Los Angeles County currently has the opportunity to take two substantial pots of funding from the state to expand a unique diversion program that addresses the issue of people found incompetent to stand trial languishing in jail while they wait for a state hospital bed to become available. But it’s not entirely clear whether the LA County Board of Supervisors will agree to take the money.
When people are deemed unfit to stand trial, they are supposed to be sent to a mental hospital for treatment until they can understand the charges against them. But a dearth of state hospital beds that meet this population’s needs means that individuals declared incompetent to stand trial are warehoused in jails with their names on a state hospital waitlist. These people have not been convicted of crimes.
LA’s jail system serves as the largest mental health facility in the country. Pre-pandemic, in June 2019, there were 5,544 people who were either held in mental health housing units, taking psychotropic medications, or both, in LA County jails — or about 30 percent of the total jail population. Now, there are more than 6,000.
For six months in 2017, California’s Department of State Hospitals took an average of 86 days to admit individuals declared incompetent to stand trial. Some people waited more than 200 days to enter a hospital. In response to these delays, the ACLU sued the state. Throughout the course of the ongoing lawsuit, the organization has urged the state to increase community-based treatment, arguing that it is more humane and effective than the state hospital environment.
In May 2018, the waitlist to get into a state hospital included the names of nearly 500 people who were facing felony charges in LA County jails. At the time, the Department of State Hospitals had also experienced a 33 percent jump in the number of people it needed to serve in this capacity.
Meanwhile, LA’s Office of Diversion and Reentry (ODR) had experienced three successful years of diverting people accused of misdemeanors who were declared incapable of standing trial into community-based competency restoration program.
Thus, in June 2018, the California Department of State Hospitals issued a grant of a little over $44 million to ODR to pilot a similar program for individuals charged with felonies for three years.
With state funding, ODR’s Felony Incompetent to Stand Trial Community-Based Restoration (FIST-CBR) program served more than 440 individuals during that time.
Over the last three years, the CBR program has had an 80 percent success rate — meaning that 80 percent of people in this very-difficult-to-treat population who received community-based restoration had not been re-incarcerated.
But ODR doesn’t have the capacity to help all that would qualify for community-based restoration. There are approximately 375 people declared incompetent currently in the jails waiting for placement. And wait times have increased to six months or more during the pandemic.
In order to further reduce the state waitlist, the Department of State Hospitals has offered the County $34.7 million for the end of this fiscal year and for next year. The money would allow ODR to help 200 more people.
While the county has previously used state money to expand the community-based restoration program, the LA County Board of Supervisors has not yet agreed to take the money.
And that’s not the only state money available to build out CBR in LA County.
The governor and legislators, in the state’s 2021-2022 budget, agreed to set aside $468 million to fund three counties that agree to participate in a new Community Care Collaborative Pilot (CCCP), through which counties will take responsibility for their own FIST population, rather than relying on the much-delayed state system.
Last year, when Governor Gavin Newsom unveiled his January budget proposal for fiscal year 2020-2021, which included the CCCP money, Judge Peter Espinoza, Director of LA’s Office of Diversion and Reentry, said that his office was grateful for the “opportunity to expand the work we are already doing with hundreds of patients in partnership with the state…” The funding, he said, would expand ODR’s ability to “improve the lives of those who are incompetent to stand trial by removing them from jail, housing and treating them in the community, where they may remain in supportive housing.”
If LA agreed to participate, it would receive the lion’s share of the money. So far, however, the county has not committed to participating.
This week, after what appeared to be “foot-dragging” prompting letters from the ACLU SoCal, JusticeLA, the National Alliance on Mental Illness (NAMI), Disability Rights California, as well as an editorial in the LA Times urging county leaders to take action, a motion to accept the first pot of money — the funds from the Department of State Hospitals to add 200 beds — appeared in the LA County Board of Supervisors’ weekly agenda. Supervisor Kathryn Barger asked that the motion be pushed two weeks to the February 23, 2021 meeting.
Nearly 60 people sent public comments in advance of the Tuesday meeting (before the motion was delayed).
“ODR’s FIST (Felony Incompetent to Stand Trial) program is a tried and true diversion model that has proven itself to not only be effective, but also cost-effective,” said one commenter, Sarah Gebhardt. “There is a desperate need for these services, and we cannot in good conscience turn away funding that would benefit our most vulnerable community members.”
In a February letter to the supervisors, the ACLU of Southern California and JusticeLA urged the board to take the state money. “For FISTs for whom community-based treatment is not feasible,” the letter said, “we are confident that ODR can begin intensive programming in the jails far faster than it would take for people to be transferred to state hospitals.”
More funding, the ACLU and JusticeLA said, “will allow more humane and effective treatment and help end the lengthy and unconstitutional jail stays FISTs in Los Angeles endure before being admitted to a state hospital.”
The issue continues to become more urgent as months pass, the advocacy groups stressed.
“IST court calendars continue to increase, jails get more crowded with people who should not be there, waitlists and referrals are rising, and individuals are not moving towards treatment and competency restoration as prescribed by law,” NAMI wrote in its letter to the supervisors. “FIST clients are the most acutely ill and challenging population in the mental health community to address, and for decades they have been ‘the forgotten ones’ left to languish in the LA County jail. This is unconscionable…”
With regard to whether LA should be one of the three counties to participate in the three-year pilot program in the state budget, Pamila Lew, Senior Attorney at Disability Rights California, said that while there are “really underserved communities that are more far-flung,” LA is uniquely suited, with its already-established FIST program.
This “takes creativity,” Lew told WLA. “It takes a lot of moving parts and expertise.”
Plus, Los Angeles has the largest FIST population in the state. The county could “serve as a national model,” said Lew. Not “boldly going forward” would be a missed opportunity.
Moreover, expanding ODR programs to divert more people, especially the mental health population, is in keeping with the supervisors’ commitment to creating a “care first, jail last,” justice model.
In February 2019, the LA County Supes scrapped the increasingly controversial plan to replace Men’s Central Jail with a high-tech 3,855-bed “mental health jail,” known as the Consolidated Correctional Treatment Facility (or CCTF). The board chose, instead, to build a new $1.7 billion “mental health treatment center,” with a focus on what the board called a “care first, jail last” goal.
The secure health care facility was to be staffed primarily by the LA County Department of Health Services, rather than by the sheriff’s department. Yet, community advocates led by the Reform LA Jails Coalition, continued to rally against this new plan, as well, arguing that it was just another jail with a different name.
Finally, in August 2016, the supes voted to cancel the lastest jail replacement proposal, choosing instead to focus on diverting people into evidence-based alternatives to incarceration.
Expanding ODR’s community-based restoration system is one such way to build up alternatives to incarceration in LA County.
The state hospitals are not the best environments, Lew said. “They’re like mini prisons.”
ODR’s community placements are altogether different, said Lew, noting that one facility she visited was a really well-designed space in which “clients seemed very relaxed and happy.”
“It’s just night and day,” she said.
Still, it’s possible that the county will decide not to take the money.
The LA Times editorial board noted that some county leaders may worry about “setting lose a dangerous population,” yet ODR is already successfully working with people found incompetent to stand trial. And, “ODR vets would-be participants for likelihood of success, and mental health experts — and Superior Court judges — exclude accused rapists, murderers and others unsuitable for community treatment,” the editors wrote in response to this argument. “And again, clinics offer security commensurate with the populations they house.”
Others may worry that the money will not be enough to divert the entire FIST population, or that the county will need to spend more money.
“If they take the money, they’re on the hook,” financially speaking, “if they have to send someone to the state hospital,” Pamila Lew said. Currently, once someone from the FIST population goes to the state hospital, the state pays.
But diversion saves the county money on the costs of incarceration. “…The county stands not just to gain the operating funds offered by the state, but to recoup savings in the long run, because the cost of housing and treating a mentally incompetent inmate in the community is a fraction of the cost of housing and treating the same person in jail,” the Times editors wrote. Additionally, community-based treatment and services reduce the likelihood of future incarceration, which saves the county even more money in the long run.