"Aid & Assist" Crisis in Oregon Jails
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Transcript:
Karen James:
Welcome to Prison Pipeline, produced at the studios of KBOO Portland. I'm Karen James. People in custody and county jails who are found by the court to be unable to aid and assist in their own defense are sent to the Oregon State Hospital for mental healthcare. Currently, the Oregon State Hospital is overwhelmed with patients under court ordered treatment. This has left many more individuals languishing in every county jail in Oregon, awaiting mental healthcare. With me to discuss this violation of individual rights is my guest KC Lewis, attorney with Disability Rights Oregon. Welcome KC.
KC Lewis:
Thank you very much, Karen. I'm happy to be here.
Karen James:
So KC, let's start with what is aid and assist and can you give a brief history?
KC Lewis:
So aid and assist is a legal concept that we have throughout the United States. In the state of Oregon. It is also referred to as the 370 process, which is a referral to the particular place in Oregon statute it is found. And what aid and assist refers to is the essential right that a person has to be able to participate in their own defense when there are criminal charges against them. So when you have a criminal charge brought against you have the right to an attorney, but you also have the right to then be able to be meaningfully involved in your own defense. So you have the right for your attorney to explain to you what's happening, what the consequences of your potential decisions might be, to confer with you about potential legal strategies. And in the end, you have the right to make the final decisions about what happens in your case.
The reason why aid and assist is important is that it has been determined that your right to be able to do all of those things cannot be observed if you don't meet a certain level of what is referred to legally as competency, which is a term that I am not fond of, but basically it refers to your ability to engage in that process with your defense attorney and to engage in the larger court process. Basically to understand what is happening to you, and then to make informed decisions about how you want to engage in the process.
So this is something that comes up early in someone's criminal case. It is usually a concern that is raised by their defense attorney. Although it can sometimes be raised by the judge or be raised by a prosecutor or someone else who is participating in the case who will basically say, "Based on my interactions with this person, I do not think that they are able to aid and assist in their own defense. I think that based on a mental illness or other kind of impairment, their communication with the court and their communication with their attorney does not rise to the level that they need to have, to have their constitutional rights being properly respected."
And so once that concern has been raised, there's generally an evaluation where they will bring in someone, a professional evaluator to speak to whether or not the person can aid and assist. And if they cannot, it is then the obligation of the state to restore them to a point at which they can aid and assist before the criminal trial can go forward. So to be completely clear, if you are not able to aid and assist in your defense, you cannot be tried for a crime. That is just your right under the constitution.
Karen James:
In 2002, under Disability Rights Oregon's former name, Oregon Advocacy Center, you brought a landmark civil rights case against the state of Oregon because people were languishing in the jail and in need of mental health care. Can you talk about that lawsuit?
KC Lewis:
Absolutely. So again, under the Constitution, a person cannot be held in prison or in jail when they have not been found guilty of a crime. There are some exceptions in terms of pretrial things, but largely you are not supposed to be held without due process. Now, someone who has been found unable to aid and assist in their own defense, that is a person who has not been found guilty of a crime. They have been charged with a crime. The legal process is going forward, but they are not at that point being held in order to be punished for a crime. They're being held in order to be treated, in order to restore their ability to aid and assist. So what was found in that case, which is Oregon Advocacy Center versus Mink decided back in 2002, is that a person who has been found unable to aid and assist is at that point being held for treatment and not for punishment.
And because of that, they have a right to be transferred to a therapeutic setting for treatment as soon as possible. The judge in that case set sort of an outer limit of the amount of time someone should wait to be transported from jail to that therapeutic setting of seven days. That was an understanding that really the deciding factor should be as soon as possible. In an ideal world, they shouldn't spend a minute longer in jail after they've found unable to aid and assist because they are no longer being held for punishment. They're being held for treatment. But that seven day limit was sort of a compromise, an understanding that the logistics of the system couldn't necessarily move the person from the jail to the therapeutic setting in this case, which is usually the Oregon State Hospital. And so gave them a little bit more of a window in which to do that.
So the Oregon Advocacy Center, which has subsequently become Disability Rights Oregon has been enforcing Mink for nearly two decades now. And we have over the past three or four years, been engaged in attempting to get the state hospital and the Oregon Health Authority back in compliance with Mink. They have been out of compliance with that seven day time table for quite some time now. That has been partially, at least according to them, due to the coronavirus pandemic. But as that situation has changed, it has become clear that the much larger driving factor of their inability to admit people within the constitutional timeline is a growth of the aid and assist population of people who are coming into the criminal justice system, who are unable to assist in their own defense and a failing of the health authority to anticipate that growth and to build out the proper community resources, to be able to keep people out of that system in the first place. And then also to be able to restore them to competency in the community rather than having to send them to the Oregon State Hospital.
Karen James:
And KC, what are the numbers? How many people are in the county jails and waiting for treatment?
KC Lewis:
So the last number that I saw, which I believe comes from the end of April, so just a few days ago, was that there were 61 people currently in jail awaiting transfer to the Oregon State Hospital. And that the average wait time for those people was hovering somewhere around the mid 20 days. So again, seven days is supposed to be the absolute outer limit of how long it takes people to be transported there. We are nowadays seeing numbers that are three to four times that much. At the worst when at the beginning of this year, when the state hospital had paused admissions, we had a wait list over a hundred. We had people waiting longer than 40 days to be admitted to the Oregon State Hospital. But they are still very far out of compliance, both in terms of the number of people who are waiting and in terms of the amount of time those people are waiting.
Karen James:
Can you talk through the whole process of first being arrested, coming into the jail, through getting treatment, and then being transported back to the jail?
KC Lewis:
The flag that there is mental illness in involved can happen at any point of the process. And so often if you have a good, well trained arresting officer, they will notice that there is mental illness involved at the time that the person is originally picked up and they will flag that for the jail when they're coming in. Hopefully they will make some effort to sort of deescalate the person to sort of ease the transition into jail. And then again, if you have a good and well trained jail deputy that's something they will notice. They will flag. They will try to connect the person with what resources are available in the jail. And that's really where we hit one of our first biggest hurdles is that jails are not meant to be mental health facilities. That's not a therapeutic facility. They don't have the resources that they need to provide people with the help that they need, even the jails that have more staff and more resources and everything.
They're just not designed for that. And so you can have the best of intentions as a jail deputy, as a arresting officer, as a county sheriff, and you just don't have the infrastructure and don't have the resources to be able to provide these people with what they need. So what they end up getting is often, depending on sort of the severity of the mental health crisis they're going through, they can end up locked in a cell with no access to any sort of reading, any sort of anything. Literally in a cell alone with nothing to keep you occupied other than your own thoughts and your own mental illness. No contact with the outside world, no contact with anyone within the jail. Often, if there is a risk of self-harm, they will put you in what's called a suicide smock, which is basically just a sheet of paper that covers you.
And so in the interest of keeping you safe, you are stripped of anything that could help you stabilize your mental health, any dignity, and you are put in this environment that is incredibly non-therapeutic and incredibly harmful. And so you will have people who by the time they have any contact with the court system, by the time they see their attorney or see a judge or anything like that, have decompensated significantly from when they first came into the jail. If they were already going through mental health crisis when they came into the jail, their mental health crisis is much worse. And that point is usually when they get identified as someone who may not be able to aid and assist. And then at that point, you're waiting for an evaluation so that the judge can make a determination whether or not to send you to the state hospital.
Those evaluations are so backed up that can be another month or two. So even though we have this timeline for people to go to the state hospital within seven days, that's from the day that the judge signs an order saying that you can't aid and assist and you are committed to the state hospital. By the time you actually go to the state hospital, even if we were within that seven day timeline, which again, we are not right now, you have probably been in jail for up to several months, waiting on this determination. And that's incredibly harmful to people's mental health.
Karen James:
These people languishing in the jails, awaiting mental health treatment, what are their crimes?
KC Lewis:
It really goes up and down the spectrum. You do see people who are there for what are considered very serious offenses, violent crimes, person crimes, things like that. You will see people who are there for property crimes. You'll see people who are there for relatively minor misdemeanors, who often were just pulled into the jail and the legal system, because people didn't know what else to do with them because resources weren't available in the community to get them the treatment they need. And there is this incredibly harmful myth amongst I think people in the community and people in the law enforcement and criminal justice community that getting people involved in the criminal justice system can get them treatment, can get them the help that they need. I can tell you that is not at all true.
For every a hundred people who enter into the criminal justice system with mental illness, maybe one of them gets a good outcome out of that. And the other 99 come out the other end worse than they were before, with more difficult access to resources and no answers for how we get them the help that they need. So I do think that that is one of the most harmful myths in our system right now is the idea that if we can just get the police to come here and arrest this person, then they'll get help. And that is just absolutely not how it works.
But we also see a whole lot of people in on aid and assist orders, who it's their first ever contact with the criminal justice system. And often that will be because someone has had their first mental health crisis. They have had a psychotic break. Having never had one before, or they have, for whatever reason, not received sort of the help that they need and gone into crisis. And that is really a point at which if we had the community resources we need to intervene, we could stop that person's life from spiraling into this incredibly harmful chain reaction of criminal justice involvement and bouncing off of the various ways in which the system fails people. And so that is one of the most crucial needs for resources right now is to help those people who are really having their first entry into the system.
Karen James:
As you said, it may take months before they are finally transported to the Oregon State Hospital to get treatment, but they are only treated to, as you said, legal competency. Can you explain what that means and why we don't treat people to full recovery?
KC Lewis:
So this is, I think, one of the major failings of our system right now. The fact that we have allowed so many people to only encounter mental health resources once they're at the point of needing to be restored to legal competency. Because I mean, from the terms aid and assist legal competency, these are legal terms. These are not therapeutic terms. They are not medical terms. The only interest that the system has in people who are not able to aid and assist is getting them to the point that they are able to aid and assist, which is not the same as getting them to the point where they're able to function safely in the community. It is not the same as getting them well. It is not the same as connecting them with ongoing resources and planning to make it so that they are able to live with their illness. It's literally getting to the bare minimum where you can stand them up in court and say, "This person understands what's going on to the point that we can continue with this legal process."
And so what you see is people who really could be well if they encountered this system in any other way, if they were provided with medication, if they were provided with wraparound services and peer counseling and supports and connected to things like housing, substance use treatment, things like that. Someone who could absolutely 100% live in our community and be safe and happy and healthy and thriving. Instead we wait until they get to a point where they commit what is considered a crime due to their mental health symptoms. And then once they're in the jail, we can get them in front of the court as soon as possible, get the case done with and shove them out the door there.
And often people who get restored to that very bare minimum level, when they go back to the jail, this incredibly un-therapeutic environment that we've described, they drop below the level of being able to aid and assist again, while they're waiting in jail for court. Then they have to go back to the state hospital and go through this loop over and over again. But even people who don't do that, we haven't helped them in any permanent way. We've just, again, gotten them to the point where the system's able to sort of grind their case through, and now they have a criminal conviction. It's going to be harder for them to get housing. It's going to be harder for them to get services and we haven't really solved anything. And it is not only inhumane and just a horrible way to treat people with a disability and with a mental illness. It's also just so woefully ineffective.
Karen James:
We should talk about the workforce, the crisis, and how much of that is contributing to this issue.
KC Lewis:
Yes. I mean, that's an issue for our entire behavioral health system is we have for decades underfunded and undervalued our behavioral health system. We have not funded the amount of people that we need to be doing this work. Those that we do fund, we underpay. We don't support enough. We let them get burned out. And we are really sort of reaping the consequences of decades worth of that decision right now, even for the work that we know needs to be done for these people. It's very hard to find the workforce to do it because we have treated them so badly for so long. I mean, the aid and assist problem is a symptom of the larger problem that we have not sufficiently invested in our behavioral health system.
And so if we are going to solve the aid and assist problem and the larger behavioral health problem, we need to recognize how important mental health is. We need to recognize how many people live with mental illness. We need to eliminate the stigma of living with mental illness, and then we need to make the investments in our behavioral health system that recognize that it is just as important as our wider healthcare system and recognize that the fabric of our society and the sort of continued operation of all of these systems rely on people being able to get behavioral health services in their community before they go into crisis.
Karen James:
KC now you said the lawsuit OAC versus Mink of 2002, the state and the Oregon State Hospital were in compliance for all these years. And you said they became out of compliance again. What steps did Disability Rights Oregon take at that point?
KC Lewis:
So there has been a pretty constant rise in the number of aid and assist referrals to the state hospital over the past decade. So the state hospital has three different populations. Their aid and assist, guilty except for insane, which is people who have been found guilty of a crime, but at the time that they committed the crime they did not have sort of the mental capacity to understand what was happening. And then the civil commitment population, which is people who are being committed to the hospital for treatment to be able to return to the community in order to not be a danger to themselves or others. So about a decade ago, the civil commitment population was three times the aid and assist population in the state hospital. Now the aid and assist population is six times the civil commitment population. And almost no one who is civilly committed can go to the state hospital because the aid and assist population has grown so drastically.
I think there are a few reasons for that. I think that it is the result of the criminalization of mental illness and of unfortunately some judges and prosecutors seeing sending people to the state hospital as an easy out for dealing with people with mental illness. But really it comes down to our state's failure to invest in community resources. And so when the state fell out of compliance, we have been advocating in the federal court for them to be brought back into compliance. We recently had a victory in the federal appellate court, the ninth circuit, where the state had been granted sort of a dispensation by the court to be able to be out of compliance due to certain external factors. The ninth circuit basically said that is not appropriate, the way that this has been done. And we have to come back and revisit that. We ended up going into mediation and settlement talks with the state.
We came to a settlement in the late 2021 to have an independent expert come in, make some recommendations about how the system as a whole can be improved in order to get the state back into compliance. We are expecting the next round of recommendations to come out sometime mid May. And when that happens, the parties, which is Disability Rights Oregon and Metropolitan Public Defenders, which is one of the public defense offices in Portland are the plaintiffs and the Oregon State Hospital and the Oregon Health Authority of the defendants. We will have an opportunity to basically say whether or not we agree with the independent expert's recommendations and depending on whether or not we do, we will either go forward with those recommendations or go back to mediation. And we are certainly prepared to pursue all of our potential legal remedies to try to get this population of people to get their constitutional rights observed.
It is not an abstract issue for us. There was someone who died in a jail waiting for admission to the Oregon State Hospital beyond the seven day limit in the past month. And things are only getting worse from our perspective. So we are going to do everything in our power to hold the state to its obligations, because frankly it has been failing. And I think it's important to note as well, because again, one of our issues has been a failure to invest over the course of decades. This past legislative session in 2021, the state made a historic investment in our behavioral health services, in housing and services for people in Aid and assist. It was several hundred million dollars, which we saw as a huge step forward, definitely saw as a down payment on what really needs to be done, but it was bigger than anything that's been done in quite some time.
The Oregon Health Authority has been sitting on that money, has put barely any of it out into the community and our people are suffering and dying while they wait. And so I think that it is important to note that while our lawmakers have realized the urgency of this moment and have acted accordingly, unfortunately, the state agency that's in charge of the behavioral health system is still just utterly falling down on the job.
Karen James:
Now talk about the independent expert. Now she released her first report in January of 2022. So what were some of her findings and recommendations?
KC Lewis:
So Dr. Pinals is an expert who has worked in the forensic systems, and that's basically another term for the aid and assist system for sort of the place at which the behavioral health and criminal justice systems converge. She's worked in a number of other states. She worked in Washington state, which had a similar lawsuit to this that was called True Blood. And so she has a lot of expertise and a lot of experience, particularly with systems like this that aren't working.
So a lot of her first round of recommendations in January were around data that we needed to be gathering, were around sort of some efficiencies that we could improve at the hospital. But a lot of it was to set us up for this next round of recommendations. It was really to say we don't know what we don't know right now. And so we need to be putting together the information that we need to decide how we actually get back into compliance. So we are sort of anticipating Dr. Pinals's recommendations later this month. And I think at that point we will decide what our next moves are based again on what we feel the needs of our clients are.
Karen James:
And what can the jails or the counties do? And I understand Judge Nan Waller has been doing some innovative things in Multnomah County with her rapid aid and assist. Can you talk about what other steps can be taken here?
KC Lewis:
Certainly. I know another thing that Judge Waller is doing is she and my supervisor were in Tucson, Arizona recently looking at their sort of forensic system, which has been one of the success stories was my understanding. And one of the ideas that they came away from that with is what's called a jail population review, which is basically taking a closer look with all of the people you need in the room. So the lawyers, the therapeutic staff, the community behavioral health people, the state hospital people, taking individualized looks at people who are waiting in jail, unable to aid and assist and say, is there anything we can do to divert this person into the community, to move them along, to make sure they're getting the services that they need? So they don't get sort of stuck in the cycle. And I think we have a lot of optimism that can really help in some of these individual cases and thus help free up beds and make it so that the wait list grows shorter.
I do think that taking that more critical look at how is the criminal justice system involved in this person's life and is it helping them? And is it helping the community? Is something that a lot of courts and a lot of prosecutors' offices could really benefit from. I think that there are certainly cases in which criminal justice involvement is regrettable, but often necessary either for the safety of the community or just sort of for the way that the criminal justice system works. But I think that if the criminal justice system were willing to be more self critical and willing to be more introspective about what are we actually trying to accomplish here, what is going to be the outcome of this case? And can we find a different outcome by approaching it in a different way? I think that a lot of these cases wouldn't end up stuck in limbo the way they often do.
Karen James:
A lot of these people do things such as trespass or interrupt the max, urinate in public, and these are really not crimes. So there should be some pre-arrest diversion programs that could assist these folks instead of taking them to the county jails. But are the resources and the services available in the counties to take these people instead of to jail or the Oregon State Hospital?
KC Lewis:
I mean, that's ultimately the solution. And I would say, not only is it the preferable solution, it's the only solution. We are never going to get out of these cycles if we don't build up those resources in the community. And speaking to sort of those lower level crimes, often someone will call the police because they say, "I'm worried about this person. I want the system to intervene and do something for them." Unfortunately, that's not the way that our system works. But if we do have pre-arrest diversion, that is at least an earlier off ramp, and the earlier you can get out of the criminal justice system and receive the services you need, the less damage has been done. And the less resources have been expended on solutions that don't actually help.
Karen James:
And what about the district attorneys or prosecutors who are keeping these people in jail and charging them? Can they do more to help people get treatment instead of incarcerating?
KC Lewis:
I mean, I think that there is a lot that they can do to educate themselves and understand what cases the criminal justice involvement are just not going to have any sort of beneficial impact with regard to the community, with regard to public safety. But again, it ends up falling back on this failing system that needs to give them the options that a lot of them frankly want to be able to deal with these cases. I think just like we've seen some innovation on the bench, we've seen some innovation with some of our prosecutors doing good work around this. But they need somewhere to send people. And I think the only other thing I'd comment on in terms of things that prosecutors shouldn't be doing, I think unfortunately there are some prosecutors who see people with mental illness as a convenient sort of boogeyman to push the policies that they think are in their best interests and the best interest of the community.
So it's easy for them to kind of vilify people who are on the street, vilify people who are going through mental health crisis. Say you don't want our community to have these people in it. It helps them push for their election, whatever their interests are. And that does such immense damage to our communities. It does such immense damage to people with mental illness. It sets us back years on the work that we have been doing to eliminate the stigma around mental illness.
The people they are trying to vilify and say, you don't want to see these people. These are human beings who if they were receiving the treatment that they need and deserve, they would be your friend, your neighbor. I mean, they are your friend, your neighbor, your family member. I mean, I'm very open about the fact that I'm an attorney who lives with mental illness, both because I feel like people should be open about that. But also I do want to destigmafy the fact that look, when you're talking about somebody with mental illness, it's a huge portion of our society. And we can't just say, "We don't want to deal with it." We have to build the system that supports those people.