Jesse: Michelle, generally speaking, what is the difference between a criminal process that leads to a person being detained and a civil process that leads to a person being detained?
Michelle: I would say, civil versus criminal, civil is slightly less punitive, ever so slightly less punitive. In that, yes, you are not going through the fingerprinting system, the mugshots, you're not being put into jail. You don't have a bail that you have to pay in order to be able to go home. Those would be the only benefits that I could think of.
Jesse: Yeah, generally the civil commitment process doesn't lead to a person being fingerprinted, or a mugshot, or being held in a jail, unless you are in Mississippi.
Michelle: Oh, shit. Mississippi? I like that you didn't tell me what state we were doing first because if you had said, today we're doing Mississippi, my heart would have plummeted, but it wouldn't have plummeted the same way it just did. Oh, man.
Jesse: Well, expect more heart plummeting conversation about mental health laws because what podcast is this?
Michelle: This is committable.
Jesse: Perfect, and now on to Mississippi.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mengen, and I'm here with Committable producer Michelle Stockman.
Michelle: Hello.
Jesse: And for this episode, we're going to be talking about mental health laws in Mississippi. And to learn more about those laws, I spoke with Isabelle Taft.
Isabelle Taft: My name is Isabel Taft, I am a health reporter at Mississippi Today. This year I am focusing on mental health in Mississippi as part of ProPublica's local reporting network with a focus on the issue of people being held in jails in our state with no criminal charges during the civil commitment process.
Jesse: So you recently wrote an article focusing on this civil commitment process, which can result in people being held in jail. Can you talk a little bit about that process and what does the law say about that civil commitment process?
Isabelle Taft: The first thing to know Is that this process plays out somewhat differently across the counties in the state. So you can generalize and the law applies in every county but there's going to be wrinkles and variations, especially as it relates to the use of jail during this process. What the law says is that anyone, it can be anyone, can go to their county chancery clerk's office to file an affidavit alleging that a person is in need of mental health or addiction treatment because they pose a danger to themselves or others. They have to provide sufficient evidence to substantiate this claim. And then the chancery clerk's office then begins the process of summoning evaluators to evaluate this person. The first step in the process is actually a pre evaluation screening at the local community mental health center. And then a person is supposed to be evaluated by at least one physician, it could be two, or it could be one doctor and then a physician's assistant, or a nurse practitioner. That's supposed to happen within 48 hours. And then within 7 to 10 days of that examination, someone is supposed to have a hearing and then the judge can decide if the person should be committed to a state psychiatric hospital or to another facility or not mandated into any kind of treatment at all. Where jail comes into the picture is that the law says that during this process before a person has their hearing, they may be held in jail if there is no reasonable alternative. And in some counties this has been interpreted to mean, well, we don't have a hospital here. Therefore, jail is all we have. Therefore, anyone going through this process may be held in jail.
Jesse: Is that designed into the process? Or is that an accident? What's happening there?
Isabelle Taft: Yeah, I think it is not designed into the process in the sense that if you read the law, it clearly does not envision jail being used regularly, routinely the way it is in many counties, but it does allow jail to be used. It's a little bit unclear what the law allows after someone has had their hearing and is awaiting admission to a treatment facility, but the law does say people can be held in jail without criminal charges during this process if the court finds there's no reasonable alternative. And to the question of design, I think It's not a secret that this happens in the state, so certainly it is by design that nothing has really been done to stop this practice, but the law itself does not, you know, encourage this practice.
Jesse: So you were covering one particular story that ended tragically and in that story, an affidavit is filed to have someone else evaluated, and that goes to a Special Master. What is a Special Master?
Isabelle Taft: Yeah, a Special Master is a person who has been appointed by the chancellor in their area to hear these cases, so the Special Master could be anybody, they just have to be an attorney. They don't have to have any kind of special training in mental health or behavioral health, and they don't have to live in the county where they're doing this work. And their role in the process is to not only hold the hearing, but also to sign the paperwork at other stages in the process. So, in this case, the person who signed the paperwork ordering Jimmy Sons, who I wrote about, to be taken into custody and held in jail, that person was the Special Master making that decision based on the facts that Jimmy's father had presented.
Jesse: So the foundation of the civil commitment process in Mississippi is similar to most other states. Pretty much anyone can go to a Chancery Court and fill out an affidavit alleging that someone else needs to be detained for psychiatric evaluation. That affidavit is then reviewed by someone at the court and, if approved, someone from the sheriff's department is sent to pick up the person named in the affidavit and detain them for an evaluation. Those basic steps are similar to most other states. But what might be uniquely horrific about the process in Mississippi is that once that person is detained they are brought to a jail where they are processed, fingerprinted, a mugshot is taken, and they are locked in a jail cell for possibly days, possibly a week or more, waiting to be evaluated.
Michelle: In many previous episodes where we have done this, I feel like both Jim and I, when we're both in the room, we'll stress some of these things, like anyone can do this? Or is this someone with just any old credentials? Or could they even go to jail? And I feel like in most times, you have said, whoa, whoa, whoa, whoa, it actually is ever so slightly not as bad as what you just pitched. And this time, it feels like it's as bad, or in fact, actually worse, than the nightmare scenarios that Jim and I would normally catastrophize.
Jesse: Correct.
Michelle: Great, carry on!
Jesse: So there's an allegation that this person is in need of some sort of mental health treatment. And the response to that allegation is to detain that person in a jail, where they are virtually guaranteed to be denied anything even resembling appropriate mental health treatment. And all of this is because someone at the Chancery Court determined that jail was the only reasonable option, which, to me, raises a lot of questions around how they are defining “reasonable”. And raises questions about discretion. Because generally speaking, members of law enforcement tend to have a lot of discretion around how they enforce specific legal codes. So my next question for Isabelle was how much discretion do sheriffs have in carrying out this civil commitment process?
Isabelle Taft: Some sheriffs in the state believe that they have absolute discretion and they have been Involved in efforts in their counties to stop this practice. So there is a sheriff who took office in Warren County in the 1990s, which is near Jackson, but about 45 minutes away, and he told me that when he took office, he said, I'm not going to do this anymore. We have alternatives. We're going to stop this. And the county did stop this. I'm aware of a sheriff in another more rural county who did something similar. But other sheriffs feel that when they receive a court order telling them they have to hold someone in their jail, that they don't have any latitude. That they don't have the power to stop this, and that they can't just turn someone away, and that it's up to other actors within the system, whether that's the county boards of supervisors to fund alternatives, whether it's the chancery judges to stop sending people to jail, whether it's the state to fund additional alternatives, that other people are the ones who have to solve this, not them.
Jesse: It seems like a lot of the discretion as it exists is in the chancellery special master area that, theoretically, if I read the law correctly, there should have been about four steps of decision making before someone reaches a point where they say there's no reasonable alternative to sending someone to jail. One of those alternatives is a crisis intervention team. Is it supposed to be that a crisis intervention team is supposed to be called by the special master before they send them to jail? Is that what's supposed to happen?
Isabelle Taft: No, so In Mississippi, you're right, the CIT training and the legislation supporting that is new, but that process has really been kind of parallel to conversations about the civil commitment process. So there's nothing in the law, nor in any of the practice that I heard about when I was reporting that involves summoning CIT trained officers at any stage during this process. There's really not an integration of the crisis response programs that the state says it has been scaling up into the civil commitment process directly. So sometimes the deputies who do the pickups to detain people during this process do have that training, but they don't always have that training, they're not mandated to have that training. Another kind of acronym that contains the word crisis that is very much part of this process, the Crisis Stabilization Units, which the state has been expanding in recent years. Ideally, the way the process is supposed to function, people will be detained in those units and not in jail. But those are often full and they have a lot of discretion in terms of who they will admit. And law enforcement that I talked to were often pretty frustrated that the CSU would say, well, this person's, you know, too violent, we're not going to take them. And then that person would have to go to jail.
Jesse: So it seems that the exact degree of discretion that law enforcement has in these situations has never really been clarified by legislators. But the CSUs, the Crisis Stabilization Units, exercise a significant amount of discretion in who they will, or will not, accept into their facilities as part of this process. And to me, it almost feels like a game of chicken between two different types of authority, with the person who has been alleged to have a mental health condition, and alleged to be in dire need of treatment, caught in the middle, going nowhere.
Michelle: I mean it's a tricky situation as part of Committable, and it's also a tricky situation in I think abolition spaces as well, because on the one hand, you know, and this is the part I run into with abolition spaces. There's this gut instinct to just be like, remove the punitive jail portion of things, get them seen by crisis intervention units, get them into a hospital, get them into a service that is specifically for, you know, the mentally ill, and that's going to fix the problem. But we know that that's not going to fix the problem. And so, I don't know, it's all very strange because I'm almost finding myself falling into that trap while talking with you about Mississippi. Where like, my brain is like, yes, the Crisis Intervention Team, that's exactly what we need, that's the solution. But, while yes, removing the jails is a win, it's not what's still actually needed. Like, we still need all of those crisis, you know, representatives to also still see that person as human. Which going to a jail first is not helping. That's not helping any of those crisis individuals actually look at that person like a human being. The second they're put in jail, It doesn't matter why, it doesn't matter if it's a fluke of the system, they're going to see them coming from jail and that's already an additional ding against them on top of all of the millions of other dings against them.
Jesse: Yeah, that's a really good point, that by building the option of jail into the process, they may have created a form of self perpetuating trap that no one really benefits from. And I still don't fully understand why this is being allowed to happen at all because the law seems to clearly state that the Special Master, or whoever it is that is in charge of this process from the Chancery Court, that person has a responsibility, a legally specified obligation, to make significant efforts to find an alternative to jail. But it appears that many of the people in this process, for whatever reason, view jail as the inevitable outcome. Which it very clearly should not be. So, I don't know, maybe I'm misreading the law? Maybe there is some legal nuance, or historical context that explains, you know, whatever it is that I might be missing?
Isabelle Taft: I don't think you're missing anything other than a couple kind of context facts. One of which is there is pretty limited state oversight of this process. So, there is no one checking to see whether the counties are actually doing each of these steps in a timely manner. There was up until this year when a law passed, which is going to require some of this data collection. There was no one asking the counties how frequently they were holding people in jail at any stage of this process. So there's just a basic lack of oversight and data collection around these practices.
Another aspect of the law is that in some ways the language is pretty straightforward on time limits, but in other ways it is not. So, for example, the first step of the process is the pre evaluation at the community mental health center. The law does not say how quickly that has to happen. And so different community mental health centers around the state have different standards for how quickly they're supposed to do it. So based on documents that they submitted to the State Department of Mental Health, I know that some of them say we try to do these within 24 hours, but somebody could have been in the jail for 24 hours. Some of them say we do these within 48 hours, some of them provided no time frame to the state at all. So it's just sort of ambiguous really how quickly that's supposed to happen. And although the law does say those two examiners have to be appointed immediately, it also says if you can't find two doctors within 48 hours, you can do one doctor and someone else. But then it doesn't say, okay, you've missed that 48 hour deadline, now how much time do you have to bring them in? So I think there's just enough kind of confusion in the text of the law that it opens the door to some confusion at the county level and some kind of, you know, there's not always the sense of urgency that you would expect just from reading the plain language of the law.
Jesse: So, in theory, something is happening immediately, but if the facility that does the pre screening, which I'd assume would be like a community health center?
Isabelle Taft: Mm hmm.
Jesse: If their policy is 48 hours, then you're being detained in jail before that first step, and if that first step doesn't happen, you can't go to the next step. And every time there's a delay, whether by policy or circumstances, you just keep accruing all of this time.
Isabelle Taft: Yeah. And the law doesn't say anything about business days or business hours, but it seems to often be interpreted that way. So if you get booked in on a Friday, regardless of what the law says, you're probably going to be waiting there over the weekend without an evaluation.
Jesse: And people are being processed when they go to jail, they're being fingerprinted. Do you know if those records are being expunged or erased afterwards? Because I'm not familiar with any law that is specific about the conditions for fingerprinting, it just seems concerning to me that someone who wasn't accused of a crime would be fingerprinted and they would hold on to those records.
Isabelle Taft: Yeah, I don't know the answer to that question. There is a law that was passed relatively recently saying that counties should not publish the mugshots of anyone detained for this reason, but I have heard of that happening as well, including in the last few years. And some counties said, well, we don't put folks going through this process on our jail docket because they're patients, we want to protect their privacy. Other counties obviously did not do that, and that's how we were able to get this tally. But I think, I mean, to me, it's really concerning to think about people's information being collected in this way, as if they're accused of a crime, but it's also very concerning to think about jails hiding the fact that they are detaining people without any criminal charge and no one being able to, you know, look at and see how long people are being held for, precisely what is recorded as their charge.
Jesse: Requiring the data collection would basically say, anyone involved in this process has to explain why they made, they have to file, I made this decision because, I made that decision because.
Isabelle Taft: Yes. Which I, when I started this reporting, I was sort of stunned that that doesn't already exist, but you know, it'll be interesting to see what we learn now that it does exist.
Jesse: It is really difficult for me to understand what the intent behind a law like this is, because involuntary detention of any kind brings a risk of harm to the person being detained. So we as a society need to talk more about the harms caused by the civil commitment process, but with Mississippi, it feels like we can't yet really access that conversation because we are stuck on an even lower level of hell where the lines between civil and criminal aren't just being blurred, that distinction has been rendered virtually obsolete. And the people being detained are forced into that limbo and abandoned to the confusion.
Michelle: Yeah, I mean it's like, it's the lesser of two evils kind of debate where, you know, there are tons of people who are like, well yeah, when you have two evils, pick the less one. And then there's a whole other category of people that's like, This is a stupid question, why are we asking it? If it's between two evils that's not a choice, this doesn't count, and fuck all of it.
Jesse: I think if Committable ever starts merchandising, “Fuck all of it.” is probably the first thing we put on a t-shirt.
Michelle: Great.
Jesse: So as we bring this episode to a close, considering the weight of all the unnecessary and avoidable trauma that this process can cause, I asked Isabelle what she thinks it would take to clarify these laws, so that this civil commitment process no longer leads to jail.
Isabelle Taft: I think there are a couple different things that could happen at the county level. One thing that I heard from a few counties is that they will not take someone into custody, they will not detain someone until they have scheduled an appointment for the pre evaluation for the two examinations by the appointed physicians and for the hearing. So all of that happens on the same day so that someone spends less time in police custody. And then because all of those have been scheduled in advance, the chancery clerk who is responsible for finding a bed for someone to wait in before they get admitted to a state hospital, that chancery clerk's office has had time to figure out an appropriate facility to hold that person if they are committed to a state hospital and have to wait. So that way you just reduce the amount of time someone's spending in custody while waiting, and then you make sure that there's a plan in place to keep them out of jail. Another thing that I think would address some of this is changes in practice by the Crisis Stabilization Unit. So less leeway for them to reject people. There are, you know, security enhancement measures that some of them have adopted in recent years, but I think it's an important question, why are they denying admission to so many people and what would it take to increase the admission rates so that people aren't getting rejected from a CSU and then sent to jail? More CSU beds would also help expansion beyond the capacity that the state currently has. And then I don't think this is something that every county would pursue, but some counties also have contracts with private psychiatric providers so that the county will pay for their residents to go to a hospital while they're going through this process if a public bed is not available.
Jesse: My understanding with a lot of the facilities used in this process, whether it's a hospital or a Crisis Stabilization Unit, is that they're all Department of Mental Health licensed. So they'll all have to be approved by the Department of Mental Health. Could the Department of Mental Health change their policies and simply say you have to accept someone in this process or else we will not license you? Would it be that simple?
Isabelle Taft: That's a good question, I think the Department of Mental Health has recently begun making clear to the community mental health centers that run the CSUs that the rejection rate is a metric that they're paying attention to. I don't know sort of what the calculus would be as far as really, you know, playing hardball there, but definitely there is room for the state to collect data and then use that to kind of, you know, use their certification and funding mechanisms to apply pressure to other actors in the system.
Jesse: Is there anything else I haven't asked about relating to this that you think is important to know?
Isabelle Taft: I guess the one thing that really stood out to me in this reporting is how constant this issue has been in Mississippi for decades. We found newspaper articles going back to the 1980s where sheriffs were saying we're not equipped to deal with this. We're tired of holding people with no criminal charges for weeks and weeks while they wait for a state hospital bed. This is unacceptable. We need to do something. Many of those quotes with very few changes kind of appear in the 90s, in the early 2000s, in the 2010s, I heard it when I was reporting this year. And when people died in jails while being held for this reason, sheriffs quoted in articles about that would say, you know, very much the same thing. This shows that we really are not equipped to handle this, you know, we wish we didn't have to do this. Someone please fix this. So I just have been really kind of disturbed by how little has changed over the last four decades in the state.
Jesse: Yeah, if it happened for the first time you could understand it was an accident, or that it was a newly discovered flaw in the system or whatever, but if you're saying three to four decades? There's really no explanation for why that hasn't been fixed.
Isabelle Taft: Yeah, and I think part of it is that there was not much data collection, so sheriffs would say, Oh, this is a big problem that we're seeing, but nobody really knew exactly how common it was around the state. And I think a lot of the reporting has not centered the perspectives of people who have gone through it and has not talked about their experiences in jail and how it affected them and their families to go through this process and then wind up getting put in jail with no criminal charges and waiting there for, you know, an undetermined amount of time. When you're in there you don't know how long you're going to be there because you have no bond. And the only way out is when a bed becomes available. So, I'm hopeful that more reporting will maybe create some energy for change around this because it's something that everybody recognizes is a problem, but you know, as you said, that sort of begs the question of why it hasn't been addressed before in a really meaningful way.
Jesse: So, Michelle, any final thoughts on mental health laws in Mississippi?
Michelle: Well, it's an additional state I don't want to go to now.
Jesse: And speaking of states with really concerning mental health laws that make us Reconsider where we travel, next time on Committable we'll be talking about mental health laws in California.
Michelle: Looking forward to it? I guess?
Jesse: Yes, fresh new layers of commitment hell.
Michelle:Oh Dante, if only you had known!
Jesse: (laughter)
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the song Reasonable by Christopher G. Brown.