How Oregon ensnares mentally ill people charged with low-level crimes
BY GORDON R. FRIEDMAN | The Oregonian/OregonLive
Early one Monday last November, police arrested Kobe Yandell for napping in the lobby of a downtown Portland skyscraper. Officers took the wiry 21-year-old, who is homeless and has schizophrenia, to the Multnomah County jail, where he spent the next 52 days in isolation.
A trespassing conviction normally carries little or no jail time. Yandell spent more than seven weeks locked up alone, yet had been convicted of no crime.
Instead, he was awaiting admission to Oregon’s public psychiatric hospital in Salem for a court-ordered evaluation, the usual first step for a defendant like Yandell, deemed by a judge too mentally ill to stand trial. It was familiar territory for him. Just seven months earlier, a judge had sent Yandell to the state mental institution to get healthy enough to face two other low-level cases.
Yandell is not alone in languishing in jail or the mental institution despite never having been convicted of a crime. In Oregon, it is not uncommon for mentally ill defendants to spend more time confined for being ill than they would ever serve behind bars for the crimes they are accused of.
That system is costly and largely ineffective.
In Yandell’s case, after spending most of spring and early summer in a locked ward at the mental hospital, he was deemed competent for court. He pleaded no contest to resisting arrest and assault, both misdemeanors. A judge sentenced him to probation and, without another option, Yandell went back to living on the streets. By autumn, though, his theft of a $1.69 bottle of iced tea from Fred Meyer and his unwelcome nap at the skyscraper landed him back in jail, in court and at the doorstep of the state mental institution.
Yandell’s cases illustrate some of the serious flaws in the way justice unfolds for mentally ill arrestees in Oregon, under a little-known system for people who may be unfit to stand trial.
The process, known as “aid and assist,” stems from the constitutional right of people charged with crimes to be able to help in their own defense. Through it, however, the state metes out extremely high cost care that takes defendants’ liberties away for prolonged periods. And it fails in almost every case to deliver lasting benefits to defendants or to society.
Views from the Oregon State Hospital campus in Salem. It costs $1,324 a day for trial competency treatment there. Beth Nakamura/Staff
In Oregon, taxpayers spend as much as $35 million a year to provide institutionalized care to mentally ill people charged with misdemeanors, many of whom are homeless, a first-of-its-kind analysis by The Oregonian/OregonLive found. Nearly all those patients eventually find themselves dumped back out on the street with little to no support. Almost one in five are readmitted to the mental hospital within a year under new charges.
A defendant’s entry into the aid and assist system is triggered when an arrestee’s mental fitness appears in serious question. Typically, a judge orders them to the Oregon State Hospital for a psychological evaluation, which can last mere hours or up to 30 days.
A defendant’s criminal case resumes if the evaluation determines the person “able” to aid and assist. In a small number of cases in which defendants are found “never able” to recover, the charges are dismissed and they are released from jail.
Most mentally ill defendants, however, are found “unable” to help with their defense and are sent back to the state hospital for treatment until they can. They can remain there as long as the maximum sentence for the crimes with which they are charged – far longer than the typical person convicted of a misdemeanor would be jailed.
Yandell, for example, spent 52 days in jail waiting for a psychological evaluation for charges that would ordinarily have cost five days in jail.
Between 2012 and 2018, Oregon taxpayers spent at least $165 million on aid and assist treatment at the state mental hospital for people charged with misdemeanors, The Oregonian/OregonLive analysis found. (Treatment for those charged with at least one felony cost taxpayers an additional $324 million in the same period.)
The per-patient cost is a jaw-dropping $1,324 a day. Treatment generally includes medication and legal skills courses to teach them what happens in court, with no guarantee of one-on-one therapy. By contrast, treatment at a small-scale secure residential facility in a person’s home county costs about $100 a day according to Multnomah County figures.
There are about two dozen such centers statewide with 319 beds, far fewer than at the sprawling 620-bed Oregon State Hospital campus in Salem, and nearly all are unavailable to people charged with crimes. In any case, wait lists at most small facilities are so long they’ve stopped adding names.
Officials familiar with the system say it’s ineffective for patients, taxpayers and community well-being. Even the judges, prosecutors and law enforcement officials partly responsible for the churn of homeless defendants through jails and the mental hospital for low-end crimes express a profound understanding of how deeply broken this system is. But those officials as well as state legislators have largely failed to act.
Peter Courtney, president of the state Senate and a longtime mental health care reformer, said he has had trouble marshalling the Legislature to vote for bigger mental health budgets.
Oregon Senate President Peter Courtney, left, and Sen. Betsy Johnson. Stephanie Yao Long/file
“Everybody cares about mental health. Every state senator and state representative does,” Courtney said. “The problem is when it comes to prioritization of funds, everybody wants to do something about mental health but just not today.”
Bob Joondeph, director of the advocacy group Disability Rights Oregon, said, “This is an issue that’s been around for many years now. All the players know about it.” But “enormous institutional inertia” has stopped attempts at reform, he said. State officials are sympathetic to the plight of Oregon’s mentally ill but tend to vehemently resist allocating money away from existing programs. Officials have a common objection, Joondeph said: “Not from my budget!”
So, over the past six years, Oregon has sent at least 1,486 people with mental illness accused of nothing more than misdemeanors to spend months at the state hospital to ready them for court.
READ MORE: Costly, ineffective, cruel: Ways to lower costs, improve outcomes for Oregon’s mentally ill
As numerous as they are, these cases are extremely difficult to track. There is no clearinghouse for the court filings. The Oregon State Hospital patient roster is confidential for patient privacy reasons. Nearly all the defendants are mentally ill and homeless, making them tough to locate and interview. Journalists for The Oregonian/OregonLive attended court hearings over many months to find the cases and patients referenced in this article.
Also troubling is a pattern of municipal court judges in some jurisdictions sending defendants to the state hospital for aid and assist treatment. Municipal courts – city courts that handle misdemeanors and traffic citations, many of which do not audio record their hearings – are subject to less oversight than county circuit courts, but have nearly identical powers.
For example, a homeless man was charged last September in Eugene Municipal Court with trespassing and drinking alcohol in public. A judge ordered him to the state hospital for aid and assist treatment on Oct. 12, 2018 and he remains there today, more than 100 days later, court filings show.
Municipal courts in Lane County, where Eugene is located, have sent 46 defendants to the state hospital for trial competency treatment in the last five years, said Lane County District Attorney Patty Perlow. Those cases are one reason why the county’s admissions to the mental institution have increased nearly 250 percent since 2012.
Most states don’t rely so heavily on a system that institutionalizes mentally ill people accused of crimes. Oregon ranks seventh nationwide in the rate of such cases, outpacing every other state in the West except Hawaii. Like most states that keep track, Oregon has experienced a dramatic rise in the number of patients over the past two decades.
The surge in admissions has caused the Oregon State Hospital to exceed its aid and assist capacity again and again. In October, for example, hospital officials converted a wing for treatment of patients not convicted of crimes but judged a danger to themselves or others into one for patients admitted under aid and assist orders. That new ward reached its capacity within two months, said Patrick Allen, director of the Oregon Health Authority, the state agency charged with operating the hospital.
Lawyers await the start of the aid and assist docket in Multnomah County, from which mentally ill people charged with committing crimes are often sent to the Oregon State Hospital for evaluations and treatment. If a defendant’s mental fitness is questioned, they must be deemed able to aid and assist themselves before the case can progress. Beth Nakamura/Staff
Nearly all misdemeanor aid and assist defendants are very poor and a huge percentage are homeless, according to the judges, public defenders, prosecutors and mental health professionals who cross paths with them. Last year, The Oregonian/OregonLive published an analysis that found more than half the arrests made in Portland in 2017 were of homeless people, the vast majority of whom were charged with misdemeanors. Oregon State Hospital officials do not reliably track how many of its patients are homeless.
And like Yandell, an outsized share of mentally ill people confined at the state mental hospital for low-level crimes are African American. High rates of poverty in the black community and officers’ propensity to stop black men more than those of other races almost certainly contribute to the disproportionality. Over the past seven years, nearly 10 percent of those admitted for misdemeanor trial readiness were black, while black people constitute less than 3 percent of Oregon’s population.
Ed Jones, who in 2017 retired as chief criminal judge of Multnomah County, said he has many concerns about Oregon’s justice system. But the element that most profoundly disturbs him is the way it churns mentally ill homeless people through the courts, jails and state psychiatric hospital.
“We should all be embarrassed,” Jones said.
The situation presents a puzzle for prosecutors and judges.
“What do you do with someone who commits misdemeanor after misdemeanor?” asked Josh Marquis, Clatsop County’s recently retired prosecutor, calling the situation “a real conundrum.” Regardless, Marquis said, “Oregon is clearly flunking.”
In Jones’ view, the criminal justice system is overly punitive to mentally ill people charged with misdemeanors. “You can’t punish people into sanity,” he said, calling this under-the-radar element of the justice system “a total failure.”
Cheryl Albrecht, the current chief criminal judge of Multnomah County, said the situation has reached a “crisis point.”
“These people shouldn’t be in jail,” Albrecht said during in an interview at her courthouse chambers. Just across the street, Kobe Yandell reached Day 50 in a jail cell.
“I can think of nothing more important that we should be focusing on than keeping these people out of jail and out of the court system,” the judge continued. “I know justice isn’t happening right now.”
The Oregon State Hospital underwent a $280 million reconstruction effort that transformed the decrepit institution into a modern, chaste facility. Beth Nakamura/Staff
Josh McCarthy, a public defender who represents about half the defendants on the Multnomah County aid and assist docket, said officials have for too long maintained a “head in the sand” approach to Oregon’s mentally ill defendants.
“Mentally ill people wasting time in jail on misdemeanors is far too common and an extraordinary waste of time and money,” McCarthy said.
“The major problem is the capacity of the state hospital and the capacity of local social service providers,” he continued. “Every misdemeanor defendant who goes [to the state hospital] on some dumb case is taking up a bed and delaying the services for someone who needs it much more.”
It was an easy problem to see coming. A decade ago, Courtney, the Senate president, was instrumental in securing $280 million to renovate and expand the decrepit Oregon State Hospital. At the time, advocates for the mentally ill warned state officials against doubling down on institutionalization. Money should instead flow to the stepped-down, community-based treatment that mentally ill people have a right to, and which is also less expensive for taxpayers, said advocates including Jason Renaud of the Mental Health Association of Portland and Chris Bouneff of the Oregon chapter of the National Alliance on Mental Illness.
But lawmakers did not make it so. Reluctance for wholesale change and the zero-sum game of writing state agency budgets played a role in officials’ foot dragging. So police officers, prosecutors and judges feel they have few ways to help the mentally ill homeless people flooding their courtrooms.
“There’s not a whole lot of options,” said Jason Myers, the Marion County sheriff.
Myers, who has worked in Oregon law enforcement for more than 30 years, recalled the state’s formerly vast system of mental hospitals that warehoused the mentally ill in often horrid conditions: Dammasch State Hospital, the Fairview Training Center and other facilities.
“All of those places closed,” Myers said, “but I don’t think any of the resources flowed to the community.”
Courtney acknowledges the state does not give county mental health departments enough money for community-based treatment centers. “We are not funding mental health to the extent we should at the local level,” he said.
Betsy Johnson, a state senator who is co-chairwoman of the Oregon Legislature’s budget committee, agrees. “I believe this is an area that cries out for legislative scrutiny,” she said this month, weeks before the Legislature convened its 2019 session.
“To criminalize these behaviors that are caused by mental health issues or substance abuse issues or both is inhumane,” said state Sen. Elizabeth Steiner Hayward, the other budget committee co-chairwoman. “And it’s unproductive because we’re repeating the same process over and over again with no improvement in people’s well-being. Last but not least, it’s expensive.”
Despite lawmakers’ apparent dismay, it’s unclear they will take sufficient action to change the status quo. For her part, Steiner Hayward said she is working on a bill that intends to more directly address the aid and assist crisis statewide. “We’re looking at a whole host of things,” she said. “The list is about as long as your arm.”
Meanwhile, the aid and assist docket continues piling up in Multnomah County Circuit Judge Nan Waller’s courtroom, a dimly lit theater of justice on the second floor of the jail building in downtown Portland. About Us