Benton County cases highlight State Hospital space issue

BENTONVILLE -- A person acquitted of a serious criminal charge because of mental disease usually goes to the State Hospital for treatment. If the Little Rock hospital is full, the person often awaits transfer to be incarcerated at the county jail -- a practice being challenged in Arkansas and around the U.S.

A Benton County defense attorney argues that a recent Arkansas Supreme Court ruling means once acquitted, the mentally ill person can't be incarcerated, monitored or restricted. The issue arose a second time recently when an attorney for Justin Trammell made the same argument.

Trammell, 37, of Rogers was convicted as a teenager in 1999 of killing his father with a crossbow. He was acquitted because of mental illness in June of attempted murder and other charges in a separate case.

Prosecutors say the high court decision was specific to one client and can't be applied in Trammell's case.

"The decision of the Arkansas Supreme Court is important across our state," said attorney Jon Comstock.

"If a mentally ill person needs to be confined, then it needs to be in a therapeutic setting, where mental health professionals can provide appropriate services. The court rejected the almost barbaric response of, let's lock them up in jail until the state has a treatment bed available," he said.

There's already a waiting list to be admitted to the State Hospital, where it can take between 100 to nearly 200 days for a bed to open, according to the Arkansas Department of Human Services. The covid-19 pandemic has made matters worse.

Comstock represented a man in Benton County Circuit Court, John Ward, who was acquitted of a terroristic threatening charge in August because of his mental condition. Benton County Circuit Judge Robin Green ordered Ward to surrender to the Benton County jail, where he would wait until a bed was available at the State Hospital.

Comstock filed an appeal with the Arkansas Supreme Court where justices reversed part of Green's order, meaning Ward no longer had to be jailed or wear an ankle monitor.

Comstock believes the ruling means people acquitted of a crime for mental disease shouldn't be held in jails because they are placed in the custody of the Arkansas Department of Human Services upon acquittal.

Nathan Smith, Benton County's prosecuting attorney, is also president of the Arkansas Prosecuting Attorneys Association. The Supreme Court's order was specific to one case, and the extent it can be applied to other cases will likely be determined by the judges on a case-by-case basis, he said.

The Supreme Court issued an order in Ward's case, not a full court opinion explaining its reasoning or outlining any principles to follow in similar situations, Smith said.

"We have one option that's not a good one, but it's not as bad as the other," he said of keeping the mentally ill in custody.

There are practical and serious matters to consider, he said.

"Clearly, the release of people who have been determined to be both mentally compromised and dangerous into our communities due to the lack of bed space is not an option," Smith said.

"In the immediate future, we will try to involve the Arkansas State Hospital as early in the legal process as possible so that they will be able to accept a person committed to their care immediately," he said.

Trammell was held in the Benton County jail for more than four months after his acquittal while waiting for a bed in the Arkansas State Hospital.

Trammell was arrested July 9, 2018, after he wrecked a pickup with two girls riding in the bed, according to court documents. He was charged with attempted murder of the girls.

Benton County Circuit Judge Brad Karren ordered Trammell committed to the State Hospital. He was transferred Oct. 4.

Sam Hall, Trammell's attorney, filed a motion in circuit court a few days before the transfer to have Trammell released from the jail since he had not been taken to the hospital. Hall is a Benton County deputy public defender.

"We are concerned anytime that a person is found not guilty due to their mental condition and needs to go to the Arkansas State Hospital for services," said Jay Saxton, Benton County's chief public defender. "It serves no purpose to have them sit in jail waiting to go to the hospital. The jail does not have the capabilities of aiding someone needing services for mental health reasons."

Bryan Sexton, chief deputy prosecutor, filed a response to Hall's motion, citing safety concerns and opposing Trammell's release from jail. He wanted the judge to schedule a hearing on the issue, but Trammell was transferred before a hearing could be held.

Washington County Prosecuting Attorney Matt Durrett said he wasn't aware of the situation in Trammell's and Ward's cases.

"Although I can't say with certainty, it does seem like we have an exceptionally long wait for open space down there due to a limited number of beds," Durrett said of the State Hospital. "I don't know what the logistics would be for adding bed space, or what the cost would be, but it does seem like a good idea to at least explore."

Amy Webb, a spokeswoman for the Human Services Department, said the wait time for people in custody is 105 days, while the average wait time for people not in custody is 188 days.

Webb said that in September there were 44 individuals who had been acquitted of criminal charges and were awaiting treatment at the State Hospital. Of those, 28 were out in the community and the remaining 16 were in jail.

Webb said each month the State Hospital discharges and admits between 25 and 30 patients. The State Hospital has 186 adult beds with 92% of the beds being for court-involved patients.

Covid-19 has affected the State Hospital's ability to discharge patients as quickly as hospital officials would like in two ways, she said.

"One, some of the facilities that patients leaving the hospital would go to are having staffing issues due to covid, and therefore do not have available bed space," Webb said.

"Two, if we have a patient who tests positive, we have to stop admissions to that unit to limit the spread. On several occasions, we've had to shut down admissions completely."

The mentally ill being kept in jail is common throughout Arkansas and the nation, said Buster Lackey, executive director of NAMI Arkansas, the state's branch of the National Alliance on Mental Illness.

"If I had my way, there would be a state hospital up there where you are and in South Arkansas too," Lackey said. But keeping someone in either a jail or the State Hospital is very expensive, he said. "There's got to be a cheaper way," he said.

The goal should be to keep the mentally ill safe and treat their conditions before their behavior results in criminal charges. Much of rural Arkansas, in particular, severely lacks mental health services, he said.

Local law enforcement agencies throughout the state, the courts and the State Hospital all lack good options.

Alabama, Colorado, Louisiana, Nevada, Oregon, Utah and Washington state all have lawsuits pending against keeping the mentally ill incarcerated, Lackey said. There is clinical evidence that keeping mentally ill individuals in jail worsens their conditions, he said.

Comstock described it as inhumane to jail a person acquitted by reason of their mental condition because the state doesn't have an available bed.

"This is especially true where that person has been on bond for many months while the criminal case was pending, and had no further acts of alleged violence and is participating in psychiatric care, including taking anti-psychotic medications," he said.