RULE 11: Maricopa County, AZ Legislature, and Competency.

An informative - and troubling - reprint from the Winter 2007 journal issue of "CorrectCare," by the National Commission on Correctional Health Care. People should not be so brutalized for having a mental illness and being too poor to bond out to see a private shrink. We're far too casual about stealing chunks of people's lives like that - it's as if we assume that because they're mentally ill and/or poor their time is of no value to them, their community, or their families anyway - as if their lives have no value, essentially.

THAT's criminal.

This article came out three years ago, by the way - before the county jails lost their health care accreditation. And we know that mental health services in this state just took a huge hit. What a bunch of short-sighted, self-interested idiots we have in the legislature, "saving" our money by selling both our public property and our people's welfare to the highest bidder.

Expect the jails and prisons to swell even more folks - we're going to pay a hell of a lot more to store people there than we would have to treat them in the community or hospital and assure that they have housing (one big reason people are arrested for trespassing is lack of their own home and bathroom).

So much for our government's commitment to keeping us "safe" - it's the Arizona state government we're most endangered by now. Perhaps some of them should be detained for competency hearings...I have an idea of who to start with.

Those of you who have more recent experience with Rule 11, please contact us so we can make sure others are informed on current conditions.

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Restoring Competency: One County’s Solution
By Lindy Funkhouser, JD

In the spring of 2003, Ruben D.* appeared in a Maricopa County Superior Court room. Ruben was chronically mentally ill. His illness got particularly bad one day, leading to an arrest for disorderly conduct and trespassing. Ruben couldn’t make the $300 bail so he had to remain in jail until the court disposed of his charges.

On this day, after Ruben had spent about 60 days in jail, he and 15 other inmates were pulled from their cells to attend 2 ½ hours of a court calendar for defendants with “legal competency” issues. Some months ago, Ruben’s attorney had asked the court to evaluate his ability to understand his charges and to assist in his defense. In Arizona this is called a Rule 11 evaluation, for the Arizona Criminal Rule of Court that governs competency determinations.

In the Maricopa County justice system, Rule 11 was so well-known that it became a colloquial expression, as in “My attorney said I should go Rule 11 to see if it can get me off [criminal charges].” Unfortunately, Rule 11 was not a promising environment for Ruben or anyone else unlucky or gullible enough to be there. Think of George Orwell’s “1984” or Lewis Carroll’s “Alice in Wonderland.”

You see, Ruben’s attorney triggered a cumbersome and lengthy evaluation process. Ruben had to wait in jail for a court-appointed expert to prescreen him and determine whether he was appropriate for an evaluation. In other words, Ruben had to wait for an evaluation of competency to determine whether he needed an evaluation for competency. Chalk up at least 7 to 10 days for the prescreen evaluation.

As in about 75 percent of all referrals, the prescreen evaluation showed that Ruben needed to be evaluated for competency. This meant that Ruben had to wait for the court to schedule a status conference and appoint a psychiatrist and psychologist to perform a full Rule 11 evaluation. At that time in Maricopa County, the evaluators were contract providers who would arrange to meet with Ruben, review his records and write a recommendation to the court. Add another 60 to 90 days for the recommendation to land on the court’s desk.

Three Possible Findings
A competency evaluation typically leads to one of the following three recommendations:

1. Competent. This finding would mean Ruben was capable of understanding his charges. The court would assign his cases back to a trial judge without any further evaluation.

2. Incompetent/restorable. This finding would mean that although Ruben was not capable of understanding his charges, his condition was treatable. In the spring of 2003, this would mean committing him for treatment at the Arizona State Hospital.

3. Incompetent/not restorable. This finding would mean that Ruben was not capable of understanding his charges and that he could not be treated or “restored” to competency.

The evaluators in Ruben’s case picked not one but two of the recommendations; one said he was incompetent/not restorable and the other said he was incompetent/restorable. This meant that Ruben had to wait for a third evaluation, a tiebreaker. This drastically delayed Ruben’s case, adding about 45 to 60 days to his stay in the jail.

By this time, Ruben had waited in line for the court to consider the prescreen report, appoint the initial evaluators and then appoint a third evaluator. In all, Ruben had to wait six months before the court could determine whether he needed competency restoration treatment. Already, Ruben’s incarceration was longer than his likely sentence for disorderly conduct and trespassing.

The tiebreaker evaluation found Ruben was incompetent but restorable. The court promptly committed Ruben to be treated at the Arizona State Hospital.

But Ruben would not be treated soon. His name was placed on a list of 50 inmates who were waiting for an open bed to commence treatment at the hospital. This meant Ruben would likely wait another 60 to 90 days.

State Hospital was no picnic for mentally ill patients like Ruben. The hospital did not classify or restrict mobility of inmates based on their dangerousness or the nature of their charges. Ruben would be placed in the same dormitory setting as dangerous inmates who had skillfully faked a mental illness to avoid trial and sentencing. These patients occasionally attacked and injured other inmates and hospital staff.

Treatment at State Hospital was expensive. The average cost to restore a Maricopa County inmate was about $30,000. Multiply that cost by 250 inmates for the fiscal year and the full cost for Maricopa County restorations was $7,500,000.

The county had been relatively indifferent to this cost because the state paid half of the bill. But the 2003 legislature decided to eliminate the subsidy to make up for shortfalls in the state budget. In the 2004 fiscal year, Maricopa County projected that 300 inmates would need restoration services. This demand, coupled with elimination of the state’s subsidy, threatened to increase Maricopa County’s costs by $5,750,000.

Exploring the Concepts
Many excellent articles and legal opinions have explored and debated the concepts involved in legal competency. The authorities generally agree that legal competency concerns certain fundamental rights in the United States judicial system. For example, a defendant accused of crime is entitled to competent counsel under the Sixth Amendment to the Constitution. This right to effective assistance of counsel means very little if the defendant is mentally incapable of using that counsel in the criminal case. Also, the Sixth Amendment provides that a defendant is entitled to know the nature of her charges. This right is meaningless if the defendant is mentally incapable of understanding her charges.

The Sixth Amendment also guarantees the accused the right to a speedy and public trial. This typically means that the court must meet legal deadlines to resolve the criminal trial as expeditiously as possible.

But speedy trial rules do not apply to a competency determination. So unless the courts and policy makers address competency in a timely manner, incompetent jail inmates will be effectively disenfranchised. Justice will be denied for the inmate who, like Ruben, is charged with a minor offense, needs mental health treatment and is unable to advocate for better treatment. All of this would happen for the cause of protecting Ruben’s constitutional rights. In such cases, justice resembles “Alice in Wonderland” and courts do not like it.

Award-Winning Solution
The Maricopa County Board of Supervisors addressed the problem on June 15, 2003, and provided funds to restore inmates in the county jails. County staff established a forensic team within the Department of Correctional Health Services (CHS) composed of a psychiatrist, psychologist and three masters-level social workers.

The county developed working relationships with the county sheriff, superior court and public defenders. The presiding judge of the Superior Court authorized CHS to restore inmates on the State Hospital waiting list and worked with CHS to change court forms.

CHS implemented the Restoration to Competency (RTC) program on August 15, 2003, less than 60 days after funding by the Board of Supervisors. Social workers contacted each inmate, performed a psychosocial workup and administered a preliminary competency examination. A psychologist met each inmate and evaluated the inmate’s condition. The program employed standardized tests to identify the inmates’ cognitive deficits and strengths. The team used this information to develop a restoration plan tailored to each inmate’s needs.

In the early months of the program, the forensic team used jail staff psychiatrists to prescribe medications. The forensic team met weekly to review and discuss all the cases, assess each inmate’s progress and make adjustments to the restoration plan. By October, staff began attending all court competency proceedings to keep court communication at maximum levels. This process kept the staff up-to-date on all time-sensitive matters.

By late November, the program hired a psychiatrist and added a psychologist and three masters-level social workers to increase the program’s capacity.

By December, the program had diverted 63 cases from the hospital, saving the county more than $2,000,000. The waiting list shrank from 67 inmates in November 2003 to 38 in January 2004. Waiting time for treatment decreased from 90 days to less than 60 days.

By July 2004, Maricopa County assumed virtually all restoration cases and brought all restoration costs under budget, including costs of State Hospital admissions. The Maricopa County RTC program received a National Association of Counties 2004 Achievement Award “in recognition of an innovative program which contributes to and enhances county government in the United States.”

The Maricopa County RTC experience suggests that an organization can adopt innovative solutions to manage and control its costs. Providing services in the jail allowed the county to implement management strategies that improved timeliness and effectiveness of the services. It proved that customized services for the mentally ill could be cost-effective.

In the meantime, the rights of inmates, like Ruben, are better aligned with the spirit of the law.

* This person is fictional.

— About the author: Lindy Funkhouser, JD, is the director of Maricopa County Correctional Health Services, Phoenix, AZ.

[This article first appeared in the Winter 2007 issue of CorrectCare.]

Arizona Republican Tax Shift Shuffle

(From Friday, Feb 12 - just moved this up so it greets everyone Monday morning, instead of the nonsense from Pearce. It may bounce around a few more times. Anyway, I expect to see you all at the legislature. Don't let them vote in those tax cuts for the rich without lodging your protests...) 

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The real story here is not just the sales tax hike everyone is talking about (which disproportionately hits the poor, working and middle classes) - it's the tax cuts for business and the rich that are to follow. 

I think the media obscures the stark reality - here's the vision our GOP state leadership has for us:

They want to make higher education less affordable for more middle and working class Arizona families at a time when we need it the most; 

Instead of reducing all the social, economic, and human costs of crime and punishment, they plan on filling at least 5,000 more prison beds in the state in the next couple of years (which towns are competing with each other to host, in order to have such wonderful jobs without college degrees); 

They're going to slash vital resources to people (again) living on the edge (inevitably pushing some into $22,000+/year room and board - at our grandkids' expense - at the AZ Department of Corrections); and 


They'll keep screwing the teachers over (for resisting them to begin with) - making those "difficult choices" to save the state from this "budget crisis" (caused by the greed of the wealthy few - like them - not by the poverty or crimes of the many. Remember?). 

In the process, with a sleight of hand, they'll shift the tax burden even further off of those profiting from our labor or incarceration - encouraging more of their kind to move here on our dime, requiring more of us to supply them with low-wage labor for their service sector. The only belts the Governor and Legislature have been tightening are the ones around our necks. Their own are stuffed with money - and guns. Let's just ask them to "walk all over us, please".


Is Arizona really going to go for this? Are the cops and firemen still on board with all that? You guys are union - aren't you? Doesn't that mean anything here? Most people in this state have surrendered, it seems. You're catching on to what's really happening, aren't you?

I know they didn't get to every last one of you.


You should at least wonder what's in store for your kids here, if this is really still the direction we're going. I frankly think the folks following Pearce's wagon train are going to run off a cliff before November - first they have to shake good old Sheriff Joe loose, though. That still gives them a lot of time to do some damage, so I think we need to intensify resistance now, rather than later. This budget deal they made is going to get signed into law this week - next Monday at the latest. 

I think this strategy the Republicans are employing across the country - with their budget "crises" and hysteria about health care reform driving us all into ruin -  is shock and awe, or disaster capitalism - something like that. Someone's coined the term to describe it already. They're trying to ram as much garbage down our throats at once while we're still stunned from the last round of cuts and anti-working class legislation. They dragged us off to war, raided all the cupboards and hoarded all the goods, then blamed Medicaid recipients and people who wanted All-day K for being the cause of revenue shortfalls (see how that sounds compared to framing it as a "budget deficit"? Defining the problem and prescribing a solution is pretty tied up in the language we use, which the media plays a big part of manipulating, and we so seldom cue into). 

Now they're trying to take their tax cuts out of our elderly and disabled (though we oddly submit to paying for them to live and die in prison); they're all like bullies on the playground. With guns. The AEA shouldn't be deluded into thinking that they've already been hit hard enough - they're going to make sure you're finished off by the end of this legislative session, which you will be if you don't get back on your feet and resist this tax burden shift - this is all landing right on you and your kids.


Good for Senator Davis. Not a single Democrat should support this tax shift. Not a single one - I'm sure they understand what it's all about - a few have tried to articulate it. But enough will vote for it to make up for the libertarian resisters, because they've already made their deals, selling out one set of constituents for another - trying to do the most for the common good. And they'll answer us by wringing their hands about being powerless against the Right all the while. 

We'll always be outgunned and too poor, but it doesn't mean we should give up the fight. Progress may take generations to see, but depends on our persistence and commitment. This IS The Revolution. It's happening here and now, and is on-going, as the global struggle for justice and liberation have always been. 


As for our resources these days - all this blogging is pretty much free - free for me to do, and for the public to use. That's the awesome thing about all these new Prison Watches going up around the country (sorry, I haven't kept up my links, but will update them soon with new states). Me and my friends aren't an organization or registered charity, and don't have to deal with donations or anything; we count up our change every couple of months, basically. The biggest expenses I have with my three blogs are the P.O. box, postage to prisoners, and an occasional ink cartridge and paper. I'd be on-line and printing stuff anyway, so it's hardly anything out of my pocket - I could probably do this with ten or fifteen dollars a  month. 

And it's not all on me - when I get sick I can take time off. Anyone else can help author and edit the sites themselves - from anywhere in the world, really - as long as they can access a computer and the internet. It takes time and research - and being on good list-serves - but we don't have to sit around and wait for someone else (someone with "authority") to tell us they're fixing the problem, after who-knows-how-many-more people have died...

This is the easiest program to learn. Just remember if you take it on, once it's out there, it's almost impossible to shake loose from being Googled with something you said or wrote; you don't want to cringe when you come across it again. I do sometimes. It's also evidence that will undoubtedly be used against you, if you really cause a fuss, so be sure that what you write is something you're willing to answer for. Freedom of Speech only goes as far as they let it. It may cost you a lot.

Anyway, from what I've seen, it's about to get worse before it gets better for prisoners and outlaws, so if you're out there thinking that you have some state prisons of your own to watch - or maybe you want to see what's happening with elderly prisoners, or those across the country seeking compassionate release or hospice care - drop any of us prison watchers (here or at the Prison Reform Community Center) a line. I'm still buried in both email and snail mail right now, but be patient - I'm working my way through. I'll be back up to speed in a couple of weeks.

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Ariz. Senate Backs Vote On Sales Tax Hike

KPHO.com
POSTED: 5:18 pm MST February 2, 2010
(Excerpt from AP Story)

..."The public are not getting the message that we are going to (both) raise their taxes and cut services," said Sen. Debbie McCune Davis, a Phoenix Democrat who voted against the referral.

The legislation's fate is in question in the House, where majority Republicans and minority Democrats can't even agree on what process to use for their budget work.House Appropriations Chairman John Kavanagh, R-Fountain Hills, said many GOP representatives are reluctant to vote for the sales-tax referral before the Senate votes on a House-passed tax and jobs bill. It would provide immediate business tax breaks for creating new jobs and future general tax cuts. Meanwhile, many House Democrats say the sales-tax referral wouldn't do enough to protect services and that its passage may only serve to provide money for Republican-pushed tax cuts.

According to Secretary of State Ken Bennett, the Legislature has until Feb. 16 to authorize the proposed May 19 special election.Because lawmakers have been debating Brewer's sales tax proposal for nearly a year, the current budget already includes $8 million to pay for holding the election. Legislators first considered a sales-tax referral last summer, falling just short of sending the issue first raised by Brewer last March to a fall special election ballot. Minority Democrats balked at that version because it would have been accompanied by long-term tax cuts sought by majority Republicans. Democrats later balked at a subsequent Republican push to also ask voters to relax voter-approved spending mandates...."