By Gordon R. Friedman

The Oregonian (TNS)

Oregon’s long delays in admitting criminal defendants in need of mental health treatment to the state psychiatric hospital — in violation of a federal court order — has spurred advocacy group Disability Rights Oregon to warn it may sue to enforce the order if wait times are not pared back.

“These delays cannot continue,” Sarah Radcliffe, the group’s mental health attorney wrote in an April 9 letter to Allison Banwarth, an assistant attorney general, and other state officials. The Oregonian newspaper obtained the letter Friday.

Anyone charged with a crime has a right to be lucid enough to understand the charges and assist their defense. Cases are put on hold if a defendant is too mentally ill to proceed. Judges, in turn, may order defendants to the Oregon State Hospital for psychiatric treatment until they are healthy enough to stand trial.

The rate of that happening has skyrocketed in recent years as a crisis of mental illness and drug abuse has proliferated on Oregon streets and prosecutors have charged high numbers of homeless mentally ill people with crimes, many of them minor offenses.

A logjam of cases snaking through the courts, and judges’ orders that defendants receive psychiatric treatment, has caused a long waitlist for entry to the mental hospital. Until they are admitted, defendants remain locked in county jail cells.

If long waits continue, Radcliffe wrote, her organization will “be required to enforce the federal court order” establishing a seven-day deadline for granting entry to defendants ordered to the Oregon State Hospital for trial fitness treatment.

The order to which Radcliffe referred was issued in 2002 by the late Owen Panner, a federal district court judge in Oregon, who declared that lengthy jail stays for defendants as they await entry to the Oregon State Hospital for treatment are illegal.

“This court concluded the indefinite imprisonment of persons deemed unfit to proceed and in need of treatment is unjust,” Panner wrote in the order, saying there was “no rationalization that passes constitutional muster” for allowing defendants to languish in jails.

He set a strict seven-day deadline for the Oregon State Hospital to admit a defendant once under a judge’s order for treatment.

The state appealed Panner’s ruling. But the 9th U.S. Circuit Court of Appeals upheld it, rejecting the state’s arguments that it could not promptly grant entry to defendants. The court did so citing “the undisputed harms that incapacitated criminal defendants suffer when they spend weeks or months in jail waiting for transfer.”

As part of its coverage of mental illness and criminal justice, The Oregonian investigated compliance with Panner’s ruling and discovered 202 defendants had been confined to jails beyond the seven-day timeline over 13 months. None of the 202 had been convicted on their charges at the time of their unlawfully long jail stays. That situation sparked Radcliffe’s letter. It was Disability Rights Oregon that originally sued the state on behalf of mentally ill defendants in a case that resulted in Panner’s ruling.

Asked to comment on her letter, Radcliffe issued a statement: “We’re very concerned about delays in accessing competency restoration services. It’s an issue that we’re tracking closely. There is potential for reform through the legislative process. There’s also the potential for litigation.”

Rebeka Gipson-King, a spokeswoman for the Oregon State Hospital, said via email, “Our job is to provide the best care and treatment for some of the most vulnerable people in Oregon. In Oregon, we know the criminal justice system isn’t the right place for people with mental illness to get the care they need. That’s why the Oregon Health Authority is working with the Legislature and counties to give more people with mental illness better treatment options close to home.”

The state already came close to being found in contempt of court Wednesday by Washington County Circuit Court Judge D. Charles Bailey for ignoring Bailey’s order to admit a defendant to the state hospital for a psychiatric evaluation. Bailey had invoked Panner’s seven-day timeline in his order to promptly admit the defendant, Carlos Zamora-Skaar, who has been charged with burglary and other crimes.

Oregon Department of Justice lawyers argued in response that the seven-day timeline did not apply and was unenforceable. They said that forced compliance would overload the psychiatric hospital’s facilities and budget as defendants on the waitlist flood in as patients.

The judge did not ultimately hold the state in contempt, noting that the need for a psychiatric evaluation of Zamora-Skaar was no longer necessary because he had so obviously degenerated during his long wait in jail. Bailey ordered him to the state hospital for treatment and left the door open to finding the state in contempt in the future.

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