Misdemeanor offenders are flooding Virginia’s state mental hospitals for competency restoration

It’s another strain on the state’s beleaguered system — and a civil rights issue for patients

By: - November 9, 2021 12:03 am

Eastern State Hospital in James City County is one of Virginia’s eight publicly run mental hospitals, which have struggled with understaffing and an influx of psychiatric admissions. Expanded mental health services under Medicaid were intended to reduce admissions at state-run facilities. (Virginia Department of Behavioral Health and Developmental Services)

More and more people in Virginia are being deemed mentally unfit to stand trial, crowding already-struggling state mental hospitals with patients who, in many cases, have only been charged with minor crimes like trespassing or disorderly conduct.

But the lengthy process of restoring them to competency often means patients spend more time waiting to be evaluated and treated than they would face in jail if ultimately found guilty, creating civil rights concerns, officials who work in Virginia’s behavioral health and legal systems say.

“There was a time when you could do an evaluation in a week, 10 days,” said Nate Green, the commonwealth’s attorney for Williamsburg-James City County. “That time is gone — we just don’t have the workforce to do these evaluations that quickly.” 

State data and new research from the University of Virginia’s Institute of Law, Psychiatry and Public Policy show an increase in both court-ordered competence evaluations and the number of people who are ultimately found unfit. From 2007 to 2018, the number of evaluations in Virginia increased by 218 percent, researchers found. The number of patients deemed incompetent to stand trial has also risen, jumping nearly 40 percent between 2016 and 2018 alone. Those numbers have continued to rise over the last three years

The influx of patients is another strain on state psychiatric hospitals, which are still struggling to maintain safe census levels and keep beds open after overcrowding forced more than half of them to temporarily close to new admissions earlier this summer. But the delays in  restoration — the process of making sure defendants with mental illness are fit to stand trial — are an even bigger concern for most experts. Some evaluations can take up to a month or longer, leaving patients in limbo. Green said some are released on bond, sometimes under the supervision of a pretrial probation officer. But many patients are ordered to remain in jail, where they’ll stay until an evaluation can be completed.

“It doesn’t mean that they happen any faster,” he said. And the evaluations, once they’re completed, often determine that patients aren’t competent to stand trial — meaning they can’t understand the proceedings or aren’t equipped to assist with their own defense.

In many cases, clients who only committed misdemeanors are actually more likely to be found incompetent to stand trial. The UVA study examined more than 1,100 evaluation reports conducted across the state and found that 44 percent of misdemeanor defendants were found incompetent compared to 31.2 percent of felony defendants. 

The same research indicated that clients who only committed misdemeanors are also more likely to be ordered to inpatient restoration at state hospitals than outpatient restoration in jail or through local community service boards — even though Virginia code prioritizes outpatient services as the preferable option. Sherri Carr, a public defender for the city of Norfolk, estimated that 75 percent of her restoration clients ended up getting referred to the state hospital for treatment.

It’s become a huge challenge for the facilities as they continue to struggle with census levels. The rise in patients deemed incompetent to stand trial has been rising across the state since 2017, according to data from the Virginia Department of Health and Developmental Services. But the problem has particularly affected Eastern State Hospital in James City County, which experts say is traditionally considered one of the best hospitals in the state for treating defendants whose mental illness makes them incapable of standing trial. 

Eastern State Hospital in Williamsburg, Virginia (Virginia Department of Behavioral Health and Developmental Services)

“They have individuals who are experts in that,” Green said. “Eastern State has just been filled with people throughout the Hampton Roads area — and really throughout Virginia — who have been sent there to be restored to competency.” And over the last three years, nearly 40 percent of those cases — more than 100 people every year — have been patients who only committed misdemeanor crimes.

It’s a growing problem for the hospital, according to Dr. Kristen Hudacek, Eastern State’s director of forensic services. For one, Virginia’s state-run facilities have become a catch-all for all kinds of psychiatric patients, not just the so-called forensic cases referred from the criminal justice system. But while private hospitals can treat people civilly committed through temporary detention orders — a legal mechanism that mandates hospitalization in cases when patients could pose a danger to themselves or others — only the state hospitals can handle competency restoration for criminal defendants.

Over the last several years, though, private hospitals have taken fewer and fewer involuntary commitments, a trend attributed to a 2014 law that requires state-run hospitals to accept patients after an eight-hour period if a bed can’t be found at another facility. Though it’s often referred to as the “bed of last resort” law, the result, according to critics, is that private hospitals are able to defer challenging cases — making state-run facilities the go-to option for patients in crisis. 

Three years after the law went into effect, Virginia legislators passed another bill that requires state facilities to admit patients for competency restoration within 10 days after a court order. The legislation stemmed from the 2015 death of Jamycheal Mitchell — a 24-year-old Portsmouth man with mental illness who died in jail while waiting for a bed at Eastern State. He was arrested and ordered for competency restoration after stealing $5 worth of snacks from a local convenience store.

“We started to see a huge increase after that point,” Hudacek said. The law, like Virginia’s bed-of-last-resort legislation, was passed with good intentions in the wake of a tragedy. But like many in Virginia’s behavioral health system, Hudacek said there have been unintended consequences for the state’s mental hospitals. At Eastern State, particularly, civil commitments are running “neck and neck” with admissions for competency restoration, according to Hudacek.

Given the state mandate to admit those patients within 10 days, they’re often prioritized for available beds. But there’s usually equal demand for civil commitments and a limited number of spaces to put them. Statewide, staffing challenges have continued to restrict beds at Virginia’s state mental hospitals. Eastern State, for example, has a total capacity for 302 patients but is currently only accepting 242, according to a recent presentation by DBHDS Commissioner Alison Land. 

“Both of those laws have really contributed to just constantly being at capacity,” Hudacek said. But across the behavioral health and criminal justice system, there’s also concern for the patients themselves — especially those charged with minor misdemeanor crimes. According to the UVA study, those patients are more likely to present with severe symptoms of mental illness, and the median length of stay for a restoration is 56 days. With the time it takes to complete an evaluation, some patients end up in jail and then at a state hospital for nearly a quarter of a year, sometimes for offenses as minor as public intoxication or petty larceny. Some end up getting new charges added to their case, often because they’re not getting appropriate mental health treatment while they’re waiting for an evaluation.

“I’ve had a lot of people come into jail on simple misdemeanors and then end up with a felony because they’re afraid and they’ve assaulted a deputy in the jail,” said Annette Miller, a public defender in Virginia Beach. Even more troubling, for many who work in and around the legal and mental health systems, is the fact that restoration isn’t the same thing as holistic mental health treatment. 

Medication and therapy are generally part of the process when patients are restored to state hospitals, according to Joseph Scislowicz, director of the local community service board in Chesapeake. But courtroom education is another central component, and the focus of the stay is less on long-term case management and more about meeting the narrow definition of competency.

“They may get treatment, but that’s not the reason why they’re there,” Scislowicz said. So, beyond the capacity concerns at state hospitals, there’s widespread frustration that so many patients spend so much time undergoing restoration without ever being connected with the right treatment or services. 

In many cases, defendants are quickly released back into the community after they get back from the state hospital. The result, Hudacek said, is that many end up committing the same crimes again and again and coming back to Eastern State for services.

“I’m not kidding when I say it’s a revolving door,” Hudacek said. “The truth is, it’s disturbing.”

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Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.