COVID-19 Drags Out Restoration Process For Inmates In Federal Custody

By Laurel Morales
Published: Friday, November 20, 2020 - 5:05am
Updated: Friday, November 20, 2020 - 8:49am

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Jail corridor
Jimmy Jenkins/KJZZ
When someone with a mental disability is arrested and winds up in federal court, their attorney has to reveal whether the person is competent to stand trial. The defendant must then go through analysis and restoration before even entering a plea.

It’s been almost three years since Bryan Alvarez-Dominguez was arrested for bringing meth from Mexico into the U.S. But he still hasn’t been sentenced. He was found incompetent to stand trial so he had to wait to be “restored” in jail.

He says it’s been difficult. Difficult because he has a developmental disability, difficult because there aren’t mental health professionals in jail, and difficult because it’s really hard being away from his family.

Alvarez-Dominguez's sister Leslie Alvarez has only been able to see Alvarez-Dominguez a few times over the last two years.

Leslie says they don’t always have a car. They have no money for gas. They have struggled a lot, and they have seen Alvarez-Dominguez suffer a lot.

When someone with a mental disability is arrested and winds up in federal court, their attorney has to reveal whether the person is competent to stand trial. The defendant must then go through analysis and restoration before even entering a plea.

The federal statute says Alvarez-Dominguez and anyone else found incompetent must wait in jail to go to one of two psychiatric facilities in the United States for what they call “competency restoration.” That’s where psychologists treat people like Alvarez-Dominguez and prepare them for trial. They give them a crash course on how the court system works, what everyone’s role is so they can help their cases.

That can take a long time. The hard part is they have to wait it out in jail. It’s a slow process that’s been exacerbated by COVID-19.

Even though it was a long wait, Alvarez-Dominguez was one of the lucky ones. He was “restored” and released from jail right before the pandemic struck. More than 182,000 inmates have contracted the coronavirus in custody, according to the Marshall Project. More than 1,400 people have died from the virus in prison.

“COVID has been a big tragedy in the criminal justice system,” said Luke Mulligan, an assistant federal public defender based in Flagstaff. “It’s paused the process and that’s what the constitution gives everybody is this right to due process and because we didn't have grand juries because we didn’t have trials it’s really caused a lot of delay in everything.”

So thousands of people wait in jail — often in isolating pandemic conditions.

“The folks this applies to are often the people who are most negatively affected by incarceration,” Mulligan said. “You have people with serious mental illness, Post Traumatic Stress Disorder, developmental disabilities. Jail is not a therapeutic setting for people of the soundest mind.” 

Mulligan says some state courts allow for out-of-custody competency restoration.

“Just from a dollars and cents perspective, I think it makes a lot of sense to keep people local,” Mulligan said. “Incarcerating people is terribly expensive. Many of these people don’t need to be incarcerated.”

"Just from a dollars and cents perspective, I think it makes a lot of sense to keep people local. Incarcerating people is terribly expensive. Many of these people don’t need to be incarcerated."
— Luke Mulligan, assistant federal public defender

A four-month stay in the medical facility is about $24,000. The cost of a bed at one of these facilities is higher than the normal cost of incarceration. Compare that to an outpatient program, which is about $2,000 in Arizona. 

Pre-COVID the Federal Bureau of Prisons could handle about 500 people at a time and the forensics evaluation coordinator said in court transcripts there will always be a waitlist for restoration because “they have to use resources effectively and efficiently.” 

Alvarez-Dominguez's attorney Christina Woehr says those beds aren’t just for competency restoration.

“If someone is acquitted by virtue of insanity they have to be sent there,” Woehr said. “Those beds are also for people that have a mental emergency crisis issue and need inpatient treatment. They also get sent there. So there’s a lot of competition for those beds.” 

In Tucson, federal public defender Edie Cunningham is working to get outpatient restoration for clients who are not violent or at risk of fleeing.

“How do you tell somebody, ‘well, you’ve done really well, you’ve done everything you’re supposed to do for pretrial release but you still have to go into jail before your trial anyway because it doesn’t appear that you understand everything that’s going on? It’s basically punishing someone because they have some sort of a mental disability. It’s just wrong," Cunningham said.

Cunningham said it will take an act of Congress or the courts deciding the current practice is unconstitutional to put it to an end.

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