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Prisons are housing mental health patients who've committed no crimes

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Andrew and Doug Butler

Andrew Butler and his father, Doug Butler. Photo by Nancy West,

Making a ‘terrible choice’

In 2016, the Colorado Hospital Association and the County Sheriffs of Colorado brought the 30-year practice of mental health holds—most often for people who were suicidal like Hill—to the attention of the state legislature. People having a mental health crisis in Colorado could be put on an “M-1 hold,” to have evaluators determine whether the individual’s behavior was so risky that they needed to be hospitalized against their will.

But without enough psychiatric hospital beds in the plains of Colo- rado, law enforcement could bring a person on an M-1 hold to a local jail for 24 hours while the sheriff’s officers called around the state for an available bed, even if the individual had not been charged with a crime.

“The sheriffs often had to make a terrible choice if the person was suicidal and in jail,” Mental Health Colorado’s Keller says. “When the 24 hours were up, they had to decide: Do we hang on to the person, breaking the law, or do we let that person go, knowing they will complete the suicide?”

“The response from a criminal justice point of view is logical: ‘We know they are safer in our facility than leaving without treatment or a place to go.’ But that’s such a twisted view,” the TAC’s Berger says.

Chris Johnson, executive director of the County Sheriffs of Colorado, says the state is at least 2,500 beds short of what is needed for mental health patients. “This means a lot of people were overstaying the legal hold,” Johnson says. “This is a Fourth Amendment violation issue. And the sheriffs want to obey the Constitution of the United States.”

His group lobbied legislators, and in 2016, Senate Bill 16-169, which would have extended the time a person in a mental health crisis could be held from 24 to 48 hours, passed both houses.

After lobbying by advocacy organizations such as Colorado Mental Wellness Network, Colorado’s Democratic Gov. John Hickenlooper vetoed the bill. “We agree that appropriate mental health facilities are not always readily available to treat persons having a mental health crisis. While well-intentioned, we are concerned that SB 16-169 does not provide adequate due process for individuals,” Hickenlooper said in a statement.

“When the Colorado legislature made that choice to put forth that bill and the governor vetoed it, that shined a bright light on this problem. It hit the media and made it so clear to other states doing this practice,” the TAC’s Berger says.

Task force negotiations

Along with the veto, Gov. Hickenlooper directed the Colorado Department of Human Services to create a mediated task force that included stakeholders ranging from medical professionals to law enforcement to public defenders to people who have lived with mental health issues.

Colorado had already intensified focus on behavioral health after the 2012 Aurora theater shooting, where gunman James Holmes killed 12 people and injured at least 70. At that time, the governor signed legislation creating a health crisis response system that included 24/7 walk-in crisis centers around the state that would treat people regardless of their ability to pay and allocated funding for a hotline and mobile vans.

Despite the task force’s directive from the governor to “recommend public policy changes to ensure proper mental health treatment and protection of federal and state constitutional rights for Coloradans experiencing mental health crises,” the negotiations were the “hardest negotiations ever,” Mental Health Colorado’s Keller says.

The most difficult part, says Doug Wilson, a Colorado state public defender on the task force, is that there is no data-sharing between the state’s different county jails. “In fact, there is no data on how many people had been held [on mental health holds]. The sheriffs said, ‘We don’t keep the data because they weren’t charged, and they weren’t booked. There was no system for that.’ ”

After several months of negotia- tions to carefully craft the language of the recommendations, the governor signed Senate Bill 17-207, allocating $7 million collected from the state’s marijuana tax for mental health support.

The resulting bill mandated that all walk-in centers throughout the state are appropriately designated, adequately prepared, and properly staffed to accept an individual in need of an emergency 72-hour mental health hold. In addition, mobile response units are required to be available within 2 hours, either face to face or using telehealth operations for mobile crisis evaluations. And importantly, the bill demands that at no time and for no reason should a person on an emergency mental health hold be detained or housed in a jail or lockup.

While it is too early to tell how these mandates will play out, Colorado’s moves have the attention of advocates. “Colorado is now a good place to watch,” says the TAC’s Berger. “These are big, important issues to tackle if we’re going to have systemic change. Let’s see how it shakes out.”

Push to go home

As winter turned into spring, Andrew’s friends and neighbors continued to protest his placement in the SPU. On May 24, the day of Andrew’s hearing in federal court on his habeas corpus petition to be transferred to a psychiatric hospital, friends and advocates walked 2 miles in protest from the prison to the courthouse. He was not granted a release, but the protest earned media attention.

Then, in June, five months after his temporary hold in the prison mental health unit began, Andrew was returned to New Hampshire Hospital. Two weeks later, Andrew was released to his father’s care on conditional release, mandated by law to take the psychiatric medications the state doctors prescribed.

“Any time they want to, they could latch onto him and throw him back in prison,” Doug Butler says. “They would not have to go to court. He’d be better off and have more rights if he was a criminal.”

Andrew, who has been living at his father’s house, is improving, his dad says. His friends and neighbors are supportive, and family friends have taken him on a vacation to the mountains.

Shortly after Andrew returned home, Doug Butler said he hoped his son would go back to school or find a job, or perhaps do both. Despite the steps forward, Andrew faces a long journey of healing. “He will have a lot of PTSD to deal with the rest of his life from all of his time in the SPU,” his dad says.


This article was published in the January/February 2019 issue of the ABA Journal under the headline: "Breakdown: Prisons, jails house mental health patients who've committed no crimes"

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