A pathway to institutionalizing troubled YOUTH and ADULTS
Even on such a beautiful day, plans to create more suffering- but you can help
Would love for you to share questions and concerns: flynnconsult@gmail.com
(February 2, 2024)
Friends, At the end of this note is a 2/2/24 policy piece written by Zoe Jamail, Policy Coordinator for Disability Rights Tennessee (DRT) (Policy Watch Week 4: Beyond Rhetoric: Unpacking Reactive Legislation Amidst Gun Violence). It quite thoroughly outlines some of the problematic bills working their way through the Legislature that will have a disastrous impact on individuals with a mental health challenge and/or a developmental disability.
Two short interviews with Zoe from this past Wednesday are also linked below. They provide context for Zoe’s longer policy piece (Sign up here for DRT’s Policy Watch).
One outstanding question that we did not address in our interview with Zoe is who will run these institutions that are being built. Will the State contract with another private corporation (like Core Civic) wanting to make money off the suffering of our most marginalized residents?
As a society, we need to figure out a way to help those who are troubled to find and pay for the treatment they need to live a full and healthy life and to refrain from engaging in behavior that hurts others. It is what we want for every person in our communities. But building new institutions that may very well take us backward toward a past of incarceration and punishment rather than forward toward a future of care and compassion is not the answer.
Thanks for taking the time to think about, and hopefully contact your Legislators about, this important and troubling trend. May you gather with those you love, and find the compassionate heart to hold up those who are struggling to find love, on this warm winter weekend. Michele
YOUTH INSTITUTIONALIZATION
Disability Rights Tennessee (DRT) is concerned about the direction the Department of Children’s Services and the Legislature are moving in terms of institutionalizing young people. According to Zoe, what youth need instead is,
“…families and supports and services, not to be locked up in facilities.”
Bill HB2166/SB1747 currently under consideration would allow DCS to place young people in foster care and those deemed “dependent or neglected” into facilities that are designed for youth who have been adjudicated delinquent.
The Department of Children's Services has created a Real Estate Plan that has been approved by the State Building Commission. It allocates $400 million to build “hardware secure facilities” for young people coming into the custody of the Department of Children’s Services. Hardware Secure Facilities are characterized by locks on the doors and other restrictive hardware designed to restrict the movement of minors and protect public safety.
The $400 million will create 9 Intake and Assessment Centers across the state, 3 in each region. A portion of these funds are allocated to “harden existing facilities that are not hardware secure.”
WAIT! Children who have been neglected and abused, or who are foster children, will be placed in lock-down facilities alongside youth who have been determined to be “delinquent?” Who thinks this is a good idea?
It’s worth repeating what Zoe said, that we should NOT be institutionalizing young people who need families, support, and services!!!
ADULT INSTITUTIONALIZATION
DRT is looking at some of the unintended consequences that might result from HB1640. This bill creates a presumption that anyone deemed “incompetent to stand trial” poses a substantial risk of harm to themselves or others. To avoid involuntary commitment, they would have to rebut this presumption.
Incompetent to stand trial means that the person is unable to understand the character and consequences of the proceedings or unable to assist in their own defense. If the person were unable to have their “competency restored” they would be required to have court supervision/reporting for the rest of their life.
If there is no facility available in the area for people with an intellectual disability or a mental health institution for those with a mental health challenge then they may end up sitting in jail. In that situation, DRT is concerned they may become further involved in the criminal justice system because they are not being offered programs or services to address their developmental disability or mental illness.
This is especially worrisome for those who are dual-diagnosed, that is with both an intellectual disability AND a mental illness. If the Department of Mental Health determines that a mental institution is not an appropriate placement because the intellectual disability is causing the issue, then that person would not benefit from a mental health treatment placement.
At this point, there isn’t a place for people to go if they have intellectual disabilities and are thereby deemed incompetent to stand trial. Placements and services are needed, not a commitment to jail or hospitals indefinitely.
However, according to Zoe,
“Across the board, whether we’re talking about mental health services or services for people with intellectual disabilities, there simply are not enough of them in the community.”
DRT is asking that this be addressed so people have somewhere to go and they don’t just end up sitting in jails and hospitals where they don’t get what they need.
Although Representative Lamberth stated in Committee when presenting this bill that services would be created, he could not answer questions about WHAT services would be provided. Zoe stated,
“What this does is just create a pathway toward the institutionalization of adults who are deemed unable to stand trial until they regain competency or, if never, then forever incarcerate them in an institution.”
The closure of community mental health centers in rural areas and the shortage of such workers in urban communities means ongoing evaluation of a person’s competency, and offerings of mental health and development assistance and services, will most likely not occur as needed.
The result of this bill will be a much easier process whereby people with mental health and developmental disability diagnoses can be locked up. There is also a concern that this may lead to more permanently moving unhoused people off the streets and into an institution. And what about others? A plan has already been underway to fund the building of a new mental health institution in East Tennesee.
It is important to question this new proliferation of mental health institutions and the introduction of bills to more easily incarcerate adults with mental health and developmental challenges along with foster youth and youth who have been abused and neglected in our state. Instead, we need to be creating (re-creating) family and community-based (read less-restrictive) treatment options for the health and welfare of all our residents.
Those who have been injured, injure.
February 2, 2024
All Policy Watch Editions can be found here.
Policy Watch Week 4
Beyond Rhetoric: Unpacking Reactive Legislation Amidst Gun Violence
This week, we are reminded of the interplay between tragedies of gun violence that capture the public’s collective heart (and the media’s attention) and net-widening, reactive legislation. This kind of reactive legislation seeks to impose harsh penalties on Tennesseans who have fallen through systemic cracks, rather than meaningfully addressing the proliferation of firearms, as well as service gaps and other factors contributing to system involvement. Following the adjournment of the 113th General Assembly's special session last summer, which was called by the Governor in response to the Covenant school shooting a few months prior, we anticipated an increased focus in 2024 on incarceration and institutionalization of "dangerous" people, young and old, in response to gun violence. Legislative proposals that sacrifice the personal liberties of a few, in the name of public safety and as part of an effort to preserve the general public’s widespread access to firearms, are not surprising given the frequent use of the “guns don’t kill people, people kill people” mantra.
With the bill filing deadlines now in the past, we know the entire universe of legislation for this 113th General Assembly. A large proportion of the bills filed by members of the supermajority reflect proposals for involuntary commitment of people with mental illness and/or intellectual disability, harsh penalties and restrictive placements for youth who are adjudicated as dependent/neglected or delinquent, and other legislative proposals aiming to lock people up, warehoused and hidden away from society, rather than looking for ways to prevent whatever it is that drives system involvement in the first place.
Today we’ll be looking at HB1640/SB1769 (Lamberth/Lundberg), but other examples of wide-sweeping criminal justice proposals filed this year include HJR0859, a highly publicized joint resolution from Speaker Sexton to change the state Constitution to deny bail for more offenses than just murder; and HB1663/SB1834 (Lamberth/Johnson), a bill to impose the death penalty on adults for non-lethal sexual assault of children (currently punishable by a life sentence without parole), which would also have the effect of sentencing a thirteen-year-old who engages in genital fondling of a twelve-year-old, including where the act is not forcible in nature, to 40-60 years. Click here for a link to the video showing committee testimony from victims’ rights advocate, Our Kids, and others who fear the death penalty bill will chill reporting and cause more trauma to victims and their families.
Keeping the Public Safe?
The tragic shooting of Belmont student Jillian Ludwig by a man with an intellectual disability, Shaquille Taylor, who had prior criminal justice system involvement and had been released into the community without adequate supervision or services, propelled forward the Legislature’s focus on institutionalization and incarceration in 2024. Mr. Taylor had been deemed incompetent to stand trial due to his intellectual disability and language impairment. A determination of incompetent to stand trial includes situations where a defendant, in this case Mr. Taylor, was not able to assist his counsel in preparing his defense against the charges, or otherwise understand the judicial proceedings, as a result of his intellectual disability.
As an aside, DRT is seeing first-hand the harmful effects of the state’s unwillingness to provide an array of services and placement options with adequate supervision in the community for adults who are dually diagnosed with intellectual disability and mental illness and who have criminal justice involvement. These service gaps extend to criminal defendants who are deemed incompetent to stand trial due to intellectual disability or mental illness. Because there is a lack of adequate placements or supervision following an incompetent to-stand-trial determination, adults with intellectual disability end up staying in hospitals and jails around the state for extended periods without receiving programming or services, which often leads to further criminal justice system involvement. Following the Belmont shooting and some messaging from state and local leadership conflating mental illness with intellectual disability, DRT interviewed with WPLN news in December 2023 to discuss the difference between services for persons deemed incompetent to stand trial due to intellectual disability versus mental illness, and the need for intensive supervision and services in the community, not indefinite incarceration. You can read WPLN’s first piece by clicking here and an additional piece by clicking here.
HB1640/SB1769 (Lamberth/Lundberg)
Today we are analyzing a bill that has been touted by its House sponsor as a proposal that would have saved Jillian Ludwig’s life had it been the law; the bill was amended to be called “Jillian’s Law.” If HB1640 had been the law at the time Mr. Taylor was deemed incompetent to stand trial, it is difficult to see how he could have avoided (indefinite?) judicial commitment for involuntary treatment. While advocates worry this bill may lead to widespread institutionalization of people with intellectual disabilities, the House sponsor assures naysayers this bill is about getting defendants with intellectual disability and/or mental illness the services and treatment they need, with adequate supervision when those services are provided in the community. Jillian Ludwig’s parents appeared in the House Criminal Justice Subcommittee on Tuesday (click here for the video link), and mentioned during their testimony that they are hopeful people like Mr. Taylor will get the help they need as a result of HB1640, and that no one else will endure what they have been through.
However, nowhere in the bill does it talk about where people with intellectual disability like Mr. Taylor will go or how services will be funded, and when it comes to dually diagnosed persons who may benefit from mental health treatment, Tennessee has a staffing crisis in its mental health institutions to address before it can accommodate an influx of judicial commitments. Despite Leader Lamberth’s statements that this won’t result in mass institutionalization, it is clear from current law and the proposed bill that outpatient therapy and community-based services are only available if there is funding reserved for it.
This is one of those bills where our analysis of what the bill does could really benefit from a redline version of the bill. A redline version shows additions made to current code sections in red font and underlined, and strikes through deleted language so the reader can easily track the changes from the current law and fully understand what the bill does. Click here to see HB2875/SB2314 (Richey/Pody), a legislative proposal to require redlines for all bills. In the meantime, we have created a redline version of HB1640/SB1769 to help you see what language is being added that may result in stripping current safeguards against involuntary commitment and mandatory outpatient therapy. That redline is linked here and it includes HB1682 as well, because the two bills work together to expand the use of involuntary commitment based on incompetence to stand trial.
Under state and federal law, all individuals who face criminal charges must be mentally competent to help in their defense. By definition, an individual who is incompetent to stand trial lacks the mental competency required to participate in legal proceedings. In determining that Shaquille Taylor was incompetent to stand trial, media reported that the court relied on statements from doctors that "he would not understand courtroom discussions," and that his "intellectual disability and language impairment" made him incompetent. A doctor also said Taylor could not be involuntarily committed because he did not seem suicidal and "repeatedly denied any homicidal ideations or any plans to harm jail staff or other inmates."
Many lawmakers have bemoaned the process for certifying persons for involuntary commitment as being too difficult and allowing “dangerous” persons to return to their communities when they should be locked up. HB1640 is being put forth as one solution to that perceived problem. The bill changes the law in several ways: (1) redefines the term “adjudicated as a mental defective” to include people who have been deemed incompetent to stand trial due to mental illness or intellectual disability, thus prohibiting them from acquiring or possessing a firearm; (2) creates a rebuttable presumption, for purposes of involuntary commitment, that a person poses a substantial risk of serious harm if deemed incompetent to stand trial (for any criminal offense) due to mental illness or intellectual disability, meaning the presumption needs to be rebutted by clear and convincing evidence for the person to avoid judicial commitment; and (3) establishes mandatory outpatient therapy (“community-based services”) for any felony offense for which a defendant is deemed incompetent to stand trial, but only if DMHSAS or DIDD “certifies to the court that there are funds available within the limits of the department's line item appropriation for services…”
Adjudicated as a Mental Defective
While the remainder of this Policy Watch will focus on analyzing the involuntary commitment portion of the bill, we want to say a quick word about the change to the definition of the term “adjudicated as a mental defective.” The portions of the Tennessee code that use this language relate to the purchase and sale of firearms and reporting requirements to ensure certain defendants are prohibited from purchasing or possessing firearms in the future. Our code language mimics that which is found in federal law and implementing regulations at 27 CFR 478. In 2014, there was a notice of rulemaking and proposed rule from the USDOJ to clarify that defendants who were deemed incompetent to stand trial in any criminal proceeding, and not just in the context of military law as expressly stated in 27 CFR 478, and in state law at TCA §§ 16-10-213(a)(1), 16-11-206(a)(1), 16-15-303(g)(1), 16-16-120(a)(1), and 39-17-1301, are included in the definition of “adjudicated as a mental defective” for purposes of prohibiting access to firearms. However, final action was never taken on the proposed rule (as you can see by clicking here), and the federal law definition of “adjudicated as a mental defective” is still limited to persons deemed incompetent to stand trial in the context of military law, under 10 U.S.C. §§ 850a, 876b. By amending TCA § 39-17-307 (in Section 10 of the bill), HB1640 creates the offense of a Class A misdemeanor for a person who has been adjudicated as a mentally defective and is in possession of a firearm.
The problem with including all persons who have been deemed incompetent to stand trial in the “adjudicated as a mental defective” definition, and making it a crime for them to own a firearm, is that some people who are deemed incompetent to stand trial are able to have competency restored. We wonder whether it makes sense to criminalize persons for firearm possession if they have had their competency restored. We also note that the term “adjudicated as a mental defective” is outdated, as stated in the Notice related to the aforementioned proposed rule. You can click here to read more about the 2014 proposed rule by DOJ.
Involuntary Commitment
HB1640 aims to create a path to judicial commitment for involuntary treatment of persons who have been deemed incompetent to stand trial due to mental illness/serious emotional disturbance or intellectual disability. Under our state’s judicial commitment statutes, T.C.A. 33-5-403 and 33-6-502, when a person with an intellectual disability or a mental illness/serious emotional disturbance, respectively, is deemed incompetent to stand trial, the court may only commit the person for involuntary treatment pursuant to two certificates of need from medical professionals showing: (1) that the certifying professionals have examined the defendant within 3 days of the certificate of need; (2) that they are of the opinion that the defendant is subject to involuntary care and treatment under the commitment statute; and (3) the factual foundation for their conclusions on each item of the commitment statute.
The factual foundations must demonstrate that: (1) the person has an intellectual disability or mental illness/emotional disturbance; (2) the person poses a substantial likelihood of harm because of the intellectual disability or mental illness/emotional disturbance; (3) the person needs care, training, or treatment because of the intellectual disability or mental illness/emotional disturbance; and (4) all available less drastic alternatives to judicial commitment are unsuitable to meet the person’s needs. Thus, under the current law, the state must show, pursuant to the filing of certificates of need from the evaluating medical professionals, that the person “poses a substantial likelihood of serious harm,” by certifying that: (1) the person has threatened or attempted suicide or to inflict serious bodily self-harm; (2) the person has threatened or attempted homicide or other violent behavior; (3) the person has placed others in reasonable fear of violent behavior and serious physical harm to them; OR (4) the person is unable to avoid severe impairment or injury from specific risks. In addition to demonstrating the existence of a threat to harm, attempt to harm, or reasonable fear of harm, the complaint must show that “there is a substantial likelihood that the harm will occur unless the person is placed under involuntary treatment.”
However, HB1640 seeks to change this process by creating a “rebuttable presumption” that a person who has been deemed incompetent to stand trial due to an intellectual disability or mental illness/serious emotional disturbance poses a substantial likelihood of serious harm. This means that the defendant would have to be competent enough to communicate information that would prove a negative (i.e., that he doesn’t pose a substantial likelihood of serious harm), and would need clear and convincing evidence, a higher legal standard than a mere likelihood, in order to do it.
It is not difficult to see the problematic nature of requiring a defendant, whose intellectual disability or mental illness makes him unable to assist in his defense, to rebut a legal presumption that he poses a substantial likelihood of harm with clear and convincing evidence. This higher standard of proof requires a showing sufficient to convince a judge with reasonable certainty that the evidence weighs in favor of the defendant not posing a substantial likelihood of serious harm. It seems from the language of the bill that the court would have to find, with reasonable certainty, that the defendant didn’t threaten or attempt suicide, self-harm, homicide, or other violent behavior; that he didn’t place others in reasonable fear of violent behavior or serious physical harm; and that he is able to avoid severe impairment or injury from specific risks. There would also need to be a finding that there is not a likelihood that the harm will occur if the person goes free.
Proving a negative is hard enough, but it is presumably impossible in the case of a defendant deemed incompetent to stand trial who, thus, does not understand judicial proceedings or what is required to avoid involuntary commitment. This presumption may have the effect of allowing the medical professionals who are providing the assessments and certificates of need to avoid having to include findings related to substantial likelihood of serious harm. It is worth noting that this bill does not limit the offenses for which the rebuttable presumption is imposed, meaning a person who is deemed incompetent to stand trial for a low-level, non-violent misdemeanor would have to overcome the legal presumption of substantial likelihood of serious harm. For example, this bill would create the rebuttable presumption for purposes of involuntary commitment of any unhoused person “camping” on public property. Amending T.C.A. §§ 33-5-403 and 33-6-502 to require a rebuttable presumption of substantial likelihood of serious harm could result in the automatic involuntary commitment of any person deemed incompetent to stand trial.
When legislation is reactive in nature, fueled by gun violence or other tragedies, measures aimed at keeping the public safe must preserve the civil rights of those persons the state has categorically determined pose a threat. An inability to aid in one’s defense or understand judicial proceedings is in no way logically tied to the risk of harm one may pose. Creating a rebuttable presumption under these circumstances lacks the fairness we would expect to see in our criminal justice system, or at least in the law. There is nothing fair or just about statutory traps aimed at stripping Tennesseans of their freedom indefinitely, and they have no place in our criminal justice system.
That’s all for this Policy Watch. We will have our official bill tracking list when we’re back in your inbox next week.
Until next time, Zoë
Resources
Policy Reference Sheet: Common Terms & Definitions
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About DRT Policy Watch
Disability Rights Tennessee's (DRT) Policy Watch is a weekly brief with information about legislation that impacts Tennesseans with disabilities.
Disability Rights Tennessee protects the rights of Tennesseans with disabilities.
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