A ‘PRESSING NEED’ SUNDAY EDITION | Kentucky grapples to close dangerous gap in mental health law

By: Jason Riley, Chad Mills and Marcus Green

September 22, 2019

Story originally appeared in WDRB.

FRANKFORT, Ky. (WDRB) – It was an “Oh, my God!” moment for Kentucky state Sen. Danny Carroll. He said the revolving door of violent criminal cases involving 30-year-old Cane Madden is “the most blatant example” of a failure in the justice system he has ever seen.

Time after time, judges have dismissed Madden’s cases in Louisville and released him back into society under a state law that prosecutors say is their worst nightmare: Someone who is incompetent to stand trial but can’t be hospitalized against his will.

WDRB News highlighted the law’s shortcomings last month, detailing Madden’s repeated examples of violent attacks and threats, including an alleged rape of an 8-year-old girl this summer. Prosecutors urged lawmakers to read the story during this month’s meeting of the interim judiciary committee.

“The system is not working,” Carroll told the committee.

Kentucky’s behavioral health commissioner acknowledges there is a “pressing need” to fix gaps in state law exposed by the Madden case. So do legislators, defense attorneys, prosecutors, judges and mental health experts.

But officials say making those changes is more complicated than simply amending Kentucky law. As it stands, people can’t be held against their will if doctors decide they won’t benefit from treatment, even if they are mentally ill and considered dangerous.

Among many issues the 2020 General Assembly will face as it scrutinizes the law is how to balance public safety with civil liberties.

“It’s not fair to keep someone (hospitalized) forever when they have not been convicted of anything,” said Michael Bien, a San Francisco lawyer who won a lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses.

“A person could be punished more severely than someone who is convicted of the crime, which can be very dangerous. You want there to be a way of getting someone into a safe and appropriate place.”

Unlike most states, Kentucky does not currently have a facility dedicated to people who are dangerous and mentally ill, said Wendy Morris, Commissioner of the Kentucky Department for Behavioral Health, Development and Intellectual Disabilities.

She said most mentally ill people are not a danger and cases like Madden’s are infrequent. But while she could not provide exact numbers, Morris said there are enough that long-term housing is a problem.

“When you talk about trying to put a system in place to keep someone in a facility for years, those numbers add up quickly,” she said.

In addition, besides space issues, Morris said the state does not have the proper staffing to protect the public and other patients from someone considered dangerous, nor the ability to care for that person for years.

“It’s not something our current system can just absorb,” she said.

Other states, Morris said she has learned, also make more of an effort to restore competency so a person can stand trial, including keeping them hospitalized for up to the maximum amount of time they would have served in prison had they been convicted of whatever charges they faced.

This is what happens in Indiana, said Harrison County Prosecutor Otto Schalk.

And even after a person has served out this potential maximum sentence in the underlying crime, he may not be released if he’s still not deemed incompetent. Instead, the state hospital can hold a civil commitment proceeding asking for more time, Schalk said.

Typically however, Schalk said after about six months in a hospital and undergoing treatment, most defendants are found competent to stand trial.

“They are far better served getting treatment and then going through the (justice) system than left being unaccounted for,” he said.

Kentucky’s approach is different.

If there are concerns about a criminal defendant’s mental health, a judge can order a competency evaluation for up to 30 days at the Kentucky Correctional Psychiatric Center in La Grange.

At that point, if a judge finds that the defendant is not competent to stand trial, he or she can be held for another 60 days in an attempt to restore competency.

After that, however, if a judge determines that the defendant isn’t competent to stand trial, prosecutors can ask for another hospital stay. And this is where Kentucky’s law falls short, its critics say.

There are four separate criteria determining whether a patient can be involuntarily hospitalized:

•   The person must be mentally ill

•   The person must be deemed a danger to himself or others

•   The person is expected to benefit from treatment

•   Hospitalization is the least restrictive treatment available

If any one of those criteria is not met, at any time during treatment, the hospital is required by law to release the person.

In talking with officials in other states, Morris said the immediate response she gets regarding the current law is “disbelief.”

“Their first reaction is that perhaps I misunderstand the law here in Kentucky.”

Morris said other states have “jail-based competency restoration programs” as well as out-patient programs and hospital facilities designed to hold people for long-term treatment.

While Morris said defendants in Kentucky need more time to be treated, she also warned that other states have run into problems by keeping defendants hospitalized for too long.

States have been sued for running out of space and not helping people quickly enough, and for violating a citizen’s rights not to be locked up indefinitely, she said.

Meanwhile, she said, it takes five to seven weeks to get a bed in Kentucky’s aging psychiatric hospital in La Grange, where the state’s most dangerously mentally ill people are sent. It has 72 beds.

Kentucky needs more mental health courts, as well as crisis intervention before someone commits a crime, she said.

“I believe we need to invest in our behavioral health system in order to fix this problem,” she said.

‘Not a singular event’

Madden is accused of raping an 8-year-old who had been playing in her backyard last month, then hitting her in the head with a shovel.

The crime occurred just hours after he was found mentally incompetent to stand trial in a separate burglary case but released from a hospital when he didn’t meet the necessary criteria for involuntary hospitalization.

He was also found incompetent to stand trial in February in a case in which he was accused of not only sexually assaulting a woman but biting her face, “removing a large chunk,” according to an arrest report.

Other arrests in past years include charges for threatening to kill a child, hitting a nurse at Metro Corrections and biting another at UofL Hospital.

Each time he walked free. He is currently in Louisville Metro Corrections on a $1 million cash bond ahead of an October hearing in the latest case.

Kenton County Commonwealth’s Attorney Rob Sanders told legislators that cases such as Madden’s exist all across the state – and have for decades – and said he is handling a similar murder case as a special prosecutor in Scott County.

In that case, the man said “God told him to beat the demon from the woman downstairs,” according to a police arrest report. The man is undergoing psychiatric tests, according to court records.

“The only thing different is that the victim is not a child in the case I’m prosecuting,” Sanders said. “In terms of the mental illness of the defendant and the potential outcomes of that case, it’s no different than the Cane Madden case, and I’ve had them back in Kenton County just like it.”

Indeed, the Madden case is “not a singular event,” Warren Commonwealth’s Attorney Chris Cohron said. “We have a gigantic hole in our system in regards to the mentally ill. … This isn’t a failure of the system. This is the system we have right now.”

Cohron said Kentucky needs a facility for dangerous mentally ill people, possibly using existing state corrections property.

Meanwhile, some states have taken action.

Colorado law lets the court system decide if a mentally ill person is a danger to others and needs to be hospitalized, first for a period no longer than six months. But the hospitalization can be extended as many times as the court orders as long as the person still is deemed a threat.

Some hospitals in Colorado have turned entire wings into apartments for mentally ill people who administrators can’t discharge, reducing the number of available beds, said Moe Keller, advocacy director for Mental Health Colorado.

The state legislature this year approved a program — partly with state funding – that sets aside a Colorado Springs facility for those patients who need long-term care.

“It’s tremendously needed because if these folks are not in a hospital they’re on the streets and they’re hurting themselves and others,” Keller said.

‘Not an if, it’s a when’

Kentucky has attempted to fix its law on involuntary hospitalization in the past, but with no success.

In the early 1990s, a northern Kentucky judge released a 220-page study on the law that concluded that Kentucky is too lax in letting the criminally insane out of treatment facilities, the Kentucky Post reported in 1994.

Judge Stan Billingsley estimated it would cost about $8.8 million a year to run a 100-bed facility for those patients, or about $15.3 million today.

In the late 1990s, a state task force studied the law and made several recommendations to the Kentucky legislature. But no changes were made.

While Morris was not around for those discussions, she said she has reviewed the proposed changes.

There was a recommendation to change the language in the law to say that a person would benefit from “care” instead of “treatment.”

The other recommendation would have created a psychiatric review panel that would have decided whether someone should be released from a hospital if found incompetent to stand trial. It is unclear why none of the changes passed at the time.

For now, Louisville Sens. Julie Raque Adams, a Republican, and Morgan McGarvey, a Democrat, have been spearheading efforts to change the law and hope to get a proposal to legislators by early next year.

Cohron said the state has “hemmed and hawed” about the issue for decades and action needs to be taken.

“I cannot imagine everyone involved in this case knowing exactly what’s going to happen, extremely predictable, but still having to do your job and go through the steps as the law currently is, knowing that … this guy is going to get out and someone else is going to pay the price for that ,” Carroll said during the hearing.

“It’s not an if, it’s a when,” Cohron responded.