For two years, KXAN investigators have explored a growing backlog of people in Texas jails who need mental competency restoration. While an advisory committee has largely focused on finding state hospital beds for that group, our team took a closer look at the backgrounds of individuals on the waitlist to determine trends experts say could help drive down numbers. Our research found data on this topic is often hidden or unreliable – a discovery sparking promise for change from state leaders. The resulting “Mental Competency Consequences” project is supported by the USC Annenberg Center for Health Journalism.
AUSTIN (KXAN) — In Texas, people charged with crimes and found mentally incompetent to stand trial most often obtain restoration treatment at a state hospital before returning to jail and being able to actively participate in their defense. In recent years, there have been efforts to increase other competency restoration alternatives – like jail-based or outpatient methods – but for some people, those options are not always available.
“A long waiting list is not a good thing,” Joint Committee on Access and Forensic Services Chair Stephen Glazier told KXAN in October when the state’s mental competency waitlist hit a new record, soaring beyond 1,830 people. “There are all kinds of negative consequences that come from that. It’s important, I think, to reinforce everybody’s motivation to work as hard as we can to fix this problem.”
Working to identify trends on the waitlist, KXAN investigators discovered deaths are just one of several crucial data points going untracked by the JCAFS, an advisory panel that makes recommendations to Texas Health and Human Services Commission and state lawmakers, in part, to help drive down the waitlist numbers.
During his conversation with KXAN, Glazier said he would make it a priority for the committee to address how it could track the housing status of people on the waitlist and other details related to homelessness. HHSC later told KXAN it had recently started collecting data on those individuals’ race and ethnicity and would be providing those details to the committee by January 2022.
Mental health advocates like Lynda Frost, formerly of the Hogg Foundation for Mental Health, acknowledge the committee, established in 2015, has improved its data initiatives in recent years. That work has largely focused on statewide aggregate overviews with a recently formed data analysis subcommittee and updates from the state’s forensic director. But Frost agrees more information could help the state better deliver services to individuals on the waitlist and possibly reduce their wait times.
“We know that people are not treated equally across our criminal justice system,” she said. “We want to know how that plays out. And, if we don’t have that data, it’s harder to figure out what we can do to ensure that our justice systems are truly just.”
Until the committee begins tracking those additional details statewide, it is only possible to understand the scope of such problems through data analysis by county. Because the identities on the state’s waitlist are hidden for privacy reasons, KXAN took a backdoor approach, obtaining district clerks’ lists of felony defendants found incompetent to stand trial, then examining specific cases to learn more about their backgrounds. But county jails and courts in Texas do not have a uniform data collection system, and we discovered some of what they do collect is likely inaccurate and not always required to be passed along to HHSC.
Names like Naquan Carter and Fernando Macias were two of at least 12 mentally incompetent, incarcerated individuals KXAN discovered died in Texas’ most populated counties since early 2015. Because the state does not track that number, we had to cross-reference custodial deaths – which sheriffs’ offices are required to submit to the attorney general’s office – with district clerks’ lists of people found mentally incompetent to stand trial – county by county. The total we compiled, so far, is just from Travis, Harris, Bexar, Dallas and Tarrant Counties. Reviewing Texas’ other 249 counties would require more time and resources but could likely reveal additional deaths.
KXAN shared its tally with the JCAFS chair, who stopped short of saying the committee would begin tracking deaths. Yet Glazier called what we uncovered one of the “consequences of the waitlist” that could “create some momentum to get public policy change.” When later pressed on whether it would begin tracking deaths, HHSC’s spokesperson said it is still not part of agency plans.
“There’s no more fundamental obligation that jails have than to keep the people inside them safe and alive,” said Michele Deitch, a distinguished senior lecturer who focuses on criminal justice policy issues and deaths in custody at the University of Texas LBJ School of Public Affairs. “And, if we’re not tracking what’s happening to the people in there, we don’t know what’s going on inside those jails.”
‘Downward economic spiral’
Learning HHSC does not track deaths led KXAN to dig deeper into other data mental health advocates say could help spark change – if leaders had an evidence-based grasp of the problems facing people on the waitlist. Along with race and ethnicity, poverty and indigency challenges were most frequently mentioned when it came to the intersection of mental health and the criminal justice system.
“If I’m not independently wealthy, I may have trouble keeping a job and may have trouble making my rent,” Frost explained. “Serious unaddressed mental health challenges can lead someone in a downward economic spiral… that certainly could be a trigger to make it worse.”
KXAN wanted to know how those aspects factored into the mental competency backlog. But, because the state keeps identities on its waitlist secret and does not track socioeconomic backgrounds, we had to analyze district clerk data in specific counties to better understand financial challenges – specifically people who were incompetent to stand trial and could not afford to hire a lawyer. Almost every case, including Macias’ and Carter’s, met that criteria.
Determining whether people had experienced homelessness is more difficult. HHSC admits – since those on the waitlist are not in the agency’s care yet – it receives “limited information on them.” Court documents are sent to the state hospital once restoration services are available, but they “do not necessarily include details on various socioeconomic factors, such as homelessness or indigence.” People finally admitted to state hospitals do receive “complete and accurate” assessments of their demographic profiles – but hundreds of others still waiting in jail do not.
“We’ve seen how the waitlist can explode very quickly,” Glazier said. “Where did all these new people come from? I think the committee would really like to… see if we can get some hard numbers to track. Where are we having the biggest problems? How highly correlated is homelessness to some of the outcomes that we’re trying to avoid?”
In January 2020, an estimated 27,229 Texans experienced homelessness on any given day, according to the U.S. Department of Housing and Urban Developments’ Annual Homeless Assessment Report to Congress. That number was the fourth largest in the nation at the time. And, the Texas Criminal Justice Coalition cites a national study finding, prior to incarceration, around 40% of people who experienced homelessness reported using mental health services or medications for a mental illness – a statistic twice that of non-homeless incarcerated individuals.
Some mental health advocates predicted those numbers could go up, as Texas continues to criminalize certain aspects of homelessness. In September, a new law went into effect banning homeless encampments in unapproved areas statewide, punishable by a fine of up to $500. And several municipalities across the state already outlawed panhandling. While these charges might not directly land someone in jail, an incident could result in additional charges or it might send people into that “downward spiral” Frost mentioned.
“Sometimes people are arrested to get them off the street, because they’re a nuisance to somebody who is more powerful,” she said. “So, if somebody doesn’t need to be in the criminal justice system, where can you divert somebody to something else that will address the needs they are manifesting?”
‘Significantly better outcomes’
At the most recent JCAFS meeting in October, members got an overview on this topic from HHSC’s Office of Mental Health Coordination – specifically, options for treatment diversion, step-down or small group homes, rapid re-housing and permanent supportive housing for people with severe mental illness who have also come into contact with the justice system. The discussion focused on state funding, staffing issues, regulations and licensing.
While previous meetings largely focused on expanding state hospital services and the number of treatment beds available for people on the waitlist, the committee and presenters indicated the growing need to take a closer look at next steps, including more data sharing and future housing recommendations – even after mental competency treatment is complete and people leave jail.
“I think we need to start with getting an idea of what’s available and what’s the scope of the problem,” Glazier said in the committee meeting. “We’ll start exploring to see if it’s possible to get some data on this… With stable housing, you can get significantly better outcomes.”
Glazier and the committee point to the COVID-19 pandemic as one of the main factors for Texas’ waitlist experiencing greater delays in recent years. For 2021, the average wait time for a non-maximum security state hospital bed peaked at 204 days in April. For a maximum-security bed, the highest average wait was 510 days in May. But some people wait even longer.
“In February of 2020, before COVID hit, we were down to 900 (people) on the waitlist, and then… we just went the wrong direction,” he said. “COVID has caused a lot of things like beds to go offline, courts to slow down. It’s caused a lot of problems, but I’m hoping we’re getting past that.”
‘We can make a difference’
In October, following almost two years of KXAN investigating this topic, a statewide plan to “Eliminate the Wait” surfaced at the Texas Judicial Commission on Mental Health’s annual conference. The commission rolled out a partnership with HHSC to “rightsize competency restoration services” across Texas.
Citing a “38 percent increase in people who are found incompetent to stand trial” over the past 20 years, the “state roadmap” includes a toolkit shared “with judges, prosecutors, defense attorneys, sheriffs and jail staff, police, and behavioral health providers to join their collaborative effort to change how Texas serves people at the intersection of mental health and criminal justice.”
The effort is primarily aimed at developing new trainings and educational materials “focused on opportunities for diversion to treatment at all points in the criminal justice system” instead of relying so heavily on state hospital expansions and the addition of more beds in those facilities. The trainings are already underway with next steps to include greater focus on rural areas in Texas without as many resources or funding.
“I don’t think we’ll ever build enough inpatient (state hospital) beds to get the waitlist to zero,” Glazier said when asked about the plan. “But, if we can use all of those other mechanisms, make them work and target them in the areas where they’re the most needed, I think we can make a difference.”
The following KXAN journalists contributed to this special edition of State of Texas: Senior Investigative Producer David Barer, Investigative Intern Addie Costello, Director Kathleen Dunbaugh, Investigative Photographer Ben Friberg, Graphic Artist Rachel Gale, Creative Producer Eric Henrikson, Executive Producer/Host Josh Hinkle, Editor Eric Lefenfeld, Floor Director Kip McCubbin, Photographer Chris Nelson, Floor Director Armando Santos, Digital Special Projects Developer Robert Sims, Political Producer John Thomas, Digital Director Kate Winkle and Photographer Ed Zavala. The “Mental Competency Consequences” project was made possible through a partnership with the USC Annenberg Center for Health Journalism.
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December 31 2021 11:59 pm