Colorado Cries Uncle in Ten-Year Fight Over Warehousing of Mentally Ill

Colorado Attorney General Cynthia Coffman has agreed to the appointment of a "special master" to independently oversee the state's plan to address the routine warehousing of mentally ill individuals in jails for months at a time without evaluating their condition, much less ordering any treatment that might help them.

Essentially, the move is an admission that what the state has done to address the issue over the span of a ten-year court battle simply hasn't worked. (Coffman's response to the request for a special master and a document outlining the duties of the person to be placed in the position are accessible below.)

The plaintiff in the case is Disability Law Colorado, and among the lawyers representing the agency is attorney Iris Eytan, who recently outlined her decade of involvement in the controversy.

Back in 2008, Eytan learned that after a mentally ill defendant was jailed for stealing a bicycle, his public defender had asked for an evaluation to determine if he was competent to stand trial — and six months later, he was still waiting for such an analysis. Moreover, he wasn't the only person in this situation. By Eytan's estimate, eighty people suspected of suffering from mental illness were lingering behind bars over low-level offenses every day in Colorado because they didn't have the resources to pay bonds that would have led to their release.

Shortly thereafter, Eytan filed a contempt action against the Department of Human Services, which settled the matter with promises that such lengthy waits would be eliminated with the construction of a new mental health facility in Pueblo. But three years later, after the operation was up and running, the wait list of mentally ill people locked up for far longer than they should have been had grown to 100 per day. So Eytan headed back to federal court — and this time, DHS signed a contract agreeing to evaluate inmates believed to be suffering from mental illness in 28 days, with another 28 days granted to either restore them to competency or declare them incompetent.

The department didn't live up to this pact. By 2014, Eytan notes, the waiting list of the mentally ill was 150 people long at any given time — and another agreement in 2015 didn't fix the problem, either. In June 2017, the department filed a notice that it was not able to keep up with its court-ordered time frame and requested a six-month break during which personnel would attempt to repair the system. During that time, the wait list went from eighty people back up to 140, prompting the filing of a lawsuit last December.

At a late-September hearing over the matter, Eytan attempted to illustrate the human cost of this recalcitrance by telling the story of three families "whose kids have been sitting in jail for months, waiting for treatment."

"Possibly the saddest case of all," she says, involves a mentally ill man who was incarcerated for at least eight months after spitting on a police officer. "He was on probation for destroying his dad's property, which was a misdemeanor. His dad, who was in court, didn't want to turn him in, but the police charged him, and he got probation that required him to get mental health treatment. But when he didn't get the treatment — because he's mentally ill — they arrested him. That's when he spat on a cop, and after he did that, they dropped the probation violation and charged him with assault on a police officer."

Two months later, "he was found to be incompetent," Eytan continues. "But the judge in the case didn't find the Department of Human Services in contempt. Instead, he said, 'I feel bad for the department, because they don't have any money.'" At the time of that September hearing, Eytan noted that the man was "still sitting in a jail cell."

For its part, the department requested another six-month extension during which it would try to cut down the wait list to the approved 28 days. But the new document, dated December 13, makes no such demand. In it, the defendants — Reggie Bicha, the Colorado Department of Human Services executive director, and Jill Marshall, superintendent of the Colorado Mental Health Institute at Pueblo — "agree that the appointment of a special master in this case would be valuable, both to assist the Department in implementing its plan to address compliance with the Settlement Agreement timeframes concerning inpatient competency restoration treatment, and to assist the Court in addressing the complex and technical issues in this case."

In addition, Coffman asks that the special master's appointment continue until the state has maintained compliance with the ordered goals for three months — although the plaintiffs will be allowed to file a request to extend the oversight "upon good cause shown."

There's been plenty of cause shown to date. Click to read the defense's response to the motion for a special master in Disability Law Colorado v. Reggie Bicha, et al., and a document describing the duties of the special master.