Ryan F. Johnson

Lynne Saxton came to Oregon lawmakers in late May with a calm but urgent plea.

For years, the state’s top health official had watched as the mental health beds she controls at the Oregon State Hospital (OSH) were increasingly filled with a tricky population—criminal defendants charged with minor crimes, who are not mentally fit to face those accusations.

Those patients were, and are, streaming into the state hospital courtesy of judges in counties throughout Oregon. Saxton wanted to press lawmakers to give state officials more say in the matter.

“With a limited number of beds, we should reserve admission to OSH only to those who actually need hospital-level care,” Saxton, the director of the Oregon Health Authority (OHA), told members of the House Judiciary Committee on May 30. “It is not the appropriate place for people who have been arrested for public urination, general nuisance crimes, or drug-induced behaviors.”

The testimony landed with a thud. Lawmakers moved on to other matters immediately after Saxton spoke, and her proposal wasn’t adopted.

But the issue is far from settled. Saxton’s got plenty of company in crying foul over the way Oregon uses its limited mental health resources to slap hugely expensive Band-Aids onto criminal defendants. Those concerns have led to some progress in Multnomah County, but critics say Oregon’s still spending far too much on an often-ineffective system of care—with no end in sight.

“Of all the ways you can deal with a person who’s got mental illness, this is probably the worst,” says Bob Joondeph, director of the advocacy group Disability Rights Oregon.

At issue is a process commonly known as “aid and assist.” It’s one of several ways a mentally ill individual might wind up admitted to the state hospital’s 578-bed campus in Salem.

When a defendant is accused of a crime but potentially incapable of understanding the charges against them, Oregon judges have the ability to have an evaluation completed on the person’s mental fitness. Depending on the outcome, the judge might send the defendant to the state hospital to be treated until they’re well enough to aid and assist in their own defense.

Critics—and there are many—say the process gives defendants the bare minimum of care, stabilizing them only to a point and frequently leaving them worse off once they’re released. But the tool is being used more often than ever.

In 2011, the state hospital held an average of around 100 patients a day for aid and assist treatment, according to Saxton. By 2016, that average had shot to nearly 219. That’s roughly 38 percent of the Salem hospital’s budgeted capacity, though the facility has other pressing needs—like delivering care to severely ill people who have been civilly committed to state custody, or convicts who are “guilty except for insanity.”

As a result of the influx of aid and assist cases, Saxton told legislators in May, “people who have been civilly committed end up waiting in the emergency department of our hospitals for weeks before a bed at OSH is available.” The Mercury highlighted that problem in a story earlier this year [“Crisis Averted?” Feature, May 10].

At a time when Oregon’s got serious budgetary concerns, these cases also come with a steep price tag. According to a Mercury analysis, a typical felony aid and assist case sent to the state hospital costs taxpayers more than $140,000. Patients facing misdemeanor charges—more than 40 percent of all aid and assist admits from January 2016 to April 2017—cost nearly $122,000, on average. 

“We see people being funneled into our most restrictive and most expensive treatment setting for issues that really could be stabilized in the community,” says Sarah Radcliffe, an attorney for Disability Rights Oregon who scrutinizes mental health care in the state. “It’s a waste of our state’s resources and it’s really disruptive to individuals.”

What’s more, that expensive treatment often doesn’t work.

Of the 1,361 aid and assist patients discharged from the state hospital between January 2015 and May 2017, nearly one-fifth had been re-admitted to the state hospital as of June 8, according to data released to the Mercury. The majority of those “re-admits,” some 67 percent, were once again sent back to the hospital on aid and assist orders—more than a quarter of them within three months of their last release.

In aid and assist cases, “all you’re doing is trying to restore someone to capacity just enough that [you] can prosecute,” says Chris Bouneff, executive director of the National Alliance on Mental Illness of Oregon (NAMI). “Once that person is adjudicated one way or the other, goodbye. [They] will cycle.”

Judge Edward Jones has been working to improve Multnomah County’s large role in that cycle. (Between January 2016 and April 2017, roughly 25 percent of the aid and assist cases referred to the state hospital came from here.)

Upon taking the reins as Multnomah County’s chief criminal judge in November 2015, Jones decided mental illness would be a central priority.

“Call it a personal sense of embarrassment,” the judge told the Mercury. “When I started, I had a list of things that deserved attention. This mental health thing is chief among them.”

Jones began sifting through data. By examining numbers from 2015, he determined that aid and assist cases were being sent to Salem by a wide range of judges, with virtually no consistency as to how the decision was being made.

What’s more, Jones learned prosecutors were insisting on prosecuting mentally ill individuals for low-level offenses, making it necessary to send them to Salem. He brought those findings to the Multnomah County District Attorney’s Office.

“We looked at who was there, and how long they were staying,” says Chuck Sparks, a chief deputy district attorney. “It was like, ‘Yes, he has a good point. We’re going to start focusing on these.’”

What emerged late last year was a model that’s the first of its kind in Oregon.

These days, pretty much any case where attorneys believe a defendant’s mental health should be evaluated goes through Jones, who presides over a special docket specifically for aid and assist cases on Tuesday afternoons.

Each week, the judge works with the same small cadre of prosecutors, public defenders, and county staffers, prioritizing defendants who need mental health evaluations and determining who goes to Salem, who stays in jail, and who might be released from custody.

The system is an improvement over the status quo, advocates say, but the limits of progress also become apparent when watching the process play out.

On a Tuesday in mid-June, Jones takes up the cases of eight defendants, in hearings that are by turns heartbreaking, frustrating, and mundane.

One inmate—a 27-year-old woman who’s accused, among other things, of stealing a truck from a construction site—is unkempt and seems confused when deputies bring her over from the jail. The woman has been refusing to speak with county social workers or her public defender while in custody, but opens up under Jones’ patient questioning.

Has she had mental health complications in the past? “It’s been an issue,” she eventually replies, then begins bawling while recounting an episode in which she was found incoherent, and had to ask a stranger to call an ambulance.

“It’s been happening,” she says. “It’s happened since I was little.”

A month later, after the woman undergoes a mental health evaluation, Jones will send her to the state hospital. Due to the seriousness of her charges, hospital staff will have up to three years to get her ready to face trial.

Another case is more vexing.

A 27-year-old named Benjamin Porter is brought into the courtroom. He’s facing burglary and theft charges stemming from a report that he broke into his parents’ house and stole more than $300 in order to buy drugs (court documents indicate he doesn’t much discriminate as to what kind).

This has been a pattern for Porter, to the extent that his parents have secured a restraining order. It’s also not the man’s first time in front of Jones. Upon his arrest in May, Porter was brought before the court, found incapable of assisting in his own defense, and sent to Salem.

The trip didn’t last long. Hospital officials sent the man back to Multnomah County once his “drug-induced psychosis” had abated. But with treatment beds in extremely short supply in Multnomah County, he was let loose.

Now Porter is back in court, with a county consultation once again pointing to drug-induced issues that should wear off. But his parents, who’ve shown up to the hearing, are insistent.

“He can’t be released to the community,” Porter’s father tells Jones. “We’ve been down this road a million times. He needs to go back to the state hospital, get back on meds.”

It’s a dilemma. Jones can send the man to Salem, knowing that he probably doesn’t need hospital-level care, or keep him in jail. There aren’t any secure beds available to treat him safely in the community, a county staffer tells the judge.

Jones defaults to the state hospital. “I’m going to do the [aid and assist] even though I know he’ll be back fairly quickly,” he says. Then the judge turns to Porter’s parents: “Our community really doesn’t provide a place for people with his set of problems. I understand that’s a problem for you. It’s also a problem for me.”

It’s a problem for the rest of us, too. Porter’s stay in the state hospital will cost taxpayers nearly $1,100 per day, with little hope that the care he receives will solve his addiction issues.

To be clear, Multnomah County is improving on aid and assist cases. These days, prosecutors are more willing to drop charges for low-level offenders (though not as willing as Jones and advocates at Disability Rights Oregon would like). Staffers with the Multnomah County Forensic Diversion Program are also constantly exploring other options before someone is sent to Salem (the county claims this program saves $2 million per year by keeping people out of jail or the hospital).

“We try to exhaust every other option,” says Jean Dentinger, who heads up that effort.

Still, the state’s largest county is a primary driver of these cases, and the issue Jones explained to Porter’s parents remains. Multnomah County maintains just a dozen beds for defendants with mental illness to receive care locally. The county sometimes will secure motel rooms or single-room occupancy units for defendants who are cooperative, but it’s still a pittance in a county of 776,000 people.

It all leads to one conclusion, reached by virtually everyone the Mercury spoke with for this story: Help isn’t going to come from the state hospital. In order to treat the mental health issues that are increasingly visible in Portland, lawmakers and local officials need to create new options locally.

“We need more of everything,” says Dentinger. “More beds. More along the continuum of drug and alcohol treatment. We just need more.”