Whiting Forensic Division in Middletown on Tuesday, Oct. 13, 2020. The hospital provides treatment and evaluation services for patients with mental health conditions who are involved in the criminal justice system, or are not ready to be safely treated in less restrictive settings. Yehyun Kim / ctmirror.org

A group has threatened to sue the state for discrimination if it doesn’t change the laws governing how the state supervises people acquitted of crimes because of serious mental health conditions.

Those committed to the supervision of the Psychiatric Security Review Board, known as the PSRB, were originally charged with a crime. They were not convicted but found not guilty by reason of insanity.

The attorneys who wrote the letter threatening the lawsuit represent those sent to the state’s maximum security psychiatric hospital, Whiting Forensic Hospital, instead of prison.

“Acquittees have not been convicted of a crime; state and federal law command that the State may not punish them,” lawyers with the Connecticut Legal Rights Project and Disability Rights Connecticut wrote in the 12-page letter. And yet, the attorneys said, “acquittees are treated as convicted criminals. Unlike convicted individuals, however, they are discriminated against based on their disabilities because, among other things, they do not have the benefit of a fixed-term sentence with a chance for good time credits, probation or parole.”

Instead, the lawyers said, it is not uncommon for those under the supervision of the board to spend more time held in a psychiatric hospital than they would have spent in prison.

The attorneys argue that their clients’ rights under the Americans with Disabilities Act have been violated, claiming that the slow, arduous process by which they are given the opportunity to regain their freedom discriminates against them. They said that the state’s failure to fund adequate community-based supports means acquittees are stuck in Whiting for months, if not years, waiting for a bed to become available.

The letter is a demand to recognize the patients’ rights. Attorneys asked for a meeting with state officials by April 4 to discuss their concerns and come up with a way to comply with federal law. If authorities do not think that is possible under the current statute to change their practices, the lawyers asked the state to work with them in the ongoing legislative session to pass a bill that amends the state law.

The advocates proposed three actions the state can take to avoid a lawsuit: come up with a plan to increase the number of community providers so PSRB patients can transition out of Whiting when they are ready, not when a bed becomes available; develop a process that would allow for modifications of PSRB policy so patients can get access to community-based forensic mental health services; and adopt regulations that reinterpret the “public safety” mandate that guides the board’s decisions.

The lawyers recounted the experiences of three PSRB patients affected by the shortage of community beds or who were impacted by what the attorneys described as harmful policies. One patient, placed under the board’s supervision in 1998, worked for years to be granted temporary leave, which usually allows a patient to leave campus and spend time with a community provider for a few hours. He chose to be sent to a local mental health authority in Middletown but was told they didn’t have any openings and have a long wait list, forcing the patient to wait out the delay or select another location for temporary leave.

Another patient had been participating in a temporary leave program since 2019 when officials learned an employee of Whiting Forensic Hospital borrowed $200 from him. The employee was fired, but somehow borrowed more money from the patient. That staffer then mailed the patient a gift card in an attempt to pay him back, which other staff intercepted. They then notified the PSRB, after which the patient’s temporary leave was put on hold.

“He was blamed by WFH for the illegal actions of WFH’s own staff and then punished by the PSRB for being a victim of the staff’s theft,” the lawyers said.

The advocates also claim that the PSRB’s “public safety mandate” violates federal law. That allegation builds on a recommendation recently made by the CVH Whiting Task Force, which suggested lawmakers consider abolishing the PSRB because of its emphasis on public safety rather than patient treatment.

The Public Health Committee is hosting an informational forum Monday regarding the task force’s findings and recommendations. After the forum, it will hold a public hearing on a bill based on the task force’s work. The measure would create a task force to study the PSRB and whether it is necessary for it to continue to exist.

Task force co-chair Michael Lawlor, an associate professor of criminal justice at the University of New Haven, said the state law outlining the board’s decision-making on whether to discharge a patient is mostly based on the protection of society.

“If you read the statute, you would almost think the best interests of the patient are irrelevant,” said Lawlor.

The task force’s recommendation, Lawlor said, is to examine revising the laws governing the PSRB so patients’ best interests are considered when the board is weighing a patient’s discharge. After all, Lawlor said, if public safety is the only factor the board is assessing, “why would you let anyone out?”

The PSRB process differs even from incarcerated people’s movement in the prison system, Lawlor said. The Department of Correction doesn’t need to hold a hearing whenever they move a prisoner to a lower-security correctional facility; those are decisions made by DOC officials.

“But those are not decisions made by the forensic hospital. They’re made by the PSRB,” Lawlor said, meaning the board makes the call on whether to move patients to a lower-security setting.

Task force members did not unanimously agree that the PSRB should be abolished, but they encouraged legislators to consider proposals that would better respect the rights of patients while balancing public safety concerns. They expressed concern over the lengthy periods for which people are committed to the board’s supervision. Last summer, for instance, a 20-year-old man was committed to the PSRB for 120 years for stabbing his grandparents to death.

“The stated purpose of the PSRB is to protect public safety; these lengthy commitments do little to further that end,” the task force’s recommendations read. “Rather, they seem to be more a mechanism to reassure the public that an individual will never get out of an institution.”

The sentiment is shared by at least one patient under the supervision of the PSRB. In a letter to the board’s executive director dated Jan. 16, 2022, Anthony Dyous spoke out against his commitment being extended by another five years. Dyous had originally received a 25-year commitment in 1985 for hijacking a bus with 47 passengers and holding some of them hostage. His commitment has since been extended several more times. A 2012 article in The Hartford Courant noted that he had behaved violently, refused to cooperate with psychiatrists or acknowledge his illness.

“The idea that the PSRB is protecting society coupled with the media classification of us as (The most dangerous criminals in the state are housed in Whiting Maximum), allows justification for holding us until death,” Dyous wrote.

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Kelan is a Report For America Corps Member who covers the intersection of mental health and criminal justice for CT Mirror. Before joining CT Mirror, Kelan was a staff writer for City Weekly, an alt weekly in Salt Lake City, Utah, and a courts reporter for The Bryan-College Station Eagle, in Texas. He is originally from Philadelphia.