Tips from the Bench
New Directions for Mentally Ill Defendants
By Judge Cheryl Albrecht
Multnomah County Circuit Court
The new reality is that the largest mental health facility in many communities is the local jail. A 2014 Multnomah County Corrections Grand Jury found that about 43% of inmates jailed in Multnomah County suffer from some sort of mental health disorder. Nationally, 15-17% of people booked into jail are experiencing active symptoms of a serious mental illness. About 75-80% of those also have a co-occurring substance abuse addiction.
Mentally ill inmates are more likely than other inmates to be homeless, victims of abuse, and to suffer from chronic physical health impairments that can shorten their life by as much as 30 years. Institutionalization tends to exacerbate their symptoms, while lack of community resources tends to prolong incarceration. Higher rates of recidivism, especially as to lower level "community nuisance" offenses, helps create the class of defendants sometimes referred to as "frequent flyers." The disproportionate rate of incarceration for this population prompted the U.S. Department of Justice in a 2014 report on Oregon's mental health system to call for greatly enhanced community services.
Jail isn't the only governmental institution where mentally ill people land. The number of people admitted to Oregon State Hospital (OSH) who were found unable to aid and assist in their defense under ORS 161.360 increased 142% from 2010 to 2015. Between 2012 to March 31 of this year, OSH saw 1,944 admissions of those defendants, with 238 being admitted twice or more. When you consider that a person charged with a felony can stay up to three years on one charge, and that people also come into OSH for evaluations, civil commitments, and Guilty Except for Insanity (GEI) holds, it's easy to see how fast the hospital can fill up. Consider also that it costs more than an astounding $340,000 annually to treat a single patient and $250,000 for a forensic patient, while Assertive Community Treatment teams of psychiatrists, nurses and social workers that provide services to individuals in the community cost $15,000.
Officials have embarked on efforts in the last few years to change this dynamic. Beginning in 2012, the legislature enacted changes to address OSH crowding. One change was to improve the quality of aid and assist findings by requiring evaluations performed under ORS 161.365 to meet certain minimum requirements and to be conducted by certified evaluators.
The legislature also amended ORS 161.370 to require restoration of a person's ability to aid and assist while remaining in the community unless the person is considered too dangerous or if appropriate resources are not in place. In 2015, the legislature went even further, enacting HB 2420 to require that a court with reason to doubt the defendant's fitness to proceed shall order a community mental health program director or designee to consult with the defendant to determine whether services and supervision necessary to safely restore the defendant's fitness to proceed are available in the community.
The state, the courts and the Multnomah County Forensic Diversion team, often called the "370" team after ORS 161.370, are still developing procedures to implement this legislation. A proposed OAR would require county mental health teams to complete a "2420 consultation" and submit written findings to the court in a standardized report within seven days of a court order for a consultation. There is no local or state form order for consultations as of this writing. Until procedures are developed, attorneys with aid and assist clients should alert the forensic diversion team as soon as possible that a 2420 consultation is needed by emailing the team at email@example.com or faxing a request to 503.988.6325. If an order is obtained, that should be emailed or faxed.
Once the team receives notice, a qualified mental health professional conducts the evaluation. If there is a court order, the evaluator submits a findings report. In the absence of a court order, the information is not disclosed to the courts as it is HIPAA-protected information. Currently, the team is working to complete the consultation within four to five working days. The goal of the consultation is to identify the least restrictive placement that will provide clients with the level of care they need to stay safely in the community.
If the defendant is in jail custody, then the 370 team may work with an officer from Pretrial Release Services to coordinate supervision while on release. The supervision plan may require the defendant to attend treatment with a care provider, receive referrals for medication, or undergo "legal education" to learn about their rights and how trials work. A Rules and Advisory Committee is getting underway to develop uniform requirements and practices throughout the state.
Chief Criminal Judge Ed Jones encourages attorneys to assist this process by screening clients as quickly as possible for aid and assist concerns and to identify housing options and community-based resources. Housing options in particular are important as the pool of affordable housing continues to shrink.
Locally, Multnomah County is working to prevent mentally ill people from coming to jail in the first place. The county operates a 24-hour Mental Health Crisis & Information Call Center (503.988.4888) that works with local police and hospitals to help triage people suffering a mental health crisis to the most appropriate clinical setting. There is no 24-hour drop off center, but there may be a referral to the Crisis Assessment and Treatment Center, a locked facility that stabilizes people for up to 14 days who do not need hospital-level care. A 2015 report for the county's Mental Health Jail Diversion Project explores strengths and weaknesses of the local system and compiles recommendations. You can access a copy of the report here: https://multco.us/file/38259/download.
Once a defendant becomes able to aid and assist, attorneys can explore options including Mental Health Court, other treatment courts and supervision by the Department of Community Justice's Mentally Ill Offender Unit. Information on specialty courts is available here: http://courts.oregon.gov/Multnomah/General_Info/Criminal/pages/ProblemSolvingCourts.aspx?#mhc5. Note that I am now the Mental Health Court Judge. Attorneys can call Judicial Assistant Vanessa DeJesus at 503.988.3835 to refer clients for a hearing.
Attorneys can expect many more developments in this area in the future, but as always, careful planning and communication are key to helping your mentally ill clients navigate the justice system.