What to Do When Dorothea Dix Lights the “No Vacancy” Sign

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When one side or the other questions a defendant’s capacity to proceed, the judge may order a competency evaluation. The evaluation is often done locally on an outpatient basis, but in some circumstances, the judge may order the defendant committed “to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine” competency. G.S. 15A-1002(b)(2). The relevant facility is the Central Regional Hospital — Raleigh Campus, universally known as Dorothea Dix. The form typically used to request, and to order, such an evaluation is AOC-CR-208.

News reports suggest that Dorothea Dix is currently unable to handle all the demands placed on it. If true, that’s not surprising, given the state’s fiscal situation and the uncertain future of Dorothea Dix itself. As it relates to criminal cases, I’ve heard from several people around the state that officials at Dorothea Dix have put the word out that when a judge orders a defendant to Dorothea Dix for an evaluation, the sheriff should not simply bring the person to the hospital. Instead, the sheriff should call ahead and make an appointment, which the hospital may schedule several weeks down the line. When the defendant arrives at the hospital, he receives what some are calling a “drive by evaluation,” or a screening evaluation. Apparently, if the defendant is obviously competent or plainly incompetent, he can be sent back home without ever spending a single night at Dorothea Dix. If the defendant’s capacity is a closer call, he gets admitted to the hospital for observation.

The benefits of the appointment system for the mental health professionals at Dorothea Dix are obvious: it must help them to manage their workflow and to conserve resources by limiting admissions to those for whom admission is most necessary. But the system creates problems, too. I recently received a call about a case in which the defendant was ordered to Dorothea Dix, but whose appointment was scheduled three weeks out. In the interim, the defendant posted bond and was released. My interlocutor wanted to know: should the sheriff have allowed the defendant to post bond, given the commitment order? And, is the sheriff still on the hook to find the defendant and transport him to Dorothea Dix when his appointment rolls around?

The first question, in particular, has no easy answer. G.S. 15A-1002 is predicated on the assumption that when a defendant is ordered to Dorothea Dix, he’ll go forthwith. The statute doesn’t address what should happen when a defendant tries to post bond in between being ordered to Dorothea Dix and actually being taken there, because the General Assembly didn’t expect there to be an “in between.” One could argue that the commitment order functions like a detainer: the defendant can be held in jail until the commitment order can be effectuated. Or one could argue that the commitment order only authorizes the defendant to be held at Dorothea Dix — or en route to or from the hospital — and provides no basis for holding the defendant in jail if he has satisfied his pretrial release conditions.

I tend to think that this situation should be handled in one of two ways, both of which obviate the need to decide whether to let a defendant who is subject to a commitment order out on bond. Option one is for the sheriff to resist the hospital’s request to operate on the appointment system. After all, the sheriff is ordered to take the defendant to Dorothea Dix, not to hold the defendant in jail for a while and then take the defendant to Dorothea Dix. It isn’t obvious that the hospital can properly refuse to accept defendants who have been ordered there for an evaluation. (Whether the hospital can do so is a complicated question, involving both state law and the federal anti-patient-dumping statutes; my colleague Mark Botts is much more schooled on this issue than I am.) Option two is for the judge who enters the order also to order that the defendant be held in jail, pending transportation to Dorothea Dix, for a reasonable period of time if necessary to accommodate the schedule of Dorothea Dix. Such an order appears to be authorized under G.S. 15A-1002(c), which allows a court to “make appropriate temporary orders for the confinement or security of the defendant pending” competency proceedings. The quoted language appears to have been intended to cover the period of time after a defendant returns from Dorothea Dix and before the competency hearing is held, but it seems elastic enough to cover the pre-evaluation period, too. There’s not an easy place to put such a temporary order on AOC-CR-208, but presumably it can be squeezed in somewhere.

Anyone have a different way of handling this issue? I’m sure there’s local variation, and I’d like to know about it. I’d also be interested in the views of sheriffs and Dorothea Dix officials on the suggestions above.

The second question posed by my correspondent was whether the sheriff was still responsible for transporting the defendant to Dorothea Dix even though the defendant had been released. The answer to that one is pretty clear: the form order states that the sheriff “shall transfer the defendant” to Dorothea Dix as well as bring him back from the hospital. Nothing in the order depends on the defendant’s custody status, so the sheriff is on the hook. Indeed, if the defendant had already posted bond and been released at the time the order was entered, the order would have read the same way and would clearly have required the sheriff to provide transportation. While the sheriff might argue that the language of G.S. 15A-1002(b)(2) only imposes on the sheriff the duty to bring the defendant back from Dorothea Dix, not to take him to the hospital, the clear terms of the order seems to me to resolve any statutory uncertainty in favor of placing the burden on the sheriff. I know that doesn’t sit well with officers involved in such transportation assignments, who aren’t able to do their usual duties and who instead must do work for which they may not have much training, but I don’t think there’s another reasonable interpretation. If you’ve got one, please post a comment.

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