Sinking into mental illness in the criminal justice abyss: How the sick get sicker

By Jonathan Martin, Seattle Times editorial columnist, Oct. 13, 2014

Female inmatesLate one Friday night in March, the Fish Tale Brew Pub in Everett called police to bounce a woman acting erratically. Officers found her standing alone, in the dark, in the pub’s fenced outdoor smoking section. On their way out, the woman, Ara Badayos, slapped an officer — a felony assault charge.

That wasn’t the start of the trouble for Badayos, 28. She has at least a dozen psychiatric commitments, many misdemeanor crimes and two prior felonies, including assaulting a psychiatric nurse.

Badayos was dropped squarely into the netherworld between the criminal justice and mental-health systems. She has company: There are 10 times as many mentally ill people behind bars as in hospitals in the U.S. That’s the real crime.

But in the seven months since that night, her case went badly enough that it just might bring much-needed reform to the way Washington jails people with serious mental illness.

Under the U.S. Constitution and state law, defendants like Badayos must be competent to stand trial, to understand the charges against them, and the role of the judge and lawyers.

Badayos was evaluated. Not surprisingly, she was found incompetent. But instead of quickly getting her treatment to restore her mental health, Badayos waited, and waited, in the Snohomish County Jail. She lingered in solitary confinement — 23 hours a day in an 8-foot-by-10-foot cell — for nearly a month.

Waiting to become sane, she got sicker.

That’s an everyday occurrence in Washington. Western State Hospital, where patients are helped to regain their competency, has a waiting list of more than 100 people, some of them waiting two months just to begin the process.

That often means they wait in isolation cells and with little mental-health treatment, as Badayos has. A report last year by the watchdog group Disability Rights Washington found people with mental illness waiting in subhuman conditions. Suicides are too common.

These situations are not new. “The state admits this has been an issue for 15 years,” said David Carlson, legal advocacy director of Disability Rights Washington.

Carlson said his group considered suing in 2006, and in 2012, but instead worked with the Legislature and the state Department of Social and Health Services, with mixed results.

But in August, the scrappy Snohomish County public defender’s office, which represents Badayos, decided enough was enough, and sued in her name in federal court.

The state Attorney General’s office wouldn’t allow me to talk to its lawyers on the case, but in court filings, the DSHS said the agency is doing its best with inadequate resources. Court orders to restore competency spiked 14 percent last year, with no corresponding increase in bed capacity.

Victoria Roberts, the DSHS administrator who oversees the hospitals, said the agency is asking the Legislature to fund 30 more beds for criminally involved patients, and more civil-commitment beds.

Last week, federal Judge Marsha Pechman acknowledged “very, very significant issues that need to be ruled on rapidly,” and put the case on a fast track. The case, A.B. v. Department of Social and Health Services, is based on a very similar case in Oregon, which forced much quicker treatment for mentally ill inmates. Carlson hopes for a trial before the end of the year.

If that happens, I believe 2014 is going to go down as a landmark year of forced change — late, desperately needed change — for the state’s mental-health system.

The state Supreme Court’s psychiatric August ruling on boarding forced the state to stop warehousing people with serious mental illness in emergency rooms, and to open more hospital beds to treat them.

The Badayos case is the flip side of the same problem: It would ban warehousing of mentally ill people in jail, and require more beds to treat them.

Both lawsuits, however well-meaning, would not force the state to boost preventive care. “The real question is why do we have so many people being arrested or in the hospital in the first place,” said Carlson.

As for Badayos, she is still in that netherworld. It took so long to get her in for treatment to restore her competency that Cassie Trueblood, her attorney, convinced a judge to let her out of jail in August — five months after her arrest.

But her illness was now so bad that she was involuntarily committed to an Everett hospital. After treatment there, Badayos was returned to jail, and finally went to Western State Hospital for 45 days of competency restoration.

She was again released from jail last week, her trial still pending. Trueblood said her client has no family, no support system and is probably on the streets.

“She’s going to be right back to where she started,” said Trueblood.