March 21, 2020
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The Maine judge who fought to keep people with mental illness from languishing in jail

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Superior Court Justice Nancy Mills sits at home in Portland with her dog Harry, an English setter. After nearly 30 years on the bench, Mills is retiring.

Nancy Mills wanted to be a horse racing jockey when she graduated from Connecticut College with a bachelor’s degree in anthropology in 1971. Instead, she went on to law school at the University of Maine School of Law, starting her path to becoming a longtime trial judge in Maine.

Last month, Mills stepped down from the Superior Court bench after nearly 30 years. While she has garnered attention for presiding over a number of high-profile criminal cases, she is as well regarded for her work to improve how Maine courts handle cases that involve defendants with mental illnesses. This work often takes place behind the scenes and with limited funding.

In 2004, Mills established the Co-Occurring Disorders Court in Kennebec County, which allows defendants facing a serious felony whose criminal behavior is linked to a substance use disorder and mental illness the chance to participate in a supervised treatment program instead of going to prison. Soon after, she created one for veterans.

In 2018, she turned her attention to improving the process for handling cases before they’ve reached a conclusion, after employees at the Cumberland County Jail in Portland drew her attention to the number of severely ill defendants sitting in jail for prolonged periods before their conviction. Because their cases are often complex, they can drag on, forcing them to spend more time behind bars than their counterparts who do not suffer from an illness or disability.

Without spending extra money, Mills decided to set aside two days a month in Cumberland County to review only cases involving a defendant with serious mental health concerns. The same day, she convenes a group of criminal justice and mental health officials called the “languishing committee,” which develops a plan for how the cases can move forward with the least amount of delay and in coordination with those who will help them receive treatment.

The result of the increased scrutiny and communication has been to reduce the period of time that ill defendants spend in jail.

Taking her lead, Superior Court Justice Michaela Murphy created her own version of a mental health docket in Kennebec County last year.

In Cumberland County, Mills is expected to continue presiding over her special docket and serving on the languishing committee, pending a confirmation hearing later this month to allow her to work part time. She is the sister-in-law of Gov. Janet Mills.

The Bangor Daily News spoke to Nancy Mills about what motivated her to address the high rates of mental illness among Maine defendants and the lessons she’s learned. Her responses have been edited for length and clarity.

What inspired your interest to create the Co-Occurring Disorders Court?

I remember reading an article once by a doctor who said the reason we can’t cure cancer is because we keep doing the same thing and expecting a different result. And that’s exactly what we were doing: sending people to jail, they got out, they committed crimes, they were arrested, they were convicted, we sent them to jail. It’s not rocket science to realize that we can’t keep doing that. It’s morally wrong, and it doesn’t make any fiscal sense or sense in terms of achieving better results.

What do you say to people who feel differently?

If you’re talking to someone whose desire is simply to punish someone, you’re probably not going to get very far. But I try to phrase it in a way that the person will understand: It’s really in everyone’s best interest to deal with the mental illness — not just the defendants but the public at large.

Ultimately, sometimes I ask people, if you don’t like what we’re trying with treatment and medicine, what’s your idea? Because it certainly hasn’t been working what we’ve been doing since 1820, incarcerating people with mental illness and substance use disorders.

Why are people with acute mental illness more likely to languish in jail?

If a person who doesn’t have a mental health problem commits a misdemeanor, their lawyer can argue [during their bail hearing], ‘Well, his parents are willing to take him back,’ or ‘He’s got a job,’ and this, that and the other thing. And he’s going to get out on bail. Often those arguments aren’t available to a defense lawyer [so the defendant stays in jail].

Sometimes there’s the issue of competency, and that has to be addressed. We’ve really streamlined [the competency evaluation process] in Cumberland County, and we can really turn that around very fast. Sometimes there’s a real question about criminal responsibility — whether the state can prove the case against them. If they were in a psychotic state at the time they committed the crime, they’re not going to be able to prove they acted intentionally, knowingly, recklessly or negligently. There are so many more issues involved with a person with a mental illness.

Why is it called the languishing committee?

What exactly is “languishing”? We’re not just talking about someone who’s got a mental illness and is sitting in his cell. We’re talking about people who stop eating, they won’t wear clothes, who may be smearing feces all over the cell. They’re howling, they won’t take medicine, assuming the jail has that medicine on their protocol. It’s a bad situation, certainly for the jail personnel, certainly for the defendant and for the other people who are in the jail.

Every case should be expedited. Every defendant has a right to a speedy trial. But these cases in particular? It’s cruel to keep a person with mental illness incarcerated.

Do you have an example of how flagging these cases for a closer look changed a defendant’s path through the justice system?

The case that sticks in my mind was a person who was being housed at the Cumberland County Jail from another county, and let’s just say he was not doing well — at all. We were notified that this situation was happening — the judge in the county where the case was pending, and the prosecutor and the defense lawyer immediately got involved. [The lawyers] had a conference with some people from the Department of Health and Human Services, and ultimately — when I say ultimately, I say almost immediately — the person was given an appropriate place to live where he hopefully will be for a long time, and the prosecutor dismissed the charges.

That all happened about three months before this person was scheduled for a dispositional conference. All that time he would have been at the jail, and then who knows what would have happened. So it’s really about communication.

Where do you run into the most obstacles finding options for defendants with mental illnesses so they don’t stay in jail?

Housing is the hardest thing. Whether it’s supported housing, a group home, whether it’s just someplace to live, whether they can afford an apartment. It’s the hardest nut to crack.

What solutions are beyond your power as a judge that would improve the delivery of justice for, specifically, people with mental illness? Whose responsibility is it to create them?

There’s some legislation to get more crisis beds. That’s what I meant about having the right people at the table. [State] Rep. Rachel Talbot Ross has come to the languishing committee, and she’s been helpful in terms of legislation. But things like that are something that the languishing committee can put in motion. Obviously, [creating more mental health resources] is up to the Legislature and the executive branch — that’s not something the judicial branch can be in charge of.

There are a lot of things that have no fiscal note. The mental health docket, no fiscal note. Languishing committee, no fiscal note. Actually, we opened the Co-Occurring Disorders Court, and we originally had no funding.

It’s great to have, as I said, blue ribbon commissions and study panels and to apply for grants. But at some point, sometimes you’ve just got to do it yourself, without any money, and think differently and break down the silos. That’s what’s great about the languishing committee. Everyone we need is there.

Maine passed a law in 2014 to allow county jail inmates awaiting trial to receive mental health treatment inside the Intensive Mental Health Unit at the Maine State Prison if there isn’t an available bed at Riverview Psychiatric Center, the state forensic hospital. What are your thoughts about the use of the IMHU to treat criminal defendants?

It’s a better alternative than keeping somebody at a jail that needs help, in my view. But the critics who say, “This is a person who needs a hospital”? They’re correct.

A lawyer recently told me, “It’s just a hospital in the middle of a state prison.” Is that wrong?

There’s no question it’s a state prison. Where people — there are locked cells, and there are guards. It’s not the same as being in Maine Medical Center. But you know, when you keep saying the reality of the situation — I think Winston Churchill said [along the lines of]: Sometimes it’s not enough to do what’s right, you have to do what’s necessary. And that phrase goes through my mind a lot. Because when you have a crisis, you have to do what’s necessary.

Questions? Email mainefocus@bangordailynews.com.

 


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