Gap cases

A difference in standards is causing some people to fall through the cracks in Minnesota’s criminal justice system.

For some people, that has meant not receiving the mental health services they need. For others, it has meant not seeing justice served when they have been the victim of a crime.

“It’s extremely frustrating,” said Morrison County Attorney Brian Middendorf. “The public expects us to do something on these cases, and to explain to a crime victim that we had to dismiss their case and nothing is being done to a defendant, that’s a very difficult conversation to have.”

When someone is charged with a crime, a judge, prosecutor or defense attorney can ask for a Rule 20 evaluation if they believe the defendant is not mentally competent enough to stand trial. The standard for not being competent is, according to Middendorf, “due to a mental illness or cognitive impairment, the defendant lacks the ability to rationally consult with counsel or understand the proceedings or participate in their defense.”

Since January 2017, 55 defendants in Morrison County have been referred for Rule 20 evaluations. Of them, 38 were ruled to be competent. When that happens, the criminal proceedings conclude as they would in any case.

Fifteen, however, were ruled to be not competent. Among those, six did not meet the standard for civil commitment that, due to mental illness, they pose a substantial likelihood of harm to themselves or others.

These are the “gap cases.”

“If they don’t meet the commitment standard, that’s where the gap is,” Middendorf said. “They’re not competent to go to trial, so that ends the criminal case — at least temporarily — and they’re not committable, either. Really, there’s nothing you can do with these individuals. It’s just a no-man’s land.”

The process

Once someone is referred for a Rule 20 evaluation, the County Attorney’s Office sends the case to Social Services for pre-petition screening. At that time, Social Services employees investigate historical information such as hospital reports, crisis intervention and previous diagnostic assessments. They also connect with the individual’s current and recent providers.

A personal interview with the individual in question also provides key information.

“We are able to meet with them,” said Morrison County Social Services Adult Services Supervisor Jeff Bowman. “We get to explore less restrictive set options, what happened to them, what they would prefer; just get a good historical perspective from their own stance.”

Once that pre-screening process is finished, it goes before a screening team in the Social Services Office. This is made up of no less than four adult mental health case managers, supervisors or other staff members familiar with the commitment process. That group makes a determination as to whether or not the individual meets the standards for civil commitment.

“We pull together a group of people that take a look at the individual, the information provided and make a decision,” said Morrison County Social Services Director Brad Vold. “Really, kind of, talk about what’s been done, what hasn’t been done, what can we do besides commitment, or is commitment the only option to make sure they’re safe and somebody else is safe?”

If it is decided that a person meets the standards for civil commitment, the case then goes back to the County Attorney’s Office. There, a preliminary hearing is scheduled and the individual is assigned a public defender. A judge then determines if a final commitment hearing is necessary.

In the time between those two hearings, a licensed psychologist is appointed by the court as an independent examiner. They meet with the person and give a formal recommendation as to what should happen — full commitment, a stay of commitment or none at all.

If a person is recommended for full commitment, they typically will be placed in a hospital setting to be psychiatrically stabilized. But, in the situation of Rule 20 cases, a person must receive restoration to competency before they would be allowed to stand trial.

“Although, that leads us to the next problem with Minnesota,” Middendorf said.

Minnesota’s problem

According to Middendorf, Minnesota’s system is unique.

In many states, there is a form of commitment based on an incompetency finding alone, meaning there is no separate civil commitment process. A person found to be incompetent goes directly to competency restoration services. In other states, mental health treatment is ordered as part of a pre-trial release condition.

“Commitment is the only way in Minnesota to receive competency restoration services,” Middendorf said. “So, if they can’t be committed, they’re not receiving those services.”

Therein lies the next big problem.

Until 2018, the Minnesota Department of Human Services (MDH) provided competency restoration services at its facilities in the Twin Cities metro area.

Then, in 2018, DHS sent out an announcement stating that, due to volume of cases and a lack of resources, it was no longer going to provide competency restoration services. Middendorf said that revelation caught a lot of people by surprise.

So, who does competency restoration services now?

“No one does,” Middendorf said. “That’s the problem. You have these people that are clearly mentally ill and they’re not receiving the services they need, so nothing really happens. What we’re seeing around the state is, they just often get worse; commit more crimes, hurt themselves or hurt others. It’s really a serious problem.”

Vold said this has been a regular concern for counties around the state. Some of the larger counties in the state that see more Rule 20 cases are doing some type of restoration internally, he said, but that doesn’t solve the problem for smaller, rural counties like Morrison.

“So, if we would have one, we would probably have to kind of pull some things together or figure it out because, as we know, it is not being done by the state anymore,” Vold said. “That has been a big conversation between counties and the state about giving that piece up.”

Meeting standards

A lack of information is often another hurdle Social Services must overcome in order to prove someone is a danger to themselves or others.

Vold said, many times when it comes to Rule 20 cases, the individual has not been seen by a physician or mental health professional prior to referral for evaluation. That means, as the screening team is evaluating whether or not a person should be committed, it often doesn’t have key information in making that determination.

Vold said it is often impossible to recommend a person for commitment without a physician’s statement of support.

“Our County Attorney’s Office really wants an individual, if at all possible, where we have the examiner’s statement as to support of commitment, as well as a 72-hour hold initiated,” Bowman said. “Those two pieces clearly illustrate the imminent the danger and the inability to follow through with recommended services. Those two pieces really meet statute level for not being able to take care of themselves and meet their needs.”

Outside of civil commitment, Social Services has no means by which to force someone to seek mental health intervention.

Bowman said Social Services can inform a person of the community supports that are available, such as intensive community-based treatment services (ICTS), case management and MnCHOICES through Morrison County. But, if someone is not willing to voluntarily take advantage of those services, there is nothing that can be done.

In that case, the person charged with the crime often has their case dismissed and also does not receive the help they need.

“Our hands are tied with some of those situations and everybody gets frustrated, especially our law enforcement or other individuals that have been dealing with these people on a routine basis,” Bowman said.

“We all know this person needs help, needs support,” Vold added. “They can’t really see it for themselves at that point. That’s really the challenge. We know they’re struggling, they probably had some trauma in their life. Our intake worker’s good about reaching out. If they’ve had a prior case manager, they’ll try to build that connection again. But it’s hard when they can’t see the need for themselves to get that help and support.”

Closing the gap

This is not an issue that has been overlooked by those in the criminal justice, mental health and even political communities. Though it has been recognized, a solution is yet to come forward.

But there is hope.

Vold said a gap study is currently being conducted by the Center for Behavioral Health Strategies in conjunction with Sourcewell. The study is looking specifically at Morrison, Cass, Crow Wing, Todd, Wadena and Aitkin counties to examine what services are available and what is lacking from a Social Services perspective.

The end result, he hopes, will be a better system and better services for residents of central Minnesota.

“It’s challenging for the community in general,” Vold said. “You talk about the stakeholders involved in the system, family members, the individual — it’s challenging for all.”

Middendorf said reinstating restoration services at the state level would be a step in the right direction. Recognizing that the problem exists does not in itself create a solution.

“This is a legislative fix, without a doubt,” Middendorf said. “I know legislation has been proposed over the last few years. The Minnesota County Attorneys Association has been very involved in that process and has made recommended changes, but for whatever reason nothing seems to be getting passed. I don’t know if it’s a money issue, or if it’s something else. It’s obvious that the system is failing here, so something definitely needs to be done.”

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