Jailed for being mentally ill: South Dakota looks for an alternative

When the anger takes over and Nick Johnson loses control, he might end up in the hospital.

Or, if the hospital staff think he is too aggressive, they send him to the Minnehaha County Juvenile Detention Center.

Even with no criminal charge, the struggling 14-year-old in a mental health crisis is treated like a prisoner, not a patient.

Adults responsible for his care don't feel they have a choice. Johnson lives with the trauma that comes from their decisions.

“It feels like I’m in prison,” Johnson said. “Why would a kid have to go through that?”

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Sioux Falls and other South Dakota communities rely on jail cells as part of their mental health system, even though national advocacy groups are critical of the practice and local jail officials say their facilities aren’t designed for mental health treatment.

South Dakota is one of five states where this procedure, putting people in jail on what's known as an involuntary mental health hold, is an option provided in statute.

These are people like Johnson, struggling with a diagnosed mental illness. Jailing people for being in crisis criminalizes mental health, traumatizes an already sick person who needs treatment and is a potential violation of their Constitutional due process rights.

“If you look at it from a strictly medical perspective, being in a jail setting is almost guaranteed to make somebody’s mental health crisis worse, not better,” said Lisa Dailey, legislative and policy counsel for the Treatment Advocacy Center, a national nonprofit that surveys and ranks states for their mental health policies. “It’s the worst possible thing you could do.”

Yet the practice persists. Texas, Wyoming, New Mexico, North Dakota and South Dakota have written laws allowing it. Colorado lawmakers banned the practice in 2017 and committed millions of dollars to improving the state’s mental health services.

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Kristi Noem, South Dakota’s newly elected governor, said she believes the law should be repealed, and lawmakers are taking steps to address ongoing problems with mental health services in the state.

“They’re not criminals,” Noem said. “They’re having a crisis at a point in time when they need to be observed, but unfortunately in a lot of communities, that’s the only option that folks have.”

It's not yet clear what practical steps state leaders will take to prevent people who are sick from going to jail because of their illness.

Courtney Bowie, legal director for the American Civil Liberties Union of South Dakota, said putting the state’s mentally ill in jail, with no criminal charge, is a potential violation of rights granted under the 14th Amendment of the U.S. Constitution.

“It’s more costly in the long run,” Bowie said. “And it’s destined to fail.”

South Dakotans go to jail for mental health emergencies

Johnson is soft-spoken and polite, with a mop of brown hair.

But he is sick. He has autism, anxiety, mood disorder and attention deficit hyperactive disorder.

He loses control. When he does, his mother worries the people who should be helping him will only add to his trauma.

Tears well-up in Beverly Froslie Johnson’s eyes. The 44-year-old single mother wipes them away.

“As an advocate, you can’t show your vulnerability,” she said.

She’s seen her son in the secured cell at the juvenile detention center. As is standard practice, staff at the juvenile detention center put children on an involuntary mental hold into a locked room with mattress, sometimes also putting the child in a suicide vest, JDC Director James Gravett said.

Gravett said he would rather not have involuntary mental health holds at the juvenile detention center and instead have those children go to a facility designed to treat mental health emergencies, such as Avera Behavioral Health.

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Avera is the only provider of emergency inpatient mental health care in Sioux Falls. The number of involuntary holds accepted by Avera staff has steadily increased in the last few years. The behavior hospital took 1,500 holds in 2016. Last year, it took about 2,100 holds.

Others are sent to a cell.

The juvenile detention center took 25 holds in 2018, while the Minnehaha County served 108 adult holds.

“It’s less than ideal, we don’t have ongoing treatment providers to give them help,” Gravett said.

Instead of care, juvenile detention

Johnson's two trips to juvenile detention are just part what his mother calls the "hamster wheel." Between her son's outbursts, Froslie Johnson is constantly on the phone or sending emails to get him the best possible treatment.

She keeps a series of letters from different physicians, from Avera, Sanford Health and the Mayo Clinic.

All have provided care to Johnson, and all give a similar recommendation: He needs long-term residential care.

The Sioux Falls School District’s special education leaders have resisted the option, prompting a battle of wills between educators and Johnson's distressed mother.

Sioux Falls public schools are required under federal law to consider the range of options available to each special education student, and must always consider the least restrictive environment, said Deb Muilenburg-Wilson, senior director of special services.

“Because of the large variety of students we have in Sioux Falls, we have worked really hard to develop programs all along the continuum,” Muilenburg-Wilson said.

The problem isn’t unique to Sioux Falls, said Carla Miller, executive director of South Dakota Parent Connection.

Miller’s organization works with families and children in the state who have special health needs at school. Under the current model, there’s a disconnect between the medical community and schools on how to treat students with mental illness, Miller said.

“I don’t think our systems have caught up with the times,” Miller said. “They change so slowly compared to the demonstrated need for kids.”

Froslie Johnson can only find help for her son if he acts out. Then, there are sporadic stays at the state psychiatric hospital in Yankton and Avera Behavioral.

He often comes home with no transition plan. And it's just a matter of time before he falls back into his old habits, Froslie Johnson said.

For both adults and children, a person needs to be diagnosed with mental illness to be put on an emergency mental health hold. They also need to be declared a danger to themselves or others by a qualified mental health professional, which is why hold assessments happen at Avera.

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Avera officials have had conversations in recent months about keeping patients longer in emergency health settings, said Thomas Otten, Avera’s director of inpatient services.

“We don’t want mentally ill people in JDC or jail,” he said.

But because South Dakota allows mental health holds in jail and JDC for up to 24 hours in statute, local mental health providers, such as those in Sioux Falls, leverage the jail system for more aggressive cases.

Otten said Avera rarely turns patients away because of capacity problems. Instead, mental health providers at the hospital turn to the jail and juvenile detention if the patient is too violent, said Jim Iosty, chairman of the county’s board of mental illness. Sometimes, law enforcement makes the call, Iosty said.

“A violent patient is not required to be accepted by a private regional facility like Avera,” Iosty said. “If they’re violent it doesn’t make sense to put them in with other vulnerable patients and hospital personnel.”

Using jail or juvenile detention to treat a person in crisis is a red flag. It indicates a lack of mental health services, including less restrictive treatment options, said Mark Murphy, managing attorney at the Bazelon Center for Mental Health Law.

Jail cells aren’t built to treat mental illness.

“It’s not what they’re designed for,” Murphy said. “It’s not what they’re meant to be. People aren’t appropriately trained.”

'The broken leg on this caterpillar isn’t law enforcement'

Calling the police is Froslie Johnson's only option sometimes when her son's outbursts become violent.

Police have to respond to an emergency, but it's the local mental health system that determines a patient's fate.

Whether officials send the mentally ill person to an emergency inpatient setting or a jail cell depends on the policies and practices of the local health care providers and the county mental health board.

“The broken leg on this caterpillar isn’t law enforcement,” Dailey said. “It’s the treatment system.”

Jailing the mentally ill for an involuntary hold, with no criminal charge, creates an extra burden on the criminal justice system.

Rapid City and Pennington County law enforcement officials have refused to use their jail space for mental health holds, and the same goes for the Western South Dakota Juvenile Services Center.

Rapid City Regional Hospital formerly used its main hospital to handle involuntary holds when its behavioral health unit was full. But in 2017 it announced it would no longer do so, which meant such patients would be redirected to a jail cell. 

It had never been the practice, and the hospital’s change didn’t sit well with Pennington County Sheriff Kevin Thom.

“I just took a stance that I’m not going to take people at the jail on just a mental health hold,” Thom said. “The jails have been overused for mental health needs in the community as it is in this country.”

Regional’s ex-President and CEO Brent Phillips left his position this summer with little explanation.

“The new CEO of Regional hospital, John Pierce, has made it very clear that they don’t support that type of arrangement,” Rapid City Police Chief Karl Jegeris said.

Minnehaha County Sheriff Mike Milstead has pushed for years for an alternative that could lighten the load on his jail. He's asked what would happen if a jail cell wasn't an option.

“Literally the belief is the system could implode,” Milstead said. “We would prefer not to be any part of that, detaining somebody that’s not on a criminal charge.”

What are the alternatives?

Milstead is an advocate for existing services such as the Mobile Crisis Team, a group of part-time employees at Southeastern who respond to about 500 mental health emergency calls per year.

Milstead also spent years promoting a proposed facility that would serve as a single access point for people picked up on emergency health and drug calls. The Triage Center would help reduce the number of people on mental health holds in the jail by directing people to the best possible services before their situation worsens, Milstead said.

“This will get a lot of things on the front-end,” he said.

Meanwhile, South Dakota lawmakers have convened task forces to consider the state’s mental health care resources and address potential problems.

The South Dakota Senate and House have already passed a resolution this session to create five more task forces to complete in-depth studies on specific mental health services by the end of 2019.

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Noem not only believes there are better alternatives than jails, she said communities should experience an increase in resources through future efforts to address mental health. The biggest challenge will be rural communities, she said.

“Those folks feel pretty isolated,” Noem said. “If you talk to folks in Sioux Falls, they say we’ve got pretty good services in this area. Rapid City has pretty good services, but they need more.”

Noem has also talked with law enforcement leaders in the Rapid City area, who helped form the West River Behavioral Health Alliance and obtained a grant from the Helmsley Charitable Trust to study alternatives to using jails to handle emergency mental health holds.

“It’s clear that we are under-resourced in terms of mental health response and especially in terms of crisis,” Rapid City Police Chief Jegeris said. “Really, what we as a state need to do is be more proactive.”

-Reporter Danielle Ferguson contributed to this story