New Law on Care of Mentally-Ill Criminals Puts County on Spot

On June 30, 1980, Raymond Cooksey, a mentally retarded San Diego school custodian 10 days past his 21st birthday, climbed through the window of a neighbor’s home and molested a 4-year-old girl.

That fall, a Superior Court judge committed Cooksey, who had a history of similar crimes, to Patton State Hospital in San Bernardino County for treatment as a mentally disordered sex offender.

According to court records, he responded well under psychiatric care--well enough that in November, 1982, doctors at Patton recommended to the court that Cooksey be released to an outpatient treatment program in San Diego.

Patton repeated the recommendation three more times over the next 16 months, telling the court that Cooksey would not pose a danger to the community and could benefit most from treatment outside a state mental hospital.

After each court hearing, Cooksey was returned to Patton because San Diego County had no outpatient treatment program. The state offered 100% funding for such treatment but left it to counties to choose whether to operate a program--and San Diego County supervisors had unanimously rejected the idea.

Finally, in July, 1984, Patton officials reported to Judge David Gill that Cooksey had achieved the maximum possible benefit from hospitalization. They once again advised that he be freed.

Instead, Gill--noting that San Diego County provided him with no alternative--sent Cooksey to state prison to complete a seven-year term. Today he is behind bars at the California Men’s Colony in San Luis Obispo.

On Jan. 1, a new state law went into effect mandating that the state Department of Mental Health operate an outpatient program for mentally-ill criminals in every county, preferably under county auspices.

But San Diego County still has no program. And now, according to state officials, it is the only major urban center in California without one.

Not surprisingly, the void-- which state and county mental health officials hope to fill by mid-year--has prompted criticism from lawyers who insist their mentally-ill clients deserve a chance to regain their freedom.

There are about 125 mentally-ill offenders from San Diego County at either Patton or Atascadero State Hospital in San Luis Obispo County, and county mental health officials estimate that one-third to one-half of them are ready to be considered for release to outpatient care. Attorneys who long raised constitutional objections to the county’s failure to provide an outpatient option predict an upswing in such court challenges now that the option is required by law.

Yet the county also is under pressure from judges and others not usually considered sympathetic to the prospect of letting mentally-ill criminals loose.

Their stance, endorsed by state and county mental health officials, is that San Diego County can better control which offenders are returned here--in fact, exercise near veto-power over such releases--if the county runs the required outpatient care program.

In the absence of a program, they add, offenders already released to the community--defendants found not guilty by reason of insanity, those found incompetent to stand trial and mentally-disordered sex offenders--may not have been getting adequate supervision.

“If they don’t get returned under outpatient treatment, they simply are discharged, so they get no supervision in the community,” said Bill Rossiter, Southern California coordinator of forensic services for the state Department of Mental Health. “That’s why you want the program. If the person returns under the outpatient program, they’re indefinitely under supervision.”

Said Rossiter, “You would think it’s a pretty simple decision.”

The Board of Supervisors will be asked to make the decision soon -- probably at its meeting Jan. 28, according to Steve Harmon, the county’s assistant director of mental health services.

Harmon said his department will recommend that the county operate the outpatient program. State officials say the county can do the job most efficiently, but if the board declines, the state Department of Mental Health either will establish a program itself or sign a contract with a private provider.

When it last came before them--in April, 1979--the supervisors did not find the question of creating a community treatment program such an easy call.

The Division of Mental Health Services recommended that the county accept state funds and operate a program. But the board rejected that advice, in the face of statistics showing that as many as one-third of patients released to similar programs in other urban counties flunked--by committing additional offenses or failing to follow treatment plans--and had to be returned to state hospitals.

Results have improved since then, according to Rossiter. In Los Angeles County, which has operated the state’s largest outpatient program for offenders, current figures show only 2% of outpatients have committed new crimes.

In San Diego County, certain offenders have been able to win release from state hospitals before the end of their terms, even in the absence of a county-operated program.

State hospital patients found not guilty by reason of insanity and those found incompetent to stand trial could be released with court approval to the supervision of the state Department of Mental Health.

About 25 offenders freed through this so-called “hospital parole” program were redesignated last month as outpatients under the new state-mandated program. Their actual treatment and supervision will not be upgraded to the higher standards required by the new state law until either the county or state establishes a full-fledged outpatient program later this year, Harmon said.

However, there has been no early-release mechanism up to now for mentally-disordered sex offenders (MDSOs) sent to state hospitals from San Diego County courts. Instead, according to attorneys and mental health officials, those patients have either:

- Completed their full initial terms in the hospital and then been held longer, because the hospital staff or county prosecutors convinced a Superior Court judge that they remained dangerous or unable to care for themselves.

- Served their terms and been released without any supervision.

- Made the maximum possible progress at the state hospital--like Ray Cooksey--and been resentenced to prison for lack of an outpatient program. Or,

- Given up on their treatment, knowing they stood no chance of early release from the hospital, and then been transferred to prison, where they hoped to qualify for release under normal parole practices.

San Diego attorney Michael McGlinn has represented sex offenders who fell into each category. Repeatedly, he has contended in court that the lack of an outpatient program in San Diego County has denied them both their constitutional right to equal protection of the law and their best hope for rehabilitation.

“It has led to many injustices,” said McGlinn, whose clients include Cooksey. “People would go the state hospital and be told, ‘If you do well, if you complete your (hospital) program, you can at some point be let out on this conditional release program.’

“But these people quickly learned when they got to the state hospital and they were from San Diego County, they could never get out until their term topped.”

McGlinn said 15 to 20 of his clients in the last few years have rejected treatment at Patton in hopes of winning transfers to state prison. Another patient, he said, went berserk upon learning that he had no chance of early release from his 26-year term. The 18-year-old sex offender escaped from the hospital and then turned himself in. But the escape attempt led to his imprisonment for the maximum term.

“San Diego County has sort of engaged in warehousing of MDSOs sent to the state hospital,” McGlinn said. “They’ve actually ended up serving more time in state hospital than if they had been in state prison.”

Several Superior Court judges have criticized San Diego County for failing over the years to undertake an outpatient treatment program.

Judge J. Perry Langford, for instance, reluctantly freed one of McGlinn’s clients, a sex offender, after nearly six years of hospital treatment and three recommendations by Patton that he be released to an outpatient program.

“We have to face the fact that it is simply unsatisfactory to turn these people loose without outpatient treatment, and that providing it is not endangering the public,” Langford said during the 1981 proceedings. “It’s not providing it that is the risk.” Following his release, the unsupervised offender was arrested in Sacramento County.

Last month Judge Barbara Gamer also expressed frustration with the county when she entered an order making the state responsible for released offenders until a formal treatment program is established.

“It’s a stopgap measure, to be honest,” she said. “San Diego, in the area of mental health, has not developed the programs other counties have.”

Now that state law requires a release program--whether county supervisors like the idea or not--mental health officials say the county can maximize its control over which offenders will be released to San Diego County by running the program itself.

“We want to assure as many checks and balances are built into the system as possible,” said Rick Mandella, chief of the forensic services branch of the state Department of Mental Health. “In some cases, in terms of transfers to a community program, there would be almost a veto authority on the part of the community program to prevent the patient from coming into the county.”

Harmon agreed that supervisors would be wise to reverse their 1979 decision and assume the responsibility for a community treatment plan.

“Just because we decide not to have a program doesn’t mean those people aren’t here,” he said. “They are here. They do come back.”

Said Harmon: “The best way to handle it is to deal with it directly and not bury our head in the sand.”