Lawsuit Alleges Many Defendants With Mental Illness Jailed for Well Over a Year Awaiting Mental Health Treatment

Pennsylvania’s Wait Times for Competency Restoration Treatment May Be Longest in the Nation

October 23, 2015 1:15 pm

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PHILADELPHIA – The ACLU of Pennsylvania and the Washington D.C. law firm Arnold & Porter filed a federal class action lawsuit today on behalf of hundreds of people with severe mental illness who have been languishing in Pennsylvania’s county jails, often in solitary confinement, for months and even years awaiting court-ordered mental health services known as competency restoration treatment.

In a criminal case, when an individual with mental illness is incapable of assisting in his own defense, a judge orders competency restoration treatment, which takes place at one of only two state forensic hospitals. If a defendant’s competency is restored, his criminal cases may proceed; if it is not restored, the criminal charges are dismissed and the person must be released or, if she is a danger to self or others, civilly committed.

Federal courts have found that delays of longer than seven days between a court’s commitment order and hospitalization for treatment are unconstitutional. Pennsylvania appears to have the longest wait times in the nation, especially for the eastern part of the state. For instance, the wait times for patients committed by Philadelphia courts to the state forensic hospital in Norristown have averaged 397 days for individuals transferred this year, with some people waiting as long as 589 days. In some cases, they spend more time waiting in the county jail for a forensic bed than they would have if they’d been convicted of the underlying crime.

While waiting to be transferred to a state hospital, these individuals are warehoused in county jails unequipped to handle their intensive psychiatric needs, causing their mental health to deteriorate further. Many of the patients are housed in solitary confinement because they have acted out, due to their mental illness, and been punished. Two individuals have died in Philadelphia jails awaiting transfer to a state hospital, one by committing suicide and the other being killed by his cell mate.

“Our clients in this case are the forgotten among the forgotten,” said Witold Walczak, Legal Director of the ACLU of Pennsylvania and one of the lawyers on the case. “Most of these people have no family, friends or champions in their lives, and no one listens or understands them; they truly are voiceless and defenseless, unable to challenge their unjust and blatantly illegal imprisonment.”

The lead plaintiff in the case is J.H. (a pseudonym to protect his identity), a homeless African-American man in his late 50s from Philadelphia who suffers from schizophrenia. Charged with retail theft for stealing three Peppermint Pattie candies, J.H. has spent over 340 days in the Philadelphia Detention Center awaiting an opening for treatment at Norristown. A Philadelphia plaintiff known as “Jane Doe,” has been waiting 486 days for transfer to Norristown.

The lawsuit alleges that the Pennsylvania Department of Human Services (DHS), which operates the two state forensic hospitals, in Norristown in the east and Torrance in the west, has violated the plaintiffs’ Fourteenth Amendment due process rights and rights under the Americans with Disabilities Act, denying them timely and appropriate treatment for their mental health issues. In addition to filing the case as a class action, plaintiffs’ counsel filed a motion for preliminary injunction, asking the court to order DHS to provide the capacity to admit committed patients to treatment within seven days.

“There’s no question that our clients are incompetent, need treatment and need it promptly. They shouldn’t be in jail for months and years, much less in solitary confinement without treatment,” said David Gersch, the lead lawyer from Arnold & Porter. I don’t believe the Commonwealth can or will argue this is okay, because it’s indefensible.”

The following counties had at least one person waiting in jail for over a year: Delaware County (over 1,017 days), Philadelphia County (584 days), Montgomery County (over 429 days), Lancaster County (over 394 days), and Chester County (366). The wait list for Norristown’s forensic units, which has only about 100 beds for restoration-treatment patients, has in the past two months grown from 121 to 174, as of October 22, 2015. The present administration inherited these problems, as the wait lists and lengthy delays have been building for several years.

Similar lawsuits alleging state violations of the rights of defendants with mental illness to timely competency restoration have been filed in Washington, Utah, Oregon, Louisiana and Arkansas, but none involved the types of delays existing in Pennsylvania.

The lawsuit also alleges that delays on the back end of the process violate due process and the ADA. Courts have ruled that patients cannot be held in competency restoration treatment after clinicians determine they are unlikely to have competency restored or they are no longer making progress towards that goal. Yet, Pennsylvania continues to house patients in the forensic units, in some cases for years, after such a determination has been made, instead of moving them to more appropriate state hospital civil units or community placements. Plaintiffs seek to certify a separate class of patients whose transfer out of the forensic unit has been illegally delayed.

The lawsuit is J.H. v. Dallas. The plaintiffs are represented by Witold Walczak and Paloma Wu of the ACLU of Pennsylvania; and David P. Gersch, Stephen E. Fenn, Victoria Killion, and Nicole B. Neuman of Arnold & Porter LLP.

More about the case, including a copy of the complaint, can be found at

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