‘The Waiting Game:’ Why psychiatric evaluations in Kentucky are clogging the courts system

KENTUCKY (WFIE) - In August of 2022, the unthinkable happened in a Henderson homeless shelter.

Police say Kenneth Gibbs opened fire during a meeting at the Harbor House, killing two people and injuring two others.

More than a year later, Gibbs is still sitting in the Henderson County Detention Center. He, and the victims’ families are waiting for his trial.

“An average wait of more than a year now at KCPC, which is what I believe we have for serious cases, is simply too long,” Tom Griffiths said. Griffiths represents Gibbs.

The Kentucky Psychiatric Correctional Center, or KCPC, is the facility where Gibbs is set to have a psychiatric evaluation. The evaluation determines whether he is fit to stand trial.

That order was handed down in February. As of October, he’s still waiting.

“If someone is under an order to have a KCPC evaluation, the case pretty much halts right there,” Hopkins County Commonwealth Attorney Kathryn Senter said.

The waitlist has become a standard roadblock nowadays in the Kentucky Courts system. According to State leaders, KCPC is the only place in the Commonwealth that can conduct psychiatric evaluations for court cases.

“KCPC’s primary function is to provide court-ordered, competency-to-stand-trial evaluations and treatment for individuals who are charged with felony offenses.” (Statement from the Cabinet for Health and Family Services)

“The wheels of justice move slow, and they move slower due to COVID,” Senter said.

Attorneys say there’s always been a waitlist, but it’s never been this bad.

KCPC leaders gave us the most up-to-date numbers back in August, which by now, are subject to have changed:

“As of July 2023, there were approximately 300 people on the waitlist for services. From July 2023 to Aug. 15, 2023, the waitlist increased to 353 with KCPC receiving over 100 orders in a span of three weeks.” (Statement from the Cabinet for Health and Family Services)

This means that until Gibbs can get a psychiatric evaluation, everyone from the Judge down to the victims’ families are left waiting for their day in court.

“Sitting in a jail cell doesn’t do anything positive for anyone’s mental health,” Griffiths said.

While the pandemic has played its role in adding on to the existing backlog, there’s another aggravating factor that attorneys tell 14 News has out an additional strain on KCPC.

To understand why, however, we need to go back to 2019.

That’s when a Louisville man named Cane Madden was charged with several violent crimes, including rape and assault.

Madden was found unfit to stand trial, and because of a law called Section 202-C, Madden was released. That law at the time had a gray area that dropped charges against people deemed unfit to stand trial without having them committed.

Months later, police say Madden raped an 8-year-old girl, fracturing her skull in the process.

“Folks were just turned out on the street; the case was dismissed,” Henderson County Commonwealth Attorney Herb McKee said.

Lawmakers adjusted Section 202-C, which focuses on involuntary commitment, back in 2021.

The revised statute fixed the loophole that Madden fell through. It says that if someone is found unfit to stand trial, the defendant then goes through two hearings following that.

The first of which, an evidentiary hearing, where both sides make their case to the judge on whether the defendant did the crime or not, regardless of mental competency.

If the judge rules the defendant didn’t do the crime based on the evidence, the defendant is released. But if the judge rules the defendant did the crime, they then progress the case to a commitment hearing.

At the commitment hearing, KCPC doctors testify to the findings of a psychiatric evaluation, and whether there is a less restrictive alternative to lifetime commitment at KCPC.

If there is, the defendant is released, but required to follow the treatment set forth by the court. If not, the defendant is committed to KCPC.

The problem lies in the amount of time this all needs to happen in by law. Section 202-C states that this whole scenario needs to be done within 20 days of the evidentiary hearing.

“Which then places those with a 202-C order to the front of the line, which then pushes our normal evaluations down further,” Senter said.

Senter added that a third of KCPC’s beds are now devoted to 202-C individuals, she says she learned during a phone call with the center. KCPC leaders gave us the numbers they currently have at their facility in a statement:

“Due to workforce shortages, KCPC’s current inpatient census is 38; maximum capacity is 78.”

But factoring in the third of beds devoted to 202-C individuals, you’re left with around 25 beds for the rest of the Commonwealth inmates awaiting inpatient psychiatric evaluations.

“The wait time for inpatient evaluations has remained constant at 10 to 12 months since January 2022.” (Statement from the Cabinet for Health and Family Services)

“It is very difficult for victims, it’s difficult to present those cases to a jury and have the jury to understand the primacy and urgency of those cases when that much time has passed,” McKee said.

McKee believes that lawmakers should once again revisit the 202-C statute.

“I don’t believe that folks who are suffering from intellectual disabilities are getting the treatment and care that they need, because there could be a less restrictive alternative than lifetime commitment to KCPC,” McKee said.

State leaders said, in a statement, that they’re working to alleviate the wait list that exists. They say they’ve already seen some success in some of the tactics they’ve used.

“KCPC began providing outpatient evaluations in a limited number of counties in March 2022 to improve efficiency and align with national practices. KCPC has developed partnerships with 117 correctional facilities to provide outpatient evaluations through outpatient processes with approximately 50 to 60 evaluations completed each month. Determination of evaluation is based on the flexibility of the court order. It is estimated that at least 20 percent of the waitlist is because of inflexible court orders for defendants that KCPC could expeditiously evaluate on an outpatient basis. Outpatient evaluations solve much of the waitlist issue but require increased court support.”

The statement goes onto read:

“Multiple initiatives have been introduced to decrease the current delays in admission. These include increasing capacity for outpatient evaluations and leveraging telehealth to the degree possible; reclassifying positions to allow for increased salaries for current and prospective staff and consolidating units to allow for most efficient use of current staff. KCPC is currently providing outpatient evaluations when court orders allow for flexibility in the evaluation. This process has facilitated the completion of over 800 court-ordered evaluations since March 2022.”

KCPC leaders also say they’ve asked for years for help from lawmakers. In past capital improvement proposals for the Cabinet for Health and Family Services, they’ve asked to expand and move the hospital out of the correctional facility since 2006, but the request has been denied every time it’s been proposed.

“This problem is long standing, and in the last few years it’s gotten worse,” Griffiths said. “So at some point this needs to be dealt with.”

We also reached out to Kentucky Governor Andy Beshear for comment, and his office deferred us to the statement from the Cabinet for Health and Family services.

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