Editorial: In SPU suit, state’s case is a weak one

Sunday, July 29, 2018

Though housed beneath a gold dome, legally New Hampshire’s state government is huddled beneath a village of blue plastic tarps likely to be blown away by a storm of lawsuits.

The biggest, leakiest tarp flaps over the state’s inadequate funding of public education. Smaller ones cover the governor’s decision to sign a bill designed to discourage student voting, the obstacles the governor and Legislature want to erect to thwart the collection of sales taxes levied by other cities and states, allegations of inadequate care by the state’s child protection agency and the state’s practice of incarcerating people with mental illnesses who’ve not been convicted of a crime.

A mother whose 32-year-old son is being housed in the Secure Psychiatric Unit of the state prison for men in Concord filed suit this month in federal district court alleging that his rights are being violated. New Hampshire is one of just three states that confine people found to be a danger to themselves or others, by dint of mental illness, in a prison rather than in a forensic unit of a state mental hospital. Those inmates deemed beyond the ability of the state hospital’s staff to control safely are sent to the SPU, pronounced “spew” by those who deal with it. There they can be housed, by the state’s own admission, with potentially violent people convicted of rape, murder or other crimes. The number of civilly committed inmates varies but seems to average about a dozen at any given time.

Opinions differ on whether their incarceration is constitutional. Rep. Renny Cushing of Hampton would argue that it isn’t.

Whether the mental health treatment the inmates receive in SPU is equal to the care they would receive in a mental health facility operated by the state’s Health and Human Services Department instead of the prison system is also in question. In SPU, current and former inmates, family members, mental health advocates and others say inmates are treated like inmates rather than mental health patients. Cushing, in testimony before fellow legislators, described their imprisonment as “Dickensian.”

Cushing has repeatedly sponsored legislation to remove people committed through a civil rather than criminal process from the prison and reopen a secure state hospital unit. A majority of his fellow lawmakers would no doubt agree but for one thing – money.

The same unwillingness of governors and lawmakers in one of the richest states in the union to raise and spend money is behind nearly all of the lawsuits, past and current, filed against the state for failing to meet its responsibilities.

The state hospital operated its own Secure Psychiatric Unit until 1986. It was housed in the long wing behind the main building on the state hospital campus. Escapes occurred frequently, often with unfortunate or even deadly results, and the unit was closed. For the past 30 years, the hospital’s most dangerous patients have been transferred to the state prison and returned if time and treatment made doing so safe. Some inmates spend years in SPU, many locked in their cells for all but an hour or so per day.

Because people committed civilly are confined in a prison rather than a hospital, the state is ineligible for federal Medicaid funds that would pay half the cost of their care.

Imprisoning people suffering from a mental illness who have not been convicted of a crime is wrong. The state does so solely to avoid spending money. Expect the state to lose the lawsuit.

Andrew Gorrill