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Lawyers say a Pennsylvania county traps people with mental illness in jail indefinitely

Philadelphia Inquirer - 9/12/2021

Sep. 12—Reviewing a case at the Delaware County Courthouse on Tuesday morning, President Judge Kevin F. Kelly grew exasperated. The question at hand was whether to release a man whose incarceration Kelly acknowledged was illegal but who had serious mental illness and no treatment lined up.

"This is about as helpful as a rubber crutch," he finally told the lawyers arguing in front of him. "Either I keep him in jail or I let him go, but he still has no help."

In the end, Kelly agreed to postpone the decision another week, hoping some help could be found by then.

But left unresolved, the Delaware County Public Defender has argued, is a larger problem: The county has been jailing people with mental illness for alleged offenses resulting from their disabilities — then keeping them in jail for months or even years because county probation and jail mental health staff had not made housing or treatment arrangements, and would not approve alternatives such as homeless shelters.

Those concerns were outlined in a series of filings over the last few weeks seeking immediate release for a half-dozen people whose public defenders say were locked up with no legal basis.

"Jail is not a resource," First Assistant Defender Lee Awbrey argued at the hearing Tuesday, adding that it's known to exacerbate mental illness. "Especially," she added, "the jail in Delaware County, which is almost constantly in lockdown."

County probation officials did not respond to questions from The Inquirer last week, and Kelly was unavailable for an interview, according to a spokesperson.

In an interview, Delaware County First Assistant District Attorney Tanner Rouse said his office is not always apprised of who's detained for alleged probation violations but is working to better track that information.

"These are extremely difficult and oftentimes really sad cases," he said, adding that a lack of resources in Delaware County and statewide often leaves few options for housing and treatment. "While the person doesn't mean any harm, we have to recognize there is a distinct possibility of harm coming from their mental illness. So we have to make sure if a person is going to be released that they have a plan in place that will ensure the safety of the community."

Delaware County is not alone in disproportionately jailing people with mental illness. One U.S. Bureau of Justice Statistics national prisoner survey found 44% of people in jail had some mental health history, and more than a quarter were in serious psychological distress.

"In probation, we see this over and over again: So many people who are incarcerated have disabilities. Those disabilities are very rarely taken into account," said Nyssa Taylor of the American Civil Liberties Union of Pennsylvania.

She said such cases raise numerous legal issues — among them, potential violations of the Americans with Disabilities Act, since schizophrenia is a recognized disability. "The probation department should be working with these people to make sure those who are struggling with a disability have the necessary accommodations to succeed."

The situation mirrors practices in some other counties, including Montgomery, where a schizophrenic man was killed in jail in 2019 while awaiting a referral to a probation-approved address.

"People were being held indefinitely because they do not have an address ... and homeless shelters did not qualify," said Keisha Hudson, a visiting professor of law at Temple University who was ousted from the Montgomery County defender's office last year after warning of illegal bail practices there. "It's not legal at all. The problem we have is, in a lot of these counties, the courts don't really think that the case law applies to them."

The Probation Trap: How lenient sentences can lead to harsh consequences

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