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Judge chastises DSS, state mental health hospital for long wait times

Judge chastises DSS, state mental health hospital for long wait times


A judge chastised the South Dakota Department of Social Services and the mental health hospital it runs in court last week after it took more than four months to accept an inmate declared mentally incompetent to stand trial. And he said this delay isn't unique. 

DSS and the Human Services Center need to "tune up their act pretty darned quick," Judge Jeff Davis told a lawyer who represents DSS last Tuesday. There's been "constant battle with Human Services" during my time as a judge, said Davis, who occasionally oversees cases at the state court in Rapid City after retiring after 43 years. 

Davis said the delays are unfair to counties since they are paying to jail defendants for months as they await treatment. In this case, Magdalene Silk, a 19-year-old from Lake Andes, has been jailed since Oct. 24, 2018 after being accused of raping a 12-year-old. Davis ordered her transferred to the HSC in Yankton on March 18 but she wasn't accepted until August 1. 

A defendant is declared mentally incompetent if they have a mental illness, disability or some other condition that makes them unable to understand the nature and consequences of their charges and legal proceedings, and unable to assist in their defense, according to South Dakota law

The news of Silk's imminent transfer was announced last Tuesday by DSS lawyer Scott Carlson — but not before a tense moment when Davis signaled he was open to tossing the entire case.

When Davis began Silk's hearing ahead of schedule, Carlson was nowhere to be found inside the courtroom. 

HSC "refused to accept her" after being ordered to do so, said Silk's lawyer Matthew Rappold. 

Davis encouraged Rappold to write a motion asking for the case to be dismissed, calling the situation with DSS and HSC "ridiculous." 

Lara Roetzel, chief deputy state's attorney for Pennington County, urged Davis not to dismiss the case, noting that Silk is accused of a "very serious offense." She also said it wasn't her office's fault, nor the fault of the victim, that HSC didn't have room for Silk. 

But Davis again encouraged Rappold to file the motion before moving on to the other cases on his docket. 

Later, Davis learned that Carlson had showed up for the Silk hearing, he had been waiting outside the courtroom until her scheduled time began. 

Rappold, Roetzel and Silk were again brought before Davis, this time joined by Carlson. 

Carlson explained that Silk was eighth on the waiting list when Davis ordered her transferred to HSC in March but the facility now has room for her so she would be accepted August 1. 

"They just get to do whatever they want," Rappold said of HSC. He noted that HSC missed a deadline in Davis' March 18 order that says HSC must report back in four months or less on Silk's status, and if she still isn't mentally competent, report on whether she should become competent within a year. 

"If HSC recognizes that there's a problem then they should go and make an attempt to fix that problem," Rappold told the Journal after the hearing. 

HSC has 277 beds, according to its website. People who need their competency restored for trial "are admitted as beds are available" and the facility usually ends up treating 15 such patients at a time, said DSS spokeswoman Tia Kafka.

When HSC is full, the facility must contract out services for people qualified for admission, according to South Dakota Codified Law 27A-4-20. However there is no other facility that can provide inpatient competency restoration for jailed defendants, Kafka said. 

She said DSS is working on creating other options such as jail-based competency restoration, and defendants who bond out of jail and who don't need inpatient services can already receive competency restoration from other providers.

HSC can't always immediately take defendants ordered to receive treatment since the facility has to make sure it has space for people in crisis who are involuntarily committed and must be admitted within 24 hours, Kafka said. "HSC must balance these admissions with those individuals needing competency restoration services," she said.

Like other health facilities, Kafka said, HSC is impacted by nursing shortages. It's also affected by the low unemployment rate in Yankton.

"There isn’t an easy solution for these challenges, but the department continues to look at options, including working with legislators," she said. Kafka said there are five legislative committees that are studying and making recommendations to improve the state's mental health system.

— Contact Arielle Zionts at

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