Practice of sending defendants to prison’s IMHU continues until 2027

By Eileen Weber
May 2nd, 2024
executive director of the Maine Prisoner Advocacy Coalition.
Joseph Jackson is executive director of the Maine Prisoner Advocacy Coalition.

Maine is actively trying to provide appropriate psychological care to those who are deemed incapable of standing trial because of mental illness.

In 2021, the state temporarily granted the Department of Health and Human Services (DHHS) the power to transfer defendants who were ruled incompetent to stand trial (IST) from a psychiatric facility to the intensive mental health unit (IMHU) in the Maine State Prison.

The House recently passed legislation (LD 2046) to extend those powers to the DHHS indefinitely. The Senate, however, cited constitutional concerns over legally innocent people retained in a prison environment. As of late March, they imposed an amendment to the legislation allowing the practice to continue until its repeal on November 1, 2027.

In an email, Rep. Suzanne Salisbury noted they heard compelling testimony from stakeholders who are involved in the care of people with mental health illnesses as well as those who have been found incompetent to stand trial.

“The goal of this program is to restore competency while keeping patients and staff safe. The IMHU located at Maine State Prison is run by trained professionals and to date, this process has only been used four times. I am comfortable with this bill and the process that is being used,” she said.

The Department of Corrections (DOC) said through legal counsel they had no further comment beyond what was stated at a January 8 hearing to the Joint Standing Committee on Criminal Justice and Public Safety. Salisbury presided as joint chair.

In his testimony, Commissioner Randall Liberty said he strongly supported allowing the DOC to continue accepting defendants deemed incompetent to stand trial. He said individuals reside in the IMHU when transferred to their custody, calling it the “only facility in Maine that is capable of safely housing the individuals” with no transferal to any other unit of a correctional facility.

After 90 days, those individuals may petition the court to return to a less restrictive setting if “the criteria for placement no longer exist.”

Reiterating that the provision has only been used four times since its enactment, Liberty said the option has nonetheless resulted in “significant enhancement of resource allocation for the state hospitals, increasing bed availability for other individuals needing treatment.”

When a case involves a competency issue typically associated with a mental illness, there will be a forensic evaluation to determine the next steps. If incompetency is determined, that person will be detained by the DHHS to “restore” their competency at one of the state’s two psychiatric hospitals, either Riverview in Augusta or Dorthea Dix in Bangor.

Matthew J. Davis, MD, DFAPA, clinical director for Riverview Psychiatric Center, testified in a January 17 hearing before the Joint Committee that when a patient’s behavior is too dangerous to safely manage in a hospital setting, an alternative is necessary.

“This provision has allowed me and my colleagues to provide better, safer care to all defendants found IST, importantly including those who are transferred to the IMHU as it best matches the right treatment setting for their treatment needs,” Davis said.

A research article published in the Journal of the American Academy of Psychiatry and the Law made this conclusion about IST defendants: “If defendants are suspected of malingering, refuse to participate in hospital-based services, or show that volitional, antisocial, or aggressive behavior is clearly the major impediment to restoration, jail may be more appropriate and, in some cases, incentivizing.”

Not everyone agrees prison is the right place for IST defendants. In a statement from the ACLU of Maine, Policy Counsel Michael Kebede noted, “LD 2046 would have made permanent a law that allows the state to imprison legally innocent people who need health care. If we have the capacity to care for people with acute mental illness in a prison setting, then we have the capacity to do the same outside of a prison setting.”

The ACLU called upon legislators to set a clear end date to the practice.

Joseph Jackson, executive director of the Maine Prisoner Advocacy Coalition, holds the same opinion. He said inmates are completely isolated from the rest of the population in a mental health unit. They never leave the area and it is a traumatic experience and ultimately detrimental, he said.

“Mental healthcare and prison shouldn’t be combined,” he said. “They haven’t been adjudicated and yet they’re in prison. If you have not been convicted of a crime, you should not be in prison.”

Jackson understands the trauma first hand, having been incarcerated 19 years for manslaughter. He said whatever treatment people with mental health issues were receiving before jail stops when they arrive. Following an evaluation, a different treatment may follow. The same thing happens if they are then sent on to prison—a re-evaluation and possible different treatment.

He explained Maine frequently implements 23- hour lockdowns, while acknowledging some practice and policy changes have occurred since he was in prison.

Jackson said he saw people rack up as many as 2,000 days in solitary.

“The DOC is not qualified for mental healthcare treatment,” he said. “I’ll take it a step further. The DHHS is shirking its responsibility to treat mentally ill patients. Instead, they pass it on to the prison system. They’re throwing up their hands.”

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