‘Terrible injustice:’ NC lawmaker, ACLU say jail ’purgatory’ cases must end

Following an investigation by The Charlotte Observer revealing a legal provision that allows defendants with mental health issues to languish in jails for years on end, the North Carolina ACLU and a local lawmaker say the system has to change.

The Observer’s “Purgatory” — a four-part series about a 37-year-old Charlotte murder suspect — revealed legal ambiguity and a one-word loophole in state law allows criminal defendants like him to wait years, and even more than a decade in some cases, to go to trial if they are deemed mentally-incapable of proceeding to trial.

The staff attorney for the American Civil Liberties Union of North Carolina said she is deeply concerned about the state of North Carolina’s criminal justice system.

Michele Delgado said she hears from families she works with that some defendants with mental health issues are being held for longer than they could be sentenced, if convicted — due to delay’s in the state’s mental health system and a lack of hospital beds statewide.

“Folks should not be languishing in an in-custody loop,” Delgado said. “They already have mental health issues and I feel like when you leave people in custody, they deteriorate further, and nothing’s being resolved, and they’re not getting the treatment that they really need.”

State Sen. Mujtaba Mohammed, a Mecklenburg Democrat who sits on the state’s judiciary committee, is an attorney and says he is familiar with the delays in capacity restoration services and the criminal justice system’s lack of resources.

He said the state’s hospitals need more funding to make sure what happened to Devalos Perkins, the defendant featured in the Observer’s series, this doesn’t happen to other defendants.

What about Devalos Perkins?

The Observer series focused on Perkins, who has been held pretrial for more than 10 years on first-degree murder and armed robbery charges.

Perkins is being shuffled between hospital beds and jail bunks.

When Perkins was arrested and charged with murder in 2012, a part of North Carolina criminal law left the possibility of indefinite incarceration for defendants deemed mentally-incapable of proceeding to a trial. Judges could decide to dismiss a person’s charges after long waits — but weren’t required to.

The law was changed in 2013 and now, after a 10-year wait to go to trial on felony cases, North Carolina judges are required to dismiss the charges for a person deemed mentally-incapable of standing trial. The pivotal one word in the law was changed from “may” to “shall.”

The old law — “When a defendant lacks capacity to proceed, the court may dismiss the charges” — was repealed, replaced with a new provision with a time limit to purgatory.

Delgado said even though the law is now mandatory rather than discretionary, the law Perkins was tried under still gives the judge some discretion, and his case could be dismissed if a judge chose to honor the ten-year period of time outlined in both current law and the older version of the law.

To ensure what happened to Perkins doesn’t happen to other defendants, Delgado suggests lawmakers look at applying a specific timeline — like other states have — to the evaluation, capacity restoration, and hospitalization process.

Perkins has repeatedly bounced between evaluations and treatment, then reevaluation in a seemingly endless cycle over his more than 10 years behind bars. This shouldn’t be the case, Delgado says.

“Legislators can always pass statutes and amend things to fix problems. So if they went ahead and maybe set a time frame, like 30 days for evaluations and 30 days for services, that would be helpful,” Delgado said.

The fact that Perkins has been left behind bars in a state of legal purgatory for so long is unjust not only to him, but to the family of his alleged victim, Justin Ervin, Mohammed said.

“This has been a terrible injustice that’s been done, not just to Mr. Perkins, but also the victim’s family, who’s probably seeking closure, who wants to put this behind them and wants to know what’s going to happen with this case,” Mohammed said.

In 2005, three men attacked Justin Ervin’s girlfriend Shasta Rich while the couple was at a Charlotte gas station to buy cigarettes. Ervin tried to fight back and was shot and killed. Police arrested Perkins for the crime in 2012, but without a trial Ervin’s family has no closure.

Mohammed said the language of the law, combined with a lack of hospital and community resources, have compounded to allow this to happen to Perkins and others.

The ambiguity in state law, the difference between may and shall, and whether or not the current law can be applied retroactively are all things lawmakers should address, he says.

“We can come up with some sort of language that makes it retroactive to address individuals like Mr. Perkins so that they and the victims’ families can also benefit from the change in law.”

What’s the solution?

While Perkins’ case is complex, Mohammed and Delgado say the root of the problem stems from a lack of health care services in jails, hospital beds, and funding. They say there is a lack of community-based healthcare and health care in the criminal justice system that could help these defendants.

Delgado said many defendants are spending more time before a trial in jail than they should and this aggravates existing mental health issues because they are waiting on evaluations, hospital beds, and capacity restoration treatments.

Delgado said community based capacity restoration programs could be a solution that can offer defendants the treatment they need outside of jail. Mohammed agrees.

Mohammed said defendants will eventually re-enter the communities they were living in before their incarceration and if they don’t receive the mental health care they need, that transition will be difficult.

One possible solution could be expanding the Department of Health and Human Services’ new initiative, NC Rise, that provides capacity restoration services at local jails, Mohammed said. This would ultimately help to prevent defendants deemed incapable in jail so they don’t have to wait on a hospital bed, and may help to prevent them from regressing after they receive treatment and before trial.

But ultimately it comes down to funding for these initiatives, for beds, and for staff, he said.

“(We need) to make sure that people at the end of the day are taken care of, that we’re actually building people in North Carolina instead of building prisons,” Mohammed said.

“That’s what’s been missing. And this is why you see individuals like Mr. Perkins and so many others who are in our justice system who go in and out of our justice system, because we haven’t genuinely gone out of our way to rehabilitate them, and that harms public safety for all of us.”

A spokesman for Gov. Roy Cooper refused an interview with the Observer and would not comment on the issue or Perkins’ case beyond sending the following quote:

“The legislature needs to fully fund state capacity restoration care and the Governor outlined in his recommended budget $150 million for justice-related interventions, including capacity restoration. The Governor supports strengthening restoration services to better serve ITP defendants and decrease the backlog while making sure communities are safe and protected from harm.”

A spokesperson for the Attorney General’s Office also refused to speak with the Observer claiming they were “unable to comment on this matter because of health care privacy laws and attorney-client privilege.”