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MS jailed more than 800 people awaiting psychiatric treatment in a year. Just one jail meets state standards
Sun Herald - 11/13/2023
Nov. 13—This article was produced for ProPublica's Local Reporting Network in partnership with Mississippi Today. Sign up for Dispatches to get stories like this one as soon as they are published.
Fourteen years ago, Mississippi legislators passed a law requiring county jails to be certified by the state if they held people awaiting court-ordered psychiatric treatment.
Today, just one jail in the state is certified.
And yet, from July 2022 to June 2023, more than 800 people awaiting treatment were jailed throughout the state, almost all in uncertified facilities, according to state data.
Mississippi Today and ProPublica have been reporting on county officials' practice of jailing people with mental illness, most of whom haven't been charged with a crime, as they await treatment under the state's civil commitment law. After the news organizations started asking about the 2009 law earlier this year, the state attorney general's office concluded that it is a "mandatory requirement" that the Mississippi Department of Mental Health certify the facilities where people are held after judges have ordered them into treatment.
The Department of Mental Health, which oversees the state's behavioral health system and has no other responsibility for jails, responded by sending letters to county officials across the state encouraging them to stop holding people in uncertified jails. But the law provides no funding to help counties comply and no penalties if they don't.
Under state law, counties are responsible for housing people going through the commitment process until they are admitted to a state hospital. Counties are allowed to put them in jail before their court hearings if there's "no reasonable alternative."
The last time the Department of Mental Health tried to ensure those jails met state standards, more than a decade ago, it had little success. After the law passed, the agency got to work to inform counties about the new rules. Some didn't respond. Others expressed interest but didn't follow through. By 2013, just two jails had been certified. (One of them no longer is.) After that, the effort apparently petered out, according to a review of state documents.
To be certified, a jail must offer on-call crisis care by a physician or psychiatric nurse practitioner and must have a supply of medications. Staff must be trained in crisis intervention and suicide prevention. People detained during the commitment process must be housed separately from people charged with crimes, in rooms free of fixtures or structures that could be used for self-harm, according to Department of Mental Health standards that took effect in 2011.
"If they're going to be held in jail, they have to receive some kind of treatment in a semi-safe environment," a department attorney told The Clarion-Ledger at the time.
Until recently, many county officials weren't even aware of those requirements, according to interviews across the state — even though they were routinely jailing people solely because they might need mental health treatment. Mississippi appears to be the only state in the country where people awaiting treatment are commonly jailed without charges for days or weeks at a time.
Mississippi jails are subject to no statewide health and safety standards. Many jails treat people going through the civil commitment process virtually the same as those who have been charged with crimes, Mississippi Today and ProPublica found. They're shackled and given jail uniforms. They're often held in the same cells as criminal defendants. They receive minimal medical care. Some said they couldn't access prescribed psychiatric medications. Since 1987, at least 18 people going through the commitment process for mental illness and substance abuse have died after being jailed, most of them by suicide.
Some local officials say getting certified could be expensive. Sheriffs worry it could codify their role as their county's de facto mental health care provider.
"It looks like the state wants the sheriff to be the chief mental health officer," said Will Allen, attorney for the Mississippi Sheriffs' Association. "This is coming down to the state stuffing the cost of this down to the counties, and frankly I just think that's wrong."
"Are You Going to Shut the Jail Down? No."
The genesis of the 2009 law was a conversation state Sen. Joey Fillingane had with his girlfriend at the time, a social worker who worked with troubled youth. She told him that Mississippians going through the commitment process in some counties were locked in jail cells like criminals, while in other counties they were held in hospitals like patients, according to a 2011 news story in The Clarion-Ledger.
Fillingane's bill addressed that. "Shouldn't there be some kind of minimum standard where you're holding people who haven't committed a crime?" the Republican from Sumrall, near Hattiesburg, said in that story about his legislation.
His bill passed with little fanfare. It made it "illegal for individuals committed to a DMH behavioral health program to be held in jail unless it had been certified" as a holding facility, an agency staffer wrote in a timeline of the law's implementation obtained by Mississippi Today and ProPublica.
The board overseeing the Department of Mental Health set detailed standards for those facilities. Department staff surveyed counties to see whether they could meet them.
Ed LeGrand was head of the department when the law passed. He said he viewed it as a progressive effort that could spur counties to stop holding mentally ill people in jail. And even if that didn't happen, the law would improve jail conditions — at least somewhat.
"I didn't think that everybody would be able to meet those standards. I thought they would give it a try," he said in a recent interview. "A lot of them did, but some of them didn't."
Department staff met with county officials and toured jails to offer assistance. Those visits, which records show mostly took place in 2011 and 2012, were the first time the Department of Mental Health had tried to get a comprehensive look at the local facilities where Mississippians awaited psychiatric treatment in state hospitals, LeGrand said.
Many jails were poorly equipped to care for these people, according to notes by agency staff.
"Toured the current jail (scary)," reads a status update written after staff visited Tishomingo County, in the northeast corner of the state, shortly before the county opened a new jail. In Jones County in south Mississippi, where the jail had 180 inmates and only four staff: "The holding cells are not safe for violent behavior. Too much cement."
Jones County Sheriff Joe Berlin said the cells have not changed since then, though now detainees are monitored with cameras.
In early 2011, LeGrand told county officials who hadn't already begun the certification process that they had six months to find a certified provider to house people awaiting treatment.
Sheriffs were frustrated. Some objected to being told they had to upgrade their jails and train guards so they could care for mentally ill people they didn't think they should be responsible for in the first place.
"What do they expect of me?" one sheriff was quoted as saying in the 2011 news story. "What they need to do is turn around and certify some places that are under Mental Health's control so they can be responsible for it, not me."
Some county officials concluded there was little the state could do if they didn't comply. Mike Harlin, the jail administrator in Lamar County, discussed the standards with a Department of Mental Health staffer in 2012, according to an agency memo. In an interview this year, Harlin said he remembered thinking, "What are you going to do? Are you going to shut the jail down? No."
By June 2013, jails in just two of the state's 82 counties had been certified, according to the department's tally. (A hospital was certified in another county, and a different type of facility was certified in a fourth.)
Six counties said they couldn't meet the standards. Another 23 had received guidance from the department on how to meet them. Thirty, including a few of the counties that had received advice, eventually said they didn't jail people, some because they had contracts with providers. Twenty-one never responded.
Mississippi Today and ProPublica requested all Department of Mental Health records since 2010 related to enforcement of the certification law and correspondence with counties. Documents through 2013 included standards, correspondence, memos describing visits to county facilities and a log summarizing contact with each county. After that, the records released show no statewide outreach.
The final entry in the department's timeline of the law's implementation reads: "June 2013 was the last attempt to update the information about DMH Designated Mental Health Holding Facilities due to lack of additional responses from the counties." That timeline is undated, but a department spokesperson said data in the file shows that it was created in January 2015 by a staffer who held positions in the certification and behavioral health divisions.
LeGrand, who served until 2014, said he doesn't recall any decision to stop contacting counties about the law.
Katie Storr, the current chief of staff at the Department of Mental Health, told Mississippi Today and ProPublica it's possible staff did communicate with counties beyond what the records indicate. "After more than a decade, a lack of correspondence, email, or other documentation is not indicative that communication and follow-ups did not take place," she wrote in an email. However, she said the department had no additional records that would show this.
During this time, Storr wrote, the department was focused on trying to get counties to hold people going through the commitment process in short-term crisis stabilization units rather than jail.
Department Can't "Boss Counties Around"
The recent effort to implement the certification law stems from inquiries by Mississippi Today and ProPublica.
In January, the news organizations asked the head of the Department of Mental Health, Wendy Bailey, if the department certifies jails where people are held as they await admission to a state hospital. Bailey, who handled communications for the department when the certification law passed, initially said it didn't apply to jails. In March, after reviewing documents showing prior efforts to certify jails, she said she didn't believe the law was intended to apply to them.
After our inquiries, Bailey sought an opinion from the attorney general. (Such opinions are not binding, but officials who request and abide by them are protected from liability.)
Around the same time, the Department of Mental Health contacted the four facilities it had previously certified to schedule inspections. The department's standards say such inspections will happen annually, but this was the first year in which staff had sought to visit all of them since 2017. (Storr said the inspection effort was planned before inquiries by Mississippi Today and ProPublica.)
In March, staffers inspecting the Chickasaw County jail in rural northeastern Mississippi found serious violations. Inmates and people awaiting mental health treatment were housed together in the same cells, where beds were anchored with long bolts that "could be used by a person to harm themselves," the reviewers recorded.
The department suspended the jail's certification in August, but reinstated it after the county submitted a compliance plan that included shortening the bolts and providing mental health training for staff.
Lafayette County told the state it didn't want its jail to be certified anymore. The certification for a holding facility in Warren County, home to Vicksburg, was suspended. A hospital in Alcorn County in northeast Mississippi maintained its certification.
In August, the attorney general's office confirmed that the department must "ensure that each county holding facility, including but not limited to county jails," meets its standards. If they don't, an assistant attorney general wrote, the law allows the department to require counties to contract with a county that does have a certified facility.
When Bailey informed county officials about the opinion in her October letter, she instructed that if a county holds someone in an uncertified facility, including a jail, officials should contact the department to seek certification or work with local community mental health centers. These are publicly funded, independent providers set up to ensure that poor, uninsured people can access mental health care.
Several counties, including Lamar, have taken up the matter in public meetings or have contacted the department to begin the certification process.
Storr told Mississippi Today and ProPublica that the department asked counties to initiate the certification process because the law says it's up to counties to determine which facility they use.
But the Department of Mental Health already knows which counties have held people in uncertified jails. Starting in July 2021, in response to a federal lawsuit over the state's mental health system, department staff have tracked how many people come to state hospitals directly from jails for psychiatric treatment.
The tally for the year ending in June breaks down all 71 jails, only one of which is certified, where a total of 812 people who had been civilly committed were held before being admitted to a state hospital. (The tally doesn't include anyone who was jailed and released without being admitted to a state hospital.)
In Lauderdale County, on the Alabama line: 83. Across the state in DeSoto County: 76. A couple hundred miles down the Mississippi River in Adams County: 33.
Storr and Bailey have emphasized that they have limited authority over counties and no way to force them to do anything. The department's only means of enforcement, Storr wrote, is to put a jail on probation, then revoke certification — if the jail in question even was certified in the first place — and require the county to contract with another provider.
LeGrand said a law without teeth is effectively optional. "The department's not really in a good position to boss counties around," he said.
James Tucker, an attorney and the director of the Alabama Disabilities Advocacy Program, which has sued that state over its civil commitment process, said the agency has a responsibility to make sure counties are treating people properly. "You don't discharge that duty by sitting on your hands and waiting for every local sheriff to report in," he said.
Bailey's department encourages counties to connect families with outpatient services in order to avoid the commitment process. If someone does need to be committed, the department said, counties should hold people in crisis stabilization units operated by community mental health centers.
"I do not believe jails are an appropriate location to hold someone who is not charged with a crime and is awaiting admission to a treatment bed," Bailey told Mississippi Today and ProPublica in an email. "The person should be in a safe location, receiving treatment."
But there are only 180 crisis beds in the state, and crisis stabilization units frequently turn people away because they are full, can't provide the needed care, or deem a patient too violent. Storr said the agency is working to reduce denials and plans to use one-time federal pandemic funding to expand capacity.
Allen, the sheriffs' association attorney, said the state will need more crisis beds if officials want to keep people out of jail as they await mental health care. He said he's been meeting with sheriffs and county officials since the guidance was issued.
"This has catalyzed the county governments and law enforcement to do something," he said. Sheriffs agree on the need for "certified centers, just not in the county jail."
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