Court rulings put pressure on Oregon State Hospital

PORTLAND, Ore. (KGW) — Helping people who suffer from mental illness and have committed crimes is not an easy issue, particularly in the state of Oregon. Over the years, more and more people accused of committing a range of crimes have been sent to the Oregon State Hospital, the only state-run psychiatric facility, for treatment. These days there simply isn’t enough room to hold them all.

Lynne Saxton, former director of the Oregon Health Authority, sounded the alarm as recently as 2017. Testifying about the problem of overcrowding at the state hospital before a legislative committee, she makes mention of the “.370 census,” referring to the population of people charged with a crime but sent to the Oregon State Hospital because they cannot aid and assist in their own defense.

“Over the years, the numbers of these patients at the state hospital has continued to climb,” Saxton testified. “In 2011, the average daily .370 census was around 100 patients. In October of 2016, the census peaked at 248 patients.”

While some of these people undoubtedly pose a risk of harming themselves or others, that is not universally the case. Some were only charged with misdemeanors.

“At close to a thousand dollars a day, mostly general fund dollars, Oregon State Hospital is the most intensive and costly level of care in the state for adults,” Saxton continued. “With a limited number of beds, we should reserve admission to OSH to only those who actually need hospital-level care. It is not the appropriate place for people who have been arrested for public urination, general nuisance crimes or drug-induced behaviors.”

Once brought to the state hospital, these individuals could be made to stay for up to three years. And increasingly in the years since, that has filled the facility up to capacity.

In January of 2021, there were 109 “aid and assist” patients at the state hospital. By this past December, there were 394.

That prodigious growth has resulted in cascading problems. With the Oregon State Hospital all but full, other defendants unable to aid in their own defense due to mental illness often sit in jail, waiting for room to open up.

The battle over wait times

A chart from OHA shows that in January 2021, aid and assist patients were waiting in jails longer than a month. Wait times climbed again around February 2022, but have since dropped slightly to just under a 20-day wait on average.

The wait remains too long. That was the opinion of a federal court, which back in 2002 handed a victory to Disability Rights Oregon when the organization sued the state over the very same problem.

The federal Ninth Circuit Court of Appeals ruled that if people are found unfit to help their attorney defend them in court, then they should be sent to the Oregon State Hospital within seven days — not 20, and certainly not upwards of a month.

Disability Rights Oregon sued again in 2019 when wait times hit 26 days, then again when wait times peaked in 2021.

Last summer, the court ordered that Oregon State Hospital start moving patients out faster in order to make room. Patients accused of misdemeanors can now only be treated for 90 days before being released back to their county of origin, or six months for those charged with lower-level felonies and one year for Measure 11 felonies.

Prosecutors did not like this outcome one bit. They worried that dangerous criminals would be sent back their counties with little warning and no place to go. So the district attorneys from Washington, Clackamas and Marion counties banded together and asked a federal judge to change the rules. Last week, he did.

The new rules allow for more notice when someone is being released from the Oregon State Hospital. Previously it was 30 days, now it’s 60. District attorneys can also ask that a patient be held longer than the previous ruling allowed — up to three years, in some cases.

The decision will also limit who can be sent to the state hospital. Those charged with misdemeanors that are not person crimes will not be admitted and must instead be treated within their communities.

Last October, The Story looked into the case of Terri Zinzer, a homeless woman in Portland who suffers from mental illness. She was arrested after she allegedly let herself into a Portland family’s home and curled up on their child’s empty bed.

Zinzer’s story was a case study of the issues that Oregon faces with mentally ill criminal defendants. She’d been arrested many times before, primarily for misdemeanor crimes, and was repeatedly found unable to aid and assist in her own defense. She’d spent time in the Oregon State Hospital’s custody, but was either unable or unwilling to engage with community mental health providers after being released from custody — landing her right back in court after her most recent arrest.

In March, after being taken to the Oregon State Hospital for evaluation and treatment, Zinzer was found unfit to proceed. All subsequent court records have been sealed, but it appears that she has remained in the custody of the Oregon State Hospital.

The way forward

Recently, The Story’s Pat Dooris had a chance to talk with Jesse Merrithew, a lawyer representing Metro Public Defender, which joined in on the Disability Rights lawsuit. For Merrithew’s firm, it’s a matter of protecting their clients waiting in jail.

He noted that the changes made last year are helping to shorten wait times, but stressed that more needs to be done.

“It’s good that there has been movement. But it is not to the place that the Constitution requires yet,” Merrithew said. “People are still waiting approximately 15 days on average in order to be admitted to the hospital. The injunction requires they be admitted within seven days. And really the seven days should be an outside limit. We should be – beds should be available when people are committed and they should be in the hospital just as soon as logistically possible.”

Kevin Barton, Washington County District Attorney, said that the ability to ask that a patient be held longer is good for everyone.

“It’s a game changer. We’ve been asking for and I’ve been pushing for that ability to hold more dangerous felons longer — since the very beginning,” Barton said. “And when we have people who are accused of committing the most violent crimes and the hospital discharges them early, we have nowhere to safely put them — not only for their safety and the public’s safety but the victim’s safety as well. So that is a huge, huge benefit not just to Washington County but the entire state.”

Everyone seems to agree that there need to be more places for people with serious mental illness to obtain treatment. Barton thinks the state hospital should expand, alongside a greater community mental health presence. Merrithew agreed that there needs to be more support within the community.

“The big picture solution is … all the investments the legislature made into community mental health, that stuff needs to come online so that we’re not in the behavioral health crisis that we are in this state,” Merrithew said. “That will go a long way to avoiding the criminalization of mental illness, which is at the root of this problem.”

“So, by that do you mean that there needs to be more neighborhood facilities where people can go to get their mental health issues treated before it gets so bad that it just becomes a criminal issue?” Dooris asked him.

“Yeah, exactly. There needs to be places within every community in Oregon for people with mental illness to get treatment,” Merrithew agreed. “The police officers who are responding to calls for service need options other than taking people who are obviously mentally ill to jail.”