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I'm In A Funk

I’ve been in a kind of funk the last couple of days.

Nothing serious. I don’t have to be imprisoned (at least not for the funk). But the same cannot be said for some of my clients when their own mental machinery is out of whack.

Earlier this week, I was asked to represent a young woman in the juvenile court system. As usual, I’m going to be deliberately vague about the situation so as to prevent any accidental identification of the youthful offender. Suffice it to say that she has had a large number of juvenile petitions — i.e., criminal complaints — and virtually all are for the same “aggressive” behavior.

I surround the word “aggressive” with quotation marks because I don’t think the behavior is intended to be aggressive per se. I think my client is scared. She’s a small, young child-woman in a situation she doesn’t understand. And from talking to her, I don’t think anyone has really tried to help her understand. Instead, she gets ordered around in what seems to her to be an arbitrary fashion. She doesn’t want to be where she is (but who does, right?) and she doesn’t completely understand why she’s there. So the “treatment” she is receiving scares her even more, with the result that she lashes out in the only way she knows how; she lashes out in the way that a scared young child would.

I surround the word “treatment” with quotation marks because I don’t think she’s receiving any actual treatement per se and she clearly needs treatment. Readers who occasionally tell me I’m being too vague with these kinds of posts by not giving enough information will likely feel the same way here. I’m sorry. I just will not divulge too much regarding these cases. You’re just going to have to trust me that this young child has mental problems. Her behavior clearly demonstrates that. When I talk to her, she comes across — when she’s not bawling and hyperventilating in fear — as a quite sweet and beautiful young girl. The paperwork reveals a different and monstrous picture.

A probation officer tried to warn me to take care for my own safety. She may have been joking, but if she was, it was not really funny. If it was a joke, it was the type of humor that demonstrates someone has been too long in their current position. In any event, the girl was never a threat to me. She smiles for me. She talks to me (a little) about how she feels. When I whisper into her ear in court, I don’t fear she’ll strike out at me: she looks scared; she listens intently; she tries to cooperate. The picture I get is of someone who is frightened nearly out of her skin and whose behavior is that of someone who knows no other way to “cope.”

She could be fooling me. But I kind of doubt it. (“Of course you would,” I can hear the probation officer saying.) The behavior itself is abnormal enough, especially in the face of the fact that it continually results in new charges (7 petitions and counting [the hearing was continued because new charges were being filed and we decided to try to resolve them all together] when I came into the case). I see no other rational conclusion.

And despite what people will tell you, there is nearly always a rational explanation for human behavior, even when it does not appear that way on the surface. The explanation, once learned, might not seem rational to you, or me, but it is perfectly rational to the individual whose behavior it is, under the circumstances in which it occurs. Usually, if you really can get your mirror cells going and find real empathy with the “miscreant,” you’ll see this on your own.

I surround “miscreant” in quotes because I really don’t think these kids are miscreants per se.

At any rate, I’m in this funk about this encounter for two reasons.

First, this is the most obvious case I’ve seen so far that clearly demonstrates what we, as a society, are doing wrong. This girl should not be locked up in a juvenile jail. She perhaps very well needs to be locked up; just not in a jail. Her obvious mental issues go untreated there. Even though I am occasionally informed that there are “therapists” in the jail who “counsel” the juveniles imprisoned there, their rare visits appear to be more of a maintenance move than anything therapeutic. Half the time, the kids don’t even know they’ve met with anyone and those who were previously medicated often aren’t while in custody, despite these alleged visits by mental health professionals (who are often actually only students who hope one day to be mental health professionals). Ultimately, the place is a jail — a detention facility — staffed primarily by people who barely seem to know anything about normal juvenile behavior, let alone abnormal juvenile behavior.

Mentally-ill kids — mentally-ill anyones — should not be locked up in jails. They need treatment that such facilities cannot provide. In fact, from what I’ve seen, these facilities typically exacerbate mental health issues in the inmates (and staff).

This is particularly sad when you realize that

An explosion of research shows mentally ill persons treated early often go on to full recovery, gain employment, respond to treatment and live productively. (Fred J. Martin, Jr., “San Francisco chooses jail over treatment” (March 22, 2010) San Francisco Chronicle (online).)

You want to talk about irrational behavior? There’s no rational explanation for communities to choose jail over treatment.

Well, okay. There is. It’s called ignorance.

Most people mistakenly believe that cutting funding for mental health programs is one way to save money. Budgets are tight. We all want government to cut costs. Our ignorance is apparent only to those who know cutting funds to treat the mentally ill, which frequently leaves no other option than jailing them, actually increases costs. In Texas, for example, a 2003 article noted:

While the average prisoner costs the state about $22,000 a year, estimates of costs associated with prisoners with mental illness range from $30,000 to $50,000 a year, he said.

Alternative programs for nonviolent offenders with mental illness that provide food, shelter, housing, and mental health treatment upon release can cost as little as $10,000, Hamilton said, and reduce recidivism rates.

“Texas has 8,000 to 20,000 inmates who are potential candidates for such programs,” which would save the state anywhere from $80 million to $440 million before correcting for recidivism, Hamilton said. (Eve Bender, “Community Treatment More Humane, Reduces Criminal-Justice Costs” (October 3, 2003) Psychiatric News.)

And the number of prisoners with untreated psychiatric illnesses is growing.

Part of the problem with clearing up our societal ignorance regarding costs of treatment versus imprisonment has to do with the same thing that affects so many of the juveniles coming through the juvenile justice system, even those who are not mentally ill. We want instant gratification. We want immediate cost-saving benefits.

You know the old saying about people who “can’t see the forest for the trees”? That’s what we’ve got going on here. If “the forest” is the overall budgetary impact of mental health treatment programs, “the tree” is an individual undergoing mental health treatment. When we look at the individual trees, we see a problem.

Take the cost savings from the relatively new experiments nationwide known as “mental health courts.”

[A]t a time when county budgets are strapped for funding, mental health courts don’t show an immediate savings. The study’s findings show they actually cost a little more during a person’s first year in the program because that person is getting more services. Steadman said any savings don’t show up for about a year and a half, and that can be a tough sell to the community. (Elizabeth Stawicki, “Study: Mental health courts showing positive results” (July 17, 2009) MPR News: Minnesota’s Online News Source.)

The trees are expensive. Paradoxically, the savings is an epiphenomenon of the forest. It comes from the fact that people who receive services don’t remain incarcerated for long — and thus costly — terms. Even those who believe there isn’t necessarily a long-term dollar cost savings note that “their value is in a safer community and a better quality of life….we’ll be able to be providing more humane and appropriate treatment for people with mental health within the criminal justice system.” (Stawicki, supra.) But I think the data bears out the intuition that people who receive treatment spend less time in prison and produce less loss via crime. It is just “more humane and appropriate.”

Fresno’s Juvenile Justice Court has a mental health court. Aiming to reduce the stigma attached to any implication of mental health problems, the court is referred to as the Behavioral Health Court, or BHC. Budgetary shake-ups have significantly impacted the program, although the juvenile court’s Presiding Judge David Gottlieb deserves a great deal of credit for working hard to keep the program alive. Funding, however, from what I have heard, remains an issue.

More importantly, the BHC won’t take my client described above. Since her charges involve violence, the BHC criteria bars her from participating. (I have not had the chance to evaluate her case adequately to determine if there would be other bars to her participation, as well.)

This leaves my client with nowhere to go. Except juvenile jail. And despite the claim that a “comprehensive mental health” program is being developed (Update 3/2017: link broken) at the “campus” (i.e., the juvenile jail), the program appears to be aimed primarily at gang members. My client, so far as I can tell, is not a member of anything resembling a gang. Frankly, I doubt a gang would have her. So my client will probably not receive the treatment she needs.

I want to stress that this is not through any fault of the practitioners per se. The funding for them to do the job required just isn’t there. As noted above, in the short term, it appears to the average citizen that prison is cheaper than treatment. But jail and prison commitments — where treatment, if it exists at all, is insufficient to the need — simply result in the infamous “revolving door” for those with mental illnesses. Or, because of public outrage over recidivism and the crimes that accompany it, we get longer jail and prison commitments.

Either way, as I said, the long-term costs of imprisonment versus treatment are higher.

We are ignorant.

And so the first reason I’m in a funk is because I know my client will suffer incarceration with inadequate treatment when what she really needs is treatment.

The second reason is that she’s no longer my client. She became my client because although I am a private attorney, a solo practitioner, I have a (deliberately) limited conflict contract to accept a small number of cases per month in the juvenile court system. The new charges filed after I took this girl’s case exceed the scope of my contract. So in the interest of keeping her cases together, the case I previously accepted is being handed, along with the new one, to another attorney. One of my colleagues said, “It’s a shame you can’t take both cases. Most defense attorneys probably will not do for her what you would.”

I don’t know if that’s true. I hope it’s not. But one thing that supports this comment is the same thing that requires me to have myself removed from the case. I pointed out that my contract is “(deliberately) limited.” When I signed on, I accepted a significantly lower fee for my services in exchange for a cap on the number of cases I have to accept. I wanted to be able to spend more time with each client and I’d heard too many other contract attorneys complain about being so overloaded they could not do what I wanted to be able to do. They try. I know many of them and I know they try. But I wanted to ensure the same thing would not happen to me, so I negotiated a contract with a cap. It pays a lot less, but I get to do things others don’t have time for.

In the end, then, it’s budgetary. A funding problem. I’m one attorney. I’m a solo practitioner.

By myself, I am a poor substitute for what we, as a society, should be doing.

I’m in a funk. Not per se, but because we’re ignorant. No quotation marks.