ACLU-PA Settles Lawsuit Over Unconstitutional Delays in Treatment for Hundreds of Defendants With Severe Mental Illness

HARRISBURG - The ACLU of Pennsylvania and co-counsel Arnold & Porter announced details of a settlement today with Pennsylvania’s Department of Human Services (DHS) that will bring sweeping changes to the commonwealth’s under-resourced forensic mental health services.

The settlement stems from an October 2015 class action lawsuit,JH v. Dallas, filed on behalf of hundreds of defendants with severe mental illness who have been ordered by a court to receive mental health treatment at one of two state forensic hospitals operated by DHS. Because of a lack of treatment opportunities, these individuals have been detained in Pennsylvania’s county jails, often in solitary confinement, for months and in some cases over a year awaiting treatment as their mental health deteriorates further. The two state hospitals, Norristown in the east and Torrance in the west, currently have a wait list of 220 people for about 190 slots.

“The ACLU applauds the commonwealth’s agreement to add nearly 200 new treatment opportunities for a group of severely mentally ill people who desperately need, and under the constitution deserve, help and not punishment,” said Witold Walczak, legal director for the ACLU of Pennsylvania and one of the lawyers on the case. “Our oft-forgotten clients will, hopefully, be forgotten no more,” he added.

Under the settlement agreement approved by Senior U.S. District Court Judge Sylvia Rambo this morning, the commonwealth has agreed to the following:

• Create 120 new “placements options” within the commonwealth, half of those within the first 120 days of the agreement and the remainder within 180 days of the agreement. Placements options are the equivalent of treatment slots. They are treatment opportunities across the spectrum of necessary care, with most placements being in the community. No new forensic hospitals beds are contemplated. The parties expect the new placements will free up beds at the hospitals for people who really need that level of care and security.
• Provide $1 million within the first 90 days of the agreement to create “supportive housing opportunities” in the city of Philadelphia, which plaintiffs’ expert expects will produce at least 50 additional placement opportunities;
• Evaluate every person currently on a waiting list or being served by the forensic system at the two state hospitals within 60 days to determine if they are receiving the appropriate level of service.
• Work with plaintiffs’ attorneys and their expert, Dr. Joel Dvoskin, to devise a strategic plan to reduce the wait time for treatment opportunities.

The agreement allows plaintiffs’ attorneys to enforce the terms in federal court for three years.

“DHS has taken a big step by committing significant resources to fund necessary treatment options, which all parties hope will break the gridlock that has plagued the system for several years,” said David Gersch, the ACLU’s co-counsel for the plaintiffs from the D.C.-based law firm Arnold & Porter.

A major issue in the case, how long incompetent people can wait in jail before being moved into treatment, has not been resolved. According to Walczak, “infusing significant resources into the system quickly, which the commonwealth has agreed to do, was way more important to our clients at this point than quibbling over where to draw the constitutional line.” Under the agreement, if the parties cannot agree over the next three months on a maximum allowable wait time, plaintiffs will ask the court to decide the issue.

Federal courts have found that delays of longer than seven days between a court’s commitment order and hospitalization for treatment are unconstitutional. Eastern Pennsylvania appears to have the longest wait times in the nation, with some people waiting nearly 600 days. In some cases, individuals 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.

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. spent 383 days in the Philadelphia Detention Center awaiting an opening for treatment at Norristown before being transferred in December. A plaintiff known as “Jane Doe” waited 531 days in the Philadelphia jail before her December transfer to Norristown.

Similar lawsuits alleging state violations of the rights of defendants with mental illness to timely competency restoration have been litigated in Washington, Oregon, Louisiana and Arkansas, and similar lawsuits are pending in Utah and California.

The lawsuit isJ.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, Lauren Daniel, Nicole B. Neuman, and Blake Huffman of Arnold & Porter LLP.

More about the case, including a copy of the complaint and the settlement agreement, can be found at: www.aclupa.org/dallas