The North Carolina Department of Health and Human Services (NCDHHS) is violating the rights of disabled pre-trial detainees in NC jails by failing to ensure timely evaluations and treatment for people who lack capacity to understand the legal proceedings against them, according to a federal lawsuit filed today by the ACLU of North Carolina Legal Foundation (ACLU-NC), Disability Rights North Carolina (DRNC), and the law firm of Arnold & Porter.

On any given day, people with severe mental health disabilities languish for months in NC jails awaiting evaluation to determine if they can stand trial on their charges - charges for which they are presumed innocent under the law. Meanwhile, people with mental health disabilities who are being detained prior to trial are not getting adequate treatment for their mental health disabilities in jail, if they are getting any treatment at all. As a result, their conditions worsen while they wait, exacerbating their symptoms and increasing their risk of self-harm or harm inflicted by others.

Currently, people detained in jail for an evaluation to determine whether they are “capable to proceed to trial” wait an average of 68 days for the assessment. Meanwhile, a person who has been determined incapable to proceed (“ITP”) waits for more than five months for a bed at a state-operated psychiatric hospital where clinicians can provide treatment necessary to “restore” that person’s capacity to stand trial.

According to the lawsuit, which alleges violations of the Americans with Disabilities Act, the Rehabilitation Act, and the 14th Amendment of the US Constitution, these wait times are significantly longer than many other states.

The lawsuit further alleges that some people are spending more time in jail waiting for a capacity evaluation and/or restoration services than they would have been imprisoned if they were convicted of their pending charge and given the maximum possible sentence.

Among other things, the complaint seeks to require NCDHHS to provide timely capacity evaluations and restoration services for ITP detainees as required by law.  

“We know that severe mental illness and entanglement in the criminal legal system are too often linked,” said Michele Delgado, a staff attorney with the ACLU of North Carolina. “Under the 14th Amendment’s Due Process Clause, a person who is mentally ill and has been charged with a crime cannot be held more than a reasonable period of time to discern whether the person detained will be capable to proceed to trial. This complaint highlights widespread issues like delays in evaluations and treatment and dire inadequacies in the capacity of our state psychiatric hospitals to treat ITP individuals. Prolonged confinement persists and is a grave and inhumane violation of constitutional rights.”

DRNC Supervising Attorney Susan Pollitt said the current ITP crisis is due in part to the lack of community-based mental health services. “Many who are sitting in jail are there because of lack of services and support in the community. And our state hospitals lack beds for ITP individuals because many people who are in those facilities enter and get stuck there due to the lack of community-based services. NCDHHS must do better for North Carolinians with mental health disabilities.”