by Mark Wilson

"The Oregon State Hospital has known about this for 16 years,” criminal defense attorney Amanda Thibeault said as she fought back tears. “I feel like I’m failing my client. For too long the Oregon legislature and the agencies it funds have placed other priorities ahead of protecting the rights of the most vulnerable in society, including persons like the defendants in this contempt matter.”

Mentally ill criminal defendants in Oregon must be afforded treatment that guarantees they are competent to stand trial. If the trial court questions a defendant’s competency, ORS 161.365 authorizes the court to order a 30-day commitment to the Oregon State Hospital (OSH) for observation and assessment. The law requires transfer to OSH within seven days of a court’s commitment order.

When a court finds that a criminal defendant is unable to aid and assist in his or her own defense, it may order the defendant’s involuntary commitment to OSH under ORS 161.370. During that commitment, OSH is required to treat the defendant in an attempt to restore his or her competency to stand trial.

For many years, mentally ill criminal defendants languished in Oregon jails for lengthy periods of time awaiting admission to OSH. [See: PLN, April 2016, p.46]. The problem became so bad that the Oregon Advocacy Center filed suit against hospital officials.

In 2002, an Oregon federal district court held that the state’s statutory scheme imposed a duty on OSH to accept a defendant once a circuit court ordered the defendant’s commitment. The federal court found that hospital officials did not “seriously contest” that jails were inferior to OSH, and that defendants denied OSH placement suffered harm.

Holding that a “lack of funds, staff or facilities cannot justify” OSH’s failure to comply with the law, the federal court ultimately concluded that mentally ill criminal defendants have a due process right to be transferred to OSH within seven days of a trial court’s commitment order. It also found that OSH offered “no rationalization that passes constitutional muster” for failing to comply with its duty under Oregon law and the U.S. Constitution. See: Oregon Advocacy Center v. Mink, 2002 U.S. Dist. LEXIS 29297 (D. Or. 2002).

As previously reported in PLN, the Ninth Circuit affirmed the district court’s decision. Citing “the undisputed harms” to mentally ill defendants who spend “weeks or months in jail waiting for transfer,” the appellate court found “that OSH’s significant, ongoing violation of substantive and procedural due process are sufficient to support the district court’s injunction.” See: Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003) [PLN, April 2004, p.36].

OSH officials complied with their statutory and constitutional duties for a few years following Mink. In 2018, however, Oregon set a new record for the number of criminal defendants who were too mentally ill to stand trial.

In February 2019, The Oregonian/OregonLive released investigative findings that more than 200 mentally ill criminal defendants remained confined in jails for many weeks beyond the seven-day deadline imposed by Mink. Of those, 63 were charged only with misdemeanors, which generally result in little or no jail time. Typically, their mental state deteriorated dramatically as they languished behind bars.

Arguing that OSH’s ongoing inordinate delays created “a medical and moral emergency,” lawyers with Disability Rights Oregon (DRO) and the Metropolitan Public Defender’s Office – two of the original Mink plaintiffs – moved to reactivate that caseon May 10, 2019. OSH’s delays not only deprive mentally ill criminal defendants of their due process rights, wrote attorney Jesse Merrithew, they also create the risk they will suffer injury by delaying treatment for their mental health conditions.

Merrithew and DRO legal director Emily Cooper filed motions to hold OSH in contempt of court, urging the federal judge to “act quickly to end the suffering, mitigate the damage, and prevent future violations.”

OSH officials admitted they were not complying with the law. Yet they argued they simply could not comply for the same reasons the Mink court had rejected – budget shortfalls and other administrative problems.

“Oregon State Hospital is facing a capacity crisis,” claimed Patrick Allen, director of the Oregon Health Authority (OHA), which runs the hospital. “This crisis stems from the increasing criminalization of people who are mentally ill and homeless.”

Allen told Oregon’s chief federal district court judge, Michael W. Mosman, that OSH has a “comprehensive plan” to bring the hospital back into compliance with court orders, but needs “legislative support.” Cooper and Merrithew rejected OSH’s efforts as insufficient.

“We want immediate relief and a long-term plan so we’re never back here again,” Cooper said. She was hoping for a “broad” ruling that will reshape Oregon’s mental health care system for criminal defendants. And she knows what that looks like, as she was the lead attorney in a Washington State case involving similar claims that resulted in an $85 million fine and a settlement that mandated comprehensive and lasting changes.

While Judge Mosman acknowledged that it was “a given” the state had not complied with court orders, he questioned whether they had taken sufficient steps to address the deficiencies. Acknowledging “systemwide” mental health care problems, Mosman recognized that mentally ill defendants languishing in jails was “deeply serious.”

OSH was represented in a parallel state court contempt proceeding by Assistant Attorneys General Craig Johnson and Sheila Potter. Like Allen, Johnson admitted that OSH was routinely violating the rights of mentally ill criminal defendants. Contrary to Allen’s claimed “comprehensive plan,” however, Johnson revealed that nobody in state government knows what to do about it. “We have no solution” for more than 40 mentally ill defendants currently awaiting admission to OSH, he admitted.

Washington County Circuit Court Judge D. Charles Bailey was not impressed. “What are we supposed to do with him,” Bailey asked, pointing to defendant Carlos Zamora-Skaar, who stood shackled near the jury box, mumbling throughout the court proceeding.

“I don’t have an answer to that, judge,” Johnson replied. He claimed that placing more defendants at OSH would be “catastrophic.”

“As if this isn’t catastrophic,” Judge Bailey scoffed, referring to Zamora-Skaar’s deteriorating mental state at the jail.

Johnson blamed the Oregon legislature and said OSH was “out of ideas.” Bailey seemed to agree, suggesting that state lawmakers had possibly acted with “malice” in failing to adequately fund Oregon’s mental health care system. “I just want to know why my orders are not being complied with,” he said.

When OSH failed to offer a reasonable answer, Judge Bailey issued orders in the cases of Zamora-Skaar and three other mentally ill defendants on June 3, 2019, holding OSH in contempt of court. He apparently hoped that a contempt finding might persuade the legislature to “do the right thing.”

“While OSH ignored the court’s [ORS 161].365 order and Mr. Zamora-Skaar sat in the Washington County Jail, Mr. Zamora-Skaar [sic] mental status deteriorated from the court being unsure if he was or was not competent, to defendant shouting delirious statements while the court tried to conduct hearings, that is, clearly not competent,” Bailey wrote.

“The evidence clearly demonstrated that OSH did not comply with the orders by accepting the defendants within seven days of the orders being signed,” he added. Moreover, “the evidence was clear that OSH voluntarily and openly chose not to comply with the orders, thus, is in contempt of court.”

However, Judge Bailey proved to be all bark and no bite when he undermined the purported intent of his contempt order – to compel state lawmakers to take action – by sanctioning OSH with a paltry fine of “$100 a day for each day past the seven days ... given to them to comply with the order until the defendant is admitted to OSH.” At that rate, the hospital and legislature have little incentive “to do the right thing,” as it is clearly much cheaper for OSH to rack up months, and perhaps years, of contempt sanctions as opposed to spending the millions it will cost to reform Oregon’s woefully deficient mental health care system.

While the governor, legislative leadership and OSH staff declined to comment on the contempt ruling, Zamora­-Skaar’s attorney felt vindicated. The court’s decision “in no uncertain terms expresses that our clients’ rights were violated,” Amanda Thibeault declared. 

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Sources: Oregonian/OregonLive, Statesman Journal

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