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RYAN F. JOHNSON

Oregon now has more than enough evidence to show that its methods of treating mentally ill people charged with crimes aren't working. But is the state legislature the right arena to fix the lacking system?

On Tuesday, a Washington County judge held the Oregon State Hospital (OSH) in contempt of court for violating orders to admit defendants into the facility within a week of a judge deeming them mentally unfit to stand trial (read the ruling here).

Judge D. Charles Bailey found that state officials knowingly allowed four mentally ill defendants to languish in jail for more than seven days before moving them to the state hospital. The defendants each had individual and unrelated cases. Bailey said that one of the defendants remained in jail for over a month while his "mental status deteriorated."

This ruling underscores an escalating problem within Oregon's courts system—a problem at the intersection of mental health and criminal justice.

In Oregon, judges who don't believe a criminal defendant is psychologically stable enough to "aid and assist" in their own defense can send that defendant to the state hospital until their mental health has improved. But due to an over-reliance on this so-called aid and assist program, the state hospital is regularly at capacity—forcing those deemed mentally unstable to remain in county jail until a bed at the hospital opens up.

Unsurprisingly, this kind of incarceration only exacerbates a person's mental health issues. That's why in 2002, a federal court ordered the state to relocate these defendants to the state hospital within seven days of a judge's ruling. It's an order that's been routinely ignored by state officials.

Bailey cited this order to explain his ruling—and he didn't accept the state's argument that there simply wasn't enough space or staff at the state hospital to accept these defendants.

"OSH has known about the problem for years," wrote Bailey. He added that other Oregon case law has decided that "non-compliance with a court order... cannot be blamed on 'lack of funds, staff, facilities....'"

The state healthy authority disagrees with Bailey's ruling, and plans on appealing. But state lawmakers are poised to follow the judge's guidance.

“The current situation at the Oregon State Hospital is absolutely unacceptable," wrote Rep. Jennifer Williamson and Sen. Floyd Prozanski, who respectively chair the House and Senate judiciary committees, in a Wednesday press release. "Failure to properly address this issue has led the state to a perilous point."

Their joint statement announced a plan to strengthen Senate Bill 24, a related piece of legislation that is currently working its way through the legislature.

SB 24 would require judges consider whether or not a mentally unstable defendant could be treated through a community mental health program—rather than the state hospital—before returning to stand trial. The legislation aims to shift county courts' reliance on the state hospital onto local, small-scale mental health treatment centers that have been deemed more effective (and humane) by mental health advocates.

But mental health advocates don't believe SB 24 goes far enough to address the myriad problems within the current system.

"As a whole, it's not making much of a change," says Sarah Radcliffe, an attorney with Disability Rights Oregon (DRO). "The bill is a step in the right direction, but it won't solve the problem on its own."

That's because, just like the state hospital, many of these community programs don't have the kind of funding or capacity to take on new patients. That means even if a judge determines a person should be served by a community health program, that program might not be able to take them in.

This leaves defendants in the same place they'd be in if a judge ordered them to the overcrowded state hospital: Languishing in county jail.

"I know the intent of the bill is not for people to be stuck in jail—no one wants that," says Radcliffe. "But if the state hospital is not an option and the community programs are full, that's where they'll end up."

Radcliffe says the solution lies in the state's investment in community-based mental health resources.

"That's hard to legislate," she says. "That means more funding and more accountability, both from the [state] and the counties."

In Wednesday's press release, Williamson and Prozanski promised to amend SB 24 to "significantly restrict the ability of individuals who go through municipal courts or are charged with misdemeanors to be sent to the state hospital."

It's still unclear, however, how the legislators plan on doing that.

"That is still a bit to be determined," wrote Aaron Fielder, Williamson's communications director, in an email to the Mercury. He said the lawmakers will have a "clearer picture" on what the specific amendment will look like in the next week or so.

"The idea is to limit the ability of the courts to send people who have violations or are low-level offenders to the state hospital," Fielder wrote. "There is a subsequent effort to ensure that local mental health providers have the resources they need to evaluate and treat individuals, as needed."

Radcliffe says DRO will be able to offer feedback on the pending amendment. She's hopeful the changes will address the organization's overarching concerns with the bill.

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The legislature has until June 30 to update and pass SB 24. But the pending bill isn't the only tool that could pressure the state into improving the way it treats criminal defendants.

Next Tuesday, a judge will hear arguments in a federal lawsuit filed by DRO and Metropolitan Public Defenders against the state hospital. The organizations claim the state hospital is violating the 2002 court order to admit "aid and assist" defendants to the hospital within seven days. The case is undoubtedly strengthened by Bailey's new ruling that came to the same conclusion.

"The big picture," says Radcliffe, "is that the criminalization of mental illness is the core civil rights issues of this moment. We're taking whatever steps we need to fight it."