“But they can’t do that?!?”

Well, yes and no. Perhaps legally and ethically, they’re not supposed to be able to do that, but there is a reason Alexander Hamilton called the judiciary the “least dangerous branch” in Federalist 78.  A straggler offered a comment to my post about the Ferguson Lie:

But again, as one poster pointed out, wasn’t he under extreme pressure by the African-American community to prosecute? And because he knew the evidence would not substantiate the claim that Wilson murdered Brown, he chose to present the case to the Grand Jury to in fact “be fair”? Or more probably, to pass the buck so that he would not receive the lion’s share of the wrath of the locals because he didn’t prosecute?

One poster?  Math challenged is nothing to laugh at, but what else could I do?

Is there a reason why repeating the same thing over and over is necessary? There is no exception that allows him to present to the grand jury do appease public pressure. “But he did it?” Yes, he did. “But, but, but…”

“But if it was unethical, then why was he allowed to do it?”

Because there are no little elves sitting in the back of courthouses that spring into action when a prosecutor engaged in unethical conduct and slay the unethical prosecutor with their sharp, ethical elf swords.

When a criminal defendant is sentenced, the judge will mumble something to the effect of “officer, take charge of the prisoner,” whereupon some guy with a gun will lead the cuffed defendant out of the courtroom and into the waiting arms of an employee of the Executive Branch of government.  That’s about as close as it gets to the judge having anybody with muscle to make his words happen.

This is a dirty little secret of the legal system: most of the time, we really don’t have a way to force people to comply with the law.  This is especially true when it comes to the people who get paychecks from other branches of government. You know, the more dangerous branches.

In Seattle, Pierce County Superior Judge Frank Cuthbertson has been slamming the Department of Social and Health Services with sanctions for the failure to provide beds and treatment for the mentally ill, currently held in jail custody.  The round numbers are now up to $200,000 for contempt.

Sanctions against the state’s health services agency for failing to provide competency evaluation and treatment to mentally ill defendants have reached almost $200,000, according to recently released documents.

So far this year, judges in King and Pierce counties have held the Department of Social and Health Services in contempt in 24 cases and ordered sanctions of $200 or $500 for each day a mentally ill defendant sits in jail instead of being transported to a state psychiatric hospital, the documents show.

It’s not that the nice folks at the Department of Social and Health Services are thumbing their nose at the judge. It’s that they have no beds.

Jane Beyer, assistant secretary for the Behavioral Health and Service Integration Administration, said her agency is slammed and the sanctions only make things worse.

“Every psychiatric bed is full, every forensic evaluator has a maximum caseload and the hospital budget already faces a $6 million shortfall. There is no ability to take on additional patients,” she said in an email. The sanctions become part of the agency’s budget “and will further limit our ability to provide services.”

To the extent that a budget shortfall explains one side of the problem, the other side, the sanctions for failure to comply with a court order would, if it mattered, merely syphon money away from its good use to a not-as-good use.  But then, what else can the judge do but impose sanctions?

When mentally ill people are charged crimes and there is a question of whether they can participate in their defense, judges order competency evaluations. The state has seven days to comply. If the defendant is found incompetent, the state has seven days to provide treatment to restore competency. But neither of these is happening in a timely manner.

In other words, they can’t do that.  And, without question, they shouldn’t be able to do that. It’s wrong. It’s harmful. It violates both doctrine and reason, and it reveals a failure of the legal system to manage its mandate with legitimacy and responsibility.  Jails were never meant as a warehouse, a repository, for the mentally ill.  The incompetent cannot, as a matter of law, be subject to prosecution, as they cannot assist in their own defense.  The Constitution says so, dammit.

They can’t do that.  So what?

The system is replete with such incongruities, such instances of unfairness large and small.  But no matter how much we believe in the efficacy of our legal system, the forcefulness of a judge to issue an order which all must obey, there are things that just won’t happen.  A judge can’t order the sun to rise from the west, even though some judges would disagree.

It may be that there are too many free-floating improprieties out there, but lacking in jurisdiction or defying standing to address.  It may be that there are forces that can’t be stopped, like a $6 million funding deficit that prevents an executive branch agency from snapping its fingers and making an extra hundred beds appear.

It may be that some judges, the ones who aren’t so enamored with the color of their robes that they believe their power to be without limit, don’t issue orders that they know they should, for wrongs they know exist, because they know that it will only serve to reveal the powerlessness of their words.

No, they can’t do that.  But they can. And they do. And there really isn’t a damn thing anyone can do about it, except vote them out of office and elect someone who will do better.  Or throw a revolution and hope it’s not you against the world.  To expect that the mere fact that they can’t do that will mean they won’t do that isn’t going to change anything.

The jails in Seattle are still full of the untreated, incompetent, mentally ill.  They will still be no matter how huge the sanctions award grows because they need beds, and that means money, and they have none. None to buy beds. None to pay sanctions.