Not until a lawyer witnesses their mentally ill client placed in handcuffs and escorted to jail does the injustice of this law manifest itself. Once they leave the court room, the curtain of the justice system is rolled back. As a criminal defense attorney, you rarely get the opportunity, nor have the time, to know what happens behind the curtain. I made the discovery of those in legal limbo working with the mentally ill behind the stage in my capacity as a supervising psychologist in a jail.

In Gov. Andrew Cuomo's 2018 State of the State, I was heartened when he proposed reform of New York's criminal justice system. True reform cannot be addressed without consideration of the impact of mental illness on the justice system. By 1996, New York state had closed most of the psychiatric hospitals.

As a result, the jails became the new home for the mentally ill. This problem is not unique to New York. According to a 2014 study conducted by Treatment Advocacy Center, there are 10 times more mentally people in jail than in state psychiatric hospitals. The study further highlighted that in 2012, the number of inmates with severe mental illnesses in U.S. jails and prisons was estimated to be 356,268, with that figure climbing.

Pursuant to CPL Article 730, a defendant, who because of mental disease or defect lacks the capacity to understand the proceedings against him or to assist in his own defense, cannot be prosecuted for a criminal offense. Thereafter, according to CPL 730.20, the evaluation to determine capacity—competency—is conducted by two mental health professionals, one of whom must be a psychiatrist, and the other, a licensed psychologist. This statute is based on the common law statute of 1828, which provided that “no insane person can be tried, sentenced to any punishment, or punished for any crime or offense while he continues in that state.”

Somewhere along the away, we have deviated from the spirit of the law. In New York, petty offenses (e.g., misdemeanors), are dismissed if an individual is found to be mentally incapacitated. He is then sent to the local jail for an unspecified period, despite the dismissal of the criminal case. Here, they remain in legal purgatory awaiting their fate.

The incarceration of the uncharged would appall our Founding Fathers. The Due Process Clause of the U.S. Constitution requires that no state shall deprive any person of life, liberty, or property without due process (e.g., trial). If a person similarly situated had the same charges dismissed but was found to be competent, he would leave the courthouse a free man. The difference in treatment violates the Equal Protection Clause of the U.S. Constitution, which provides that no state shall deny any person “the equal protection of the laws.” It also violates the Americans with Disability Act because the law discriminates against the mentally ill.

Pursuant to CPL Article 730.40, the mentally ill remain incarcerated until they can be placed in a state facility to determine any risk of danger to themselves or others. If incompetency is based on a developmental disability, such as an intellectual disability, the Office for People with Developmental Disabilities (OPWDD) is required to find placement. If they are found incompetent due to a serious mental illness, such as schizophrenia, the Office of Mental Health (OMH) becomes the designated responsible agency. While the mentally ill person sits in jail for an indeterminate period, the community mental health services that they were receiving on the outside, such as housing, case management and psychiatric care, are lost. Without these services, the person's likelihood of reoffending increases once they are released. This poses a threat to the community as the person's mental health continues to deteriorate. The data support these concerns. For example, in Los Angeles County Jail, 90 percent of repeat offenders are mentally ill, with 31 percent of those being incarcerated 10 or more times. Additionally, while waiting for their placement, the mentally ill are at risk of being abused. Many are beaten, raped or otherwise victimized. Self-harm and even suicide may result.

My observations motivated me to suggest a solution to this problem. Once a person is deemed legally incapacitated, a representative from the local state facility should be available to escort the individual, on an outpatient basis, to determine what services they require. To ensure this protection, Mental Hygiene Legal Services should be assigned to represent them, once they are deemed incapacitated.

I am encouraged that Governor Cuomo intends to fix our criminal justice system. My hope is that the Governor is able to pull back the curtain and make reforms where the treatment of the mentally incompetent will take center stage.

Robert Goldman, J.D., Psy.D., is an attorney and licensed psychologist. He is also a former Supervising Psychologist for Suffolk County Mental Hygiene Services, where he worked as a supervising psychologist at the Riverhead and Correctional Facilities, as well as the County Clinics.