After receiving an extension on a pair of reports owed to the state legislature earlier this year, the Vermont Department of Mental Health (DMH) offered an update in July to the General Assembly’s Joint Legislative Justice Oversight Committee on the progress – or lack thereof – of the Forensic Care Working Group convened last year by Act 57.
“The approaches with the work group we have engaged in thus far have not been successful,” DMH General Counsel Karen Barber acknowledged. “It has become clear to DMH that the group will likely not be able to put forward consensus recommendations.”
Introduced as S.3 by Sen. Dick Sears in 2021, Act 57 initiated a process for a possible overhaul of Vermont’s “forensic mental health” system, a term that refers to the treatment of psychiatric patients alleged to have committed criminal offenses. Amid seemingly competing demands for public safety and retributive justice on one side and for clinical best practices and adherence to civil liberties on the other, the legislature assembled a working group, under DMH’s auspices, to contemplate both new modes of restriction and new models of care for arrestees deemed incompetent to stand trial or adjudicated not guilty by reason of insanity.
The group’s first meeting took place on July 15, 2021, and it issued its first mandated report in January this year. The report stated that group members had settled upon two points of focus: the development of “diversion programs” to monitor and treat forensic patients in the community; and the potential construction of a locked psychiatric facility designed specifically for forensic patients, with services aimed at competency restoration.
Deadlines for subsequent reports passed, however, without new submissions to the legislature. With representatives appointed by the the Department of Corrections, the Department of State’s Attorneys and Sheriffs, the Vermont Center for Crime Victim Services, the Vermont Medical Society, Vermont Legal Aid, and Vermont Psychiatric Survivors (VPS), among others, the composition of the group appears to have recapitulated the same philosophical conflicts that led to its creation in the first place.
“The work group is comprised of individuals with various degrees of knowledge about our current system and coming from very different backgrounds and experiences,” Barber said. “We soon realized that the difference of opinions was perhaps further apart than we had originally thought, making it a challenge to have some of these discussions. In addition, the legal complexities and nuances around competency restoration and a forensic facility continued to cause confusion.”
According to Barber, DMH employed various strategies to try to get the group moving, such as narrowing the range of concepts under consideration and breaking the group into two separate, smaller units. Even so, members “struggled with finding common ground.”
Barber noted, for instance, that not all members could see the value in competency restoration programs, which offer treatment focused on making psychiatric patients eligible to stand trial. “People have really strong beliefs about this stuff,” she remarked.
Eventually, by Barber’s account, DMH realized that it would not secure broad support within the group for any particular set of proposals. Moving forward, the group will encourage individual members to develop and present ideas of their own, and its meetings will function as “forums” for the discussion of these ideas. The group’s final report, which it will submit to the legislature at the beginning of next year, will summarize these discussions without necessarily issuing guidance.
“I find that very, very frustrating,” responded Rep. Alice Emmons, who chairs the committee. “I just need to say that. And for legislators, it puts us in a bind because we want to do what is the best for everyone, and we need direction from those folks who are involved in the system, and we’re not getting it.”
Vice Chair Sears reiterated what he saw as the urgency of formulating new means of bringing psychiatrically diagnosed homicide suspects to justice. “They’re getting away with murder, and that’s part of the reason for the call for systematic change,” he said.
Sears blamed “people who view their job [as] to protect the status quo” for the working group’s dysfunction. “The reason we put together the report is because we had divergent opinions throughout the legislative process. We’re hoping people could come together,” he reminded DMH’s team.
In the absence of direction from the working group, DMH staff could play a larger role in advising the General Assembly on forensic care legislation.
“DMH, per usual processes, has already begun to discuss our own legislative priorities and ideas for the coming year, and we expect that there may be some recommendations on the topic of the intersection between the mental health system and the criminal justice system,” Barber forecasted.
Toward the end of the meeting, Emmons surmised that improvements in the traditional mental health system might reduce some of the perceived need for a new forensic mental health system.
“If our foundation of our mental health services in the community is crumbling, that only puts pressure on our criminal justice system,” she observed. “It’s going to come out somewhere, and maybe we’re addressing the back end of the problem more so than the front end. And maybe that is one of the recommendations that the working group can come back to: let’s not let the horse out of the barn and then close the door – let’s take care of them while they’re in.”
Heidi Henkel and Zachary Hughes represent VPS on the working group. “It’s 38 people on this working group – with anything that big, it can be hard to come to an agreement,” Hughes told Counterpoint on Sept. 1.
Hughes praised DMH’s new, open-ended approach. “We had a meeting the other day. It was the shortest meeting I’d been to, and it was great,” he said. “They’re wanting us to do presentations around different areas that we want in the report and come up with these ideas of what we want.”
“I think they’ve given up on the consensus thing, and I think what you might see out of this is options,” he remarked. “I think this will be much better for us. Our time will be much better spent.”
Hughes spoke of the challenge of honoring the principle of “innocent until proven guilty” without upsetting victims.
“It’s a fine balance,” he acknowledged. “I do understand victims. I’ve been a victim. I was assaulted, and that person was not charged, and that really frustrated me.”
But, he emphasized, “I really think it’s important that we recognize that it’s not supposed to be a punitive situation. These people have been found incompetent or insane at the same time of the offense. They haven’t been convicted of anything.”
“My hope is to present around making sure that we don’t criminalize this in any way – punishment, probation, anything,” he said. “It’s not a very popular view because people want justice.”