By Tim Carpenter | October 25, 2016
Editor’s note: Reporters from the Topeka Capital-Journal and KHI News Service collaborated for a six-month exploration of how the state’s legal system deals with people with mental illness. This is the third in a four-part series, “Mental health on lockdown.”
Municipal Court Judge Bryce Abbott slid into a high-backed leather chair behind a stack of bloated manila files documenting the dilemma of adults seeking refuge in Kansas’ groundbreaking mental health court.
He shoved enough progress-report files aside to create a line of sight to defendants and family members, social workers, counselors and the public defender and prosecutor gathered in front of him for a review of dozens of ongoing cases. Action began with the “Rocket Docket” — a kind of flash-bang, front-of-the-line reward for folks dealing responsibly with their nonviolent criminal misconduct, underlying behavioral health condition and, often, a multitude of housing, employment, substance abuse, transportation or antisocial issues.
These courtroom exchanges were swift, relaxed and suggested the cycle of incarceration for some of these offenders could be severed.
“You haven’t been in trouble,” Abbott said to one of the first called to the bench. “Keep it up.”
Moments such as these displayed promise of intervention by officers of the court monitoring law-breakers in a way far different in style and substance than most defendants were used to. The backbone of the operation, a rarity in the Kansas court system, is the public-private collaboration on case management under the discretionary eye of a judge devoted to a concentrated caseload.
Since its inception in 2009, Abbott said, the Wichita Municipal Court’s voluntary version of therapeutic jurisprudence improved quality of life for graduates, diminished recidivism and saved taxpayers millions of dollars. It was started with a U.S. Department of Justice grant and sustained with financial backing by the city.
As names of participants were checked off the judge’s list, a middle-age male struggling to cope was ushered into the courtroom. Evidence was external. He was wearing Sedgwick County Jail’s standard ill-fitting orange jumpsuit. An encounter with Wichita law enforcement left his ankles and wrists bound in chains that clanked with every move.
Standing before Abbott, the defendant began ranting about rivals real or imagined. His remarks were spiced with a four-letter word that crudely referred to intercourse. In most courtrooms, that kind of obscene talk would produce an unequivocal rebuke from the bench: Shut up or get out. In this setting, structured with fragile defendants in mind, Abbott let it slide, briefly, before affirming decency boundaries.
“We have rules,” the judge said. “One of those rules is we don’t curse in court.”
His initial admonition and a stern reminder didn’t silence the defendant’s toxic tongue, but the exchange exposed limits of what some view as a radical experiment in judicial intercession. Frustration, as well as elation, awaits local units of government in Kansas pivoting to a problem-solving court to slow the revolving arrest-prosecute-incarcerate-release merry-go-round ridden by offenders enduring psychotic episodes.
“We’ve patted ourselves on the back and had our hearts ripped out on the same day,” Abbott said. “A criminal might choose to be a criminal, but the mentally ill do not choose to be mentally ill.”
The new asylum
In a handful of Kansas cities — Topeka, Lawrence, Kansas City and Wichita — there are independent movements to sculpt judicial programs channeling low-level offenders diagnosed with an illness of the mind to a separate court docket. It’s a recognition that old-school punishments often fell short.
The objective in alternative courts has been to help people step beyond an adversarial process into a program to improve access to services for those with mental illness, promote participation in treatment and reduce recidivism. Ingredients of change range from medication and therapy to housing and vocational rehabilitation. The judge regularly meets behind closed doors with lawyers and mental health staff to talk about the status of each case before meeting participants in open court. Drug testing is routine.
The target is a durable recovery for individuals that deflates the rising cost of incarceration for city and county governments without sacrificing public safety.
“I’ve heard from a couple folks, ‘Well, maybe you’re a soft-on-crime type. You’re coddling these people,’ ” said Jason Geier, a Topeka Municipal Court judge involved with the city’s alternative court. “Nobody’s getting a free pass. There are punitive measures taken against them. At the same time, in conjunction with that, they’re getting the assistance they need.”
Mental health courts in Kansas have arisen in an organic manner by drawing upon local community priorities. Federal grants often played a key role in launching these courts across the country, but there is no statewide initiative in Kansas. Other states, including Oklahoma, have aggressively adopted the concept to deal with defendants in psychological distress.
The advent of drug, veteran, domestic violence, truancy and mental health dockets in Kansas led to a judicial commission’s call in 2013 for establishment of guidelines to promote consistency.
Specialty courts can help defendants in a compromised mental state navigate a complex legal system, said Gladys Williams, a therapist with COMCARE of Sedgwick County and an integral part of the city’s mental health court.
“It can be an overwhelming process,” she said. “We have to be mindful that these things can be so familiar to us. We use our jargon. When you have a mental illness and don’t know where to begin … it is definitely not the easiest.”
Kansas municipal and district court officers involved with alternative courts are versed in obstacles to reordering a justice system that has evolved across the nation into a de facto dumping ground for people with major mental health problems.
Rick Cagan, executive director of the Kansas chapter of the National Alliance for Mental Illness, said closure of state mental hospitals in Kansas, including Topeka State Hospital in 1997, wasn’t followed with commensurate investment into community mental health service centers. The safety net in Kansas was stripped thousands of psychiatric hospital beds available to the mentally ill . Over time, corrections facilities became a common destination for people afflicted by mental illness.
“We’re still institutionalizing people. It’s just a different system,” Cagan said. “The idea is to not take people to jail in the first place. It’s to get them into a treatment environment.”
The result: People with mental illness are disproportionately represented behind barbed wire and steel doors of jails and prisons.
“I strongly believe people can recover from mental illness,” said John Boutwell, who lives in Hutchinson. A couple years after he was diagnosed with a mental illness in 1994, he was charged with kidnapping after taking what he thought was a “joyride.” He spent 41 months in federal prison.
Incarceration isn’t the answer for people trapped by an illness that takes over the mind, he said.
“It took a lot of courage to admit there is something wrong with my brain,” said Boutwell, an advocate of courts and other public services designed specifically for the mentally ill. “I want to be heard. I want to be part of the solution. We’re too quiet.”
Thirty-eight percent of inmates in Kansas Department of Corrections prisons during 2014 had a mental disorder — an increase of 126 percent since 2006.
Johnson County Sheriff Frank Denning said about 20 percent of inmates jailed in the state’s most populous county were mentally unstable. Johnson County has a diversion program for cases involving mental illness, but the jail continues to serve a robust population of those with mental illness.
“I have been running the largest mental health hospital in the state of Kansas,” he said.
Leawood resident Joy Branum said her adult son, Jonathan, knows well the inside of Denning’s jail. She said a troubling irony of the high-security facility was that her son would likely fall through the cracks.
“I’d rather have my son in an animal shelter. He would get help,” Branum said. “I was given the impression that in the jail system, he could get help. To me, he’s falling further into the abyss.”
She said he was convicted of a felony during a trial that didn’t touch on his mental state. She’s convinced her son, a military veteran and college graduate, has an undiagnosed mental illness. To add complexity to crisis, she said Jonathan declined treatment.
There is little hope of compelling her 30-year-old son to accept medication or therapy. She said prosecutors made clear Jonathan needed to take responsibility for his criminal conduct.
During a jail visit, Branum reminded her son of his goodness and intelligence. She told him that she loved him. She asked him the question of why.
“Why are you walking down this road? Next thing I know, he took that phone and bashed his face in.”
Intervention skeptics
Opposition to mental health courts exists among politicians uneasy about the investment required to implement a new branch of the judiciary and anxious that constituents might interpret an affirmative vote as evidence of being wishy-washy on crime.
Outside the political system, there is lack of appreciation for the number of people in Kansas struggling with mental illness.
“There are a lot of folks that are living with mental illness,” said Kathleen Lynch, a district court judge in Wyandotte County and a leader in formation of alternative court models.
Concerns also have been expressed about mental health courts perverting the justice system when a person’s best chance of obtaining critical health services resulted from getting arrested. Detractors argue mental health courts often expand an individual’s sanction to include a treatment regimen lasting longer than a sentence for the original crime.
Others question why a mentally ill person with mental illness who refuses to consume prescription medications as part of a court-monitored program could be sanctioned for that decision.
“Any kind of coerced procedure that involves administering drugs … amounts to a kind of psychosurgery,” said David Oaks, director of MindFreedom International, an organization that some associate with Scientology.
“The length of time they are denied liberty ought not to be affected by their decision to take prescribed psychiatric drugs,” he said.
Some judges remain uncomfortable taking on the role of a social worker at the intersection of a problem straddling the worlds of criminal law and mental health.
Instruction in law schools, including Washburn University and the University of Kansas, doesn’t place emphasis on introducing students to the mental health landscape they’re likely to encounter if practicing in the justice system.
Topeka’s plunge
Judge Lloyd Swartz, wearing a dark robe and displaying a warm demeanor, welcomed Terry — first names only for privacy reasons — to a session of the Alternative Sentencing Court. It was launched in January 2015 by Topeka Municipal Court with a $91,000 U.S. Department of Justice grant and $25,000 from the Kansas Health Foundation to provide treatment, rather than jail time, for those charged with misdemeanor offenses and diagnosed with a mental illness or in the clutches of alcohol or drug addiction.
In a large room, but sitting near mental health professionals, court officers and others, Terry explained how he took a walk in Gage Park recently when he felt tension rising in his head. Terry’s prior criminal offense was battery, but his challenges go deeper than a single episode.
He asked the judge if it would be reasonable to personally apologize to the victim.
“Send a letter of apology,” Swartz advised.
Brandon, proud of his new pair of glasses, was warned by Swartz not to get cute during an upcoming health assessment.
“When you try to play games with them or try to outsmart them, you may be hurting yourself,” the judge said.
Andrew said he landed a job and reported attending his first Alcoholics Anonymous meeting.
Michael told the judge he was in crisis over the weekend. “I’m still not doing well,” he said.
The judge praised his decision to visit a crisis center, urged him to attend more group sessions, handed him a few bus passes and promised to have a Topeka police officer check on his welfare.
It was a relatively uneventful Wednesday in Topeka’s special court, a voluntary opportunity for people to maintain freedom while receiving treatment for mental illness and associated maladies. All in this program were found guilty of misdemeanor crimes, sentenced and agreed to take part in the yearlong program process to avoid jail. They were referred by police officers, jail officials, judges or Valeo Behavioral Health Care, an agency that works with participants.
“Everybody we see has a component of mental illness,” said Swartz, who is clear about his mission. “Find people who are not able to connect with the resources necessary to stay out of trouble. It makes their lives better. It makes the city of Topeka a better place to live.”
In the program’s inaugural year, there were 29 participants. Six graduated, including the first, Paula. There were inevitable relapses, but a measure of success could be found in someone who stayed out of jail for six months after compiling a record of weekly multiple arrests. A majority of those eligible choose to sit in jail.
In October, Kansas Attorney General Derek Schmidt directed $50,000 in funding to the Topeka Alternative Sentencing Court.
“Providing the best public safety services and crime prevention requires a dedicated staff of local officials,” Schmidt said.
Mike Kagay, a Republican unopposed in the November election for district attorney in Shawnee County, said sufficient demand existed to start a track in Shawnee County District Court for cases tied to mental illness. He will take office in January and assume a platform to advocate that view.
“We need to work with these folks and give them some structure — give them an opportunity to succeed, not just incarcerate them. They are mentally ill and they can’t necessarily control all their actions,” he said.
A county strategy
After three years of study, the Douglas County Commission voted in August to allocate more than $440,000 for launch of a mental health court in January 2017. The county’s blueprint for reform doesn’t stop there.
A land swap with the Lawrence school district brought into the county’s possession land for construction of a proposed mental health intervention center. The next piece of the puzzle would be renovation of part of the county jail built in 1999 to better care for people in throes of a mental health episode.
“We have a big vision,” said Craig Weinaug, the Douglas County administrator. “A typical jail cell is the worst place to put someone who is seriously mentally ill.”
A consultant’s report evaluated status of the jail and potential of a mental health court. That analysis showed existing programs designed to reduce recidivism were addressing inmates interested in changing their lives, which meant those still incarcerated were increasingly violent and more likely to have an untreated mental health disorder.
Data on Douglas County inmates booked in April, July and October 2014 and in January 2015 showed 18 percent had a mental, behavior or emotional disorder resulting in functional impairment of major life activities. These mentally ill inmates stayed in jail an average of four days longer than those without a diagnosed disorder: 13.9 days versus 9.7 days.
Eighty percent of the mentally ill people with mental illness booked into Douglas County’s jail were not charged with a violent offense, but all had previously received mental health treatment, and 70 percent had been patients at a psychiatric hospital.
The proposed mental health court wouldn’t serve the entire range of people incarcerated at the jail. An estimated 11 percent of men and 12 percent of women booked by the county would meet a five-point criteria for participation in a mental health court.
County Commissioner Nancy Thellman said loss of state aid for Bert Nash Community Mental Health Center in Lawrence made clear the need for a new approach to the problem. She favors a one-step-at-a-time approach process that begins with a mental health court financed with existing county resources before turning to voters for approval of funding for the crisis center and jail expansion.
“Hopefully, there will be a number of instances where this will be a viable and improved alternative to incarceration,” said County Commissioner Jim Flory.
KCK’s wellness court
The informality of court sessions led by Lynch, the Wyandotte County District Court judge, was never intended to minimize seriousness of a docket comprising people who might require court-ordered mental health treatment.
The idea of ditching the black robe and tradition of compelling all to rise when the judge stepped into the courtroom was to make the environment more comfortable for those with their independence hanging in the balance.
Lynch said she owed that intimidation-reducing step to a woman who experienced psychotic symptoms triggered by the sight of a cloaked judge behind a deep bench.
“I was raised by folks who said, ‘If you see a need, you need to try to solve the problem,’ ” Lynch said. “We redid things in the courtroom. We had a big, open room. It was not very good. The patients couldn’t speak to their lawyers confidentially. We kind of gave them cubicles.”
Lynch handles the district court’s “care and treatment docket,” which requires a judge’s decision on whether individuals are a danger to themselves or others. Judges can decide to mandate outpatient treatment or order a trip to Osawatomie State Hospital in Miami County.
She prefers to call it a “wellness docket,” but the term hasn’t caught on beyond the downtown Kansas City courthouse.
“We try to find, for lack of a better word, that sweet spot. Where do we need to be?” she said.
Lynch also is among advocates of a proposed state law allowing placement of a 72-hour involuntary hold on people in meltdown. Under the proposal, local or regional crisis centers could have three days to stabilize a person against his or her will and without court order.
The idea failed to gain traction in the Kansas Legislature due to the potential cost and concern about infringement of civil rights.
Lynch said forcing a person into Rainbow Mental Health Facility, a 22-bed crisis-intervention unit in Kansas City, could put them in better condition to participate in care decisions. She said alternatives to the 72-hour hold were an emergency room, jail or worse.
Charlie Ross and Annie Neri, both of Lawrence, know what it’s like to be treated in a state mental hospital.
“I never want to go back to the hospital. It was a horrible experience,” said Neri, who has worked as a peer counselor for people with mental illness.
“I went in, unable to speak. Delirious,” Ross said. “I was terrified to the point I couldn’t speak.”
Both went voluntarily to a state hospital but believe community-based networks of crisis facilities, close to therapists and family, would serve Kansans better than unfamiliar hospitals or jails. Loss of state and federal funding for mental health services during the past decade has led to backlogs at mental health centers that force vulnerable people to deal with crisis alone, they said.
Neri said more Kansans ought to try walking in shoes of people with mental illness and to be more willing to invest tax dollars in lives of those struggling to attain normalcy. A new perspective would build support for a nimble judiciary interlocked with a safety net for the mentally ill, she said.
In doing so, she referenced then-U.S. Sen. Sam Brownback’s attempt to absorb the plight of inmates during a 2006 overnight stay at Louisiana State Penitentiary in Angola. She also pointed to the 2010 decision by voters to commit $18 million to renovating Lawrence Public Library.
“There is a funding issue,” Neri said. “We like libraries. We built one. Do we like mental health?”
