants who were still in jail—no violent offenses and no cases involving victims. Our caseload was relatively small in the beginning and we held docket weekly.
    Over the last three years our docket has grown significantly. When Sage was elected to the bench, ADA Michelle Hallee volunteered to lead our unit. With a special-needs son and previous work with the juvenile mental health cases, Michelle brings a unique mixture of personal and professional experience that helps make our docket a success. Building off Sage’s solid foundation, Michelle has expanded the docket to include other offenses. The only requirements for a case to be set on our docket are that the defendant has been diagnosed with one of the top four Axis I diagnoses and that there is a causal connection between that diagnosis and the defendant’s criminal behavior. Those diagnoses are: schizophrenia, schizoaffective disorder, bipolar disorder, or major depressive disorder (MDD). Because of the broad spectrum of MDD, this particular diagnosis also requires a Global Assessment of Functioning (GAF) score of 50 or less. A GAF score indicates how well someone is functioning in daily life on a scale of 0 to 100.
    Cases are set on our biweekly docket in one of two ways. First, cases that would normally be automatically set on the magistrate’s docket by Court Administration (defendants who are still in jail and charged with lower-level drug or property offenses) are set directly on our docket if the defendant is psych-coded in the jail. This psych coding can happen at any time, but in a majority of cases it happens during the routine screening that every inmate completes within 24 hours of booking. Secondly, any party can refer any case to our docket. Our referral form requires the approving signatures of both the assigned ADA and the district court judge, which then allows these cases to be screened for our docket. This screening process involves confirming a qualifying diagnosis, gathering input from any victims, and reviewing the defendant’s criminal history. There are no barriers that automatically bar a defendant’s case from being set on our docket. While it proves very difficult to work with someone with a parole hold or an INS detainer, every defendant is screened on a case-by-case basis. Criminal histories are reviewed to give us a better sense of the defendant’s pattern of behavior. Many times we are able to line up a defendant’s noncompliance with his treatment and his arrest history. We want to feel confident that given the right help, criminal behavior will decrease or stop. We do not want to accept cases involving criminals who are trying to play the “mental health card” in an attempt to receive a lesser punishment.
    Court days start with a roundtable staffing attended by a handful of key players. Besides the ADA, defense attorney, and me (I’m a paralegal), the team also consists of the jail’s service coordinator, a representative from our local MHMR, and a senior probation officer assigned to the mental health caseload. The group is able to share information and get a clear picture of who every defendant is, what treatment he has received in the past and may currently be receiving, or if he is resistant to treatment. We know where he is living, if he has been on probation before, or if he followed up with treatment while on his own. We take a non-adversarial approach to every case and collaborate to customize dispositions that can help fill in the gaps.
    There are no “common dispositions” on our docket. Dispositions on our cases range from a term of probation supervised on the mental health caseload to a “desktop deferral” monitoring defendants on bond. If a defendant is active in his own treatment in the community but had a recent slip-up, we can still offer time under Penal Code §12.44(a) (reduction of felony to misdemeanor) and coordinate transportation from the jail directly to a service appointment at our local MHMR.
    Repeat offenders are common on our docket. While empathetic to the needs of our defendants, we hold them responsible for the terms of their treatment. As our judge always tells the defendants, “You have a mental illness and that’s not your fault, but it is your responsibility to listen to your doctors, follow through, and treat it accordingly for the safety of yourself and others.” We will continue to work with someone who is willing to work with us. There are times, however, when a defendant refuses to acknowledge his illness or is unwilling to treat it. In those cases, we have to keep the public safe and therefore recommend incarceration.
    While our main objective is to help the mentally ill population within the criminal justice system while continuing to keep the community safe, we also have other, more quantifiable, objectives. We aim to lower the number of days this population stays incarcerated in the Travis County Jail. On average, the costs of jailing a mental health inmate are nearly double the costs of jailing an inmate without mental health needs. By streamlining the adjudication process on these cases, we can save Travis County hundreds of thousands of dollars every year. To quantify this goal, we needed to keep a lot of data on our docket. Through a detailed spreadsheet, we are able to provide quarterly reports on every aspect of it: from demographic information, to dispositions, to the average number of days spent in jail, all broken down by offense. This data has proven to be a valuable resource in every conversation we have about acquiring more resources.
    As I write this article, three years after starting the docket, my spreadsheet has over 2,500 cases listed. Last fiscal year I reported statistics on 535 cases and at the rate we are going, I believe that we could handle over 800 cases on our docket this year. When we started this docket in April 2009, an inmate with mental health issues spent an average of 109 days in jail. During fiscal year 2011, defendants on our docket spent an average of 50 days in jail. With roughly 500 mental health inmates incarcerated at any given time, the opportunity to open up jail beds, clear up other dockets, and save county money is fantastic. These potential cost savings can serve as great motivation any time we—or any prosecutor’s office—needs to approach the county commissioners and taxpayers to ask for more resources.
    We have come so far in the last three years, and while we believe in the work we are doing, there is room to do more. Our next goal is to work toward a true diversionary mental health court, rather than a mental health docket. A diversionary court would allow us to serve the same population while they receive services in the community rather than while incarcerated. A defendant’s successful completion of the court’s program could also result in a dismissal, which alleviates the collateral consequences of a criminal conviction in regards to housing and other benefits that this population so often needs.
    During the evolution of our Mental Health Unit, we leaned on and learned from our peers in other counties, community agencies, and non-profit service providers. We hope that our learning curve can smooth the path of others wanting to create or develop mental health dockets or courts in their jurisdictions.