State hospital cannot handle all the inmates being sent by WashCo

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PORTLAND, Ore. (PAMPLIN MEDIA GROUP) -- One of the inmates who died at the Washington County Jail in the past two months wasn't supposed to be there anymore.

He was instead waiting on a backlogged process to get transferred to the Oregon State Hospital for mental health treatment, a problem experts say has reached a crisis point.

Bryce Bybee, 23, died on April 17 at the jail. He was initially booked at the jail on March 7, on suspicion of theft and robbery. According to court filings, his lawyer quickly raised concerns about his mental fitness to proceed in court.

At a judge's order, Bybee was supposed to have been transferred to the state mental hospital days prior to his death, to receive necessary treatment to be declared fit to proceed in his criminal case.

The episode highlights fundamental problems with mental health care in Oregon detention centers and at the Washington County Jail, in particular.

Aid and assist

Washington County currently and consistently tops the statewide data of local criminal offenders who are in the Oregon State Hospital and who are awaiting the same kind of transfers that Bybee was.

When an inmate is suspected of having a mental health condition that might hinder their ability to aid in their own defense, the court issues a "365 order" — named for the section of Oregon statutes that deal with a defendant's fitness to proceed in court hearings.

If an inmate is determined to be unfit to proceed following an evaluation, the court issues a "370 order," which requires that they get treatment until their case is able to move forward. They don't have to go to the Oregon State Hospital for that treatment, but most do, for a combination of factors.

For one, there are few community resources available for inmates with mental health issues. For another, not every mental health institution is equipped to handle individuals who may pose a danger to themselves or the community.

"Once there's a determination made, depending on that individual and the threat they are to themselves and in the community … they need to be in some sort of custodial setting while they are getting that treatment to get the aid and assist process going," said Jeff MacLean, a senior Washington County deputy district attorney who runs the county's Rapid Evaluation Team. "Which is really why (the Oregon State Hospital) is the only resource we have."

All of this creates a backlog, where criminal suspects from all over the state are being sent to one overburdened facility in Salem due to a lack of comparable centers in their own communities.

People often wait weeks to even be evaluated, then another several weeks to be transferred to OSH for treatment.

On April 8, a judge ordered Bybee to be turned over to the custody of OSH by April 15 — three days before he was found dead in his cell by deputies during morning checks.

That seven-day deadline was established in a landmark court case called Oregon Advocacy Center v. Mink, which was decided by the U.S. Ninth Circuit Court of Appeals in 2003. The court determined that inmates who are on 370 orders must be transferred to a mental health care facility within a week.

Disability Rights Oregon (DRO), formerly known as the Oregon Advocacy Center, helped argue the case.

Even since that time, Oregon hasn't been consistently in compliance with the court order, by state officials' own admission.

At the request of attorneys for Disability Rights Oregon who argued that Oregon was in contempt of court for not complying with the 2003 ruling, a federal judge in 2019 ordered state officials to ensure they were meeting the requirement.

The following year, in light of the pandemic, a lower court granted the state government's request for "latitude" in complying with the Mink requirement. But the Ninth Circuit again threw out that exemption on appeal in 2021.

Months later, the state settled with Disability Rights Oregon and Metropolitan Public Defender, which provides much of the Washington County Circuit Court's public defense services, agreeing to work toward addressing the Oregon State Hospital's capacity issues so that officials can consistently comply with the Mink requirement.

Advocates for mental health reform in the criminal justice system say the Mink requirement is in place for a reason, and we're now seeing the results of not addressing the problem sooner.

"There definitely is a trend, and I think there's an extent to which we've reached a breaking point, which is why we're suddenly seeing this … even though this decline has been going on for a long time," said KC Lewis, an attorney with DRO's Mental Health Rights Project, which advocates the government's adherence to the Mink order. "Unfortunately, we're now kind of seeing the worst possible consequences of that failure to invest in those systems."

Leading the state

Washington County has the highest number of jail inmates at the state hospital currently, with a total of 67 patients. Of those, 48 are accused of felonies and 19 are accused of misdemeanors. No other county has as many misdemeanor patients on aid and assist orders as Washington County, either.

Experts say the reason it's so important to get people out of jail and into proper treatment is because jails often cannot provide the level of care that these inmates need. Lewis says that Disability Rights Oregon routinely hears from both inmates and staff alike that jails are not equipped to handle people in crisis.

"I think a lot of these are people who could actually be receiving the care they need in the community, in a more therapeutic environment and in a less restrictive environment," said Lewis. "But what we want to see is for people's mental health to be tended to. But those sort of resources just don't exist, and so the jail is sort of the stop of last resort for people who are in crisis, and it's really just not meant to be."

Lewis said that it's easy for the system to have the wrong priorities when it comes to people with mental illness who get swept up in the criminal justice system.

"Unfortunately, the system's primary concern is that people are able to continue to move through the system," Lewis said. "Once a person is found unable to aid and assist, legally speaking, they are no longer being held for the legal system — they are being held in order to receive treatment."

The for-profit companies running jails' healthcare systems have an incentive to cut costs, not necessarily to provide the best care, Lewis says.

Historical audits of jail healthcare systems support this, as Washington County found that its previously contracted provider, Corizon, was often cutting corners to save money and a lack of oversight was costing the county more.

The answer, experts say, is more mental health resources in communities.

Working toward solutions

The Oregon Legislature set aside more than $1 billion between the 2021 and 2022 sessions to invest in mental health resources, including funding that went directly to help counties bolster behavioral health services.

Washington County has also invested in behavioral health, though one of the primary new resources for people to get care, the Hawthorn Walk-In Center, recently announced that it was no longer accepting walk-in clients, blaming staffing shortages.

Hawthorn employees voted last year to unionize. However, the nascent union has yet to reach an agreement with management and is still unrecognized.

Prosecutors in Washington County also say they are trying to help speed up the first half of the aid and assist process — the part where inmates are evaluated for their fitness to proceed.

MacLean said that by installing a local evaluation process — rather than relying on openings at the state hospital for evaluations, as was the status quo for years — they are shaving weeks off an inmate's wait time before they are checked out.

"In looking at the most recent data from February 2021 to February 2022, we were seeing it can take up to 64 days just to get that first determination done," MacLean said. "Now, we use evaluators locally who do that evaluation … it can happen a lot faster than that timeline."

He also noted Washington County's mental health pilot program — a type of specialty court that lowers or drops low-level charges for those whose mental illness is driving criminal behavior to divert them away from jail and into treatment.

But at the end of the day, advocates say these specialty court programs should really be just one tool in the kit. To truly solve the mental health crisis in Oregon, they add, it will take community investments and rethinking the prosecutorial mindset.

"I think if they are done correctly, the specialty courts can be one of a number of options, they definitely shouldn't be the only tool in the toolbox," Lewis said. "But I do feel like often, they … end up just being a way of saying that we're doing something without getting at the root causes.

"Right now, the solution seems to be just bailing water out of a sinking boat," he added.