About a hundred people spend their days and nights behind bars in Puerto Rico prisons with a mental health state that prevents them from understanding how they got there and with little hope of a possible date to get out of the limbo that deprives them of their freedom without a trial. Dozens are trapped for years in this illegal and inhuman labyrinth, losing any opportunity for improvement, and sometimes, life itself.

The figure could be higher. At least 437 people have entered this dysfunctional legal process during the last year and are at some stage of it, but the state cannot account for them .

This civil rights violation by the Government of Puerto Rico has been going on for at least three decades, and the institutions responsible don’t even agree on the exact number of accused mental patients who have gone through this dysfunctional process, nor do they have a record of the whereabouts of those admitted, according to a joint investigation by the Center for Investigative Journalism (CPI, in Spanish) and the Metro newspaper.

Every three months, the court is supposed to evaluate if these persons are in a position to face legal proceedings or receive medical attention in one of the only two forensic psychiatric institutions on the island. But the reality in the courts is very different.

At a hearing on Aug. 19 at the Arecibo Superior Court before Judge Joie-Lin Lao-Meléndez to handle the processing of these types of cases that occur under Rule 240 and 241 of the Criminal Procedure, Court Psychiatrist Yamilka Rolón-García offered her opinion about all 16 accused who were mostly not in the room, in one-hour.

This amounts to an average of four minutes per patient. Rolón-García evaluated four people that morning in the same Court, she evaluated eight cases the day before in prison and four in the psychiatric hospital. The defendants who were evaluated in court were with the psychiatrist for 5 to 10 minutes.

That morning, the hearing for José Guillermo González-Ríos’s case lasted a bit longer. It was a 14-minute exposition that showed the ups and downs of this complex problem.

The accused was not in the courtroom. His lawyer, who works for the Legal Assistance Society (SAL, in Spanish,) Joel Román, was given a copy of Dr. Rolón-García’s report there. The defendant has been deprived of his freedom for more than a year. From what was discussed in court, it appears that the last   hearing for this citizen was in May 2018. It was not until December of that same year that he was transferred from jail to a forensic psychiatric hospital to receive mental health services ordered by the Court.

“He presents a chronic mental condition. He has cognitive, attention, and memory problems, he cannot learn. He will not be up for processing in the future. With medications we will not be able to change his panorama,” said the Forensic Psychiatrist during the hearing.

The expert said on the record that the defendant does not have support from his family, or his community, so if stabilized in a psychiatric institution, he must be placed in a home with compulsory treatment.

Judge Lao-Meléndez ordered filing and suspending the criminal case without prejudice so that González-Ríos could be transferred to the Ramón Fernández-Marina psychiatric hospital, but not before warning that “he cannot be discharged from there until authorized by the court.”

At least 437 people at some point this year have been in this judicial maze. This is revealed by data collected by the CPI and Metro from the Department of Corrections and Rehabilitation (DCR), the Mental Health and Anti-Addiction Services Administration, (ASSMCA in Spanish) and the Office of Courts Administration (OAT in Spanish,) the three government agencies responsible for the problem. Not all 437 are imprisoned, but they are somewhere in the complex judicial process. The government is unable to specify their whereabouts and the lists of the three agencies do not match each other.

Of those 437, some 72 non-prosecutable citizens were in the correctional system, according to DCR records through July 2019. The figures, however, are inaccurate, given that the CPI and Metro found that in the August due process hearing there were cases reviewed for people who are imprisoned and who are not part of the official record. An ongoing investigation by the Civil Rights Commission (CDC, in Spanish) has also failed to validate the number of people trapped in prisons indefinitely without a guilty verdict. The CDC has identified cases of people who have been in this situation for up to eight years.

Meanwhile, the OAT provided a list of 217 people being processed under Rule 240 as of July 17. In the August hearing, there were cases of incarcerated people waiting to be admitted to the hospital that do not appear on this list either.

This problem, which has been going on for years, worsened after Hurricane María, according to Félix Vélez, director of the Legal Aid Society, an entity that takes on the defense of most of these cases that mainly affect poor people, without economic resources to defend themselves from the system.

“There are more cases of mental health and rule 240. I can tell you that in the wake of María we have felt it. It has been exacerbated,” said Vélez.

SAL recently filed claims at the Court of Appeals and the Supreme Court in search of jurisprudence to fix the situation. This is reflected in cases such as   Jorge Luis Moreau vs. the People of Puerto Rico where the Supreme Court dismissed as academic, since Moreu was finally admitted to the Ponce Forensic Psychiatry Hospital two years after his judicial process was suspended. Even so, this case has a dissenting opinion from Judge Luis F. Estrella-Martínez that portrays the violation of rights against incarcerated people without being prosecuted. Other recent cases in Appeals are those of Alejandro González-Jiménez, Yanira Román-Colón and Justino Centeno-Vázquez.

Francisco Méndez-Rivera, deputy director of the DCR’s legal division, said in a phone interview that the discrepancy in the statistical data could be related to communication problems between the different “players” that are part of the Rule 240 and 241 Criminal Procedure cases. He added the reasons for this problem should be investigated in greater depth.

Meanwhile, the OAT said “if there are differences” it may be because the data may have been obtained on different dates. However, the dates for which the information was requested are the same. In an email, his press office also indicated that it is necessary to review the files on a case-by-case basis to match the lists between agencies.

In the prisons

People accused of crimes that are not prosecutable should be in an “appropriate institution” where they are treated to stabilize them mentally so they can face justice, according to Rule 240 of the Criminal Procedure. The provision indicates that if a Court has proof that a defendant shows signs of being disabled, the proceedings will be suspended, and a hearing will be held to determine their mental state. In this second hearing, the magistrates appoint one or more experts to examine the person. If it is determined that they are incapable of understanding, the accusation is suspended, and they are sent to a forensic psychiatric hospital. The evaluation is repeated every three months.

However, people rarely leave the jail to go to the hospital because the two forensic psychiatric hospitals in Puerto Rico — in San Juan and Ponce — have their 231 beds occupied, with patients who have also been declared non-prosecutable. Awaiting a space, there are citizens who spend more years in jail than they would have, had they been convicted of the crime. Both hospitals belong to ASSMCA, the government agency in charge of the island’s public policy on mental health services.

Ana González-Delgado, accused on March 3, 2018, is a clear example of what “the non-prosecutable” face looks like. The complaint says she tried to burn a business in Las Piedras. For this alleged action, she was admitted to the Salinas prison with a $500,000 bail. Five months later she was declared non-prosecutable by a judge and was ordered to be transferred to the psychiatric hospital in Ponce. Because there was no space, she continued in the jail where she remained as of May 2019. Ana was never taken to Court to see her hearings, according to documents reviewed.

The quota at forensic hospitals is not affected only by Rule 240 cases, but also by those under Rule 241 of the Criminal Procedure. This statute establishes that if a defendant is acquitted for suffering a mental incapacity when committing a crime and is considered a danger to society, they must also be admitted to an appropriate institution.

People admitted to forensic psychiatric hospitals under Rule 241 should be   evaluated every three months to determine their progress and are only discharged by the Court if a judge determines that they no longer pose a danger to society.

In addition to mental patients imprisoned without a trial, the investigation found that there are people who have spent years under “security measures” in forensic psychiatric hospitals, including defendants who should never have been in a forensic hospital because they are people with severe intellectual disabilities. These people, given their mental condition, will never understand the judicial process, although their condition does not involve psychiatric treatment, because their mental condition is permanent.

This happened to Luis Pérez-Galván, who at first sight was a person with intellectual disability. He was put jail in 2017 and his case had to be elevated to the Court of Appeals to remove him from the correctional system and place him in healthcare facility.

“There really shouldn’t be anyone who is permanently ‘un-prosecutable’ for intellectual disability in a forensic hospital. But we certainly have to wait for a petition from one of the parties, which could be ASSMCA, because as long as the argument is presented, the court will resolve it,” Judge Carmen L. Otero-Ferreiras said in an interview, who oversees Rule 240 and 241 cases at the Bayamón Superior Court.

She added that she cannot “be judge and jury” in what is happening inside her courtroom, so her decision is tied to the statements by the prosecutors and defense attorneys, even when the disability is evident. She affirmed that IQ tests are ordered as part of the process.

Juan Torres-Gluck, ASSMCA Assistant Treatment Administrator, acknowledge that there are currently 12 to 15 people with disabilities in their forensic psychiatric hospitals, in what could be a violation of the People with Disabilities’ Bill of Rights and the Americans with Disabilities Act.

People who after a while have improved and could be in a less restrictive care home are also under forensic hospital security measures, ASSMCA administrator Suzanne Roig acknowledged. If transfer that would enable the space they need for the accused patients.

But most of ASSMCA’s 57 homes, operated by private contractors, are usually full. Bureaucratic issues generate the back-up and keep the persons in prison.

“What we have always requested from the Court system is that to the extent that they can move their cases, we can get beds. We have many patients who are ready. They simply stay there because their [quarterly] hearing has not taken place, because the state psychiatrist has not seen them. Sometimes the hearings are suspended because they have not been evaluated by the State psychiatrist,” said the ASSMCA administrator.

These procedural gaps kept Justino Centeno, an older adult from Utuado, in jail and then in the Río Piedras forensic hospital for four years. In 2013, he was accused of entering his neighbor’s garage and making a sexual gesture with his fingers. He was arrested and the following year, declared permanently unable to face trial in a hearing under Rule 241. They ordered his admission to the hospital, where he stayed until 2017 due to delays in his procedural hearings and evaluations from Court psychiatrists, although he was ready to move to a geriatric home.

They admit rights violations, but don’t assume responsibility

In separate interviews, officials from DCR, ASSMCA, OAT, CDC and SAL accepted that the situation constitutes a violation of the human and constitutional rights of the affected citizens.

“When a person is deprived of their freedom without due process of law, that falls into everything. It falls into [violation of] human rights, civil liberties,” said Vélez, director of SAL.

This reality leads to an ethical conflict for lawyers and judges.

“There are litigation strategies that kill. That’s why before I put a client through this mental disability tunnel, I think about it, I analyze it. Before sending them into ‘non-prosecutable,’ it had to be a case where my professional title was at stake versus what is convenient for the client because I said, I will send them over there, I don’t think I am doing this person a favor,” said Vélez.

Meanwhile, Judge Otero-Ferreiras admitted that the arbiter also has to balance their ethical principles, because if the court realizes that the person is not understanding the process, they cannot give way to an allegation of guilt or a waiver of jury.

Roig questioned that the judges hold ASSMCA responsible for restoring the “processability” of those with mental health conditions who are accused of a crime. She argued that there is no law that requires judges to send defendants who do not understand the judicial process to their agency’s hospitals and said they could be transferred to other entities such as private hospitals and correctional health system.

Corrections also admitted that the violation of the rights of these patients in their institutions. The DCR’s former deputy secretary of security, Eligio Villegas-Martínez, said on Aug. 16 that “we agree,” when asked if he believes that those rights are violated when the accused are not transported to their prosecution hearings. He attributed the failure to the agency’s budgetary limitations for the complex transportation operation, and sometimes, to the lack of timely notification from the court.

This is why, according to the director of SAL that for 10 years, the presence of defendants under Rule 240 and 241 has been less frequent in the courtrooms. Vélez said Corrections offers multiple excuses to defense lawyers when they do not get the accused to the Court. For example, the lawyer has heard as a pretext that correctional system staff fail to locate certain inmates within their own prisons or that the psychiatric evaluations have been delayed.

Meanwhile, the Civil Rights Commission has kept its investigation open since October 2018. Last August, the agency’s executive director, Ever Padilla, said they have already held two meetings with the parties involved and multiple information requirements have been issued to which the CPI had access. Padilla said he hopes to complete the investigation soon.

The OAT, for its part, claimed they make every effort to end the violation of rights in these cases.

“We are facing a principle of the highest hierarchy, we must make every effort to vindicate them at all times,” said Steidel, which contrasts with the findings of this investigation related to the dynamics of the hearings, the low rigor of the psychiatric evaluations by the experts of the court, and the flaws identified in the statistics of Rule 240 and 241 cases.

Judge Otero-Ferreiras, meanwhile, said there are crime victims that must also be protected in these cases.

A foreseen problem

It had been anticipated a decade ago through the Supreme Court that this systematic violation of rights could occur, when it dealt with the case of the People of Puerto Rico vs. Pagán-Medina in 2009. It was a case of habeas corpus, the constitutional remedy that citizens have for not been kept in pretrial detention more than six months if they are not convicted of any crime.

The Supreme Court initially resolved that only the time that the un-prosecutable defendant spent in a suitable institution, that is, in a hospital receiving treatment, could be exempted from the preventive detention period. In the opinion of former Judge Liana Fiol-Matta, lifting limitations on pretrial detention puts defendants with mental health conditions to choose between “safeguarding their constitutional and statutory right to due process of law, and their personal freedom.”

Later on, there was a reconsideration of the case and in an opinion by Judge Erick Kolthoff it was determined that when there is a reasonable basis to consider a person mentally incapable of understanding a trial, the proceedings are paralyzed because the State cannot prosecute the person. He stressed that the person “must be moved to a corresponding institution as quickly as possible at the risk of contempt.”

That transfer “as quickly as possible” that the island’s highest judicial forum established was ignored. One day in court is enough to prove it.

During the hearing held in Arecibo, the case of Christopher Concepción-González, who was not in court, was cited. The psychiatrist evaluated him the day before at the Bayamón prison. Rolón-García said she found him uncooperative, incoherent and disorganized, and reported that the accused refuses treatment. In her statement to the Court, the psychiatrist explained that she learned from a custodial officer that the accused has been taken to the correctional hospital where he is treated and stabilized, but that when he returns to the general population he falls into his mental condition.

She said she believes the accused had been diagnosed in the past with schizophrenia, but that she had not had access to the diagnosis, or to the treatment he may have received in DOC. Nor did she know how many times he has been transferred to the correctional hospital. She recommended his hospitalization in Forensic Psychiatry. The judge established that there were already previous orders for transfer to the hospital and ordered Corrections to provide evidence of the treatments the defendant has received. The hearing lasted five minutes and Christopher remained imprisoned in the same place.

That pattern is not the exception, but the rule. This was the case of María Santiago, a fictional name of the mother of a 25-year-old man with a history of psychiatric hospitalizations and a diagnosis of paranoid schizophrenia. Her son was arrested for selling drugs in Arecibo. He has been imprisoned in Sabana Hoyos for more than three months, but the terms in his case were paralyzed, since he was declared un-prosecutable. Before the criminal case, María had filed more than three petitions in the civil courts to hospitalize her son, through Mental Health Law 408.

That morning, Maria arrived very early to the courtroom with the hope of seeing her son during the Rule 240 hearing and to closely follow the development of the case. This would be his second evaluation. However, the accused young man did not arrive in court. Psychiatrist Rolón-García said she evaluated him the day before at the Bayamón prison and declared that she found him “not very collaborative, with poor attention span, disorganized thinking and could not speak coherently.”

She said he was un-prosecutable and recommended his transfer to Forensic Psychiatry “for education.” When asked by the lawyer, she said the young man informed her about previous hospitalizations and that, “if having to offer a diagnosis,” she would say “it is a diagnosis of non-specific psychotic disorder due to the use of substances. She acknowledged that she had not been given evidence of his prior psychiatric treatment.

The defendant’s mother told the CPI and Metro that she had taken a copy of her son’s medical file to the prison, but it didn’t show up at the hearing.

“They all seem disconnected because if it’s a 240 case, how come they don’t interview the psychologist or the socio-penal technician to see if there’s a diagnosis? There has to be communication among them, I just bought those papers there (the jail) and she (the Court Psychiatrist) didn’t know,” said María.

She explained that the psychiatrist urged her to be aware of her son’s transfer to the forensic psychiatry hospital because he would probably go there without a medical record. The young man’s waiting time to get to the hospital seems to be a long one, judging by the lists of cases reviewed as part of this investigation and by the fact that his name does not appear in any of the Rule 240 databases provided by the agencies.

The interviews show there is no communication among the mental health officials involved in various stages of the process. ASSMCA staff confirmed in an interview that when the patient is transferred to their hospitals, they don’t bring any records of the treatment received in prison. The DCR confirmed that.

Although ASSMCA has a detailed budget for Rule 240 and 241 cases, the Administrator ruled out that this makes them responsible for working with the suitability of a defendant accused of crime, a concept he insists, belongs to the legal field, not the therapeutic.

Fast-track evaluations

Regarding the patients who arrive at their hospitals, assistant administrator Torres-Gluck added that the court expert does not make a clinical evaluation, but whether they are fit for prosecution.

As part of this investigation, questions were sent to Dr. Rolón-García to learn about the evaluation tool for court psychiatrists, but they went unanswered. The CPI and Metro were able to verify that in the United States, the written evaluations contain the patient’s background information and medical history, a clinical evaluation of mental status in which psychological tests are used, and collateral information about the accused, according to the American Academy of Psychiatry’s protocol and the law for forensic psychiatric evaluations of defendants.

Beyond the definition of competence to stand trial and how it is determined, there are different opinions on what an “adequate institution” means as defined by the criminal procedure rule.

“An adequate institution may be any institution that provides mental health services,” said Roig, a position that clashes with the court’s norm, where the “non-prosecutable” are referred to ASSMCA hospitals, without considering private psychiatric institutions and specialized care.

There is no specific definition of an “adequate institution” and although ASSMCA manages the only two forensic psychiatric hospitals on the Island, there is no law in Puerto Rico regarding forensic psychiatric hospitals since   1994 when it was repealed. Given this gap, the ASSMCA administrator believes the Correctional Hospital’s mental health ward could be considered an adequate institution, as well as any private psychiatric hospital.

The DCR’s former deputy secretary of security immediately ruled out this possibility.

“I wouldn’t have room for all the people who are waiting for admission and those who are there (in the Correctional Hospital’s mental health ward) are prisoners who are serving sentences […] and that are in the same or worse or more acute conditions than those under the State’s control. We in Corrections don’t have the capacity for so many people,” said Villegas. He explained that his hospital’s psychiatric area has 12 to 15 beds. The official also ruled out that they work to make prisoners eligible for trial.

For Judge Otero-Ferreiras, having these people in jail aggravates their condition.

“Experience tells us that while a person is incarcerated, they’re not receiving any treatment. Not only are they not receiving any treatment, they can refuse treatment. They’re also not establishing protocols to make them eligible for trial, so technically you could have a person who Corrections is going to try to, of course, ensure won’t be dangerous to themselves or to the other inmates. They will stabilize them in Corrections’ medical area, but in some way, they’re kept there, they’re not looking for them to attain prosecution status,” she said.

Otero-Ferreiras agrees that Corrections lacks the resources and personnel to consider itself an adequate institution for these cases.

Forensic psychiatry has been unlicensed for a year

During a visit on Aug. 15 to the Río Piedras Forensic Psychiatry Hospital, the CPI and Metro were able to observe the rooms in which people are treated under Rule 240 and 241 procedures. The hospital was designed for forensic psychiatry purposes and has a panoptic view. Patients have a cell-like room where there is a bed bolted to the floor and a toilet. The metal doors have a small slit to pass food or medicine. In the center there are common areas where, those who are in a position to do so, go out, walk or simply sit at the central tables. On the sides, there are exits to some uncovered areas. They are guarded all the time. From the rooms, patients have access to offices where they receive medical attention. Another area of the hospital is intended for rehabilitation through the integration of ASSMCA programs. There is a separate area for visits on Sundays. The place looked clean and in order.

The Ponce hospital is different, since it features open spaces, as it wasn’t designed as a forensic hospital, the ASSMCA administrator emphasized.

However, for years there have been serious complaints about poor hygiene, safety, and treatment conditions and overcrowding at both hospitals. There was also a recent fire in one of the rooms. The House of Representatives is investigating the conditions of the hospitals and during a visit on Sept. 10, 2019 it was discovered that the Forensic Psychiatric Hospital in Río Piedras has not had a license since 2018 from the Deputy Secretary’s Office for Regulation and Accreditation of Health Facilities.

The biggest problem of the institutions is that they have no capacity for the demand of patients with treatment orders from the court. There are 231 beds that are always full. Of those, there are only 26 for women.

“When conflicts arise in 240 and 241 cases, ASSMCA ceases to have the capacity to handle all orders,” the deputy administrator in Treatment said. Although there are two additional rooms with 27 beds each at the Forensic Psychiatric Hospital in Río Piedras, ASSMCA lacks an operational budget to occupy them and to hire staff to care for the patients who would be occupying them. In total, this institution has four viable rooms, with the same patient capacity, to sum 108 people.

During this past summer, the waiting list to enter one of the two hospitals was 80 to 85 people, according to the June minutes from one of the CDC’s meetings.

“There are old cases at the hospitals, I’m not going to lie to you,” Roig admitted.

The social worker said during Hurricane María they had to transfer patients from a transitional housing program in Cayey to the forensic psychiatric hospital, which was a safer structure to ride out the cyclone and in the middle of the journey, one of the program participants entered into a crisis. The man realized that he was returning to the place where he was hospitalized for 11 years.

“The courts force us to admit more patients than we can on many occasions,” she said, explaining that this has led to having to place patients on mattresses on the floor.

“Having more patients because the court forced me to doesn’t mean that I have more money to hire more nurses or more clinical resources,” Roig said.

The issue of overcrowding in ASSMCA’s psychiatric hospitals is not new. In fact, there was a federal class-action lawsuit in 1974, known as the Roberto Navarro-Ayala case, which kept the institutions under federal receivership for decades.

Regarding the waiting list system to enter hospitals from prisons, Roig concluded that at the end of the day it is the Court orders that influence upon who is admitted first.

On the other hand, there are judges who have taken more stringent measures for compliance with their orders when there are people imprisoned for extended periods of time without receiving treatment and without trial. Patient admission orders have been issued under penalty of contempt and, on one occasion, Nemuel Artiles, former administrator of the psychiatric hospital in Ponce, and other institution employees were arrested.

“At some point the judge can decide: ‘I no longer see this having a harmonious solution among all parties, so I start with some determinations because there are orders to be fulfilled.’ And here comes the judge with arrest warrants, there hasn’t been just one, there have been several sanctions that have been imposed,” Steidel explained. At press time, the OAT had not provided information on the number and types of sanctions imposed.

For one of the judges who oversees these processes, arrest warrants are not easy determinations in these cases.

“It’s a matter of budget,” said Judge Otero-Ferreiras.

There have been two petitions from ASSMCA before the Oversight Board to reallocate budget. On both occasions, in 2018 and 2019, they were requests for food at the Ponce hospital, since the Office of Management and Budget (OGP,   in Spanish) did not allocate them. The Board approved the requests. There is no request to operate the two unoccupied rooms at the Río Piedras hospital.

The CDC’s investigation explores the angle of the lack of allocation of resources and expanded its summons to bring the OGP, as well as the Department of Justice, to the table. “The Commission’s position is that it is the State’s responsibility, and at the end of the day it is the same budget, because it is the budget of the Government of Puerto Rico.”

Are there solutions to the maze of violations?

From the Senate, Carmelo Ríos and Zoé Laboy filed in 2018 Senate Bill 975 to give judges greater flexibility to act on their own when they have before them defendants who show they are mentally incapacitated. The bill also states that the security measures imposed on non-prosecutable people cannot exceed the terms established for the crimes charged. The legislative piece has not moved forward.

Although in 2015 ASSMCA prepared the draft of a protocol to restore the eligibility of the defendants — which the CPI and Metro were able to review — this has been ruled out by the current administrator, since she believes it goes into the legal field that is outside her jurisdiction. Rather, the official said she is preparing a video that explains to mental health patients how court dynamics work with, if they at some point face trial.

For SAL, the end to this systematic violation of rights is not in orders that can be issued by the court or trial eligibility modules, but rather in more spaces to tend to mental health patients in hospitals in search of restoring their capacity for trial.

“The Supreme Court can issue a majority opinion and if the State doesn’t put in the resources, we will continue going around the same circle. This requires institutions to offer treatment to people. Forensic psychiatry hospitals are overcrowded,” said Vélez, director of the SAL.

Meanwhile, María is still waiting to see her son and to learn if he will receive the treatment he needs at some point, and when he will leave the place where, according to Puerto Rican laws, he should have never been. José Guillermo-González, who will never understand the process against him, hopes to move from the criminal process to a place of care outside prison. The question is whether officials will take measures to prevent cases like that of Justino Centeno, whose freedom was restricted in this labyrinth for four years after being accused of a crime that — had it been prosecuted — exposed him to six months in prison. Months after leaving the criminal system, he died.

Omaya Sosa-Pascual and Laura Moscoso contributed to this story.

This story was made possible in part by a grant from the Center for Investigative Journalism with the support of Internews, the Center for Disaster Philanthropy and NetHope.