Stanislaus could be penalized millions for high number of defendants found incompetent

Stanislaus County faces a penalty of possibly around $4 million for exceeding a state cap on the number of criminal defendants determined to be incompetent to stand trial, or IST.

Multiple court-ordered deadlines have passed for the California Department of State Hospitals (DSH) to reduce the wait time for IST defendants to receive treatment.

As the final deadline looms, the state is shifting some of that responsibility onto counties.

The state has set a cap in every county on the number of defendants determined to be IST each year and, according to a letter sent by the DSH in December, will penalize counties for exceeding the cap.

Stanislaus County has the eighth highest number of IST referrals in the state. Among the top 15 IST-referring counties, it also is second highest with its rate of 21.7 per 100,000 people.

The state’s caps were set based on the amount of IST referrals in fiscal year 2021-22.

Stanislaus County’s cap is 120 IST determinations per year, which it is on pace to exceed by 41 in the 2022-23 fiscal year ending June 30, according to Bee calculations. An excess of 41 IST determinations would equate to a penalty of $3,955,000.

County Assistant Executive Officer Ruben Imperial said he would not confirm The Bee’s projections, which were based on data provided by Stanislaus Superior Court of the number of ISTs in the first three quarters of 2022-23 and an average of those quarters to estimate the number in the fourth quarter.

“It’s not prudent at this time for the county to release or confirm specific projections, given there are still several key aspects of the statutory requirements that need clarity on how to implement,” he said.

Stanislaus County Supervisor Terry Withrow, who has served on the Behavioral Health Board since he was elected supervisor in 2011, said he hadn’t run the numbers but acknowledged it will be millions of dollars.

For this article, all of the supervisors were asked what they thought about the mandate, but only Withrow and Buck Condit provided a response.

Condit said he is very concerned but hasn’t been fully briefed on the matter. He, like others, deferred to Withrow.

“This doesn’t really scare me,” Withrow said.

Penalty payments will go into a state Mental Health Diversion fund but within 45 days will be paid back to counties, according to the letter. Counties then are under a state-mandated program and must use the money to support “county activities that will divert individuals with serious mental illnesses away from the criminal justice system and lead to the reduction of felony IST determinations,” the letter says.

“They will take the money and give it back to put it to good use,” Withrow said. “We are already working on (solutions) and I think it just kind of complements what we are doing already.”

County legal and health officials have been collaborating to find a better way to address criminal defendants with mental health disorders. The idea they came up with was not designed to reduce IST referrals, but they believe that likely will be a result.

Why is this happening?

For defendants to be competent to stand trial, they must understand the nature of the charges against them and be able to assist in their defense.

A defense attorney usually is the one to declare a doubt as to a client’s competency, resulting in an evaluation by a court-appointed psychiatrist or psychologist, also known as alienist.

A defendant found incompetent may be referred to an outpatient program or — and this is only in the case of felony offenses — to a DSH inpatient facility. The treatment is focused on restoring competency so the person can go back to court and be prosecuted, not treating any underlying mental health disorders.

California is among dozens of states that have had an increase in IST referrals over the past decade or more, according to a report by an IST Solutions Workgroup composed of state and local officials and representatives of the criminal justice system and IST patients.

Beginning in 2013, the number of IST referrals in California outpaced the Department of State Hospitals’ efforts to increase capacity to meet the demand. From 2013 to 2021, the number of incarcerated people referred for IST treatment more than doubled to 6,137, according to the report.

More referrals meant longer wait times for defendants to be transferred from jail to a hospital. The result in some states was lawsuits.

In 2015, the American Civil Liberties Union of Northern California sued the state over the prolonged detention of people in county jails who are declared IST.

According to the organization, the average wait time then was 60 days, but it ballooned to 141 days in 2022. It since has decreased to 59 days as of March 2023, according to DSH.

An Alameda County judge in 2019 ordered that by February 2024, treatments for IST defendants must begin within 28 days from the time they are deemed incompetent. The judge set interim deadlines to incrementally decrease the numbers over two and a half years but none have been met so far and the deadline to reduce the wait time to 45 days is in August, according to the ACLU.

The 2022 Budget Act authorized the DSH to implement many of the solutions proposed by the IST workgroup, including expanding community-based treatment and diversion options by 5,000 beds over four years, improving IST discharge planning and coordination, implementing a pilot program for independent placement panels, and improving alienist training.

But to ensure “DSH-funded community-based care did not create unintended incentives that result in an increased number of individuals being found IST on felony charges,” the caps were set as part of a budget trailer bill, according to the letter.

What is Stanislaus County doing?

Months before the DSH letter was sent to counties, Stanislaus County’s public defender, district attorney and behavioral health director began collaborating to find a better way to address criminal defendants with mental health disorders, who are among the most common repeat offenders.

A team from the Public Defender’s Office will start looking at a case on the day the person is booked instead of days later at an arraignment, or even longer.

The Early Representation Partnership — made up of social workers, client support specialists and an attorney — will look at the investigation related to the person’s arrest but also at factors that might be contributing to the criminal behavior, including mental health issues.

“Maybe they don’t need to be in jail if only they could be placed somewhere to live, get medication, get treatment. Then they would be successful,” said Public Defender Jennifer Jennison.

That’s where Stanislaus County Behavioral Health and Recovery Services will come in.

A team of 14 BHRS staff will assess the people referred by the Early Representation Partnership and suggest whether they should be diverted out of the criminal justice system and into treatment.

Treatment could be in lieu of filing charges, or charges could be dismissed after treatment is completed. The treatment can be done by BHRS or through trusted community partnerships.

“As prosecutors, we are always skeptical, we don’t know for sure (a defendant isn’t) malingering,” said District Attorney Jeff Laugero. “We want to be confident in the assessment … (that) this person isn’t just using this as an excuse to justify the criminal behavior, there’s an actual issue that can be addressed.”

He said he trusts BHRS to make that determination. “If we have them doing the assessment and they have a treatment plan, let’s give it a try. And if it keeps them from reoffending, that’s a win for all of us.”

BHRS Director Tony Vartan said, “We are putting a front door in the justice system saying whatever you have related to behavioral health can come through this door and we will assess, make recommendations and sort out who needs the treatment.”

He said treatment will focus on underlying factors, education, prevention and early intervention.

IST treatment doesn’t do any of that, Jennison said, “The individual is given medication and then taught a script, frankly,” to show a basic understanding of the legal process.

“Once that happens, they send them back to court to be prosecuted. But the problem is you haven’t addressed whatever issues led that person to get arrested and into the system,” she said. “They go to jail, they go to prison, they get released but we still haven’t addressed the issues so it just happens over and over again.”

Statewide, 71% of people who received IST treatment in fiscal year 2016-17 were rearrested within three years. That’s a higher rate than all offenders combined that year, 68.8% of whom were rearrested, according to data from the Department of Justice.

The Early Representation Partnership and the BHRS assessment and treatment team are the county’s way of trying to fix that.

The Early Representation Partnership, for now, will be funded by a three-year $2.145 million grant Jennison secured. The team, to be housed in the jail, is expected to be operational by August.

The BHRS team will cost $12 million over five years and is expected to be paid for by prison realignment funds. The Stanislaus County Community Corrections Partnership, which oversees realignment funding, already approved the funds and the Board of Supervisors will vote on it June 6.

Jennison, Laugero and Vartan said they will continue to work closely and make adjustments as needed but are hopeful the programs will reduce recidivism, increase efficiency in the court system and reduce the number of defendants referred for IST.

Laugero said he will not consider people accused for violent crimes like murder, carjacking or kidnapping for diversion. If those offenders are found incompetent to stand trial, he hopes they can be restored with treatment so that they can be prosecuted. Laugero said the state’s caps are “not going to drive how we do our job.”

What are counties’ concerns?

A group of organizations that represent counties sent a response letter to DSH in April, outlining its biggest concerns.

It said caps were set based on the number of people found incompetent to stand trial rather than those who are actually added to the state’s IST wait list for treatment. According to the letter, caps unfairly include people who are determined IST but diverted to community-based care without need for IST treatment; are re-evaluated and determined no longer IST; and even people who died after an IST determination.

Imperial said questions remain about what funding sources can be used to pay penalties and about how the program will be implemented.

“Our current concern is that the process unfolds in a way that it’s an equitable process across the state and there’s clarity about it in a way that we can then make plans and develop interventions that make sense locally,” he said.

In addition to the partnership between justice system officials and behavioral health, Stanislaus will be one of seven counties statewide to roll out CARE Court, which is designed to prevent the arrests or conservatorships of people with untreated schizophrenia spectrum and other psychotic disorders.

“It’s not like we are unprepared ... We have things in place ... to change people’s lives and make this a better place,” Withrow said.