Between Oct. 18, 2021 and Dec. 15, 2023, Maine courts issued 130 orders of incompetence. Out of those, only four were moved to the state prison’s psychiatric ward. Press Herald staff photo by John Ewing

Innocent until proven guilty is a bedrock principle of American justice. But in Maine, some criminal defendants with mental illness spend time in the state’s only maximum security prison before they ever face a jury.

In 2021, the Legislature temporarily granted the Department of Health and Human Services the power to transfer certain violent criminal defendants who have been ruled incompetent to stand trial from psychiatric hospitals to the Maine State Prison. Three years later, proponents say the law has improved safety at the Riverview and Dorthea Dix Psychiatric centers, while the small number of patients moved to the prison’s Intensive Mental Health Unit have received quality care.

“The evidence has shown that this is a successful program,” said Rep. Sue Salisbury, D-Westbrook, who is sponsoring a bill that would eliminate the statute’s sunset provision and extend its life indefinitely. “After listening to the experts both at Riverview, at IMHU, at DOC (Department of Corrections) … I feel really strongly that this is the right way to move forward.”

Yet while the measure appears destined to become law after the House passed it earlier this month, some legislators have joined defense lawyers and the American Civil Liberties Union of Maine in criticizing the bill’s form and function. As written, opponents argue, the law’s vagueness threatens the civil rights of defendants found incompetent to stand trial – people who may have committed serious offenses but who are themselves among the most vulnerable members of society.

“These are the folks that, frankly, nobody wants to deal with,” Rep. Grayson Lookner, D-Portland, said at a January public hearing in which he advocated for moving all treatment to state hospitals. “But they have not been convicted of a crime.”

AN ‘ESSENTIAL TOOL’

One of the first steps of a criminal proceeding is determining whether a defendant is competent to stand trial, meaning they are able to understand the charges against them and assist lawyers with their legal defense. A defendant’s incompetence to stand trial can be rooted in any of several issues, including low IQ, dementia or mental health conditions like schizophrenia.

When a judge, prosecutor or defense attorney believes a case may involve a competency issue, an expert will perform a forensic evaluation and submit a recommendation to the court. If, by agreement or after a hearing, the court finds a defendant cannot stand trial, DHHS takes custody of the defendant and attempts to “restore their competency” through medical treatment or education, usually at one of the state’s two psychiatric hospitals.

Between Oct. 18, 2021, and Dec. 15, 2023, Maine courts issued 130 orders of incompetence, according to a report DHHS and the Department of Corrections issued this January. Out of those, only four were moved to the state prison’s psychiatric ward under the 2021 law.

These patients were a poor fit for the state hospitals because they exhibited “predatory aggression,” according to testimony DHHS submitted to the Legislature’s Criminal Justice and Public Safety committee. Unlike some patients who get violent because they are psychotic or have impulse control problems, this group is particularly challenging because their actions are “planned, methodical (and) volitional,” according to DHHS.

Matthew Davis, clinical director at Riverview, said treating defendants who are incompetent to stand trial and show predatory aggression can stress an already overtaxed mental health system by forcing hospitals to devote extra space and staff. But the state prison’s psychiatric ward has the security needed to control these defendants and has proven effective at returning them to competency so they can face trial, Davis said.

“This provision has allowed me and my colleagues to provide better, safer care to all defendants found incompetent to stand trial,” he said at the January public hearing.

DOC Commissioner Randall Liberty also submitted testimony in favor of renewing the law, which he called an “essential tool.”

But according to defense attorney Jeremy Pratt and other skeptics, Davis’ explanation for why hospitals can’t handle these defendants is rife with inconsistencies and vague language.

‘THERAPEUTIC NIHILISM’

When he spoke against the bill at January’s public hearing on behalf of the Maine Association of Criminal Defense Lawyers, Pratt highlighted a section of the current law that says patients can only be transported to the state prison if they are at risk of engaging in violence that is “not primarily driven by symptoms of a major mental illness or other disability.” He argued that phrase raises several questions.

If hospitals are already required to care for patients whose mental illness makes them violent, how can they be unequipped to handle other violent patients? How can anyone confidently determine whether an incompetent defendant is violent due to “major mental illness” or some other reason? How are courts even supposed to understand what “major mental illness” means when that term does not appear in the American Psychiatric Association’s current handbook?

“I think Riverview is being disingenuous,” Pratt told the Press Herald last week. “(Davis) doesn’t want to deal with people with serious behavioral issues and would rather just ship them off.”

When pressed at a committee work session in January, Davis said the term is a reference to a previous APA classification system that distinguished most mental illnesses, including bipolar disorder, schizophrenia and substance use disorders, from personality disorders like borderline personality disorder and antisocial personality disorder – commonly known as psychopathy. He repeatedly said that while hospitals can treat people with the first set of conditions, they can’t treat the latter group.

“We can throw all the medicines in the world at them. We can throw all the therapy in the world at them,” he said. “It’s not going to do anything to stop them from acting violently.”

But that doesn’t align with modern research, which suggests that treatments like dialectical behavioral therapy can produce better outcomes – including reductions in anger and violent behavior – in patients with personality disorders, said Michele Galietta, a researcher and associate professor at John Jay College of Criminal Justice.

She said the idea that personality disorders are untreatable is “clinical folklore” that has remained pervasive in some parts of the psychiatric community, even though the APA has eliminated the categorization system that distinguishes these disorders from other types of “treatable” mental illnesses.

“It’s an outdated therapeutic nihilism or pessimism,” Galietta said. “All the data really does suggest … that psychopathic traits can be treated to some extent.”

Galietta said Davis is correct that patients with psychopathic traits can require special practices, like the use of restraints or seclusion in order to protect staff and patient safety. But while Davis said Maine’s hospitals could not implement these techniques without losing their accreditation – and the tens of millions of federal dollars that come with it annually – Galietta said that’s not necessarily true.

“You can manage folks like that in a forensic hospital,” she said. “Plenty of states manage them in a forensic hospital.”

‘UNFAIRLY DISTRACTED’

During legislative hearings on the new bill, several lawmakers expressed their discomfort with indefinitely granting DHHS the power to send defendants to state prison before they’ve been convicted of a crime. The group attempted to amend the bill to create a new sunset provision in 2027 – at which point DHHS would hopefully be able to safely treat all patients at Riverview or Dorthea Dix.

Yet when asked what resources the hospitals would need to make that a reality, Davis rejected the premise in an awkward exchange.

“I don’t think that would be appropriate for Riverview,” he said. “I want to run a hospital, not a corrections facility.”

“These are people that haven’t been convicted of a crime,” Lookner reminded him.

“Right,” Davis responded.

Five of the 12 legislators on the criminal justice and public safety committee split with the majority to recommend the amended version of the bill, which also would have clarified some procedural questions that Pratt said could lead to the policy being applied inconsistently. But last week, the House voted 88-49 against the amendment before passing the original bill.

The legislation’s sponsor said opponents were searching for a potentially expensive solution to a problem that simply doesn’t exist. Based on the fact that only four patients ruled incompetent to stand trial have been sent to the Maine State Prison since the bill’s passage, Salisbury argued that DHHS clearly isn’t abusing its power – and the patients in prison must be receiving proper care, because three of the four had been restored to competency as of January.

Opponents might cringe at the idea of defendants sitting in prison before adjudication, Salisbury said, but what is the difference in practice between being held in a locked Riverview unit or a locked psychiatric ward at the state prison?

“I think that people are getting unfairly distracted by the fact that this IMHU is located at Maine State Prison – potentially at the detriment of people that really could benefit from that care.” She said enacting another sunset provision would be “kicking the can down the road.”

Spokespeople for the DOC and DHHS did not answer messages Friday asking for details about how the prison’s mental health ward compares to Riverview.

Pratt acknowledged that the policy has not yet led to widespread civil rights violations. Most of the patients transferred to the prison have agreed to go. Some of Pratt’s own clients have told him the prison ward is a better fit for them than Riverview.

But that won’t be true for everyone, he said. And given the rising number of patients being ruled incompetent to stand trial, he envisioned a perilous slippery slope ahead.

“The bill is flawed, and it’s going to negatively affect people’s liberties,” Pratt said. “It doesn’t matter if it negatively impacts one, 10 or 100 people – if it negatively impacts them because it’s unjust, it’s unfair, it’s unclear, it’s unevenly applied, then I think we have an obligation to stand up and say, ‘This law needs to be fixed.’”