New York County Defender Services

 

Testimony of

Katherine L. Bajuk

Senior Trial Attorney, Mental Health Specialist

New York County Defender Services

Before the

Committees on Criminal Justice, Justice System and Mental Health, Disabilities and Addiction

Oversight Hearing: Preventing Recidivism for Individuals with Mental Illness

and

Int. 903-2018 & 1590-2019

 

June 17, 2019

My name is Katherine Bajuk. I have been a public defender in New York City since 1994, and the Mental Health Attorney Specialist at New York County Defender Services (NYCDS) since 2015. NYCDS is a public defender office that represents approximately 20,000 clients in Manhattan’s criminal and Supreme Courts annually. As the Mental Health Attorney Specialist at NYCDS, I participate in our client’s forensic exams; represent clients involved in Manhattan Mental Health Court; assist other attorneys in my office with cases involving mental health issues; and participate in Behavioral Health meetings with the Mayor’s Office of Criminal Justice and other policy work groups both locally and nationally.

Thank you for inviting NYCDS to testify about the two bills on today’s calendar.

According to Correctional Health Services, approximately 1,100 incarcerated people – 16 percent of the entire jail population – have been diagnosed with  a serious mental illness.[1]  A February 2018 news report documented that city jails actually house more clients with mental illness than all city hospitals combined.[2] Our clients with mental health issues cycle through the system repeatedly, stay in jail longer than other clients, and face a greater risk of victimization and re-traumatization while incarcerated.[3]

Both bills on today’s calendar could be of great benefit to our clients.

1) The “Get Well and Get Out Act,” Int. 1590-2019 - A Local Law to amend the administrative code of the city of New York, in relation to requiring the department of health and mental hygiene or its designee to report information to the attorney of record for individuals in the custody of the department of corrections who are diagnosed with serious mental illness

NYCDS supports Councilmember Chin’s bill to provide information about a client’s mental health status to the defense attorney, since this legislation will help clients with mental health issues receive the appropriate treatment or assist in getting them released to community-based programs.

But we ask that the Council consider some concerns we have about this bill.

The first is to ensure that any consent given by client with mental health issues to share information is truly “voluntary.” For some of our clients, there is a question as to whether the person is mentally competent to proceed to trial, pursuant to New York Criminal Procedure Law 730.  Clients whose competency is at issue should not be asked by the Department of Corrections (DOC) to give their voluntary consent until this issue of fitness has been resolved. Thanks to many changes that have been made, this should not be longer than a few weeks. If DOC were to speak with these clients, and they are ultimately found not competent to proceed, the voluntariness of their consent could later be challenged. Additionally, prosecutors challenging such a finding could argue that since the client executed a legal document, they are indeed competent – when they are actually not. So rather than risking more harm than help, we ask that if DOC knows that a person has a pending competency issue, they wait to go forward with the voluntary consent request until a determination is made that the client is indeed competent to proceed to trial.

The second concern is making sure that whomever is tasked with gathering the information pursuant to this statute be a social worker or someone with a clinical background as opposed to a corrections officer. This could both reduce the likelihood of further traumatizing a client with mental health issues and ensure more accurate reporting on a client’s psychiatric condition.

We also ask that you ensure that our client’s confidential information, including mental health and medical records, not be shared with other parties, including the District Attorney’s Office, by making explicit in this legislation that these reports are not something that a prosecutor can access without the defense attorney’s consent. Defense attorneys currently receive Pre-Arraignment Screening Unit letters reporting a client’s substance abuse or mental health issues at criminal court arraignment, and only defense counsel receives it or is aware that it even exists. A similar process for this kind of information would be ideal.

Finally, in the event the information is later used by a bail fund, let’s make sure there is a discharge plan for the client before being bailed out. No one wants a client remaining in jail, but we want to avoid what has happened in the past where a client with serious mental illness dies by suicide after being bailed out without having a discharge plan in in place. To avoid this, the Council should continue to fund supportive housing and services for people with mental illness so they can access these services immediately and automatically upon release.

2) Int. 903-2018 - A Local Law to amend the administrative code of the city of New York, in relation to funds remaining in inmate accounts when inmates are released

NYCDS also supports Int. 903-2018, which would benefit all incarcerated clients, not just those with mental illness. The bill requires the Department of Correction to provide incarcerated people with written notification of the amount of funds remaining in their account and instruction on how to request refund of such funds. The bill also requires that the department return such funds to the person within 60 days of their release and requires annual reporting on the aggregate amount of funds remaining in accounts for all formerly incarcerated people who are no longer in the custody of the department.

Int. 903 is long overdue, and we urge you to pass it this year. Our clients and their families should have swift, easy access to their own money as soon as they are released from custody. We ask that the Council inquire into this issue of inmate fund accounts further and determine what the DOC’s current practice is and what steps, if any, the Council can take to ensure a fairer and more transparent process.

Lastly, I would like to briefly discuss some steps the City can take to prevent recidivism and criminal justice involvement for people with mental illness.

We cannot allow our jails to serve as warehouses for those who have mental illness. We cannot continue to punish people for being ill by imprisoning them, and then expect them to get better in an environment that exacerbates their mental health issues and often serves to re-traumatize them.

The City can and must do more to help people with mental illness quickly transfer out of our jails and into programs and housing that can better support their needs and facilitate their re-entry into the community.

We need more community-based supportive housing for people with mental illness.

We need multiple levels of care and treatment.

We need more free and affordable treatment options in the communities where our clients live. There currently are not even enough beds for all who need them,[4] which is often why clients with mental illness are brought to jail instead.

Just this morning I had to return to Mental Health Court because a client who was released to a program just last Friday - after waiting many months for a residential program that could serve a client whose primary language was Spanish - had to be returned to jail because he did not have a co-occurring substance abuse issue and unbeknownst to us, this program only serves people with both substance abuse and mental health issues.

We need more education in the community that the solution to dealing with a friend or family member with mental health issues is not to call the police but rather seek help in a medical facility.

We also need more high-quality service providers, which means paying people who work in the mental health field a living wage and providing them with the support they need to remain in the field for the long-term. While the City has increased funding for mental health services over the past few years, these problems remain.

We understand that all of this requires a massive infrastructure investment from the City - and so we urge you all to make those commitments in next year’s budget.

Thank you again for your time and consideration here.

If you have any questions about my testimony, please contact me, Katherine Bajuk at kbajuk@nycds.org. For further questions about NYCDS’ positions on public policy, contact Andrea Nieves, NYCDS Senior Policy Attorney, at anieves@nycds.org.

[1] Reuven Blau & Rosa Goldensohn, City seeks to move mentally ill inmates to hospitals, New York Magazine, March 21, 2019, available at http://nymag.com/intelligencer/2019/03/nyc-seeks-to-move-mentally-ill-inmates-to-hospitals.html.

[2] Mary Murphy, Rikers and city jails have more mental patients than all hospitals in NYC: doctor, Pix11, Feb. 24, 2018, available at https://pix11.com/2018/02/24/rikers-and-city-jails-have-more-mental-patients-than-all-hospitals-in-nys-doctor-says/.

[3] See, e.g., National Alliance on Mental Illness, “Jailing People with Mental Illness,” available at https://www.nami.org/Learn-More/Public-Policy/Jailing-People-with-Mental-Illness.

[4] See, e.g., Jarrett Murphy, Housing for NYC’s Most Vulnerable Under Scrutiny for ‘Screening’, City Limits, July 5, 2018, available at https://citylimits.org/2018/07/05/debate-about-whether-nyc-housing-for-the-most-vulnerable-rebuffs-some-who-need-help/.