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Organizations file lawsuit against NCDHHS about prolonged jailing of people with disabilities

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Disability Rights North Carolina and the American Civil Liberties Union of North Carolina Legal Foundation are suing the NC Department of Health and Human Services for alleged violations against pre-trial detainees with disabilities.

The lawsuit, which was filed on April 18, claims that the NCDHHS is violating the 14th Amendment, Americans with Disabilities Act and the Rehabilitation Act by failing to provide timely competency assessments.

In the United States, defendants have to be considered competent — meaning they have to be able to understand their place in relation to the proceeding and be able to aid in their defense with their attorney — in order to be criminally charged. If an assessment concludes the defendant does not have the capacity to understand their place in the lawsuit, they are considered incapable to proceed, or ITP.

The lawsuit also alleges the NCDHHS has been negligent in providing restoration services to pre-trial detainees that are considered ITP in a timely manner.

If a judge determines a detainee is ITP to trial, the detainee is ordered to go to a state psychiatric hospital for treatment, but they often have to wait in jail for extended periods of time for a bed to become available, Susan Pollitt, a supervising attorney at DRNC, said.

According to a 1972 U.S. Supreme Court case, Jackson v. Indiana, a person with a mental health disability who is detained based on their incapability to proceed to trial cannot be held for longer than necessary to determine whether or not they will be able to reach that capacity.

Holding times for detainees waiting for capacity assessments in North Carolina are significantly higher than in other states, Michele Delgado, an ACLU staff attorney said.

“Even looking at neighboring Virginia, their average reported wait time for an ITP detainee to receive a capacity assessment is seven days, whereas we are 68 days,” she said.

Delgado said the average wait time for an ITP detainee to receive service in a state psychiatric hospital is nearly five months. 

“​​We've been seeing ridiculously long waits, where people are being held without any kind of a conviction in a jail awaiting that appointment or waiting for a bed to become available,” Caitlin Fenhagen, the Orange County Criminal Justice Resource Director, said. 

The lawsuit also claims prolonged detention of ITP detainees in county jails places a burden on county jail administrators and personnel. 

Eddie Caldwell, executive vice president and general counsel for the North Carolina Sheriffs’ Association, said ITP detainees should be in a medical care facility, and being in jails is difficult on the inmate and the jail staff housing them.  

“The jails are not medical care facilities and not equipped to provide the type of mental health treatment and medical treatment that they need in order to deal with mental illness,” he said.

Delgado said jail staff often resort to extreme measures when managing ITP detainees, such as solitary confinement, restraints and other confinement and isolation measures.

“The jails are trying to do the best that they can, but at the same time, they are putting ITP detainees at further risk of mental harm and physical harm when they have to resort to these measures, which is why they don't really belong in the jails,” she said. “They belong at the psychiatric hospitals to be assessed and treated.”

In December 2022, the NCDHHS began piloting NC RISE, the state’s first detention center-based capacity restoration program. The program was done in partnership with Mecklenburg County Detention Center and Wellpath Recovery Solutions, Kelly Haight Connor, the NCDHHS senior media relations manager said in an email.

After the success of the pilot program, the department is extending the plan and offering community-based capacity restoration programs in Mecklenburg, Wake and Cumberland counties.

Pollitt said, while NCDHHS is having some luck with the program, some activists have expressed concerns about placing a treatment setting in a detention center and the program's lack of recurrent funding.

“From our perspective, one RISE program and the three outpatient treatment pilots are insufficient to address the crisis,” she said. 

Pollitt said next steps in the legal process are for NCDHHS to answer the complaint.

“As a whole, we want to hold DHHS accountable for providing these assessments and services a lot quicker,” Delgado said. “We want the court to hold on to a firmer timeline on when these things should happen.”

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The NCDHHS said it could not comment on pending litigation.

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