The Lost Souls: More Minnesotans are falling into criminal justice system ‘gap’ than ever before

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Less than a year before a Minnesota man was charged with the deadly rampage at a Buffalo clinic, he was found mentally incompetent to stand trial for violating a restraining order at that same clinic.

As a result, court records show prosecutors were required to dismiss Gregory Ulrich’s misdemeanor charges. What those records do not show is any attempt to court-order Ulrich into state custody for mental health treatment.

Instead he was sent on his way, only to return to the Allina Health Clinic on Feb. 12 when police say he walked in with homemade explosives, a loaded nine millimeter handgun and extra ammunition.

Medical assistant Lindsay Overbay was killed and four other workers are still recovering from their injuries.

Ulrich represents the worst case scenario in a system that prosecutors, public defenders and mental health experts have been trying to fix for years.

It’s a system "gap" where hundreds of people end up in limbo; they are unable to stand trial but also cannot receive critical services to treat their mental illness.

The mother of a Minneapolis man who has repeatedly fallen into these so-called gap cases fears he will one day end up in prison, or worse, if he does not end up in a secure treatment setting.

"Frankly, it looks to me like his disabilities are never going to be acknowledged, that he’s going to be blamed for his disabilities until he’s in prison," said Erin O’Neill, whose son has repeatedly fallen into the gap. “If he goes to prison, I won’t get enough of him back to bury.”

Defense attorneys and prosecutors say many people with mental illnesses repeatedly end up in the revolving door of court proceedings, often for non-violent crimes, before disappearing in the system, again and again.

While gap cases have been recognized as a serious issue for years, a recent court study shows it is impacting people at a higher rate than ever before.

Sixty percent of the defendants who are not competent enough to stand trial for their alleged crimes also cannot access inpatient mental health services, according to a 2019 report by the state court administration.

That means more than half are falling into the gap.

The court began studying the issue after finding a spike in the number of defendants who were referred by the court for a mental illness evaluation, known most commonly as a "Rule 20."

Yet, there is still no consensus on how to fix it.

Even when defendants are found incompetent and are ordered into treatment, the state’s largest agency, with little warning, reduced access to its own program intended to restore people to competency. It was a move that surprised advocates, attorneys and judges.

As the debate continues to simmer during this year’s legislative session, experts fear that there will be more “lost souls” left without treatment or resolution before lawmakers reach a solution.

The lost souls

“I love my son ferociously. He’s the best thing that ever happened to me, but I can’t accept the way the world is treating him,” said Erin O’Neill. “It’s wrong to victimize someone because he’s too disabled to advocate for himself.”

O’Neill adopted her son, Jude, when he was three. As a child, she described him as a charming, sweet boy who struggled to speak clearly. He was later diagnosed with a Fetal Alcohol Spectrum Disorder.

When he was 12, a psychologist found Jude was only able to understand the "very most basic things."

By the time Jude was 23, he had been arrested a dozen times. At least six times, his defense attorney raised concerns about his competency, which became a contested issue in three of those cases.

“I think Jude’s case is a perfect example of that the court process is extremely flawed,” said defense attorney Travis Keil, who represents many people with mental illness who are also dealing with competency-related issues. “It’s just a revolving door with these individuals and it’s just sad they’re not getting the assistance and help they need.”

In the last decade, the state court system has seen a steadily increasing number of defendants, like Jude O’Neill and Gregory Ulrich, who require mental evaluations to determine whether they understand court proceedings and can help in their defense.

In 2019, Kathryn Messerich, the chief judge for Minnesota’s First Judicial District, led a workgroup looking into the issue after the budget for Rule 20 mental health evaluations across the state started to “balloon.”

What they found was an alarming number of people falling into the gap where they are found incompetent, but don’t meet the standard to receive inpatient treatment through the state Department of Human Services.

“It’s a lot of lost souls. A lot of people who are just out there and are probably going to have the same thing happen over and over and over again,” Messerich said.

As a result, misdemeanor cases are dismissed and the defendants are either held in jail or let go with no supervision, often without appropriate mental health treatment lined up.

“Their life just continues on this trajectory that is not great for them and isn’t great for the community either,” said Tim Carey, an assistant county attorney who works in Ramsey County’s civil commitments division.

Carey was part of the workgroup that reviewed hundreds of cases between 2014 and 2018 that showed a “jarring” increase in referrals to competency hearings. In nearly half of those cases, the defendant was found incompetent and did not meet the criteria for commitment.

“That’s an enormous problem obviously because for that person they have no means of resolving this important matter in their life,” Carey said. “For victims of crimes and the communities where these incidents are occuring, people don’t have access to justice.”

Minnesota’s Chief Public Defender, Bill Ward, said he saw anecdotal evidence of increasing cases, but found the number of people with mental illnesses ending up in the court system to be “staggering.”

However, his bigger concern is whether that data will result in any change.

“It’s a revolving door…so having that knowledge, but yet not taking the steps…it’s just kicking the issue down the road and we’ve been doing that for years,” Ward said.

Hitting the bar

Jude O’Neill and Gregory Ulrich are on opposite ends of the “gap” spectrum: One is a non-violent, repeat offender, while the other is now charged with second-degree murder.

Although the charges and circumstances between the two are very different, both are similar in regards that neither one was committed to inpatient treatment.

In order to be referred for civil commitment at one of DHS’ facilities, a defendant charged with a gross misdemeanor or a felony, who is also found incompetent must “pose a substantial likelihood of harm to themselves or others.” A court study found that a small number of criminal cases that are referred for commitment actually meet that standard.

But those who are committed receive mental health services, such as therapy and medication, in addition to competency restoration, which helps defendants understand the court process.

DHS had a practice of holding patients until they were competent to return to court.

Dr. KyleeAnn Stevens, the agency’s executive director of behavioral health services, said they were able to do so at the time because they had few referrals from criminal courts.

But as the number of referrals “exploded,” Stevens said the agency could no longer sustain the service without a significant budget increase. So once a person is treated to the point where they can be discharged safely, they are let go regardless of their understanding of criminal court proceedings.

In 2018, 5 EYEWITNESS NEWS reported that DHS suddenly stopped the practice to open up more beds in their facilities.

Concerns raised over state ending Competency Restoration Program

“Our goal is to treat people to mental health stability…it doesn’t make sense for us to use our beds for people who are stable and don’t require that level of care,” said Stevens.

Judges and attorneys acknowledge the lack of bed space and funding, but say the agency’s decision to change the practice created more issues for people who need to resolve their criminal case.

“I know that there were some of us who felt a little taken off guard because all of a sudden we’re just told it was no longer going to happen,” said Messerich, the judge in Dakota County.

DHS to end Competency Restoration Program

“We have people who are discharged from the hospital before they are competent, so then we’re back to the question of where does this person go,” said Carrey, assistant Ramsey County attorney.

In many cases, defendants are returned to jail in hopes they become competent to resolve their criminal cases. But public defenders say their clients are often left languishing in jails with no mental health services or ways to become competent.

“You know I have a lot of respect for the sheriffs throughout the state, but they are ill equipped to be addressing…your client’s competency,” said Ward.

While DHS is not obligated to restore someone’s competence, court rules require that there must be an attempt to treat them so they can stand trial.

So far, no one can agree on who should be accountable for the service.

“The criminal courts govern the criminal courts. So the courts and the judges and the county attorneys need to abide by those rules, but DHS is not responsible for competency restoration,” Dr. Stevens said.

“It seems to me, somebody has got to stand up and say, it’s mine,” said Messerich. “I know the courts aren’t in the business of providing direct mental health care, you wouldn’t want us to, believe me.”

Agree to disagree

From the court system to mental health providers, people have widely agreed that the gap in services and criminal resolution is a serious and costly issue. But the agreement ends there.

This month, lawmakers will hear new recommendations from the many stakeholders who have been meeting over the last two years in an attempt to find a joint solution.

It all comes down to what people think is the right thing to do, according to Minnesota County Attorney’s Association Executive Director Bob Small.

Small, who is formerly a Hennepin County district court judge and assistant U.S. Attorney, says prosecutors, public defenders and mental health advocates want to see change, but they all come to the table with different concerns or ideas on the right solution.

“And quite frankly, nothing was getting done,” Small said.

Small previously pushed for a change to the statute to automatically allow court-ordered treatment for individuals found incompetent to stand trial.

But it raised concerns that the state would be criminalizing mental illness by forcing defendants who are not convicted of a crime into court-ordered treatment.

Sue Abderholden, the executive director of the National Association on Mental Illness Minnesota, says it is a “balancing act of people’s rights and people’s need for treatment.”

She said she believes that long-term change starts by getting to people with mental illnesses before they enter the court system.

“Once you’ve been involved in the criminal justice system, finding housing now becomes harder, finding a job now becomes harder,” Abderholden said. “That, as well, leads to this revolving door.”

But in the meantime, changes are being implemented at individual agencies to help those already in the gap, while others work to find long term solutions.

Last summer, lawmakers passed a rewrite of the commitment act during a special session that would provide “voluntary engagement” to people with a declining mental illness.

Abderholden said the new law allows mental health crisis teams to go into jails and try to convince a person to voluntarily enter into treatment. So far, the law allows counties to opt in to the program, but are not required to provide the service.

In Ramsey County, prosecutors have developed relationships with providers in jails to facilitate treatment services while defendants wait to see a judge.

At the same time, the courts are in the process of putting in new practices to streamline evaluations and provide more education on mental illnesses.

Despite all of the individual changes, Small says the gap in the system still requires a statewide solution.

“If there is not a legislative fix, I’m not particularly hopeful that anything will change,” Small said.

The work continues at the state level, to close the gap, so others don’t fall into it in the future.

“Nobody likes too much government, but, government in the right way to help people is kind of why we’re here,” said Ward, who leads Minnesota’s office of the public defender. “You know we’re fine with dealing with roads and bridges, but Jesus, let’s deal with people.”

Still in the gap

The predictable cycle continues for Jude O’Neill, who is still in the gap, said his mother and defense attorney.

Erin O’Neill said she waits for days, weeks or months after Jude disappears to see his name pop up on a jail roster. Records show he is most often picked up for non-violent crimes, such as his most recent charge of driving a stolen vehicle.

“I’ve had people who say, ‘well he’ll go to jail, but at least he’ll have a roof over his head.’ But his disability shouldn’t have to be criminalized for him to get services he needs,” O’Neill said.

O’Neill and Jude’s attorney both believe it’s a waste of time and resources for him to continuously go through the same cycle with no resolution.

“Not everyone who is found incompetent needs to be in a state hospital, but they need to be provided services and everyone with mental health issues, they’re all different,” Travis Keil said.

O’Neill doesn’t have the answers that advocates, prosecutors and lawmakers are looking for, but she says something needs to happen to help others like Jude.

“I mean the system just doesn’t make sense for somebody with the disabilities that Jude has and yet nobody acknowledges that, nobody ever does his or her part in sort of maintaining a system that’s victimizing people with mental disabilities,” O’Neill said.