S3 Episode 5: Missouri

Michelle:  This. Is Committable. This is Committable. This is Committable. 

Jesse: There it is.

Michelle: Boom. 

Jesse: Alright, are you ready to talk about Missouri? 

Michelle: Alright, let's do this.

Jesse: And cue music.

(intro music from Reasonable by Christopher G. Brown)

Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman to talk about mental health laws in Missouri. 

Michelle: Missouri! Alight. 

Jesse: And this episode is going to be a little bit different because we won't be focusing on civil commitments. Instead, we'll be looking at the criminal commitment process and to better understand that process I spoke with Elizabeth Satchell.

Elizabeth Satchell: My name is Elizabeth Satchell, I'm an attorney with the Public Defender's Office in Missouri. I just finished my ninth year, so I'm in year number 10, so I've had a lot of experience with criminal cases and how mental illness, um, how they intersect and what can go wrong and what can actually work out.

Jesse: Would you be okay introducing your dog? I heard, think I heard a dog and I think. 

Elizabeth Satchell: Yeah, his name is Chi, he's part lab part collie. 

Jesse: That's great, I think I might just play a little piece of that to let people know what the tag sound is at some point.

Jesse: So when it comes to interactions between people perceived to be exhibiting symptoms of a mental illness and systems of civil commitment, there are a lot of parallels between that civil commitment process and the criminal commitment process. One important difference though between these two systems is that a civil commitment does not require any allegation of criminal conduct. But in order to be put on the path towards a criminal commitment there does have to be an initial allegation that this person committed a crime. So my first question for Elizabeth was at the point where someone is being detained because they're alleged to have committed a crime, if mental health is believed to be a concern, what changes in that criminal process? 

Elizabeth Satchell: Well, there are a bunch of different ways that mental illness, mental disease, or some kind of abnormality, how that intersects with the criminal case. So I think in most cases it's more of a mitigator. Someone might have assaulted their spouse or something like that, but it was due to mental illness, a mental health condition where maybe they didn't take their medications for a few days or something. Or it's just undiagnosed or untreated. And so as a mitigator, that defense attorney might suggest, Hey, go to a local mental health clinic, do an assessment. How about you follow through with counseling or medication, et cetera. So we use it as a mitigator that way, but then also if it's serious enough that it's affecting their competency, being able to understand the proceedings and their ability to assist in their own defense, then we start the commitment procedure through the criminal case.

Jesse: So I guess there’s two different paths, basically. There's sort of a mitigation path to try and avoid more serious forms of detention, but then there's a commitment path, and that's based off of concerns about ability to comprehend, competency? 

Elizabeth Satchell: Yes.

Jesse: For the competency route, is it the defense attorney who first raises that concern of, I'm not sure this person comprehends the situation they're in?

Elizabeth Satchell: It can be judge, prosecutor, or defense attorney that triggers it. So there just has to be reasonable cause that the person doesn't have the capacity to understand what is going on, or assist in their own defense. So it could be judge just on his/her/their own. Could be a prosecutor saying something's not right here, or it could be the defense attorney. And that just triggers the statute.

Jesse: Once that competency process is triggered, then what happens to the person? 

Elizabeth Satchell: We have a hearing with the judge and then the judge determines yes, there's reasonable cause to believe that this person doesn't have the capacity to continue, and then the case is stalled, you know, put on hold. And that person gets an evaluation. The statute says it could be with a private doctor that agrees to be appointed, however, that never happens. Usually that person goes to the department of Mental Health for an initial evaluation.

Jesse: So the case is stalled. 

Elizabeth Satchell: Right. 

Jesse: So that means that the goal would be to assess competency and hopefully bring the person back if they can at some point understand the proceedings.

Elizabeth Satchell: Right, right. The overall process, and there's a bunch of more steps too, but the overall process is to determine whether the person has a mental disease or defect that is preventing them from having the capacity to understand what's going on or assist their attorney. And then if that is present, then the next step is to help them regain competency and then continue with the criminal case.

Jesse: “Mental disease or defect” sounds like a broad term. Does that include intellectual disability? 

Elizabeth Satchell: Yes. 

Jesse:  And developmental…

Elizabeth Satchell: Yes. 

Jesse: Includes any type of, anything that would…

Elizabeth Satchell: Just about anything except for drug and alcohol addiction. Just run of the mill addiction is not mental disease or defect under capacity. And it's kind of tough because we're looking at whether someone has a capacity to understand, you know? So, ssually what I see with judges is that if anything, any concern is brought up that usually it triggers the statute because there's the punishment side, but then there's also the terrible side of trying to punish someone when they don't understand what's going on. And so it's pretty easy to trigger the statute. 

Jesse: So a person is accused of a crime, they're being detained, probably in a jail, and someone involved in this process could be the defense attorney, the prosecuting attorney or the judge. Someone raises the question of whether or not this person is competent to stand trial for that crime. And that can trigger a process where that person is sent to a psychiatric facility for evaluation. So what happens next? How does that evaluation work?

Elizabeth Satchell: In the initial stage, like I said, they're just getting an evaluation by a doctor at the Department of Mental Health. It has to be done within 60 days, unless they request more time, but their interview is usually just, do they understand the proceedings? Do you understand, what does a judge do? What does your attorney do? What does a jury mean? Why do you go to trial? Et cetera. So there's a bunch of questions like that and then they also assess just general mental health status. So it's not, are you a threat to yourself or others or anything like that. It's, do you understand the process? And then just generally, do you understand where you're at and what's going on? So that initial process takes about 60 days. 

Jesse: Is that evaluation a very time specific question of competency? Are you trying to determine competency now? Or are you trying to determine were they competent at the time of the alleged crime? 

Elizabeth Satchell: Triggering this statute it’s competency now. There's a different thing called, Not Guilty by Reason of Insanity,  or NGRI, that looks at whether that person was competent at the time. And so those are two different things. But with NGRI, it can trigger the statute as just a different reason, different path, and a different focus of the evaluation.So we don't have those cases very often. 

So the typical person on the street, if they do end up with DMH evaluation through a criminal case, it's usually in the competency path, 

Jesse: NGRI, while it gets a lot of attention in media and such, do you have a sense of how common it is? Like, what percentage of cases that actually comes up?

Elizabeth Satchell:I've been in the same office for, like I said, I'm going into my 10th year and I'm aware of maybe one. So it's very, very small. Very, very small. 

Michelle: I don't know how many episodes we've done of Committable so far, and the number of states we've covered. Sometimes the process is like, go left and then go right and then go left, but then if you go left, go right twice, then go upside down four times. I just find it hilarious that one of the bars is, do you understand what's happening here? We've been doing this for a while and I still don't really understand, it's really complicated. 

Jesse: Yeah, my hope would be that the bar for declaring someone incompetent would be about specifically proving that they are incapable of understanding what's going on. Not that they don't currently understand the details of the system. 

Michelle: A system that is notorious for its confusion, and notorious for its ability to write things in supposedly plain language that are in fact too confusing for most people to understand. 

Jesse: Yeah, so a person is accused of a crime, suspected of being incompetent to stand trial for that crime, sent to a Department of Mental Health facility to be evaluated for competency, and that evaluation is supposed to happen within 60 days.

But how does that work? Is it as simple as a clinician just checks a box that says, competent or not competent? Does someone from the DMH facility just declare their findings to the judge? How does that process work? 

Elizabeth Satchell: They write a report and it just sort of depends on whether the judge, prosecutor or defense attorney agrees with the report from DMH. And so, If that person is found not competent to proceed at that point, and everyone's in agreement, that person is just committed to the Department of Mental Health and then they receive treatment to try to regain competency. Usually around six months or so there's a report by DMH saying, Yes, we've regained competency, or, No, we need more time to regain competency. Now if they are found incompetent and everyone agrees with that, that’s just kind of really easy. The contested part is what triggers a lot of hearings with additional witnesses, et cetera.

So if, let's say, Department of Mental Health says the person is competent, and frankly that's what happens a lot. It's actually quite hard in my experience for someone to actually be found incompetent by DMH. I think part of it is during the initial evaluation, it seems like DMH does a brief evaluation, especially with Covid, it's usually over Zoom or some kind of video conference. And so I think it's really hard to gauge someone's competency just over video for like 20 or 30 minutes. If I have someone who has a competency issue evaluated by a doctor, usually it's a full day of evaluations before our doctor determines whether the person's competent or not, because like I said earlier, we don't wanna trigger this statute if we don't have to because it's just another type of prison.

Most of the time, I will say DMH under this initial evaluation does find the person competent, at least in our experience. And then if we don't agree with what DMH says, then we can request to have time for our own evaluation, so we can hire someone to have a second opinion. And so we have to make a written request within so many days, 10 days I believe. And then we have another, I believe, 60 days. There's a specific number of days we have to get our own, you know, second opinion. And then once we do that, if we have conflicting findings by the doctors, then we have an actual hearing where we can present witnesses and evidence, et cetera.

During this initial hearing, at this point, a judge could actually call a small jury of six people to determine whether the person is competent or not. However, that usually doesn't happen. It's usually just attorneys and doctors and battle of the reports. Then at that time, the judge determines whether the person should be committed to the Department of Mental Health for treatment, and so whether DMH agrees with it or not, the judge makes the determination at that point. And if the judge determines the person is not competent and commits them to DMH, then that person gets treatment at DMH to try to make them competent. And that goes along with the six month phase. 

Jesse: This sounds like a process that is necessary to some degree cuz there are a lot of ethical questions about trying someone who isn't, doesn't understand what's happening.

Elizabeth Satchell: Right. 

Jesse: But there's a lot of, also a lot of questions of, even if that is correct, even if your assessment is correct, this person doesn't comprehend then they could be in that treatment facility. They're basically there until further notice, until it is determined that they are competent. Elizabeth Satchell: Right. 

Jesse: So if someone is in a facility for months, if not years, and someday it is determined they're competent, does the time they spent in the facility count towards time spent if they are convicted of that crime or something like that?

Elizabeth Satchell: Yeah, that would be our argument, yeah. I mean, I've had people, they went to DMH on a misdemeanor and they spent more time in DMH than they would have under the statutes if they were found guilty at trial. But yeah, it can get out of control. And so if someone has a lower charge like that, then I usually try to see if there's some kind of alternatives.

Jesse: Are you encountering situations where someone is charged with a misdemeanor, could be trespassing, it could be urinating in public, something like that, and that then ends up with them being caught in this very serious process where they can be detained for almost, I mean, it seems like as long as there's a question of competency, they can be detained for an indefinite period of time.

Elizabeth Satchell: Yes.

Jesse: Okay. 

Elizabeth Satchell:: I really look hard if I have a lower level like misdemeanor stealing, or like misdemeanor assault or something. We really look hard at, like if the person's incompetent or has a serious mental illness or something like that. We try to figure out an alternate way rather than triggering this DMH process.

I've had a bunch recently, in the last couple years where pretty minor offense but they have an intellectual disability or something like that, and so they actually just really need a guardian. I don't, we don't want to jump to guardian, that's another whole issue that can be abused, but if there's some kind of way to resolve it without going the DMH route on something really low, then we try to look for alternatives. DMH alternatives to incarceration. 

Jesse: So with this competency process, someone can be accused of a misdemeanor, something like public urination, trespassing, stealing some food, something like that. And then have their competency questioned and spend more time being detained for evaluation in a psychiatric facility than they would have if they had gotten the maximum sentence for that misdemeanor. Which is frightening. 

Michelle: Oh my gosh. Okay, continue. 

Jesse: Okay, so we've been talking about what happens if someone going through the criminal process is diverted to a psychiatric facility, but what about the time in between? Is there a waiting period before that person even reaches the psychiatric facility? 

Elizabeth Satchell: A lot of times there is, and we often don't know how long that person is going to wait either, they could spend months and months in jail. Recently I got a case where, I actually didn't get his case until after he was delivered to the Department of Mental Health, but he was in the jail and I was aware that he was in the jail, we just didn't have his case yet. And he was there for months and he was playing in his own feces, smearing it on the wall, doing this weird like bird holler/hoot thing and banging his head against the wall. And he was there I think for months before a bed opened up at the Department of Mental Health.

Jesse: So whatever the condition was when the person first entered the system, it's probably safe to say it did not get better during that time. 

Elizabeth Satchell: Right. And if someone is in the throes of a mental health situation like dementia, they don't know what's going on. Or let's say they're developing schizophrenia and there's hallucinations and they’re just out of it, or kind of seems out of control in jail, they're usually put in solitary confinement, which makes things worse. They're often manhandled by officers who just don't understand what's actually going on or how to deescalate the situation. Sometimes they're stripped down and put into what's called a pickle suit, just like a loose covering, sometimes they're strapped to a chair. So really they can be tortured. In my mind, it's torture. And then things are just made worse by how they're treated in the jail. It's terrifying. 

Jesse: So there are these pitfalls, these nightmare scenarios that can arise within this system. But in theory, someone whose competency is being questioned should arrive at the Department of Mental Health Facility and be evaluated for competency within 60 days. Then someone from that DMH facility gives the findings from that evaluation to the court. So what happens next? 

Elizabeth Satchell: If the defense attorney or someone doesn't agree with what DMH says, we can get a second opinion and then have a hearing. And then judge will either find that person competent and usually agree with what DMH says, or commit them to DMH and agree with what our expert says. And so if they are committed to DMH, then they go to the DMH hospital and then they receive treatment to try to regain competency and so they might receive medication, other kind of treatment like that. But then they also take like these classes, where they're taught, you know, this is what a judge does, this is what an attorney does. And then they're kept there until they regain competency. 

Usually at around six months or so, they provide a report to judge, although it can be before that if that person regains competency. But at six months, they have to provide the judge with a report unless they ask for more time, and then it's just, six months, six months, six months. Until a determination is made that they have regained competency, or there's no reasonable probability that that person will regain competency in the foreseeable future. So that triggers two other things. 

Jesse: One thing that's really interesting is this idea of giving someone classes and workshops, or something on understanding this is what an attorney does, this is what a judge does, this is how a court works. Because I imagine that most people in the general public would benefit from lessons like that. 

Elizabeth Satchell: Yeah. 

Jesse: Is that the bar for competency? Are they specifically asking, does this person understand the legal system? Or are they capable of understanding the legal system if taught?

Elizabeth Satchell: In our opinion, DMH focuses more on can you identify all the people in the courtroom and what they're supposed to do. We think, just from on the defense side, we think that they focus more on that part versus being able to assist in their own defense. And so when we do have a battle with DMH it's usually about the second prong, being able to assist in their own defense. Because I think at some point if someone hears something enough times they'll be able to parrot, you know, a judge sits up there and they determine this, or my attorney is supposed to help me. But our focus and our real concern is whether they can assist in their own defense and they actually understand their rights and how they wanna exercise them. And decisions to make as far as whether they wanna testify, whether they have witnesses and can tell us about them so we can investigate the case, et cetera.

So just personal experience, DMH tends to focus on the beginning part, who the judge, attorney, et cetera is, and then we're more concerned about whether they can actually assist in their own defense. That's usually where the battle is, at least in my cases and experience. 

Jesse: So the person's at the point where they are in the facility, they're being evaluated for competency, they're receiving access to classes, things like that. What happens then? What's the rest of the process? 

Elizabeth Satchell: So at some point we have these six month reports from DMH, and so if a person is found competent by DMH to proceed, and the defense attorney usually will meet with their client to see are they in fact better, et cetera. If they don't agree with what DMH said and the defense attorney still thinks that person is incompetent, it can trigger another second opinion. And so, written request, again within 10 days of the report, up to 60 days to another second evaluation, and then, you know, the battle continues on the other side. If DMH does find that the person is basically permanently incompetent, they can't regain competency in the reasonably foreseeable future, then that person is committed to DMH for the purpose of DMH pursuing a guardianship. And so that person could remain hospitalized for the rest of their lives, but under the guardianship. I mean, they could be released to the community, but they'll have a guardianship. 

Jesse: So you have someone who's being accused of a crime and detained in a jail, and then is suspected of meeting the legal standard for being classified as incompetent. So then they are sent to a Department of Mental Health facility, which is a different branch of the government than the Department of Corrections. Different departments, different guidelines. And in this DMH facility there are some sort of classes focused on teaching this person how a courtroom works. But what is also really important to note is that the DMH facility is a different setting, with different policies. That doesn't necessarily mean it's a safe place, or a place that is actually conducive to recovery, but it could give access to different routines, different structures, increased access to medical care and counseling, access to different medication. So a person is in jail, suspected of lacking some type of competency, sent to a DMH facility where something in that facility might have helped them appear more competent to the other people involved in this process, then what happens? They're sent back to jail, to the Department of Corrections, where they may then lose access to whatever it was that might have been helping them.

Michelle: Oh, that makes a lot of sense. A lot of sad, sad sense.

Jesse: And what is likely to happen when this person who has been arrested, is incarcerated, who may have been in jail for weeks, maybe months before being detained in a psych facility for 60 days, or six months or possibly years. What is likely to happen to this person every time they are shuffled between these different policies and practices? Whatever it was that they might have been struggling with before they entered this process it's probably not going to get better. Michelle: Nope, nope, nope.

Jesse: So this brings us to the end of the interview where I asked if there was anything else that people should know about these intersections between mental health conditions and the criminal process. 

Elizabeth Satchell: One of my big things is not overlooking the rural areas. There might be a health facility, or mental health facility in like a big city with taxis and buses and Ubers, and so someone can usually find a way to get there. If you're in a rural community, you're out in the middle of nowhere, you might not have good phone service or internet service. The mental health facility might be an hour away driving, but if you don't have a vehicle, and it takes you all day to walk there. And usually if you're out in the middle of nowhere, unless it's your country home or something like that, usually you're low income. So even if you can get to the mental health facility, you still have to pay. Oftentimes it's on a sliding scale, but I mean, if you don't have $20 you don't have $20.

There's also issues, at least in public defender cases, a lot of people don't have IDs. And so, mental health facilities, usually a sliding scale but you have to have ID, social security card, et cetera. So, it's one thing to say, go get mental health treatment everything will be okay, when you can't even get to a facility. If you get there once, you can't get there for every single, you know, follow up appointment. Also, if you're given medication, being able to afford that or even getting to a pharmacy to get it. Also, if there is a mental health facility in a rural area, it might not be the appropriate place for someone with serious mental illness either.

And so we see a lot of cases where someone's low income, of course we’re public defender system. So someone's low income, maybe has a serious mental health issue, but just hasn't been able to get treatment because they live in a rural area and there's just no access. So these are a bunch of things policy makers and people thinking of solutions to these problems, they overlook the people in the rural communities. 

Michelle: I'm still waiting to find the state I'm happiest living in andI don't, I don't think Missouri is gonna make the cut.

Jesse: Okay, well then maybe you'll find it next time on Committable, when we'll be looking at mental health laws in Maryland.

Jesse: Committable is produced by Jim McQuaid, Michelle Stockman, and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.