A federal judge in Portland indicated Thursday he would sign off on new changes to the Oregon State Hospital’s admissions and discharge procedures for people charged with crimes who are deemed too mentally ill to assist in their own defense or stand trial.
For years, the state-run psychiatric hospital has been over capacity. It regularly leaves people with serious mental illnesses languishing in local jails, well past court-ordered admission deadlines established decades ago to protect their constitutional rights.
These proposed changes stem from a major shift last year that limited the amount of time people could stay at the hospital — a decision that drew criticism from district attorneys, state court judges, local governments and private hospitals. The idea was that moving people through treatment more quickly would reduce the time people spent in jail before being admitted. But critics have said the timeline simply allows for the release of seriously mentally ill people with no institutional support.
During a hearing Thursday, Senior U.S. District Court Judge Michael Mosman said he planned to issue an order next week adopting the changes the parties have now agreed on. He also denied a motion from Marion County to intervene as a party in the long-running case.
“This is not a good outcome for the county,” Marion County Counsel Jane Vetto told Mosman. “It was the best of a bad situation.”
Mosman acknowledged that “there was no path forward” that didn’t produce challenges as the state, justice system and local communities attempt to balance public safety and the constitutional protections for people with mental illness charged with crimes. Mosman told Vetto some of the challenges date back “longer than you’ve been an attorney.”
Broadly, these new changes before Mosman provide more flexibility. They would allow some patients charged with serious crimes an avenue to potentially remain at the hospital longer. They would also prevent those charged with the lowest level crimes from ever going to the state’s psychiatric hospital in the first place. The agreement, outlined in federal court records, is the result of weeks of settlement negotiations between disability advocates, state health officials, and those same parties frustrated by last fall’s agreement.
An outdoor area inside the Oregon State Hospital in Salem, March 8, 2023.
Kristyna Wentz-Graff / OPB
In September, Mosman agreed to sweeping changes that reduced the amount of time people known as “aid and assist” patients could stay at the psychiatric hospital to a maximum of 12 months and only for those charged with the most serious crimes. That agreement, now referred to as the “Mosman order” was the result of years of litigation between Disability Rights Oregon and Metropolitan Public Defender, who sued the Oregon Health Authority, which runs the state hospital, over the delay people faced getting admitted.
In 2018, disability advocates noted the state was regularly violating a decades old federal court injunction that requires the State Hospital to admit people charged with crimes within seven days of a state court judge finding them unable to aid and assist in their criminal case. Advocates argued that a failure to do so violated the defendant’s constitutional rights.
But throughout 2019 and 2020, the number of people waiting more than seven days grew and the litigation intensified.
Late in 2021, Mosman agreed to a court-appointed expert to help the health authority and the advocates make headway. Last September, they did and presented Mosman with an unopposed motion to limit the amount of time people can stay at the hospital.
The order granted 90 days for people charged with misdemeanors, six months for non-violent felonies, one year for violent charges that carry mandatory minimum sentences under Ballot Measure 11. After, the plan called for the hospital to discharge patients back to the county jails they came from where local prosecutors and judges would have to determine how to proceed.
A dining area at the Oregon State Hospital in Salem, March 8, 2023.
Kristyna Wentz-Graff / OPB
Days after the Mosman order, district attorneys in Marion, Washington and Clackamas counties moved to intervene in the case. Local prosecutors were concerned about the prospect of having to drop charges and release defendants, particularly those charged with violent person crimes who were still unable to aid in their own defense.
The elected prosecutors were joined by the state’s largest private hospitals, several counties and state court judges.
This latest proposal is the result of months of litigation and negotiation between all of those groups and the original parties to the lawsuit.
The tweaked proposal allows some patients who still cannot face trial or plead due to their mental illness the ability to stay up to 30 additional days, if it means they can get placed in an appropriate housing situation, rather than being released back to jail or the streets. For cases involving people charged with serious crimes, district attorneys could petition to have those patients remain at the hospital a few additional months. But prosecutors would have to show that the additional time would have a likelihood of success, making the patient mentally stable enough to plead guilty or go to trial.
One thing all parties agree on is that it’s unclear whether this latest proposal will give the state hospital the capacity it needs to admit people faster, while also providing the flexibility necessary to ensure public safety. What is clear, according to the parties, the state needs more levels of care beyond what exists now.