Skip navigation
× You have 2 more free articles available this month. Subscribe today.

How the Criminal Justice System Fails People With Mental Illness

“I found your baby,” Michelle Durden recalls the police officer saying after her son went missing. “He’s alive. And he’s in jail.”

At first, Michelle Durden thought her eldest son, Cameron Davis, was just going through some early 20s growing pains. He dropped out of college and quit his job. He began to lose weight and grow his hair long. He spent a lot of time in his room, teaching himself to play guitar. He withdrew from friends and family.

“He was just a good kid. He had a genius IQ, just smart, nice to everybody; loves old people, dogs, the whole thing,” she said. “And then he just got weird.”

Perhaps, Durden and her husband thought, Davis was just trying to find himself. They never considered there might be something else going on. So, in the fall of 2018, they packed Davis into his Ford Fiesta with his clothes, guitars and amplifier, some groceries and cash, and waved goodbye as the 23-year-old set off from their home in North Carolina to Stockton, California, where he would stay with his younger brother, Kevin.

Kevin helped Davis settle in and even got him a job at a vineyard. But soon, things went sideways. Davis was fired for ignoring his duties and instead lying in the grass staring at the sky. He began talking to himself, laughing inappropriately, and became paranoid around Kevin’s friends. It all came to a head late one night in January 2019, when Kevin called his mother. Davis was in the background yelling and playing his guitar; Kevin was worried that the neighbors would call the cops. He’d told Davis that, but he wouldn’t stop, Durden recalled. Davis said he “didn’t understand what the word ‘neighbors’ meant.”

Durden was scared. Something was seriously wrong. She convinced Davis to come home so he could be seen at Duke Medical Center. It had taken him two-and-a-half days to make the cross-country trip to California, so Durden figured she’d see him soon. He never showed up. Four days later she filed a missing person’s report with the Stockton police, and they quickly located Davis in Los Angeles. A cop there stopped him and said he should call his mother. She again told her son to come home. More time went by, and on January 24, she again called the police to file a new report.

Finally, in early February, Durden got a call from a Stockton officer who told her, “‘I found your baby,’” she recalled. “And she’s like, ‘He’s alive. And he’s in jail.’”

On January 28, 2019, Davis had been pulled over for speeding just outside of Tyler, Texas, in the northeast part of the state. As the state trooper sat in his vehicle checking Davis’s license and registration, Davis hit the gas, touching off a high-speed chase that ended after Davis damaged his car; no one was hurt. Davis was arrested, prosecuted, and sent to prison.

Durden was stunned. Since then, she has struggled to understand a criminal justice system that she feels has aggressively ignored her son’s deepening mental health crisis, which is also what she believes prompted him to flee the cops in the first place. “Where’s the common sense where somebody goes, ‘There might be something wrong with this kid’?”

How those with mental illness are treated in the system has become a focus in the ongoing calls for criminal justice reform that have increased in volume since the killing of George Floyd by a Minneapolis police officer in May. At least 25 percent of fatal police encounters involve a person with mental illness, and individuals with untreated mental illness are 16 times more likely to be killed during an encounter with police, according to a report from the Treatment Advocacy Center.

“I’ve heard a thousand stories like this,” Alisa Roth, author of “Insane: America’s Criminal Treatment of Mental Illness,” said of Davis’s case. The criminal justice system — from police contact to prosecution and prison — has been thrust onto the front lines of handling mental health crises and is ill-equipped to do so, Roth said. “It all needs to be fixed.”

Anything but Unique

Highway Patrol Trooper Chaney Wade of the Texas Department of Public Safety was sitting in his car monitoring eastbound traffic on Interstate 20 in Smith County when he clocked Davis going 89 in a 75-mile-per-hour zone.

Reading the police report, it’s clear that from the start, Wade sensed that something was off about Davis. He was mumbling and wouldn’t make eye contact. When Wade asked him who he’d been staying with in California, Davis couldn’t remember his brother’s name. Wade took Davis’s license and registration back to his car to run it through the computer. Sitting inside with his window rolled up, Wade could hear loud music coming from Davis’s car. He watched Davis as he rocked his head back and forth. Then the brake light came on; Davis looked over his shoulder and just took off. Wade gave chase.

The whole pursuit, which eventually included several troopers along with officers from other agencies, lasted about 17 minutes, with Davis weaving in and out of traffic at speeds that topped 110 mph. He got off the highway and ran through a fence before re-entering the interstate going the opposite direction. Ultimately, damage from hitting the fence disabled Davis’s car, which came to a stop in the middle of the highway.

Trooper Kevin Lybrand approached the car, and he too noted that something was off. As he stood there with his gun drawn, Lybrand wrote in his report, Davis just sat in the car, shaking his head to the music. Eventually, Davis complied with Lybrand’s commands and lay face down on the asphalt. Davis was booked into the Smith County jail on a charge of evading “arrest or detention,” a third-degree felony. Lybrand asked Davis why he’d fled. “He stated that he was ‘just chillin’, trying to get back home,’” he wrote.

When Durden was finally able to talk to Davis on the phone, she asked him the same question. “Cameron just described it as this feeling,” she said. “Something told him, ‘You have to go, and you have to go fast,’ and Cameron said it was like he couldn’t control the car and he could not control his actions. He just knew he had to go.” Inside the jail, Davis’s behavior began to deteriorate, Durden said. He would walk around naked and steal people’s food, she recalled, but then didn’t remember doing any of it. It appears that someone in the jail recognized this behavior for what it was (though it isn’t clear from the available records how he was diagnosed) and Davis was prescribed Geodon, an antipsychotic treatment for schizophrenia.

Durden and her husband hired an attorney in Texas, Robert Perkins, and they hoped Davis would be released. Soon, they realized that was not in the cards: The state was seeking a six-year prison sentence for what would be Davis’s first criminal offense. Durden and her daughter, Mackenzie, each wrote letters that they asked Perkins to deliver to the judge and prosecutors, laying out what had happened with Davis and begging for leniency. “I realize that this letter is lengthy,” Durden wrote. “It is difficult to stop writing when you are fighting for your child’s life.” She implored them to allow Davis to come home to North Carolina for treatment. “Cameron is ill, and it is doubtful that he would even survive a prison sentence.”

Ultimately, Davis accepted a plea deal and was sentenced to four years in prison. Since he’s been inside, things have gotten worse. Although prisoners have a right to mental health care, Davis hasn’t gotten access, says Durden. And he’s lost good-time credit that could see him released early. Without access to medication, he hasn’t been able to follow the rules; if he can’t follow the rules, he loses time credit. Durden fears Davis will end up serving all four years. She worries about how much damage will have been done to his mental health in the interim and, at times, whether he’ll make it at all.

Letters from Davis that Durden shared with The Intercept paint a disturbing picture. Sometimes his handwriting is neat and ordered and his thoughts are cogent. He talks about books, poetry, and songwriting, and how much he misses having his guitar. At other times his handwriting is erratic, and his thoughts scattered. He writes about people stealing his thoughts and how everyone is constantly making fun of him. “I am fucking tired of people disappearing and teleporting and them making my shit disappear like magic tricks,” he wrote in one letter.

“Sadly, that story is anything but unique,” said Miriam Krinsky, a former federal prosecutor who is now the executive director of Fair and Just Prosecution. “I have seen that scenario play out far too many times. I saw it in my days as a prosecutor, I saw it when I was working on law enforcement reform.” The nation lacks a robust, and accessible, mental health care system, and people experiencing mental health crises are churned through the criminal justice system in alarming numbers. The federal Bureau of Justice Statistics has reported that more than half of those incarcerated in the nation’s jails and prisons have a mental illness. County jails have become the largest mental health provider in most states, including California, Illinois, New York, and Texas. “The fact that our jails are the largest mental health institutions in the nation is just shameful,” Krinsky said.

Roth, who talked to hundreds of people at jails and prisons across the country while researching her book about how the criminal justice system treats mental illness, agrees. It’s a problem that warrants “stepping back” to interrogate the origins of the dysfunction and how that has impacted countless individual cases. And the system should seek to understand what’s behind the actions of people like Davis before deciding to arrest, prosecute, or incarcerate them, she said. “It seems to me that in most cases, if not all cases, we should be able to step back and say, ‘What’s behind this?’”

Removing Police From the Equation

Among the most common ways in which the criminal justice system has tried to reform its treatment of people with mental illness is through the introduction of crisis intervention and de-escalation trainings for police.

The Crisis Intervention Team model was developed in Memphis in 1988 after police fatally shot 27-year-old Joseph Dewayne Robinson, who was in the middle of a mental health crisis, brandishing a knife and threatening suicide. As police repeatedly ordered him to drop the knife, he became agitated and moved toward them. He was shot eight times. The idea of the so-calledMemphis Model is to provide specialty training to a group of officers who could respond to mental health calls, de-escalate any tension, and route a person to partners in the community’s mental and public health systems for evaluation and treatment, diverting them whenever possible from the criminal justice system.

Where police are concerned, it’s a model that embraces two core components. First, the tactical side, or how cops spot and interact with people in a mental health crisis. “This is the information that tells officers, don’t rush forward; don’t shout verbal commands. You need to go slow, you need to modulate your tone,” said Seth Stoughton, a former Tallahassee police officer-turned-law professor at the University of South Carolina, where he studies policing and its regulation. “Building rapport with someone who is in a mental health crisis is critical to effective communication.” The second component is at least as crucial: “Now that you have interacted hopefully as positively as possible with someone who’s in a mental health crisis, what do you do?” Stoughton said.

The model requires that police “be comfortable making the decision that they aren’t going to make an arrest for someone’s behavior,” he said. “Even if that behavior satisfies the elements of a crime, they are instead going to submit that person for psychiatric evaluation, for example.”

The Texas DPS has long provided crisis intervention training to its sworn personnel — including Wade and Lybrand, according to state training records (Wade has taken at least 48 hours of crisis intervention training over his 18-year career; Lybrand at least 16 hours over a four-year career). Included in Texas’s current training materials is dashcam video of a DPS trooper who has pulled over a man for speeding. The man doesn’t have identification, and though he says he’s headed to San Antonio, based on where he said he started and where he is pulled over, he’s way off course. The trooper gets him out of the car right away and talks with him on the side of the road; he soon learns the man is a military veteran dealing with post-traumatic stress disorder. He keeps the conversation calm and, after calling for backup, drives him to a hospital.

In many ways, the training offers a striking contrast to the way Davis’s stop was handled. And it highlights a flaw in the approach toward intervention that many police agencies have taken: Training everybody in these techniques doesn’t mean that every officer will apply them in their work in any uniform way. “The folks who are already interested in doing it the right way are going to take advantage of the knowledge and skills they get from CIT training to make sure they do it the right way,” Stoughton said. “The agency has to create the structure that tells officers, this is the right way to do it, and here’s why,” he added. “And if you don’t want to do it that way, then you are doing it wrong and there are consequences for that.”

While Stoughton hasn’t evaluated the details of Davis’s case, he said that sometimes what he hears police say is that “‘when there’s a crime we have the duty to arrest,’ and that’s bullshit. That’s not actually true,” he said. “They have tremendous discretion in whether or not to make an arrest to deal with a particular issue or whether or not to deal with that issue in an alternative way, even when they have the clear legal authority that would allow them to make an arrest.” Reframing the way law enforcement sees these interactions and their outcomes is what good training tries to do. When someone’s behavior is the result of a mental health issue, “you have to think real hard before you make an arrest for that because, really, that may not help the person,” he said. “It may not help society.”

A related issue is that many agencies focus on crisis intervention “training” and forget that CIT actually stands for crisis intervention “team.” In addition to well-trained police working in partnership with mental health experts and providers, “one of the team members has to be the local prosecutor,” he said. “It should be standard.”

Krinsky agrees. The idea is to provide a series of “exit ramps,” so that people whose behaviors are prompted by crisis are dealt with outside the criminal justice system. “The problem is, in the first instance, we don’t have adequate alternatives and we think of law enforcement as the auto response when people are in crisis,” she said. The first off-ramp, she says, is to get police out of the equation — to have trained civilians deal with as many mental health-related calls as possible, as with the Crisis Assistance Helping Out on the Streets program in Eugene, Oregon, known as CAHOOTS, which has been in operation for more than three decades. Amid the ongoing protests over police violence, the CAHOOTS model has gained considerable national attention, and a number of jurisdictions across the country are now talking with the organization about ways to adapt its strategy, including officials in Austin and Houston. Oregon Sen. Ron Wyden and Rep. Peter DeFazio have introduced the CAHOOTS Act, which would allow Medicaid to pay for these programs.

But if efforts to divert individuals at this earliest stage fail, we “need to ensure that DAs have the wisdom to understand when people need help and not punishment,” Krinsky said. “The DA’s job is not to be on autopilot where every case that comes before them has to be charged and, if charges are filed, every punishment has to be the max. That’s not what their job is about; it’s not about notches on a belt. It’s about what is the wise result, and how do you promote the well-being and safety of your community?”

There are many ways prosecutors can do this, she says. In Seattle, for example, the elected prosecuting attorney, Dan Satterberg, was a principle architect of his county’s Law Enforcement Assisted Diversion program, which proactively seeks to divert people toward services and away from the criminal justice system. As state’s attorney of Chittenden County, Vermont, T.J. Donovan, now the state attorney general, partnered with local social services to create a diversion program that significantly reduced conviction rates for nonviolent offenses prompted by drug addiction and mental illness. “Ideally, the prosecutor is a partner in reforming the process,” she said, “so it doesn’t get to their doorstep.”

For his part, Jacob Putman, the elected Smith County, Texas, district attorney, said he could see how Davis’s actions could have been motivated by a mental health crisis. “I can certainly see that’s one way to look at it,” he said. But he doesn’t see that as the only possible explanation. “I guess I’ve had lots of evading cases where it was never really known why they evaded, right? I mean, people pull over and then take off.”

Putman said his office would have needed more information to determine if Davis’s offense had actually been caused by a mental health crisis before considering a lesser punishment; if someone had brought them a psychological evaluation that explained how his mental health influenced his offense and offered a treatment plan, “that would certainly be something we consider.” Putman did not personally try the case but said there is no record in the file that the family’s letters were given to the state; he said those letters might have been useful in determining punishment.

Putman’s office doesn’t have any formal policy or diversion program that outlines how to address offenses that may be motivated by mental health issues and instead says individual prosecutors make those determinations on a case-by-case basis — so, for example, in offices that consider conviction rates a measure of success, it might be less likely that prosecutors would consider diversion a worthy goal.

In Davis’s case, Putman said he doesn’t think a four-year prison term was extreme. In fact, he said, after learning that a doctor who evaluated whether Davis was competent to aid in his defense found “what appeared to be signs of a mental illness,” prosecutors dropped their initial recommendation, which was six years in prison. “I don’t think it’s that harsh considering just how dangerous the offense was,” he said. “When it comes to mental health, obviously the majority of people with mental health issues are not violent and don’t typically put the public in danger.” Here, he said, regardless of the motivation, Davis’s offense put people at risk. “I guess that was why it was for prison time and not probation or something like that. It was just a very, very dangerous set of events.”

Still, Putman says he understands that the system as a whole has not served people with mental illness. “I want to be first on the list of DAs who think the jail should not be our mental health treatment center. That is a big travesty of our criminal justice system, that we don’t have a robust mental health system that should be dealing with these kinds of cases,” he said. “And I think everybody involved in the criminal justice system would be happy to see that. I’d much rather people be treated in a hospital or clinic setting than arrested.”

A Horrible Cycle

Perkins, Davis’s defense attorney, says he’s convinced his client’s behavior was caused by mental illness — there were the police reports, the finding of mental illness by the competency evaluator, and the letters he says he did show to the prosecutor — but he couldn’t convince the state that getting Davis treatment instead of locking him up was the just outcome. “What you do is you end up doing the best you could possibly do under the circumstances,” he said. “Unfortunately, Cameron Davis is not the first nor will he be the last person that’s in this particular situation.”

Prison is not a good setting for addressing mental health issues, which is why diversion is key “for supporting the mental health of people with mental disorders and substance use disorders,” Dr. Nathaniel Morris, a forensic psychiatry fellow at the University of California, San Francisco wrote in an email to The Intercept. “Jails and prison are generally not therapeutic places from a mental health standpoint, and we should strive to connect people with treatment or rehabilitation services, rather than jail or prison cells, whenever possible.”

The prison environment is highly stressful, with people limited to small and often overcrowded spaces. There are shortages of medical personnel, including psychiatrists, lack of access to a broad spectrum of drugs, and constraints on counseling, among other structural issues, he wrote. So even though incarcerated people have a right to mental health care, there are a range of impediments to access.

In Texas prisons, mental health care is “horrible,” says Gary Cohen, one of several legendary parole attorneys in the state. “I mean, in order to get mental health treatment, you literally need to be banging your head against a wall or talking in tongues because the system views these offenders as manipulative. That’s the presumption — ‘oh, they’re faking this crap.’” To get care, you have to be a “gentle pest in terms of dealing with the unit health care professional and then dealing with their higher ups,” he said — a tall order for the incarcerated population.

And that has a range of implications, including on the ability of a person to earn parole. In Texas, parole eligibility is calculated based on a formula that takes into account calendar time served — also known as flat time — and good-time credit, which is earned through good behavior and compliance with prison rules. The more compliant a person is, the more good time they accrue, which in turn shaves time off the calendar, making a person eligible for parole. When a person won’t — or can’t — follow the rules, they lose the ability to earn good-time credit and are more likely to serve their flat-time sentence.

For people dealing with mental illness, this can set up an impossible situation: They can’t comply with rules because they’re dealing with an illness that needs treatment, but they can’t get the medical treatment they need to comply with the rules. “A lot of these people can’t really conform to all the minutia of the agency rules and regulations, so they end up in this horrible cycle where, because of a mental disorder or mental condition, they’re unable to control their behavior, and they’re treated as basically just knuckleheads rather than people with a disease,” Cohen said. On paper they look defiant, even though their behavior is a direct result of their mental health issues, “but the system doesn’t recognize it as such.”

This is precisely the cycle that Davis has fallen into, Durden said. He’s gotten in trouble, been beaten up, sent to solitary, and has been unable to access mental health care (he hasn’t received any mental health medications since he was detained in the Smith County jail). He’s also been shuffled among prison units across Texas; he’s been moved three times since the summer of 2019. And another move is pending “for his safety,” Durden was told, the result of some sort of altercation with his cellmate.

For nearly two years now, Durden has struggled with grief and regret. What if she’d just flown out to California and brought Davis home? Or what if she’d gone to Texas to advocate for him in person? Would things have worked out differently? The letters he writes break her heart. Sometimes when they arrive, she hesitates to open them. “I would just lay it there and just stare at it for a couple of days. I had to work up to even be able to read it, because you don’t know what’s inside,” she said. “Is it good? Is it bad? Is it horrible? Sometimes a little bit of all of it.”

She constantly wonders why things have turned out this way. Why didn’t anyone in the system understand that Davis was ill and needed help? Maybe, she thinks, it’s just that no one cared. She says she talked to the warden at one of the units “no less than 15 times,” imploring him to get Davis some help. “After hearing me tell him the whole story, on more than one occasion, and me bawling my head off, he’s like, ‘Well, sounds like Cameron needs to make better choices.’ I’m like, seriously? That’s what you just got from all this?” She says it’s like they just don’t “want to learn, I don’t think they want to understand.”

In navigating the system, she’s realized just how big the problem is. “I didn’t know that this was a problem until it happened to my family,” she said. “Where was the common sense in this whole thing? Yes, we want law enforcement to have more training in mental health, that would be wonderful. But it didn’t take a rocket scientist to put two and two together at the time of Cameron’s incident. You know what I’m saying?” 

This article was published November 26, 2020. Republished with permission from The Intercept (https://theintercept.com/2020/11/26/mental-illness-prison-jail-police/), an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Copyright, First Look Media Works, Inc.

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

 

 

PLN Subscribe Now Ad
CLN Subscribe Now Ad
The Habeas Citebook Ineffective Counsel Side