‘Wasting time’: Delays in competency treatment lead to hefty state fines

When Fernando Martinez Jr. was found incompetent to stand trial, he was supposed to receive treatment at a state psychiatric hospital.

Instead, the 33-year-old was kept at the Clark County Detention Center for weeks after a judge ordered him to be transferred for competency restoration, the process in which a defendant is given treatment until they can understand court proceedings and help in their own defense.

Martinez, who had a documented history of schizophrenia and suicidal statements, refused to eat, forced himself to throw up and had “significant weight loss” while at the jail. He had been charged with threatening to shoot someone at the College of Southern Nevada.

On Valentine’s Day, two months after he was arrested, he died of hypertensive cardiovascular disease and “unspecified psychosis,” according to an autopsy report.

Delays in the competency restoration process have been ongoing in Nevada’s court system for nearly a decade.

But increases in wait times in the past year-and-a-half have led to a judge issuing contempt orders against the Division of Public and Behavioral Health, which were recently upheld by the Nevada Supreme Court. The state has paid more than $83,000 in fines, or $500 to the Legal Aid Center of Southern Nevada each day a defendant is not timely transferred.

There are nearly 130 people in Nevada waiting on transportation for restoration treatment, with 100 of those defendants in Clark County, health department officials said.

The Las Vegas Review-Journal has identified at least two cases in which a defendant has died at the Clark County Detention Center while waiting to be transferred for restoration treatment.

The other defendant, James Chatien, was allegedly beaten to death by his cellmate last year, six weeks after a judge ordered him to be transferred to a psychiatric hospital.

“There’s a real potential to harm,” Chief Deputy Public Defender Arlene Heshmati said of the delays.

“Whether it’s their mental health deteriorating more, or in those examples where, had they had the mental health treatment that they needed, maybe they wouldn’t have passed away while they were waiting for treatment.”

‘A band-aid’

Heshmati, who oversees competency court hearings for the Clark County public defender’s office, said the majority of defendants who are deemed incompetent will be able to stand trial after receiving the proper medication and treatment. But that has to occur in one of two state psychiatric facilities operated by the Division of Public and Behavioral Health.

“The Division may not have the funds to accommodate these people and give them the treatment that they need, but they’re still sitting in jail during that time — just wasting time,” Heshmati said in a recent interview.

The state health department had a plan to address the wait list delays and create more forensic beds at the state’s hospitals.

The Legislature even approved more than $55 million last session for the creation of a psychiatric unit at the Las Vegas Detention Center.

But at an Interim Finance Committee meeting earlier this month, health department officials announced that the project had been canceled, proposing a different plan that lawmakers fear does not sufficiently address the root cause of the problem or do enough to prevent future fines against the state.

“We have to have a plan, a long-term plan, to add capacity,” Assembly Speaker Steve Yeager said. “We’re just putting a band-aid on the problem, and we need way more than a band-aid right now.”

In an emailed statement, a health department spokeswoman said the agency is “actively developing plans and thoroughly investigating all available avenues and resources” to address the delays in restoration treatment.

A spokeswoman for Gov. Joe Lombardo said the governor’s office intends to work with the health department to increase access to forensic psychiatric services.

“Providing restorative services to patients in need is a critical component of our criminal justice system,” said spokeswoman Elizabeth Ray.

Cody Phinney, an administrator with the health department, told the senate committee that the agency is requesting $15 million for general mental health treatment programs at jails in Clark and Washoe counties, which she said would reduce the amount of time defendants need to stay at psychiatric hospitals while receiving restoration treatment.

Meanwhile, the committee rescinded the $55 million of funds from the American Rescue Plan Act that were intended to add psychiatric beds.

Assemblywoman Rochelle Nguyen voiced her frustration with the delayed renovation project and said the alternative program suggested by the health department “isn’t a solution at all for this problem.”

“I think most of us, including myself, were under the impression that everything was moving around as we anticipated it was going to do,” Nguyen said in a recent phone interview.

The health department said in an emailed statement that the jail renovation project was canceled because of “the timing of this project in conjunction with the construction the city is doing.”

When asked about construction projects at the jail, Las Vegas spokesman Jace Radke said there is not ongoing construction at the detention center. Rather, the portion of the jail that was proposed for the project is a wing that is currently closed down and would have required “major renovations” to turn into a psychiatric setting.

“The city is contemplating possible renovations for future use of this wing, should capacity need to be increased, but that has not been approved at this point,” Radke said in an emailed statement.

Yeager said that he would like to see the health department come up with a more detailed written plan that shows how the proposed general mental health programs will address the pressing need for more beds.

As a former public defender, Yeager said capacity issues with competency court have plagued the criminal justice system for more than a decade, and have “gotten markedly worse” in recent years.

“I anticipate whether we’re able to do something or not, this is certainly going to be an issue that’s going to be in front of the next Legislature,” Yeager said.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240.