The restoration of Jerry Kulp.

APRIL: Please contact me about Jerry. We need to keep this from happening again...

480-580-6807

PEGGY PLEWS(APRIL 13, 2011)

I looked and looked this week for memories in the ether from Jerry Kulp's short life. All I could find were his court and ADC papers. Jerry was a 17-year old prisoner on the Minors Unit at ASPC-Tucson last May when he committed suicide.

Jerry hadn't even been in prison a week; he must have just been terrified. How could anyone on the Minors Unit miss all the signs he must have been broadcasting that he wasn't going to last long inside?


Jerry wasn't a gang member, from what I can tell. He was a seriously mentally ill child. He was only 15 when charged as an adult, at which time he was so mentally impaired that he required a guardian to make his legal decisions for him, and had to undergo several rounds of competency exams and "restoration treatment" in Joe's Jail over the course of 6-9 months to be fit for trial.


Does anyone else out there find that troubling? There seems to be a pattern here with mentally ill people being inappropriately prosecuted - kept in jail the whole time their trials are being postponed - (as if they already know that they're guilty and doing the time anyway) - while they medicate them into health. Once so restored, they promptly plead guilty to get out of there, and get sent to prison where they end up neglected or assaulted and killed.


I can't believe we prosecuted a mentally incompetent child as an adult, and then threw him into prison, but I guess we do that all the time. That can't possibly be legal. Why was this kid sent to prison instead of to a hospital, anyway? To teach him some kind of lesson? He seems to have suffered plenty enough. To scare the rest of us at his expense? No wonder we're so soul sick.



I'd like to speak to Jerry's friends and family, if you're out there. Some of us are organizing to make sure this doesn't keep happening to people like Jerry and me in Arizona's state prisons. My phone number is 480-580-6807. My email is prisonabolitionist@gmail.com. Peggy Plews.

Sanity, mental illness, and "crime".

The note at the end of this post came into my box last night on a wave of hushed grief, asking to be placed where it might be found by the family of Shannon Palmer, and those in his community who responded to his killer with outrage and condemnation. It contains condolences from someone who knew and loved Jasper Rushing before he grew severely disturbed and took his first victim's life. It does not argue that he did no wrong. Rather, it just implores the rest of us to understand that he, too, has suffered, and was lost long ago.

I slept very little after contemplating the significance of this assertion that Rushing might have been a victim of the kind of disorder that claims the innocent and vulnerable I fight for, too. I had already done my share of dehumanizing him, branding him as a twisted sociopath, presuming his character and guilt were clear by his history, his access to Shannon, his method of torture, and his soulless gaze into the camera at the ADC. I stopped just short of arguing that he get the death penalty, I found his crime so heinous. No way was he in the same class as Shannon, my own loved one, or me.

I can't imagine that Shannon's killer could have executed him in the manner he chose if he had any sort of conscience or humanity left in his being. Yet I don't doubt the sincerity of the author of this note who tells us that Rushing was once a good kid who underwent some kind of horrible transformation, and that even as a hardened killer in prison he was living in fear.

Searching the internet I could find nothing but court calendars to reference Rushing's history of kidnapping and premeditated murder, preceded by more petty crimes and drug abuse. I couldn't even find news accounts of his most serious crimes or convictions. Buried in those case entries, however, is evidence that others saw a psychiatric illness emerging over a decade ago - before the first time he killed someone - compelling more than one judge to order a competency exam before sentencing him.

Not everyone who is ordered to undergo a competency exam has a disabling mental illness, nor is everyone with a psychiatric disorder automatically exempt from the consequences of harming others. The Diagnostic and Statistical Manual (DSM IV) that mental health professionals use to label social deviants includes antisocial personality disorders and classifications for pedophiles, which are often associated with very serious predatory behavior. Those are not what advocates usually refer to as "serious mental illnesses" - we're most often talking about mood and thought disorders like manic-depression and schizophrenia, not severe personality disorders. People with diagnoses in the former category are far more often victims than perpetrators of violent crime.

Nevertheless, like it or not, the truth is that sometimes people who do violence to others are suffering from serious mental illness, their ability to exercise good judgment often compounded by the use of drugs or alcohol. In fact, it would be hard to look at Shannon's murder alone and suggest that his killer was in any way "well". Most certainly there's some kind of pathology underlying his actions; I just don't know what kind of pathology it is, though sadism comes to mind. He doesn't strike me as just being fearful - that murder was vicious.

Even if Rushing had a psychotic break in his youth and developed schizophrenia, that should not overshadow the fact that the vast majority of Americans with a psychiatric disability are non-violent individuals contributing to the life of our communities and the well-being of our families. You wouldn't know that we're nuts just by looking at us or the surface of our lives. Unfortunately, however, it's people like Jasper Rushing who grab the headlines and threaten to define us, not victims like Shannon Palmer, or survivors like me. Seldom is a big deal made of the psychiatric status of vindictive, selfish, greedy people who violate others horribly while perfectly "sane". That's who we really need to beware of.

It is true that untreated mental illness can cause symptoms that "endanger self or others": severe paranoia, auditory hallucinations, agitation, poor impulse control, delusional thinking, grandiosity, emotional detachment, terror, and despair. For that reason we have laws that require involuntary hospitalization and compulsory outpatient treatment for people who - left untreated - may become a danger to the rest of us or kill themselves.

So many of the mentally ill attempt to self-medicate, too, which often aggravates our symptoms, resulting in disastrous consequences - including the trans-institutionalization from mental health settings to places like shelters, jails and prisons for a range of criminalized behavior that has as much to do with poverty as it has to do with the nature of one's disability.

Over the course of the past 30 years it's been increasingly hard to get someone who needs psychiatric care into an inpatient setting, a group home, or a public outpatient clinic that has the capacity to really help them be "well", because the profoundly disabling nature of mental illness forces them to depend on public resources. As those budgets have shrunk and affordable housing has disappeared, people with psychiatric disabilities have been dumped into the streets to fend for themselves, suffering a multitude of traumas on top of whatever inner demons already torment them.

In the same period of time, the numbers of people with mental illness in America who have been put behind bars has risen exponentially. The Huffington post has an interesting video and links to other articles that address this.

I worked with the the homeless mentally ill for over a decade in Ann Arbor, and saw more go through the criminal justice system that into the mental health system because jails and prisons were the only doors the community was willing to pay to hold open for them anymore All other avenues to seek "safety" from the streets and shelters or "help" for their symptoms had been systematically closed off, and mental health and criminal codes were revised to reflect society's determination to punish our deviants, public nuisances and eyesores with jail and - for repeat offenders of even petty crimes - with prison.

Do not be mistaken about what prison in America is, by the way - it can be horribly brutal, even if you don't end up getting killed.

With public mental health dollars shrinking, the laws that were originally intended to protect the civil liberties of the mentally disabled were used to justify denying them their rights to humane, life-saving treatment, contributing to their rising rate of criminalization and incarceration. Many people in mental health and on the front end of the criminal justice system have resigned themselves to the notion that if someone needs intensive psychiatric intervention to protect them or others, the only way they'll get it is as a convicted criminal. That's such a tragic myth, as is the one that addicts will get the treatment they need in prison, too.

By the AZ Department of Corrections' own count at the end of last month, 9,362 of their 40,204 prisoners were individuals requiring on-going mental health services. Only a handful in AZ state prisons have access to anything more than an MD who might prescribe the right psychiatric meds, however. They're otherwise left to fend for themselves and cope with their illness and the terror of their environment, which the rate of suicides and homicide victims among them suggests is not an easy feat. The only "treatment" out of the norm that many end up getting is placement in solitary confinement or cages as a behavior management tool or outright punishment for their inability to adapt. Isolation is not a therapeutic intervention. It is known to make the sane go mad.

Jasper Rushing perpetrated horrible murders over the course of his adult life; I have no idea why. That doesn't make him any less a victim of neglect, however, if he wasn't getting the care he needed for whatever psychiatric disorder he had. That means that Shannon is a victim of both Jasper Rushing and the AZ Department of Corrections. The two men were locked into the same modified one-man cell, each one, by their family's accounts, fearful and not doing well.

From what I've seen and heard, that's not an isolated exception to an otherwise functional system. The ADC has a pattern of discontinuing necessary psychiatric meds and housing symptomatic prisoners in poorly supervised, over-populated dorms or in close quarters with people not likely to put up with them. When placed in higher security yards and cells - presumably because someone had concerns about their behavior and ability to be safe - it appears as if the seriously mentally ill are simply being contained, not cared for. Marcia Powell, after all, was supposed to be on a 10-minute suicide watch, and look at what happened to her. Even exposed in a cage in the middle of the yard, 20 feet from an air-conditioned station for guards, no one looked out for her welfare.

We can - and should - each pressure the ADC, directly or through our elected officials, to reform their system such that people with mental illness don't keep dying off as they are. We should also forward our concerns about the safety and welfare of loved ones in the prisons - regardless of their crime or disability - to the Department of Justice Civil Rights Division, asking for a CRIPA investigation into the patterns underlying the murders, suicides, and neglect. But the most effective tool for long-lasting change would be new legislation that assures critical rights and remedies to prisoners to prevent these kinds of things from happening in the first place.

We also need to reform this legal system which criminalizes and imprisons people for the symptoms of their illness, as Shannon was for climbing a utility tower. Such reform also necessitates that resources exist in the community to provide adequate treatment and housing for those at risk of being inappropriately criminalized without it. The price of imprisonment, as I hope people see by now, is paid not only in tax dollars, but also in damaged and lost lives. We must end this madness now. Too many people are being thrown away for the crime of being ill.

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Here is the note left for us all, I think, but especially for Shannon's family, by Jasper Rushing's loved one last night:

I am one of the"murderers" family members. I was there at his birth, through his childhood and up through his young adulthood. He is a struggling mentally ill person fighting to survive as well. He was a beautiful baby with an inquisitive, intelligent mind. He grew to be a troubled child with many issues that his family attempted to deal with. As a young adult he seemed like the average boy/man. He was loving and kind through out his first 20 years. I'm not sure to this day what changed...

I love Jasper and always will, but I don't know who this man is. I know he's been begging for months to be taken out of general population because he just didn't feel safe himself. I am sorry to the family of Shannon, I am horrified and ashamed...your family is in my prayers along with our family who is at a loss as to where our beautiful boy went...

September 16, 2010 6:41 PM

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.]