Some Pa. mental health patients end up with felonies, jail instead of the care they need
A part of the law for aggravated assault in Pennsylvania meant to protect occupations likely to be victimized can have serious consequences for people who lash out in the midst of a crisis.
Dylan SegelbaumOne night, Brandon Bedford just broke down.
He was at his girlfriend’s home in Dover Township — he had been drinking a little bit — on Feb. 6, 2011, and became overwhelmed about the death of his brother, Tyler, who killed himself several months earlier. Bedford was involuntarily committed to York Hospital for mental health treatment. That’s where, prosecutors said, he punched a nurse, threw one of his shoes and spit blood onto her face three times.
Bedford doesn’t remember trying to hurt anybody. It’s all kind of a blur.
Later, Bedford, who had been on probation for robbery, was arrested at the York County Judicial Center. He eventually pleaded no contest to aggravated assault, a felony, and was later sentenced to 11 1/2 to 23 months in York County Prison. He was immediately released, having served 408 days, or more than 13 months.
“It was horrible,” said Bedford, 29, who lives in West Manchester Township and works on a farm. “I’m being locked away from everything — from my family — everything.”
Under normal circumstances, Bedford would’ve likely been charged with simple assault, a misdemeanor. But registered nurses are one of at least 38 occupations considered protected classes and afforded special status in the law for aggravated assault.
In Pennsylvania, people who cause or attempt to cause harm to those including doctors, emergency medical technicians and psychiatric aides at work can be charged with aggravated assault, which carries a maximum sentence of five to 10 years in prison. Supporters of the provision say public servants deserve extra protection in the workplace.
But in some cases, the measure has swept up individuals who are experiencing a mental health crisis into the criminal justice system — even in situations in which it’s questionable that they actually hurt someone else.
“We want people who are operating under a mental health disability to have treatment and be able to have services so they can function in society,” said First Assistant Public Defender Clasina Houtman, who added that these convictions make it more difficult for individuals to find employment and housing.
“And if we’re charging them with felonies, that’s going to hamper the exact thing we’re trying to do in the first place.”
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‘We’re trying to help the public and trying to help people’
Pennsylvania’s modern crimes code dates back to 1972.
Typically, a person must cause or attempt to cause “serious bodily injury” to be guilty of aggravated assault. That’s an injury that “creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Law enforcement, for context, often charges people with aggravated assault — though sometimes it's at a higher grading — in connection to shootings.
But that’s not the case when it comes to attacks involving people who are in a protected class.
Prosecutors have to prove that someone caused or attempted to cause “bodily injury,” which is defined as “impairment of physical condition or substantial pain.” That’s the standard for simple assault. And it’s a much lower threshold to meet.
Throughout the last four decades, the Legislature has continued to add occupations to the list of those who are given special status under the law. It now includes everyone from parking enforcement officers to public utility employees.
(This story continues after the video):
People in the health care profession argue that these enhanced penalties are necessary. Their workplace, they say, has become increasingly dangerous. The heroin and opioid epidemic in the United States has contributed to the problem.
The U.S. Occupational Safety and Health Administration states that 75 percent of the almost 25,000 assaults that are reported annually in the workplace happen in the health care and social services setting, said Betsy Snook, CEO of the Pennsylvania State Nurses Association.
The Joint Commission, she said, notes that 25 percent of nurses report that a patient or a family member of a patient has physically assaulted them. Workers in the health care setting are also four times more likely to be victimized than those in private industry. That’s according to the American Nurses Association.
“Doctors and nurses are doing this job to help people,” said Dr. Ted Christopher, an emergency physician who’s the immediate past president of the Pennsylvania Medical Society. “In emergency medicine, you can’t pick and choose who you want to help.”
Christopher is also the Green Family Foundation and John and Patricia Walsh professor and chairman of the Department of Emergency Medicine at the Sidney Kimmel Medical College of Thomas Jefferson University in Philadelphia. He said he’s been verbally assaulted countless times and physically assaulted one time in his career.
State Sen. Judy Ward, R-Blair, Cumberland, Franklin, Fulton and Huntingdon counties, sponsored legislation when she served in the House that would’ve added all health care practitioners to the list of protected classes. She plans to reintroduce the bill, which would cover everyone from social workers to optometrists.
The Pennsylvania Medical Society, Pennsylvania State Nurses Association and the Hospital and Healthsystem Association of Pennsylvania supported the legislation.
“Health practitioners are really looking at this because it has become a problem,” said Ward, who spent more than 20 years as a nurse. “I just feel there’s not enough protection for health care workers,” she added.
The experience of being assaulted in the health care setting can profoundly affect an employee’s life.
Darin Bachmeier, a mental health security officer at York Hospital, was working on Jan. 28, 2016, when he suffered an assault at the hands of a man who has Asperger’s syndrome and had checked himself into a psychiatric program.
In a victim-impact statement, Bachmeier wrote that he needed to be seen in the emergency room, adding that he experienced soreness, headaches and problems sleeping. He pushed for the maximum sentence.
He said the experience made him feel more exposed to future physical altercations with patients as well as with those in the public. The man, he said, continued to harass and threaten him.
“This attack has shaken the very foundation of my abilities as a security guard in York Hospital,” wrote Bachmeier, who could not be reached for comment. “I am left to suffer in silence with this weakness as I find it difficult to openly complain.”
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‘I wasn't brought up to be a felon'
At the same time, people who are experiencing a mental health crisis can end up facing felony prosecution for relatively minor incidents.
In one case, a woman, 28, of York, was charged with aggravated assault for struggling with three employees at York Hospital after being taken there for crisis intervention services on June 18, 2015.
She later pleaded no contest to a lesser charge, simple assault, for two years’ probation.
“None of the individuals sustained injury in the incident,” Senior Deputy Prosecutor Kelley Margetas said when she explained to the judge what happened.
Or take what happened to Carolyn Farley.
In an interview at her home in the Harrisburg-area, Farley, 57, recalled how she was in an abusive relationship with someone who struggled with schizophrenia and an addiction to alcohol.
She started to drink to escape him. That’s what happened on June 22, 2010. Her boyfriend ended up calling an ambulance.
When she woke up at York Hospital, Farley had no idea that she’d bitten a registered nurse in the forearm and punched another in the jaw. At the time, her blood alcohol content was at least 0.40 percent — that’s five times the legal limit for driving in Pennsylvania. She was in total disbelief when her sister broke the news.
Farley said her father was a police officer, and her mother was a nurse. She said she’d never had any prior run-ins with the law, besides maybe getting a speeding ticket or a parking ticket. It wasn’t in her DNA to be aggressive.
She stayed in the hospital for several more days and was guarded the entire time. Farley said she was led out in handcuffs — an experience that she described as humiliating — and spent the night in custody.
Later, Farley pleaded no contest to two counts of aggravated assault in exchange for four years’ probation.
During the hearing, Senior Judge John H. Chronister discussed the allegation that she had bitten one of the nurses in the forearm.
“That normally would only be simple assault, but because of her being a registered nurse at the hospital and in the performance of her duties, that makes it become aggravated assault,” Chronister said.
Farley said she later fell into a deep depression, mostly out of shame and disbelief. She’s struggled with post-traumatic stress disorder. She said she’s had trouble finding jobs — and has stopped looking for one.
“It was devastating,” she said.
“I wasn’t brought up to be a felon,” Farley later added. “I’ve never had any issues with the law, any brushes with the law.”
On Oct. 28, 2015, Jessica Herbst was walking up the street while under the influence of alcohol near her home in the Brogue area of Chanceford Township. That's when someone called the police.
She called her fiancé for a ride. Police later pulled him over and, at the urging of a family member, involuntarily committed her to York Hospital.
In an interview, Herbst said she’s been diagnosed with post-traumatic stress disorder, severe depression and bipolar disorder with bouts of mania. Drinking, she said, amplifies the issues. She wasn’t taking any medication at the time.
Later, Herbst punched an EMT in the head when he tried to put her in restraints. She was given some kind of medication to calm her down, but she ended up falling asleep.
When she woke up, Herbst said a nurse asked her if she was feeling better. Employees told her that she could leave. “And,” she said, “they said I would be getting my charges in the mail.”
That’s when they told her what happened.
“It was unintentional,” said Herbst, 35, who’s a stay-at-home mother. “I don’t even remember doing it.”
She said she was shocked and became upset after finding out that she’d been charged with aggravated assault. Herbst learned about the added protections for emergency medical services personnel through her research on the internet. She was really scared about the possibility of facing jail time.
Herbst later pleaded no contest to simple assault in exchange for two years’ probation.
She said she doesn’t agree with the law.
“I think people should be held accountable for their actions,” Herbst said. “But I think, sometimes, peoples’ actions aren’t always intentional. And things aren’t always avoidable.”
In 1997, the Pennsylvania Superior Court, in a case called Commonwealth v. Wertelet, threw out a woman’s conviction for aggravated assault. She had twice kicked a Pennsylvania State Police trooper in the shin with her heel while being taken into custody.
The trooper testified that the pain was “similar to bumping your shin on a coffee table in the dark when you’re walking through the house.” But the court ruled that wasn’t enough to meet even the lower threshold of “bodily injury.”
In the opinion, Judge John G. Brosky wrote that while the Legislature undoubtedly intended to provide greater protection to police officers, that doesn’t mean the law was meant to lessen what an assault is to a situation that involves “relatively harmless physical contact.”
But the law can get complicated.
Mental health issues are not a legal defense to aggravated assault — unless someone meets the extremely high burden of being criminally insane.
Voluntary intoxication is also not a defense to the crime.
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‘We’re enhancing penalties for behavior that has already been deemed criminal’
Critics argue that there are already rules on the books for assault. They say there are also profound consequences to saddling people with a felony conviction for the rest of their lives.
Nyssa Taylor, criminal justice policy counsel at the ACLU of Pennsylvania, said there’s been a continuing effort on the part of the Legislature to expand the crimes code and increase penalties for behavior that’s already been deemed to be criminal.
But Taylor said the crimes code is not working any better now than it was in the past. These policies, she said, lead to more incarceration.
“Pennsylvania has a mass incarceration crisis,” said Taylor, who added that the state locks people up at the highest rate in the Northeast. “We are wildly out of step when it comes to the number of people we have in the criminal justice system.”
If someone is charged with aggravated assault, he or she could experience pretrial detention because a judge set bail at a higher amount. The sentencing guidelines also create an incentive for people to plead guilty, Taylor said.
Even if the charge is withdrawn as part of a plea agreement, it will still show up on a background check unless it’s expunged. And that might not be an option.
State Rep. Greg Vitali, D-Delaware and Montgomery counties, was one of six lawmakers in the House who voted against the bill that would’ve added all health care professionals to the list of protected classes.
On the House floor, Vitali expressed a concern about when existing crimes are elevated to felony offenses. He said he hadn’t received an explanation why the current law wouldn’t protect the public.
“They contain important restrictions on a person's civil rights, like the ability to carry a gun, the ability to have certain employment opportunities in schooling and health care,” he said. “I do not think we should attach a felony status without due consideration.”
In an interview, Vitali said he believes it’s the obligation of a member who presents a bill for approval to make the case as to why it’s needed.
Vitali said it’s good politics to appear to be tough on crime. He said he’s seen a lot of “designer crimes” that are introduced without any awareness about how the existing crimes code already addresses the conduct.
“I find that it’s, you know, somewhere, there’s some high-profile case of someone pulling up to a 7-Eleven and stealing a car with a baby in it,” Vitali said. “You just know, two days later, someone’s going to do a bill, ‘Theft of a car with a child in the car at a convenience store.’”
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‘What do you do with someone who has a severe mental health disorder and assaults someone?’
In an interview, York County District Attorney Dave Sunday, who took office in 2018, said law enforcement continues to investigate cases even after charges are filed — sometimes, even right up until trial.
Every situation, he said, is different. Aggravated assault isn’t automatically filed against people. Sometimes, after a prosecutor examines the facts and circumstances in a case, he or she will agree to reduce the charges.
When it’s appropriate, Sunday said, prosecutors try to “fashion a guilty plea and a sentence that fits the specific nuances of that situation.” He said these decisions are often made in a collaborative fashion, with the police and victims.
“What do you do with someone who has a severe mental health disorder and assaults someone? Is throwing them in a prison cell for three years — what does that do? Does that protect society? Does that punish them?” Sunday said. “And, often times, the answer’s, ‘No.’”
But in other cases, Sunday said the extra protection given to certain people in the law for aggravated assault is “right on.” “For the benefit of society, we can’t have people feeling it’s OK to assault a police officer. Period,” he said. “That can’t happen.”
“The protection exists, but it doesn’t always have to be used,” Sunday said. “And that’s the important thing.”
Most people who have mental health issues do not commit crimes, said Greg Rowe, director of legislation and policy at the Pennsylvania District Attorneys Association.
Rowe said treatment and incarceration are not mutually exclusive. But he said he believes everyone would like to see improvements in the mental health system. He said there's no easy answer in these situations.
“Nobody wants our doctors or nurses or mental health care practitioners to be punching bags,” Rowe said. “Balancing that — trying to provide suitable treatment plans for those with mental health issues — is the challenge.”
Bedford, the man who was prosecuted for aggravated assault after being involuntarily committed, said he spent three days at York Hospital but no one mentioned the charges. He said he learned when someone showed him a copy of the newspaper.
Prosecutors, he said, originally offered him a sentence of four to eight years in prison. He said he was prepared to go to trial but took the plea agreement because he just didn’t want to sit around anymore.
As part of his sentence for a probation violation, Bedford was ordered to undergo treatment. He said he’s struggled with mental health issues throughout his life, including anxiety.
“Don’t let your past control you. You can do more with your life than you have done so far,” Common Pleas Judge Craig T. Trebilcock said. “Sitting around in chains wearing orange and being hauled back and forth from court, that’s no way to live a life.”
Today, Bedford said he’s doing “pretty good.” But he said he didn’t end up receiving enough help. Instead, he said, he was placed on house arrest and ordered to wear an alcohol-monitoring bracelet.
Bedford said he later went back to court to get it removed.
“And that was the end of it,” he said.
Contact Dylan Segelbaum at 717-771-2102.
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List of protected classes in the law for aggravated assault in Pa.:
- Police officers
- Firefighters
- County adult probation or parole officers
- County juvenile probation or parole officers
- Agents of the Pennsylvania Board of Probation and Parole
- Sheriffs
- Deputy sheriffs
- Liquor control enforcement agents
- Officers or employees of a correctional institution, county jail or prison, juvenile detention center or other facilities
- Judges
- Attorney general
- Deputy attorney generals
- District attorneys
- Assistant district attorneys
- Public defenders
- Assistant public defenders
- Federal law enforcement officials
- State law enforcement officials
- Local law enforcement officials
- Any person who’s employed to assist or who assists a federal, state or local law enforcement official
- Emergency medical services personnel (The term includes, but is not limited to, the following positions: Doctors; residents; interns; registered nurses; licensed practical nurses; nurse aides; ambulance attendants and operators; paramedics; emergency medical technicians; and members of a hospital security force.)
- Parking enforcement officers
- Magisterial district judges
- Constables
- Deputy constables
- Psychiatric aides
- Teachers, school board members and other employees in the field
- Governor
- Lieutenant governor
- Auditor general
- State treasurer
- Members of the Pennsylvania General Assembly
- Employees of the Pennsylvania Department of Environmental Protection
- People engaged in the private detective business
- Employees or agents of a county children and youth social service agency or the legal representative of the agency
- Public utility employees and electric cooperative employees
- Wildlife conservation officers and deputy wildlife conservation officers of the Pennsylvania Game Commission
- Waterways conservation officers and deputy waterways conservation officers of the Pennsylvania Fish and Boat Commission
List of proposed protected classes in the law for aggravated assault in Pa.:
Here’s a look at some of the bills that were introduced in the Pennsylvania General Assembly, but did not pass, in the 2017-2018 Regular Session that would’ve expanded the list of protected classes:
1. HB 646 (Then-State Rep. Judy Ward, R-Blair County):
- A health care practitioner. (It was defined as any health care professional who has a license, permit or certificate from the Pennsylvania Department of State’s Bureau of Professional and Occupational Affairs. That included the following jobs: social workers; pharmacists; physical therapists; occupational therapists; athletic trainers, dietician-nutritionists; massage therapists; optometrists; podiatrists; physician assistants; and respiratory therapists.)
2. SB 445 (State Sen. Donald White, R-Armstrong, Butler, Indiana and Westmoreland counties):
- A health care practitioner in a health care facility. (The list would’ve included places ranging from a physician’s office to a renal dialysis center.)
3. HB 986 (State Rep. Peter Schweyer, D-Lehigh County):
- An employee of a transportation company.
‘What we’re trying to do as the police department is be reasonable’
In York County, several cases involving people who are experiencing mental health crises seem to originate out of York Hospital and Merakey, a behavioral health facility in North York.
In a statement, Philip Hess, senior vice president of WellSpan Health, and president of WellSpan Philhaven, said the company is committed to ensuring a safe, caring environment.
“Our clinicians are dedicated to providing compassionate care with respect for our patients. We recognize some may be seeking help during a mental health crisis,” Hess said. “At all times, we seek to maintain calm and our staff are trained in de-escalation techniques.”
Merakey is in the jurisdiction of the Northern York County Regional Police Department.
Northern County Regional Police Lt. Gregg Anderson, who’s in charge of patrol, said a police officer who’s dispatched to a call first makes sure that everyone is safe. He or she then investigates to determine whether a crime took place — and what needs to be done to protect the victim.
Anderson said the police look at the criteria of the crime as well as the severity of the injuries. They get the victim’s perspective and try to talk to the perpetrator.
Law enforcement, he said, takes the totality of the circumstances into account.
“What we’re trying to do as the police department is be reasonable,” Anderson said. “Apply the law correctly — there’s different gradings of it — and get it right the first time and make the appropriate charge.”
York City Police Chief Troy Bankert said law enforcement looks at the totality of the circumstances and uses its discretion.
Said Bankert: "It is not automatic."