EX-PRISONERS COMPENSATED TO THE TUNE OF MILLIONS WHILE EX-PATIENTS GET NOTHING. WHY?

By Elizabeth A. Richter

I recall that when I was living more closely within the psych patient community the story went around that when average citizens were asked who they would prefer living next to--a criminal or a former psych patient--70% or more would prefer to live next to a criminal. 

In other words, give me a murderer or a rapist any day, but for goodness sake, don't give me a neighbor with a mental health disability.  On the scale of worth, prisoners were on one level and then several stories down, well beneath the basement there was us, the nutcases.  We were the lowest of the low.

 

This impression of the low esteem in which we recovering individuals get held, in contrast to prisoners, is no better illustrated than in the recent article in the CT Law Tribune regarding the compensation for individuals who have been wrongly imprisoned for crimes they did not commit.   

 

At the same time the State is considering compensation for persons wrongly imprisoned, a long lasting (eight year) Olmstead case is finally coming to a close.  This is a case where persons with mental health disabilities were improperly warehoused in nursing homes, often in locked units, in violation of Title II of federal ADA law for years.

 

Here we have two similar stories of folks wrongly held in institutions against their will, but with one group receiving a very financially remunerative outcome--former prisoners, while the other--persons with mental illness who are in recovery--gets absolutely nothing, unless you want to call the moral high ground something!

 

Among the prisoners, exonerated by definitive DNA evidence, is James Tillman who served 18 years for a rape that it turned out he did not commit.  In 2007, he received $5 million in compensation for the injustice he endured.

Tillman's case set the tone.  After his case, the State Legislature voted through a statute establishing the basis for any compensation for other people who come forward with claims of wrongful conviction and imprisonment.  Part of the process involves going before the State Claims Commissioner, J. Paul Vance Jr.  who must OK any of the payments that the State makes in situations like this.

There are more cases coming up on the horizon at this point.  One, according to the CT Law Tribune, is that of Kenneth Ireland who spent 21 years in prison for a rape and murder that he didn't commit.  Apparently, Mr. Ireland is looking for between $5.5 to $8 million in compensation for false imprisonment.

 

Another case is that of Miguel Roman who was in prison for 20 years for a murder that we now understand was committed by somebody else.  Roman hopes to obtain $8.5 million in compensation. 

 

In these cases, the State of Connecticut is represented by the Attorney General's office.  In regard to Kenneth Ireland's case, the Attorney General has stated that "the state will not contest the compensation he seeks."

 

Title II of Federal ADA law also maintains provisions for compensation for individuals with disabilities whose rights are violated by government agencies.  They are entitled to compensation for the legal fees incurred in the prosecution of their cases and further they are allowed civil penalties which may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.  Were these guidelines actually followed up on, this could add up to millions of dollars in compensation, but from what I see in the State of Connecticut, this isn't happening.

 

Why?  I am assuming it is because while the Attorney General takes a back seat and doesn't dispute compensation for prisoners denied their freedom, the very same Attorney General absolutely opposes compensation for persons with mental health disabilities who were also denied their freedom.  And we are not talking for some small timeframe.  Given that the Office of Protection and Advocacy took eight years to arrive at a conclusion to their lawsuit, this means that very likely some of the people in this lawsuit were imprisoned in nursing homes in violation of their civil and constitutional rights for the entirety of those eight years. 

 

Yet the Attorney General clearly fought tooth and nail to make sure than none of these mental health clients would receive so much as a single penny from the case.  As the exhausted attorneys who fought so long and hard for the rights of their clients stated when putting together a settlement which gave their clients nothing, we recommend this settlement "in order to avoid the expenses, risks, delays, disruptions and uncertainties of further litigation."  I mean, what were they going to do?  Fight another eight years? 

But let me give you a little background regarding this case, to give you a fuller sense of how ridiculous this situation is.  In 2006, the Office of Protection and Advocacy launched a lawsuit against the CT Department of Social Services, the Department of Mental Health and Addiction Services, the Department of Public Heath and three nursing homes charging that in violation of the Olmstead decision they were warehousing 3000 psychiatric patients in nursing homes against their will instead of allowing them to live in their communities. 

Who were these patients?  Early in the case, the Office of Protection and Advocacy provided some quick examples.  Some of the people may have changed over time, but the list from the OPA gives you a good sense of the kind of CT citizens we are talking about.

There is "Jerry" who had been at Bidwell nursing home more than three years.  He was in the facility because he had developed depression and schizophrenia.  Jerry had finished high school and had experience working in auto repair, and could cook, clean, shop and take his medications on his own.

There is "Donald" who had lived at Bidwell for more than six years.  Before living at Bidwell, he'd worked as a store clerk and engineer before he developed the symptoms of schizophrenia.  Speaking of living in the nursing home he said, "We can't even order food from the restaurants around here or go for a walk when we want to.  This is no way to live."

Then there is "Sarah" who also has schizophrenia.   She had been at Bidwell for a year and a half when the case began.  She explains that at Bidwell she can go out accompanied for four hours at a time, but the staff will take that privilege away if she doesn't do what she is told.  Sarah says that she would like to live in the community so she can have more freedom.

And there is "Susan" who is in her 20s and had been at Bidwell for a year with schizo-affective and multiple personality disorder as well as a history of substance abuse.  She has attended college and worked in a grocery store.  She finds it hard to speak on the phone because of the lack of privacy at Bidwell.  I am assuming that she is restricted to the use of a hall phone which is what happens in nursing homes most of the time.

And also "Kathy" who is in her early 50s who has lived in her own apartment as well as a group home.  She has schizo-affective disorder and a history of substance abuse.  She was on the locked unit of Chelsea Place for two years, but is now on the unlocked 4th floor.  She would like to live in the community and does not need any help taking her medication, cooking, cleaning or doing laundry.  But she was told she would have to wait.

Finally, "Marjorie" who is over 65 and had been in West Rock (now closed) for more than nine years when the case began.  She has depression and a history of alcoholism, but she has been sober now for more than 10 years.  Other than AA, Marjorie would not need any support to live in the community, but at the time this brief bio was written, she had not been allowed to do so.

These are people, just like you and I, who no more committed a crime than these exonerated prisoners, but nonetheless the State denied them their freedoms and liberties solely on the basis of disability. 

 

Before we move on, please consider this.  Theoretically, if "Marjorie" had already been warehoused in West Rock for nine years when this lawsuit began, if you add an additional eight years, you have her locked up for 17 years by now against her will and in violation of her civil and constitutional rights.  And yet the State is not obligated to compensate her for this grossly abusive treatment?  I guess not.  I guess the life of an exonerated prisoner is worth millions of dollars more than the life of a person in recovery who simply wishes to live independently in his or her community along with friends and family.  I mean God forbid a mental patient think that his or her life has value!

 

In the well-known case Raymond v. Rowland conducted from 2003-2007 against the CT Department of Social Services in regard to their lack of compliance with Title II of the ADA, in advance of the fairness hearing, persons with disabilities were cautioned that "The case was brought to get changes in how DSS operates, not to get money damages for class members."  Oh, really, and is that because the class members are persons with disabilities, and how dare persons with disabilities imagine that they might have the right to financial compensation?

 

Can you imagine the exonerated prisoners who have lost years of their lives being told that it is all about improving the criminal justice system and not about the money?  Give.  Me.  A.  Break.  None of you would even think of saying such a thing.  But when it comes to people with disabilities...what?  They are supposed to be grateful and shut up?

 

Certainly, in Raymond v. Rowland attorneys fees were forthcoming to the amount of $35,000.  But when you consider that it was a three or four years case--are you kidding me?  That kind of compensation is a joke.  In the more recently resolved Office of Protection and Advocacy v. The State of CT, the suggested compensation for attorneys fees is $1,300,000 which seems like a lot until you break it up into the eight years it took to pursue the litigation.  Then the amount is ridiculously low.

 

What does this all mean?  It means that to the State of Connecticut and to its Citizens people with disabilities and, in particular, people with mental health disabilities are the garbage of the earth. 

 

Before you start arguing with me regarding this point, please keep in mind that the State of Connecticut knew very well that they were wrongly warehousing folks in nursing homes well before the Office of Protection and Advocacy filed their lawsuit in 2006.  Our Supreme Court ruled that this was the case in Olmstead v. L.C. way back in 1999.  In its ruling the Supreme Court reasoned that, "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." and also, "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

 

Since this was understood to be so in 1999, I'm not sure what the hold up was.  Further, in 2010, the U.S. Department of Justice filed an Amicus Brief in support of the Office of Protection and Advocacy in this case.  What is more, an identical case being adjudicated in Illinois at around the same time came down heavily in favor of the plaintiffs and their right to be allowed to leave nursing homes and return to their communities.  Further, in 2010, Federal District Court in Connecticut supported the plaintiff's right to be considered a class, supported the right of the Office of Protection and Advocacy to bring the complaint, and also refused to dismiss the case. 

 

So, why was the case dragged out for another four years?  Why was there what the Office of Protection and Advocacy referred to as another four years of arms length negotiations?  You would think that the Attorney General and the State of Connecticut would have pangs of conscience about continuing to abuse its citizens with disabilities and stop right away, particularly when it was fully aware that this was what they were doing.  But no, they did not. 

 

What is most important to keep in mind when you think about eight years of litigation is how many thousands and thousands, oh, millions of dollars it cost for one agency of the State of Connecticut with its phalanx of attorneys to fight against another agency of the State of Connecticut with its phalanx of attorneys.  This was an unbelievable waste of our taxpayer dollars, and now, having wasted all that money, after having spent eight years fighting tooth and nail to blockade citizens with disabilities from gaining access to their rights, now, the State does not wish to compensate these citizens.  How outrageous is that?

 

There are other curiosities associated with the case conducted by the Office of Protection and Advocacy--for example, why in the eight years that it was taking place, did it never came to trial?  I'd also like to know how come the Judge in this case allowed the State of Connecticut to play around during negotiations.  But why, again, am I surprised.  The State of Connecticut cannot stand to give CT citizens with disabilities the rights they are entitled to under Federal ADA Law.  For example, the CT Department of Justice announced in January that it will be investigating the CT Judicial Branch for non-compliance with Title II of the ADA.  I have been a person with a disability for the majority of my life, and yet on March 28, 2014, I actually received a ruling from CT District Court stating that I do not have "an ADA-covered disability".  I am sure that the insurance companies--Connecticut General and Blue Cross/Blue Shield--who have paid for my treatment over the last three decades will find that quite interesting.  I mean, who is delusional here?

 

What can you say about The State of Connecticut that will throw away millions of dollars in resources and fight to the last breath before it is the least bit willing to give a single person with a disability any kind of break.

 

Soon there will be a Fairness hearing in the case Office of Protection and Advocacy v. the State of CT during which time the members of the class who are the plaintiff's (person's with mental health disabilities who were illegally incarcerated in nursing homes) will have the opportunity to express their approval or disapproval of the unfolding agreement in this case.  I am aware that some members of this class braved harassment and potential retaliation when they stepped forward to participate in this litigation.  Personally, I think they deserve a little more than just a pat on the back.

RELATED ARTICLES:

http://divorceinconnecticut.blogspot.com/2014/04/on-february-14-2006-attorney-michael.html

http://www.ctlawtribune.com/id=1202650904376?kw=Exonerated%20Ex-Inmates%20Want%20Millions&cn=20140416&pt=Connecticut%20Law%20Tribune%20Daily%20Briefing&src=EMC-Email&et=editorial&bu=Connecticut%20Law%20Tribune&slreturn=20140323131704