By Nancy West, InDepthNH.org

CONCORD – A transgender patient at the Secure Psychiatric Unit at the men’s prison says the Department of Corrections is trying to “evict” her for standing up for her constitutional right to mental health treatment at the facility.

Kevin Gearhart, 52, who goes by the name Kelly now that she is transitioning to female, said the department wants her to withdraw her not guilty by reason of insanity plea that was approved by a judge more than a year ago and plead guilty to criminal charges instead.

Gearhart of Manchester said she is being harassed for complaining to the press and for recently filing lawsuits in state and federal court against Corrections Commissioner Helen Hanks and the Department of Corrections claiming abuse and lack of mental health care at the Secure Psychiatric Unit.

“Patients in the SPU although not convicted are subject to DNA collection. Patients like the felons are subjected to shackles, tasers, strip searches and extended segregation,” Gearhart said in the lawsuits.

The filing says the Secure Psychiatric Unit does not comport with well-understood behavioral health treatment principles. She represents herself and gets some help from Advocates for Ethical Mental Health Treatment.

Gearhart is considered a patient rather than an inmate because she was civilly committed for five years as being not guilty by reason of insanity under state law. The criminal charges of receiving stolen property and escape were dropped and it will be up to a judge to decide when she can be released.

“They are just making me have to leave this institution to get the treatment I’m supposed to be getting here,” Gearhart said. “They are trying to evict me.”

Her public defender and the prosecutor are negotiating the plea agreement, Gearhart said.

“I need psychotherapy for gender dysphoria and I need hair removal for my face. They are making me go to the street to seek it,” Gearhart said.

However, Gearhart has no plans for a place to stay or how she would receive treatment if she is released. She was diagnosed with gender dysphoria and severe depression with psychotic features and said she receives treatment for personality disorder, but not from professionals who are trained in transgender matters.

She has tried to commit suicide many times over the years and had hoped this not guilty by reason of insanity plea would finally help get the treatment she needs, Gearhart said.

Secure Psychiatric Unit

At the Secure Psychiatric Unit, patients are locked up with people who haven’t committed a crime, but are too dangerous to house at the less secure New Hampshire Hospital, the state’s psychiatric hospital. They are also incarcerated with convicted criminals who are mentally ill.

The Secure Psychiatric Unit has been under fire for holding non-criminals who are mentally ill  – sometimes for years – and for housing a small number of women on the prison campus with about 1,400 men.

At SPU, Gearhart is prescribed female hormones and issued female underwear, but is incarcerated in a unit with men. The unit is on the grounds of the state prison and staffed by corrections officers. Gearhart said a psychiatrist comes by for 10 minutes every week.

The Secure Psychiatric Unit has been under fire for many years, but legislative efforts to end the practice of commingling the different populations in a non-hospital, prison setting have failed. This session, advocates such as Rep. Renny Cushing, D-Hampton, are seeking to require the department to have SPU accredited as a mental health facility, but since 2009, the prison itself hasn’t sought any outside accreditation.

Paula Mattis,  director of Medical and Forensic Services at the New Hampshire Department of Corrections, said at a legislative hearing last month that the unit has 60 beds, but is usually only a little more than half-filled. Mattis listened at the hearing but didn’t respond as family members complained about SPU.

“We would love it if the legislature saw fit to provide us with the resources for preparation and for  actual accreditation. We would be very happy to work towards that. I’d love to work towards that,” Mattis said.

Department of Corrections response

Jeff Lyons, spokesman for the Department of Corrections, said they would have no comment on Gearhart’s lawsuits.

“I can tell you that the NH Department of Corrections doesn’t have the legal authority to ‘take back her (not guilty by reason of insanity plea.)’ Any decisions relating to not guilty by reason of insanity can only be ordered by a court,” Lyons said.

Lyons said Gearhart is on the waiting list to be transferred to the New Hampshire Hospital.

“I believe in December 2017 Director Mattis told you that Ms. Gearhart requested a transfer to New Hampshire Hospital and that she was on the waiting list for placement. However, the transfer can only occur when NH Hospital has an available bed.”

Desperate to get out

Gearhart said she may go ahead with changing her plea because she is so desperate to get out of SPU even though she was delusional at the time of her crimes, which involved being a passenger in a stolen car and wandering away from Valley Street Jail.

Her escape in December 2016 was captured on video and played on WMUR as she walked along a busy Manchester street wearing shackles and an orange jumpsuit. Gearhart said she was heading to court after being left behind when a transport vehicle was taking her and other prisoners to court.

She thinks it will take another 18 months, if ever, for a bed to free up at the New Hampshire Hospital. The hospital has also been criticized for not being able to accommodate the dozens of mentally ill people who wait every day in general hospital emergency rooms because there isn’t a free bed at the psychiatric hospital.

In the meantime, Gearhart believes the treatment is inhumane at SPU.

“We’re not supposed to be punished here,” Gearhart said. “We are sent here for treatment.”

Still NGRI

Gearhart says she still believes the NGRI was appropriate because she was delusional at the time she committed the crimes. She told InDepthNH.org that she has a history of petty crimes related to her mental illness.

“I’m not doing much. I’m sleeping a lot,” Gearhart said by phone recently.

The harassment has intensified, she said, after recently being transferred to another unit.

“They are treating me like a maggot,” Gearhart said. “The inmates get twice as many privileges. The inmates are threatening me. They don’t like transgenders.”

When the guards call her Miss Gearhart, one inmate says, “He’s not a misses, only males are kept here.”  She said there have been attempts to assault her and inmates sometimes expose themselves to her.

She says she is often targeted for disciplinary write-ups that she fights, but doesn’t get due process. Complaints to the state attorney general under the Patients Bill of Rights go unanswered, she said.

The lawsuits also claim:

• Imprisonment in SPU does not allow for the restoration of competency due to its inadequate treatment facilities.
• SPU has no clinical parity with New Hampshire Hospital. Treatment and resources available to those in New Hampshire Hospital are not available to those incarcerated at SPU. This inhibits recovery and restoration from serious mental illness.
• Plaintiff challenges the practice of sending civilly-committed NGRI patient to a prison with unequal, inadequate, treatment facilities in violation of ADA Title II. As an NGRI, I need acceptable treatment.
• Patients in the SPU are subjected to the same restrictions and conditions as convicted felons that also are housed there.

Transgender Patient: Secure Psychiatric Unit Is About Prison, Not Treatment