Justice and Due Process

Civil Commitment: A Solution in Name Only

When someone has been the victim of a vicious attack, he is usually willing and eager to participate in prosecution. But I found it impossible to connect with Roger. 

I came to know Roger (name changed to protect his privacy) when he was a victim in a crime I was prosecuting. Roger was camping by the Provo River when a man threw a knife at him, demanded that Roger give him some of his property, and then had his pit bull attach Roger. Roger sustained numerous severe injuries from the dog attack and had to be hospitalized. 

In trying to track him down to discuss the case with him, I learned that Roger was homeless, had a brain tumor removed which created a traumatic brain injury, has an IQ too low to be reliably measured, and had mental health and drug addiction issues layered on top. He acknowledged his brain injury but didn’t believe himself to be mentally ill. Anosognosia, lack of insight sufficient to recognize that one has a mental illness, is a common feature of some mental illnesses. 

I learned that Roger had a very long criminal history. In the year before he was attacked by a dog, he had been charged in twenty-one separate criminal cases, and this pattern had been ongoing for three decades. His crimes consisted mostly of offenses which are ubiquitous among the homeless and mentally ill population: trespassing, prohibited camping, and drug possession.

Roger also had a smattering of charges for failing to stop at the command of a law enforcement officer and interfering with arrest. These types of charges occur with predictable regularity when law enforcement encounter the severely mentally ill. I was grateful that in Roger’s case they had never escalated to assaulting or threatening an officer, as those encounters often end in tragedy for the mentally ill person, officers, or both.

I also learned that despite Roger’s frequent run-ins with the law, nothing ever happened. Every time he got to court, he would be found incompetent and non-restorable. 

Competence is not a high standard. Many people with compromised mental health or intellectual functioning meet the standard which only requires that the person be capable of understanding the charges and possible penalties, communicating about the case with his attorney and a jury, and not being overly disruptive during court proceedings. 

Not only was Roger found incompetent, the determination that he was non-restorable meant that he would not be sent to the Utah State Hospital for mental health services. If he had, in addition to receiving the adequate food and shelter he clearly lacked, he would have received mental health treatment with the aim of at least getting him stable enough to meet competency standards. However, because Roger had a brain injury, no amount of mental health services was likely to restore him to competency, so no services were ordered by the court.

Fair enough. Roger was not a good candidate for restoration. But his decades of instability, as demonstrated by his criminal record, chronic homelessness, and his unkempt appearance in booking photos, clearly demonstrated that Roger was not capable of adequately caring for himself. It seemed cruel that he was living on the street in all types of weather and vulnerable to attack when he had the functional capacity of my seven-year-old. Surely there was a better way.

One possibility was civil commitment. If a person is a danger to himself or others due to a mental illness, a court may order that person to be civilly committed. 

Before becoming a prosecutor, I was under the impression that civil commitment meant a person was sent to a secure location where they could receive treatment. This is only partly true. Civil commitment is a legal status, not a location. When a person is committed, they may be sent to the Utah State Hospital for treatment and care, if there’s a bed. 

That’s a big if.

The Utah State Hospital only has about 150 beds. Those beds have to be shared by incompetent people receiving restoration services and by people who have been civilly committed. Each county is allocated a number of beds depending on population. The need for bed space far outstrips supply so counties are forced to triage. 

Even patients that secure a bed at the State Hospital are generally only kept for six months and then released, even if they can’t care for themselves or still pose some danger. Long-term care is reserved for only the most severe cases such as people who have committed murder or grievous sexual offenses.

Salt Lake County’s bed spaces are all currently full, and it is unlikely that any spaces will open up within the next year. In the meantime, a county with a population of over a million will have no secure place to house and treat people who are newly civilly committed.

When I raised the possibility of having Roger civilly committed to the State Hospital, Utah County’s mental health authority politely explained that since he hadn’t tried to kill himself or anyone else, they just couldn’t spare a bed. They were aware of Roger and had tried to work with him before, without success. Because he was homeless, he was hard to find. And because Roger didn’t believe he was mentally ill, he wasn’t particularly eager or able to initiate treatment on his own behalf. 

Roger still could have been civilly committed, but when bed space is not available, this legal status doesn’t mean much. Roger would be under the jurisdiction of the court, which could order him to obtain mental health treatment. Such an order seems perverse for someone who has been deemed incompetent, is too ill to recognize he is ill, and lacks the ability to shelter himself, let alone make and keep therapy appointments. Even if by some miracle he complied, Roger’s low IQ is organic, and no amount of treatment will ever make him whole. 

The lack of bed space at the State Hospital is somewhat understandable. It was never designed to be a long-term care facility. It was designed to treat acute illness and then discharge patients to the community or elsewhere. 

However, there is no “elsewhere.” 

Given that mental illness can be both chronic and severe, it seems intuitive that there should be facilities designed to accommodate people who may never recover to the point that they can be discharged from a hospital to the community. 

Most of these people, like Roger, are not dangerous and don’t need the level of security provided at the State Hospital. And many, again like Roger, are not so acutely ill that they need a team of psychiatrists to cure them. Really, they just need a safe space where they will be fed and sheltered and where they can receive medical care to maintain them at the best level their condition permits. 

In addition to providing a necessary level of care which is currently lacking, such step-down, step-up facilities (so called because they can be both a step down from acute care and a step up from community care) offer significant cost savings. Housing a patient at the State Hospital costs between $700-$900 a day. Step-up, step-down facilities can cost half that and have shown promise in locales that have tried them. They may also help maintain patients, preventing them from de-compensating and again requiring acute care. 

The costs of doing nothing, while harder to quantify, are significant and include the time of police, defense attorneys, prosecutors, and judges; the time of mental health professionals conducting competency evaluations and restoration proceedings and re-stabilizing patients who de-compensate on the street; the costs to society as the mentally ill continue to commit a host of petty and sometimes serious offenses and cycle in and out of jail and prison; and the costs to the mentally ill individual who lives a life of abject misery. 

If his ongoing accumulation of trespass, unauthorized camping, and drug charges are any indication, Roger is in the same condition as he was when I encountered him. He has endured two frigid Utah winters since then. He was never civilly committed. The Department of Services for People with Disabilities was unable to do anything for him since he couldn’t apply for services himself and didn’t have a guardian to apply for him. An application for a public guardian ad litem was not granted.

The man who attacked Roger with a knife and a dog was never convicted. He asked for a preliminary hearing, which meant Roger was required to testify about the attack in court or provide a written statement. Despite the case officer looking for Roger around town and my attempts to find Roger at the homeless shelter, we weren’t able to find him and get him to the hearing, so the case was dismissed. 

The New Testament says, “The poor ye have always with you.” I can think of no better embodiment of “poor” than Roger and his poverty of body and mind. It’s probably true that severe mental illness will always plague some of our fellow men. However, a state as compassionate and prosperous as Utah can certainly do more to alleviate their suffering.