Three years ago Pennsylvania officials agreed that it is unconstitutional to keep mentally ill criminal defendants in prison for more than 60 days before transferring them to a facility for proper treatment.
That was when state officials settled a federal lawsuit filed by the American Civil Liberties Union of Pennsylvania.
And yet, this year, at least 56 defendants had languished in eastern Pennsylvania county prisons for more than 60 days before they were transferred to Norristown State Hospital for treatment, according to the ACLU.
So the civil rights group on Tuesday asked the federal judge in Harrisburg overseeing the 2016 settlement to order the state to reduce the defendants’ wait time to seven days by Sept. 1. In previous cases in Oregon and Washington, federal appeals court judges have ruled that forcing mentally incompetent defendants to wait more than seven days violates constitutional protections.
“It’s egregiously illegal, but it’s also just cruel to keep somebody who is severely mentally ill in a cage,” said Witold Walczak, legal director for the ACLU of Pennsylvania and one of the lawyers in the litigation against the Pennsylvania Department of Human Services, which regulates and pays for behavioral health services.
“Under the Constitution, they are not allowed to be punished. They cannot be imprisoned, and you’re keeping them there not just a few days longer [than allowed under the Constitution], but literally months longer," Walczak said.
Meanwhile, a psychiatric prison unit in Philadelphia where defendants are held pending placement at Norristown has had significant regulatory trouble after the deaths of two inmates since early 2018. One death was the result of “gross negligence,” while the second was a suicide, attributed to inadequate treatment.
The suicide occurred in January 2018 in the prison system’s Inpatient Forensic Psychiatric Unit at 7901 State Rd., despite the victim having a recent history of a serious suicide attempt and documentation of recent serious mental illness, according to an inspection report by the state’s Department of Human Services. The inmate warranted an emergency admission to Norristown because of the significant risk, but that risk is not reflected in the inmate’s diagnosis, treatment plan, or interventions, the summary said.
A prisons spokesperson on Tuesday did not know if that person was officially on the wait list for Norristown State Hospital, which serves 19 eastern Pennsylvania counties. Torrance State Hospital, about 45 miles east of Pittsburgh, has a forensic unit for the remaining counties.
Last July, an inmate in the prison system’s Psychiatric Services Health Wing died in his cell of a perforated ulcer in his small intestine more than two days after he first complained of the pain — “without receiving further medical assessment or intervention,” according to an inspection summary on the death. A psychiatrist suggested that the pain might be “psychosomatic” or related to medication.
The man was not on the wait list for transfer to Norristown, the prisons spokesperson said. He had only been there a week, she said.
As a result of those deaths, the prison system’s forensic unit is on its second consecutive provisional license. If it gets to four, the state would revoke the unit’s license.
As to the renewed litigation, the state Human Services Department said it was “surprised and disappointed that the ACLU has chosen to return to court after months of successful negotiations. Although we regret that communications have not been more timely in recent weeks, and apologized to the ACLU before it filed the motion, DHS has been moving forward to implement the provisions of the settlement agreement that the parties were negotiating, even though an agreement has not been signed.”
Walczak acknowledged the state’s progress.
“The good news is that the wait times are down from over a year to four or five months," he said. "The bad news is that the wait times are still four to five months, when they shouldn’t be more than about a week.”
There are now 187 forensic beds for criminal defendants in Norristown alone, compared with 200 statewide in 2015, when the ACLU originally filed its lawsuit, according to Tuesday’s court filing.
The number of defendants on the wait list statewide is 120, down from 220 in 2015.