Arlington, VA

Officials and activists are asking the county courts to make a newly-proposed mental health jail diversion program more inclusive.

Arlington and Fairfax public defenders joined several advocates during a Thursday evening meeting about the proposal, and urged county officials to broaden the mental illnesses diagnoses accepted in the program and not require plea bargains as a participation requirement.

Brad Haywood, who leads the Office of the Public Defender for Arlington County and the City of Falls Church, shared a list of changes his office wants the county to make to the proposal before the county submits the application to the Virginia Supreme Court.

Juliet Hiznay, a special education attorney by training, joined him on Thursday to express concern that only some “serious mental illnesses” were considered shoe-ins for the program, which is called the Behavioral Health Docket.

Hiznay said she was worried that people with developmental disabilities (like ADD or autism) could also benefit from the court-supervised treatment plan, but would be considered “exceptions” under the current eligibility criteria.

Much of the evening focused on discussing whether the county should require participants to plead guilty to their charges before participating in the program (as is currently proposed) or allow them to follow the docket program and then have a trail (as Fairfax County does.)

“Because it requires a guilty plea it literally can’t decriminalize mental illness,” said panelist Lisa Dailey, who analyzes and advises mental illness decriminalization policies at the Treatment Advocacy Center. “So if that’s your goal you’re failing right out of the gate.”

When Arlington Assistant Commonwealth’s Attorney Lisa Tingle asked Fairfax Public Defender Dawn Butorac asks whether the Fairfax docket convicts participants of their charges if they fail out of the program, Butorac said Fairfax prosecutors set no such deals.

“Telling your client ‘if you fail this is what we’re going to do’ is sending the wrong message,” Butorac said.

Haywood pointed out that another benefit of nixing the pre-plea requirement was getting people into treatment fast — something not possible if the county’s tedious discovery process slows down the process.

Haywood also noted that requiring pleas to participate in the mental health service could lead innocent people to say they were guilty in order to access services. He acknowledged that was an “extreme” hypothetical but could be avoided if the county followed Fairfax County’s example of only contending with pleas after a participant finishes their docket treatment plan.

“We are much more inclusive than Arlington,” Butorac said of Fairfax’s docket, which was created after a mentally ill woman was tasered.  “When we drafted it, we wanted it to be as inclusive as possible.”

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Some officials and residents are asking for more time to review a jail diversion program for people with mental illnesses, saying the county developed it without enough public input.

About a hundred people gathered in the County Board’s meeting room Wednesday afternoon for a meeting called after activists requested a chance to weigh in on the new criminal justice program. Attendees expressed general support for the “Behavioral Health Docket” but worried about its requirement that participants plead guilty to participate, adding that the county needed to listen to more members of the public before finalizing the program.

“I think it’s important to keep in mind is that even if the application is a post-plea docket, which is what Judge [Fran] O’Brien would like to see happen, that there’s going to be evolution,” said Department of Human Services (DHS) Director Anita Friedman in an interview. “I think that even if we start post-plea we might add pre-plea later.”

“I think the important thing is not to let perfection be the enemy of good,” she said, noting that the county has revised its other diversion program, Drug Court, many times over the last few years.

The Office of the Executive Secretary of the Supreme Court of Virginia must approve the county’s request to form the diversion program. DHS originally planned to apply for that approval last month before a group of activists and officials, including incoming prosecutor Parisa Dehghani-Tafti, said they hadn’t heard about it and had concerns.

After the meeting, officials did not confirm whether they would extend their plan to submit the application in September, or would schedule additional public meetings.

Chief Public Defender Brad Haywood was one of the officials who said he hadn’t heard about the application until very recently. On Wednesday, Haywood said he still supported for the docket but reiterated concerns about the post-plea condition.

“I really want to make sure that as many people as possible are getting into this program, and getting in as quickly as possible,” he said, adding that requiring pleas could “dramatically reduce” the number of participants and how fast they can join it.

The Behavioral Health Docket will accept participants who have pled guilty to a misdemeanor offense, or a felony reduced to a misdemeanor, and reside in Arlington, according to a program description obtained via a Freedom of Information Act (FOIA) request. People with a history of felony convictions, sexual offenses, or have active warrants out for their arrest in other jurisdictions cannot participate, per a copy of the application ARLnow obtained after filing a FOIA request.

Participants would have to meet weekly in court as well as their probation officer, mental health clinician, per the application. Participants will also have to pass drug and alcohol screenings, take any medications prescribed, participate in activities like volunteer work or employment, and stay clear of any new arrests. Over time, participants will meet less frequently as they work towards a “graduation” where they’ll be supervised for another 90 days.

“That’s why it’s called a therapeutic docket,” said Judge O’Brien. “It’s designed to help people with mental illness and designed to help keep them on a path that keeps them out of the criminal justice system.”

She told the audience that it was imperative to move quickly because of the sheer number of people affected. Earlier that day, she said five people on her docket were clients of the county’s behavioral health services and where “chronic violators” of their parole. Recently, she said one defendant disappeared after appearing to get better and family members were concerned he was off his medications.

“All I wanted to do is try to find him before he got too far gone,” said O’Brien. “Because I didn’t have that power because he wasn’t on my docket, so I had to issue a warrant for his arrest.”

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Arlington County is considering a new program to divert people with mental illnesses into treatment instead of jail.

The proposed program would waive incarceration for people with mental illnesses who are convicted of non-violent misdemeanors if they agree to an intensive treatment program supervised by a judge. All the officials who spoke to ARLnow about the program supported it, but some weren’t aware the county was working on the program and said they had little opportunity to add input.

The Arlington County’s Department of Human Services is spearheading the program. A spokesman told ARLnow on June 27 that in response to “recent requests” it would host a public meeting on the so-called Behavioral Health Docket on Wednesday, July 17 at 3 p.m. The location of the meeting has yet to be determined.

“The aim is to divert eligible defendants with diagnosed mental health disorders into judicially supervised, community-based treatment, designed and implemented by a team of court staff and mental health professionals,” said DHS Assistant Director Kurt Larrick.

This new docket aims to accept defendants 18 or older who reside in Arlington and who are diagnosed with a serious mental illness, Larrick said. Additionally, only defendants who have been charged with misdemeanors, not felonies, would be eligible for the diversion program. Defendants would need to agree to work with a team of mental health professionals and program staff to enroll in the docket and agree to follow a treatment plan with some supervision.

“These programs are distinguished by several unique elements: a problem-solving focus; a team approach to decision-making; integration of social services; judicial supervision of the treatment process; direct interaction between defendants and the judge; community outreach; and a proactive role for the judge,” Larrick said.

Where Mental Illness and the Law Collide

Officials and advocates say they hope that the docket will help break the cycle of recidivism that some people with mental illnesses fall into.

“Arlington has a significant number of people with mental illnesses that intersect with the criminal justice system,” Deputy Public Defender Amy K. Stitzel told ARLnow. “Evidence-based mental health dockets not only treat instead of criminalizing behavior that is a result of mental illness, they increase treatment engagement, improve quality of life, reduce recidivism and save money.”

“We’re talking about people who are arrested for vagrancy and loitering and trespassing,” said Naomi Verdugo, who has been an activist for people in Arlington with mental illness for several years. “These are largely misdemeanors and stupid things, and it’s because they aren’t well. We would be better off putting services around them than paying to incarcerate people who are just going to reoffend.”

“It is clear that the local and regional jails in Virginia have a substantial number of persons with mental illness in their care, and that this care is costly to the localities and to the Commonwealth,” says a 2017 study of similar programs statewide.

The most recent data from Virginia jail surveys indicate that statewide 1 in 10 of the inmates counted was diagnosed with a serious mental illness, such as PTSD or schizophrenia, and about 20% of all inmates had some kind of mental illness.

In Arlington, data from 2016, 2017, and 2018 indicates the most common diagnoses for inmates are bipolar disorder/major depressive and schizophrenia.

Chief Public Defender Brad Haywood said his office has been part of a team discussing mental health improvements for 15 years with the county’s Mental Health Criminal Justice Review Committee, and for the past five years with a subcommittee dedicated to creating a docket, called the Behavioral Health Docket Committee. Haywood strongly supports the idea of a Behavioral Health Docket but noted his office wasn’t notified the county had advanced plans for the docket until recently.

“This is not a transparent approach”

While he applauded DHS for moving the program forward, Haywood said he would have liked more input on the design when organizers decided to require defendants plead guilty before participating in the program.

“From our perspective, until early spring of 2019, the process for drafting and submitting an application for the Mental Health Docket seemed to be moving very slowly,” he said. “I don’t know what changed that took the process to where it is now, to having tight deadlines and short comment periods.”

Commonwealth’s Attorney candidate Parisa Dehghani-Tafti, who recently won the Democratic primary against incumbent prosecutor Theo Stamos, said she heard about the docket for the first time two weeks ago. During her campaign, Tafti advocated for a mental health court as part of larger criminal justice reforms, but said she wasn’t given a chance to comment on the Behavioral Health Docket.

She told ARLnow that she has concerns the new program “criminalizes mental illness” by requiring a plea to participate.

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Is the Virginia prison system failing those with mental illnesses? Does the state need to reform its re-entry program? Those were among the topics of discussion Thursday night at a town hall meeting on prison reform, held by local Arlington delegates Adam Ebbin and Patrick Hope.

Helen Trainer of the Legal Aid Justice Center pointed to a story of an inmate who wasn’t allowed to self-medicate in his prison cell. Told to wait in the daily line at the clinic, he ultimately suffered numerous seizures and left the prison as a quadriplegic. Trainer believes the story is not an isolated incident and is indicative of the reform needed throughout the nation’s criminal justice system.

Trainer said prison employees, more often than not, falsely believe that inmates’ behavior stems from a lack of control, rather than from mental health problems. Identifying individuals with mental health issues from the point of intake and diverting them to mental health facilities could help alleviate many of the outbreaks that occur in prisons, she explained.

Scott Richeson of the Virginia Department of Corrections spoke about the department’s new emphasis on prisoner re-entry programs. He said that 13,500 people are released from Virginia’s prisons annually, but only 600-800 are paroled, making Virginia one of the country’s lowest parole-granting states. And of the 13,500 prisoners released, 28.5 percent are incarcerated again within three years.

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Governor Robert McDonnell has appointed two Arlington lawmakers to his government reform panel.

State Delegate Bob Brink and state Senator Mary Margaret Whipple, both Democrats, will join 29 other appointees on the Governor’s Commission on Government Reform and Restructuring.

“The Commission members will conduct a comprehensive evaluation of the state’s agencies, programs, and services to find out how we can make our state government work better for its owners, the people of Virginia,” Gov. McDonnell said while announcing his selections for the panel. “I look forward to working with these reform-minded leaders to examine how Virginia can better serve the taxpayers.”

In addition to Del. Brink and Sen. Whipple, several top government reform thinkers who live or work in Arlington were appointed to the commission.

One appointee, Bill Eggers, is a government reform expert, a global director for Deloitte Research and the brother of author Dave Eggers.

Maurice P. McTigue, a distinguished visiting scholar at George Mason University’s Mercatus Center, and Geoffrey Segal, director of privatization and  government reform at the Reason Foundation, were also named to the governor’s commission.

Commission members will hold their first meeting next month.

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