An Alternative Approach: Treating the Incompetent to Stand Trial

An Alternative Approach: Treating the Incompetent to Stand Trial M A C TAy l o r • le g i s lA Ti v e A nAl y sT • J A n uA r y 3, 2012 An LAO RepOR t 2 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t ExEcuTIvE SummAry Background. Under state and federal law, all individuals who face criminal charges must be mentally competent to help in their defense. By definition, an individual who is incompetent to stand trial (IST) lacks the mental competency required to participate in legal proceedings. In California, there is a monthly statewide waitlist that averages between 200 and 300 individuals alleged to have committed felonies whom the courts have deemed mentally incompetent to stand trial. These individuals are waiting for a bed to become available in a state hospital so they can undergo evalu- ation and receive treatment to restore them to competency. Once at a state hospital, the state spends significant resources to provide treatment for this population—approximately $170 million annually. Waitlist Received Courts Attention. Traditionally, these individuals have waited in county jails before being transferred to state hospitals. A recent state court case has highlighted the legal issues in the long wait times experienced by ISTs and resulted in a recommendation by the courts that IST commitments be transferred to a state hospital within 35 days. However, many ISTs currently wait in jails longer than 35 days. The lack of physical space to house IST commitments combined with the difficulty in staffing key personnel in state hospitals has maintained a steady backlog of IST commit- ments in county jails. If the state were required to eliminate its waitlist in its entirety, it could face costs of $20 million annually. Pilot Program Could Reduce Waitlist. The Department of Mental Health (DMH) received an appropriation from the Legislature in the amount of $4.3 million in 2007-08 to begin pilot programs to examine alternative approaches to addressing the IST waitlist problem. After several years of delays, the department, working with a private vendor, established a pilot program in San Bernardino County to treat ISTs in the county jail instead of at a state hospital. The nine-month results are promising in regard to the ability of the program to reduce the IST waitlist. Specifically, we find the pilot program provides less incentive for potential malingerers, has greater flexibility to hold down costs, and is able to restore ISTs to competency in a shorter amount of time than the state hospitals. Additionally, the number of referrals from courts into IST treatment has decreased, possibly because treatment in a county jail is less appealing to defendants who may use a claim of incompetency as a defense strategy to keep out of prison. Pilot Program Brings Public Sector Savings. We find expansion of the pilot not only has the potential to reduce the waitlist, but also to significantly decrease costs to the public sector. We estimate the San Bernardino County pilot has resulted in approximately $1.4 million in public sector savings after a nine-month period—providing treatment at a cost of about $70,000 less per IST commitment. Expand Pilot Program. If the Legislature wishes to reduce the waitlist, we recommend that it do so first by expanding the pilot into counties with historically long waitlists. Those counties would be the ones that ordinarily send their IST commitments to Patton and Atascadero state hospitals. Our analysis indicates that such an approach would result in significant savings for the state and counties in the costs of providing services to IST commitments. Furthermore, it would reduce state and county exposure to potential future court involvement from delays in the treatment of ISTs held in county jail longer than recommended by the courts. www.lao.ca.gov Legislative Analyst’s Office 3 An LAO RepOR t 4 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t InTroducTIon Under state and federal law, all individuals who state has had a waiting list for entry into the state face criminal charges must be mentally competent hospitals by ISTs for some time. For various reasons to help in their defense. By definition, an individual discussed in this report, our analysis finds that it is who is IST lacks the mental capacity required to in the best interest of the state to attempt to reduce participate in legal proceedings. While a person its waitlist population in order to provide prompt may be IST because of a mental illness or for other treatment for these commitments, reduce county reasons (such as a developmental disability), this costs, and avoid potentially significant future state report focuses on the former. For individuals costs. who are accused of felonies and who are seriously In this report we (1) provide an overview of mentally ill, California generally provides mental the state process for handling IST commitments, health treatment in state hospitals to restore them to (2) assess the cause of the IST waitlist problem, competency. At the time this report was prepared, (3) examine an ongoing pilot project in San more than 1,000 persons, about 20 percent of the Bernardino County to expedite the restoration of ISTs state hospital population, were IST commitments. to competency, and (4) present our recommendations Due to a myriad of issues in state hospitals, the for steps to address the waitlist problem. BAckground Below, we describe how persons accused of person shall be deprived of life, liberty, or property misdemeanors and felonies are deemed to be ISTs. without due process of the law. In the Jackson case, We also describe how felony IST commitments are the court ruled that “a person charged by a State restored to competency. with a criminal offense who is committed solely U.S. Supreme Court Requires Competency. on account of his incapacity to proceed to trial The 1960 U.S. Supreme Court decision Dusky v. cannot be held for more than the reasonable period United States found that a defendant must have of time necessary to determine whether there is “sufficient present ability to consult with his lawyer a substantial probability that he will attain that with a reasonable degree of rational understanding” capacity in the foreseeable future.” and “a rational as well as factual understanding How Is Incompetency Determined? Under of the proceedings against him.” In short, being state law, when a defendant’s mental competency competent means the defendant both understands to stand trial is in doubt, the courts must follow a the charges against him and has sufficient mental specific competency determination process before ability to help in his or her own defense. The 1972 the defendant can be brought to trial. Figure 1 (see U.S. Supreme Court decision Jackson v. Indiana next page) summarizes this process. found the state violated a criminal defendant’s Typically, the process is initiated by defense federal constitutional right to due process of attorneys reporting their concerns about their law by involuntarily committing an individual clients’ mental capacity to the judge. The judge for an indefinite amount of time because of his then orders the defendant to undergo an initial incompetency to stand trial. The U.S. Constitution evaluation by court-appointed mental health (as well as the State Constitution) states that no experts, during which time court proceedings www.lao.ca.gov Legislative Analyst’s Office 5 An LAO RepOR t are suspended. The court assesses the evaluation, felonies are sometimes treated in the community. which guides it in deciding whether to hold a Those defendants charged with violent and/or competency hearing. If a hearing is ordered, one sexually violent felony crimes are committed to or two additional experts are appointed by the state hospitals to have competency restored. If court to assess the defendant’s competency and there is a bed available in a state hospital for felony the defendant has the opportunity to challenge defendants, they are transferred from the jail to their conclusions during this hearing. Generally, the state hospital. However, if there is not a bed a defendant charged with a violent felony and available, then they are usually put on a statewide found incompetent to stand trial will be ordered to waitlist and held in a county jail until a bed undergo treatment at a state hospital to be restored becomes available. to competency. Court Recommendation Increases Pressure Judges typically order a community mental for Speedy Transfer From Jail to State Hospitals. health program director or designee to determine California law requires that state hospitals admit, the most appropriate treatment facility for IST examine, and report to the court on the likelihood defendants. The program director is then required of competency restoration within 90 days of the to submit a report with findings to the court within defendant’s commitment in order to avoid violating 15 days. Defendants charged with misdemeanors the defendant’s constitutional right to due process. are usually provided treatment in a local mental In a case known as Freddy Mille v. Los Angeles health facility, provided treatment in an outpatient County, the Second District Court of Appeal ruled setting, or released with the charges dismissed. in 2010 that a person determined to be IST must be Defendants charged with nonviolent, non-sexual transferred to a state hospital within a “reasonable amount of time” in order to comply with this 90-day statutory Figure 1 requirement. The court IST Commitment Process specifically held that the provision of medications alone to mentally ill Defendant returns to court. Defendant’s competency Defendant is given an has been questioned by evaluation and, if If substantial evidence is defendants within the presented on defendant’s attorney(s). needed, treatment. incompetency, then a confines of a jail—a competency hearing is scheduled. common practice—did not legally constitute Generally, those accused of misdemeanors are the kind of treatment handled in an outpatient setting or released. efforts that are required If the defendant is found Competency hearing held incompetent, community which includes one or two to restore someone to mental health program psychiatrists who testify on director is ordered by a their evaluation of the mental competency. court to evaluate the best defendant. Generally, those accused place to restore of felonies wait in county competency. Thus, the court held, jail to be transferred to a state hospital to receive the transfer of such IST treatment. defendants in a timely fashion from jail to a IST = Incompetent to stand trial. state hospital (or perhaps 6 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t to a community treatment center) is legally required. Coalinga serve ISTs. State hospitals treat patients This legal precedent is binding across the state. under several other commitment classifications, As the result of a series of rulings, the including not guilty by reason of insanity and courts have recommended that the transfer of mentally disordered offenders. Additionally, two IST defendants from jail to a state hospital be psychiatric programs located on the grounds completed in no more than 30 to 35 days. (This of state prisons at Vacaville and Salinas Valley would still leave 55 to 60 days for the examination have a combined inmate patient population of and assessment of competency.) Thus, the Mille less than 700, however, these programs typically court case increased the pressure on state hospitals have served only a handful of ISTs. All of these to admit IST commitments promptly and report programs are administered by the state DMH. The back to the courts within the required 90-day process for determining which commitments go period. to which hospital is complicated. However, ISTs The State Hospital Role in Restoring from certain counties tend to be transferred to Competency. The state’s five state hospitals— certain state hospitals. For example, Patton State Atascadero, Coalinga, Metropolitan, Napa, and Hospital typically accepts admissions from Kern, Patton—provide treatment to a combined patient Los Angeles, Merced, Orange, Riverside, Santa population of over 5,000 (see the nearby box for Barbara, San Bernardino, San Diego, Stanislaus, more information on these facilities). All but and Ventura counties. california’s State Hospital System California is home to five state hospitals and two in-prison psychiatric programs which specialize in treating the mentally ill. Atascadero State Hospital is located in the Central Coast and houses and all-male maximum security forensic patient population. As of July 2011, it housed over 1,000 patients. Coalinga State Hospital is California’s newest state hospital. Located in the City of Coalinga, it houses over 700 patients, most of whom are Sexually Violent Predators (SVPs). Coalinga has been reserved for this specific SVP population and does not treat individuals who are incompetent to stand trial. Metropolitan State Hospital houses over 600 patients and is located in the city of Norwalk. Metropolitan does not accept individuals who have a history of escape from a detention center, a charge or conviction of a sex crime, or one convicted of murder. Napa State Hospital, located in the city of Napa, is classified as a low- to moderate-security level state hospital. It housed over 1,000 patients as of July 2011. Patton State Hospital treats approximately 1,500 patients and is primarily a forensic hospital. Located in San Bernardino County, Patton has seen its forensic population grow quickly in the past few years. Vacaville and Salinas Valley Psychiatric Programs are not hospitals, but psychiatric programs designated to treat inmates with mental health issues. The Vacaville and Salinas Valley Psychiatric Programs are located inside prisons. Both programs treat less than 700 inmate-patients combined. www.lao.ca.gov Legislative Analyst’s Office 7 An LAO RepOR t Felony IST commitments may suffer from one Institutionalized Persons Act, the state was or more mental illnesses, including schizophrenia required to increase staff-to-patient ratios and bipolar disorder. Treatment is provided and expand the services offered to patients through a combination of medications, therapeutic in its facilities. classes (like art), and counseling. Additionally, • Increased concerns about security, specialized units within the state hospitals teach stemming mainly from acts of violence classes on basic court procedures, giving IST committed by patients against staff and commitments the capability of identifying the other patients, have also increased state judge, defense attorneys, and prosecutors. This hospital operating and capital outlay allows defendants to understand the charges costs. These increased security measures against them and assist in their own defense once include the installation of new personal they have been restored to competency and proceed alarm systems and the deployment of more to trial. security staff on the grounds. California Dedicates Significant Resources to Competency Restoration. California dedicates How Long Does It Take to Restore significant resources to the competency restoration Competency? Once at a state hospital, it takes process. With an average daily population of 1,000 an average of six to seven months to restore ISTs and a cost of approximately $450 per day per a defendant to competency. Under state law, patient, the state spends approximately $170 million defendants charged with a felony and committed annually on this category of patients. (This estimate to state hospitals for competency treatment are does not include any facilities-related costs.) In not permitted to spend longer than three years recent years, several factors have driven up these or the maximum prison term the court could costs for ISTs and for other categories of patients. have sentenced the defendant to serve if they were For example: found guilty of the crime, whichever is shorter. Additionally, time spent at state hospitals can be • As a result of enforcement actions brought applied to the sentence of the individual if they are by the U.S. Department of Justice under found guilty of a crime after their competency has the authority of the Civil Rights for been restored. LImITEd STATE HoSpITAL BEdS HAvE rESuLTEd In A SIgnIfIcAnT IST WAITLIST The state faces a long wait list due to a shortage from a county jail to a state hospital for evaluation. of staff and/or psychiatric beds at the hospitals. (This average excludes IST patients headed for Therefore, county jails have had to hold IST Metropolitan State Hospital, for which data are commitments in county jails longer than the court- not available.) Figure 2 shows the average county recommended 35-day time period. According to jail wait times for IST commitments by facility. data collected by DMH, during 2009-10, defendants Napa is, on average, accepting patients within the waited an average of 68 days, almost double the time limits recommended by the courts. (One 35 days recommended by the courts, for transfer possible reason for the low average wait time 8 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t for Napa is the relatively lower number of ISTs Figure 2 originating from Northern California counties, Average IST Wait Time which feed into Napa.) The data indicate, however, Varies Significantly that almost half of the transfers to Napa are still 2009-10 occurring after 35 days have lapsed. Moreover, Average Number of Days Until IST commitments headed both to Atascadero and State Hospitala Transfer to State Hospital Patton are significantly exceeding 35 days. In the Atascadero 53 case of Patton, it is taking an average of 87 days for Napa 33 ISTs to be transferred from their county jail. Some Patton 87 a transfers are taking as long as 162 days after the Data unavailable for Metropolitan State Hospital. IST = Incompetent to stand trial. recommended 35-day limit by the courts. A total of 1,261 persons were placed on an the figure, delays in IST admissions to Atascadero IST waitlist at some point during 2009-10. Of this and Napa resulted in lesser, but still significant, group, 923 commitments stayed on the waitlist costs to counties. longer than the recommended 35-day period. Since Why State Hospital Beds for IST 2007, the IST waitlist has fluctuated between 200 Commitments Are Limited. The ability of the and 300 persons at any given time. At the time this state hospital system to accept new commitments report was prepared, there were 264 persons on the for ISTs (as well as for certain other categories of IST waitlist. patients) is constrained by the physical capacity Costs to Counties From Serving ISTs in County of these facilities and the state’s ability to hire Jails. Since IST commitments wait in county sufficient staff. The DMH has struggled with jail before being transferred to a state hospital, staffing key personnel classifications, with some counties pay the cost of their care during that state hospitals reporting vacancy rates as high as time. Statewide, jails report spending $92 per day 40 percent in occupations like staff psychiatrists. on average for all their inmates, with costs for IST The state has aggressively tried to recruit and retain patients generally expected to be higher because key personnel but has faced challenges in filling of their medical needs (average daily costs vary positions. The state has used overtime by hospital from county to county). As shown in Figure 3, we staff and private contractors to help fill some of the estimate that counties are spending a combined annual total of at least $3.5 million to hold IST Figure 3 commitments in their jails beyond the 35-day IST Waiting Lists period while they wait for a state hospital bed to Prove Costly to Counties become available. (The actual cost is probably 2009-10 (In Thousands) more than we have estimated because it does not Cost to Counties include IST commitments held at Metropolitan and Due to That because the $92 county jail daily rate we assume State Hospitala Hospital’s Waitlist likely understates the costs to counties for an IST Atascadero $648 Napa 345 population that typically has high medical needs.) Patton 2,554 Patton, which had the longest wait times for IST Total $3,545 transfers from the county jails it serves, accounted a Data unavailable for Metropolitan State Hospital. for more than 70 percent of the costs. As shown in IST = Incompetent to stand trial. www.lao.ca.gov Legislative Analyst’s Office 9 An LAO RepOR t staffing gap. However, the amount of overtime that having priority only over persons who receive staff members can work is limited and the use of civil commitments to state hospitals under the contractors has proven to be expensive. Lanterman-Petris-Short Act. In theory, the state has the option of trying As a result of these various constraints, state to curb other types of patient admissions to hospitals have been unable to solve the IST waitlist create space for IST commitments. However, problem. the risk to public safety posed by other patient Potential Fiscal Implications for the State. population groups, and requirements imposed If the state were required by the courts to comply as a result of other federal court cases, limit the immediately with Mille to eliminate the backlog of state’s flexibility in its use of state hospital beds. ISTs solely by expanding staff capacity and filling For example, admissions of mentally ill prison the remaining available beds in the state hospital, inmates to the state hospitals required as a result of it would face ongoing annual costs of about the longstanding Coleman v. Schwarzenegger case $20 million. The Mille case highlights the risk of are generally a higher priority for admission than potential problems that could arise for the state ISTs. The DMH has adopted rules establishing the and counties as a result of the continued waitlist following priority for admissions of penal code for IST admissions to state hospitals. The holding commitments: (1) Sexually Violent Predators, of mentally ill defendants in the jails for a longer (2) Mentally Disordered Offenders, (3) Coleman period than recommended by the courts creates a inmate-patients, (4) Not Guilty by Reason of risk of claims by some defendants that their due Insanity, and (5) ISTs. Thus, ISTs are usually process rights are being violated. the last group to be placed in a state hospital, HoW A SAn BErnArdIno pILoT projEcT HELpEd A counTy AddrESS ITS IST WAITLIST In 2007-08, the Legislature approved a provider with experience in California and other $4.3 million budget request from DMH for states in providing treatment to ISTs and other additional funding for a pilot program to test a types of offenders with mental health problems, more efficient and less costly process to restore in turn established a contractual relationship persons determined to be IST to competency. These with San Bernardino County to implement this monies were intended to provide 40 beds at the pilot at its county jail beginning in January 2011. county level for one year for competency resto- Under these agreements, Liberty provides intensive ration services in lieu of providing this treatment psychiatric treatment, acute stabilization services, in state hospitals. and court-mandated services for IST patients. San After several years of delay, ultimately only Bernardino County jail officials provide security 20 beds were established in San Bernardino and management of the IST population held in the County using about $300,000 of the budgeted jail, as well as food and medication. amount. After conducting a competitive bidding The state pays Liberty $278 per day for these process, DMH entered into a contract with Liberty services—much less than the $450 cost per day of Healthcare Corporation to establish the new a state hospital bed. Using part of these monies, program in that one county. Liberty, a private Liberty, in turn, passes through $68 per day per 10 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t commitment to the county for various food and compares to six to seven months in the housing costs and pays for the medication. Under state hospital system. the terms of its contract with the DMH, Liberty • Treatment Has Been Effective. So far, provides services to ISTs in the jail for a maximum none of the 19 patients brought to compe- of 70 days. At that point, those who have not tency has returned to an incompetent been restored to competency—typically because status once returned to the courts, a sign their mental health issues are more severe—are that the treatment has been effective in transferred to the state hospital system, where their allowing them to successfully assist in their treatment continues. Also, a small portion of those defense. (The DMH reports that less than who cannot be restored to competency by Liberty 5 percent of the IST population it restores are those who speak languages Liberty is not staffed to competency subsequently returns to its to handle. state hospitals.) data on Liberty’s nine-month results • The Number of IST Referrals in the In accordance with the terms of its contract County Has Decreased. After the IST pilot with DMH, Liberty submits monthly progress program began, the number of individuals reports to the DMH outlining the number of determined by judges to be ISTs and patients it treats, the number it transfers to Patton requiring restoration of competency has State Hospital, the length of time that each of its noticeably decreased in San Bernardino IST patients have been in treatment, and specific County. diagnostic patient information. The data collected for the first nine months of the operation of the fiscal Effects of the pilot program program are summarized in Figure 4. Our analysis indicates that the San Bernardino Our analysis indicates that the pilot program County pilot program is resulting in some fiscal has had several important outcomes. benefits both for the county and for the state. • Treatment Starts More Quickly. Under County Impacts. As noted earlier, Liberty is the San Bernardino County approach, passing through $68 per day per IST commitment treatment begins much sooner for felony received under its state contract to San Bernardino ISTs. Treatment starts in the jail almost County to pay for food, clothing, and housing of immediately after an IST determination by a judge. As discussed earlier, treatment of Figure 4 felon ISTs ordinarily does not begin until Initial Outcomes Show Almost Half of after their transfer to a state hospital, which Patients Restored to Competency can often take months. January to September 2011 • Treatment Completed More Quickly. Average Number of Days in Under the pilot program, restoration of Patients Treatment competency is completed relatively quickly Fully restored 19 54 for many ISTs, with an average length of In program 13 N/A treatment for those who have completed Transferred to Patton 10 81 Total Admissions 42 63 the program (so far) of 54 days. This www.lao.ca.gov Legislative Analyst’s Office 11 An LAO RepOR t the defendants held in its jail. In addition, Liberty but were eventually transferred to Patton. If these is paying the costs of their medications that, for individuals subsequently had a shorter stay at the county, had historically averaged $14 per day Patton because of the treatment they received from per IST commitment. (As discussed above, by Liberty before their transfer, the pilot project would relying on generic medications, Liberty is paying result in some additional savings for the state. If lower costs for medications than the county had for their treatment by Liberty did not reduce their ISTs—about $10 per day.) Based on our conversa- subsequent stay at Patton, the pilot program would tions with county officials, San Bernardino County in effect result in some added state costs for this is now saving the full amount of the costs it would group. The DMH does not now collect data that otherwise incur for holding IST defendants in its would enable us to determine how their treatment jail until their eventual transfer to a state hospital. at Liberty is affecting their subsequent stays in the The county is incurring operating costs for food, state hospital system, but our analysis suggests they clothing, and security for IST defendants who are unlikely to greatly change the overall level of remain at the jail to receive competency restoration savings the pilot program is providing for the state. from Liberty, but all of these costs are offset by the Public Sector Savings. The combined savings payments of state monies passed through to them to both the state and the county bring the total by Liberty. public sector savings from the pilot project to Thus far, San Bernardino County estimates approximately $1.4 million for this group—over that it has been able to achieve net savings of more $70,000 in savings being achieved for each IST than $5,000 for each IST commitment Liberty patient directed to Liberty. treats. Based on the first nine months of the Why Is the pilot program program, during which 42 commitments were Achieving These results? under Liberty’s care, San Bernardino County thus estimates that it has saved about $200,000. The Several key factors appear to be behind the annual savings to the county would be higher. programmatic and fiscal benefits that have resulted State Impact. The state has likewise benefitted so far from the pilot program. fiscally because 19 San Bernardino County IST • Less Incentive for Potential Malingering. commitments were treated and released without The shift in IST restoration of competency being placed in a state hospital. We estimate that treatment from state hospitals to a jail the state thus avoided spending about $1.5 million setting may be deterring some offenders for their care in the state hospital system. Instead, from malingering while in treatment. State the state spent close to $300,000 for this group, hospitals regularly assess and attempt to via funding for the Liberty contract, for net state extract malingerers who, after their compe- savings of about $1.2 million. tency has been restored, feign mental Other factors might modestly change the illness to extend their stay and avoid trial net fiscal impact to the state, although they and sentencing to jail or prison. The shift of are hard to calculate at this time. For example, IST competency treatment to a jail setting, there is no way to know at this time what cost where there is less freedom of movement impacts are associated with the group of ten IST and fewer amenities than a state hospital, commitments who received treatment from Liberty may be deterring malingerers. 12 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t • IST Commitments Less Appealing to costs low by allowing the contractor to Defendants. The shift in IST restoration of use clinical resources in a more flexible competency treatment from state hospitals and targeted way than is possible in a state to a jail setting appears to be deterring hospital setting. For example, Liberty defendants from seeking such commit- is able to pay its contract psychiatrists ments. As noted earlier, the number of based on the specific number of hours of defendants in San Bernardino County patient care they provide to IST commit- determined by judges to be ISTs has ments. State hospitals, which are subject declined. One reason for this may be that to standard, federally required staffing defendants are using a claim of incom- requirements and labor agreements, do not petency less often as a defense strategy to have the same degree of flexibility. Liberty’s keep out of prison. This may be because cost to ensure the safety of its personnel are defendants perceive time in jail to be less also lower than for state hospitals because desirable than in a state hospital. its treatment program operates in a jail setting, which already provides a high level • Private Provider Given Greater of security. Additionally, Liberty uniformly Flexibility to Hold Down Costs. The priva- uses generic medications for IST commit- tization of the services for ISTs is keeping ments to hold down its drug costs. LAo rEcommEndATIonS for rEducIng THE IST WAITLIST As noted in this report, the state faces not only result in significantly less public sector significant legal risks because of state court rulings costs to provide this treatment (over $70,000 per in the Mille case. Also, counties are incurring commitment), but also more timely and potentially significant costs for IST commitments being held in more effective services to ISTs. county jails for a longer period than recommended Consider Expanding the Liberty Contract. by the courts. However, the approach the state has If an assessment by DMH based on complete used in the past to reduce the waitlist of ISTs being outcome data demonstrates that Liberty is doing held in county jails—expanding the staffing and a good job of implementing the pilot program, capacity of the state hospital system—would likely its contract could be extended and expanded be expensive and problematic because of ongoing to other counties to help reduce the remaining staffing shortages and other problems. IST waitlist across the state. By extending the If the Legislature concludes that additional existing contract, the state would be able to begin action is needed to reduce the IST waitlist, we expanding immediately with a provider that is recommend the Legislature do so by expanding the already familiar with California’s complex IST San Bernardino County pilot program. Providing commitment and treatment process. Based on our treatment to IST commitments in other county review of state procurement rules, it appears that jails with a private contractor, largely along the DMH would be able to extend the current contract lines of the San Bernardino County model, would for an additional year without having to go through www.lao.ca.gov Legislative Analyst’s Office 13 An LAO RepOR t another bid process. In order to significantly reduce least initially, on the counties feeding IST patients the current IST waitlist, we estimate that the state to Patton and Atascadero. Our analysis indicates would need to establish approximately 50 to 80 that counties such as Los Angeles, Kern, and San additional beds in county jails, perhaps in up to Diego are prime candidates for expansion. Smaller four 20-bed units around the state besides San rural counties are not as good of candidates, in our Bernardino County, dedicated to IST treatment. view, because they tend to have smaller populations Expand First in the Feeder Counties for Patton of ISTs and smaller waitlists. However, we believe and Atascadero. An expansion of IST treatment it may be possible, and advantageous, for small programs in county jails is more likely to succeed or medium-sized counties on a voluntary basis to if the additional sites are in the right locations. We send their ISTs to another county offering such a recommend that any such expansion be focused, at program. concLuSIon As we have discussed in this report, the state waitlist population. Replicating the success that San is subject to a legal risk if long wait times for Bernardino County has had in restoring defendants transfers to state hospitals by the IST commitment to competency more quickly and less expensively population continue. To the extent the state has could resolve the waitlist issue, ensure due process, the resources, we recommend expanding the pilot and thereby preempt such court action. program to those counties with a sufficient IST 14 Legislative Analyst’s Office www.lao.ca.gov An LAO RepOR t www.lao.ca.gov Legislative Analyst’s Office 15 An LAO RepOR t LAo publications This report was prepared by lishaun Francis, and reviewed by shawn Martin. The legislative Analyst’s office (lAo) is a nonpartisan office which provides fiscal and policy information and advice to the legislature. To request publications call (916) 445-4656. This report and others, as well as an email subscription service, are available on the lAo’s website at www.lao.ca.gov. The lAo is located at 925 l street, suite 1000, sacramento, CA 95814. 16 Legislative Analyst’s Office www.lao.ca.gov