Why Mentally Ill Colorado Man Has Spent Eight Months in Jail for Spitting

A mentally ill Colorado man has been in jail since February because he spit on a police officer. As a result, he hasn't received restorative treatment for his condition in eight months, with no end in sight.

Attorney Iris Eytan highlighted the man's plight during a September 28 hearing in U.S. District Court over a lawsuit filed against Reggie Bicha, the Colorado Department of Human Services' executive director, and Ronald Hale, superintendent of the Colorado Mental Health Institute at Pueblo, over what has become the routine warehousing of untreated mentally ill individuals in local jails for months.

In response, Eytan says the deputy attorney general representing Bicha's department "asserted that pointing this out wasn't relevant, because the hearing was really about the contract we'd signed and the meaning of it, not the actual people who are suffering because of what we feel is breach of contract."

She adds that, in her view, Magistrate Judge Nina Y. Wang, who's overseeing the case, "seemed flabbergasted" by this argument — and that could bode well for Disability Law Colorado, the organization Eytan represents through her firm, Eytan Nielsen LLC, which has been fighting the state for a decade over its policies in regard to inmates with mental illness.

Wang's ruling in the case could come as soon as today, October 5.

Back in 2008, as Eytan outlined in this space last month, she learned that after a mentally ill defendant had been jailed for stealing a bicycle, his public defender had asked for an evaluation to determine if he was competent to stand trial — and six months later, he was still waiting for such an analysis. Moreover, he wasn't the only person in this situation. According to Eytan, eighty people suspected of suffering from mental illness were lingering behind bars over low-level offenses every day in Colorado because they didn't have the resources to pay bonds that would have led to their release.

Shortly thereafter, Eytan filed a contempt action against the Department of Human Services, which settled the matter with promises that such lengthy waits would be eliminated by the construction of a new mental health facility in Pueblo. But three years later, after the operation was up and running, the wait list of mentally ill people locked up for far longer than they should have been had grown to 100 per day. So Eytan headed back to federal court — and this time, DHS signed a contract agreeing to evaluate inmates believed to be suffering from mental illness in 28 days, with another 28 days granted to either restore them to competency or declare them incompetent.

The department didn't live up to this pact. By 2014, Eytan notes, the waiting list of the mentally ill was 150 people long at any given time — and another agreement in 2015 didn't fix the problem, either. In June 2017, the department filed a notice that it was not able to keep up with its court-ordered time frame and requested a six-month break during which personnel would attempt to repair the system. During that time, the wait list went from eighty people back up to 140, prompting the current lawsuit, put forward last December.

At the hearing, Eytan attempted to illustrate the human cost of this recalcitrance by telling the story of three families "whose kids have been sitting in jail for months, waiting for treatment." Included was the man mentioned at the top of this post, which she sees as "possibly the saddest case of all. He was on probation for destroying his dad's property, which was a misdemeanor. His dad, who was in court, didn't want to turn him in, but the police charged him, and he got probation that required him to get mental health treatment. But when he didn't get the treatment — because he's mentally ill — they arrested him. That's when he spat on a cop, and after he did that, they dropped the probation violation and charged him with assault on a police officer."

Two months later, in April, "he was found to be incompetent," Eytan goes on. "But the judge in the case didn't find the Department of Human Services in contempt. Instead, he said, 'I feel bad for the department, because they don't have any money.' So this guy is still sitting in a jail cell."

The deputy attorney general's argument that such stories were irrelevant to the hearing's subject leaves Eytan steaming. "It was offensive being in that courtroom with families that had to hear that — and several of them had to travel long distances to be there. One man had to drive in from Eagle County, and a mother flew all the way from Michigan to be there."

Instead of "trying to get this court to blind itself to the humanity involved here," she goes on, "my hope would have been that the deputy attorney general would have turned around and said, 'I'm really sorry this is happening. We're sorry, but we have a circumstance where we can't get admissions into hospitals quickly enough' — which I disagree with, but she could have said it. So it's too bad the state didn't share any kindness with these families."

The department wants another six-month extension to supposedly cut down the wait list to the approved 28 days, while Eytan requested that the "judge order immediate enforcement and compliance with the agreement rather than just letting them push the reset button again."

As has happened frequently over the past ten years. Click to read Disability Law Colorado v. Reggie Bicha.