This article has been updated to include additional reporting.
More than two decades after federal court oversight began of the psychiatric institution known as Oregon State Hospital, a new judge is exerting pressure of a kind that hasn’t been seen in years, observers say.
In a court hearing earlier this week, lawyers for the Oregon Health Authority, advocates, prosecutors, judges and others discussed the state’s continued violations of a federal court order intended to preserve mentally ill patients’ civil rights.
And it was federal District Judge Adrienne Nelson who brought up the possibility that the state could be found in “contempt” — meaning contempt of court. She indicated that while she's not there yet, she has the authority to do so whether or not any of the lawyers in the case request it.
The conversation turned to discussion of a similar case in Washington where only a contempt finding — and hundreds of millions of dollars in fines that mounted daily after that finding — seemed to succeed in getting the state to fix its behavioral health system.
Two Oregon legislative sessions have come and gone since Nelson’s predecessor, Judge Michael Mosman, issued a controversial order setting discharge deadlines for the vast majority of Oregon State Hospital patients. Those patients are discharged regardless of whether their condition had improved enough to let them assist a lawyer defending them against criminal charges.
But instead of the situation getting better since then, it is getting worse and those discharged from the state hospital are increasingly committing new crimes, argued a lawyer at the hearing who represents a group of judges.
Lawyers for the state made optimistic statements about the prospects for improvement, said Billy Williams, an attorney who attended the hearing on behalf of county prosecutors in the state. But, he added, “I think Judge Nelson gave a clear indication that she was in agreement that nothing has happened. Nothing is really changing.”
Her attitude was clear, he added: "It's time to do something else."
Next steps unclear
Nelson set the next hearing in the case for Jan. 9, saying she wants clear evidence of progress by then.
Whether the state can meet that bar is unclear, but a spokesperson for Gov. Tina Kotek said she intends to push for more funding to address issues raised by a court-appointed expert named Dr. Debra Pinals.
“The Governor’s budget will be released on December 2nd and will include investments for the Oregon Health Authority to address some of the priorities that the agency and Dr. Pinals have identified as critical to improve compliance,” Kotek Press Secretary Anca Matica wrote in an email. “The Governor will advocate that the legislature fully fund her Governor’s Recommended Budget, including but not limited to the investments necessary to address these issues.”
Last year, a bill that was supposed to address the problems never got a hearing and died during session punctuated by Republican Senators’ walkout. It didn’t resurface this year.
In a July hearing, Nelson, Pinals and the attorneys discussed whether increased behavioral health funding authorized by the Legislature was actually leading to changes on the ground.
Litigation spans two decades
In 2003, based on a suit filed by an advocacy group, the Ninth Circuit U.S. Court of Appeals set a deadline that mentally ill people facing criminal charges must be released from jail and admitted to the Oregon State Hospital within seven days. The goal: to protect civil rights, as the U.S. Constitution says sick people can’t languish in jail without care.
In 2019, with the state woefully out of compliance, advocates sued again.
In September 2022, to make space at the Oregon State Hospital so mentally ill people could be released from jails in a more timely manner, Mosman ordered that patients in the facility accused of felonies must be discharged after six months or 12 months for a violent felony.
But after briefly coming into compliance with the order, the state again began violating it.
Patients stuck in jail now wait on average nearly 27 days for admission to the state hospital, according to a filing made by a group of state judges. That’s not far from the 32-day wait time in 2001 and 2002 when the lawsuit that launched the litigation was first initiated.
The filing compared reoffender rates for cases filed between September 2021 and August 2022 and September 2022 and October 2024. It said that the number of new misdemeanor cases filed against released patients increased by 90%, while the rate of felony reoffenses grew by 46%— at a time when new prosecutions were dropping.
The judges’ filing indicates the rise was likely caused by a combination of the pandemic, Oregon’s experiment with drug decriminalization, the rise in homelessness and the possibility that criminal defense attorneys are strategically claiming their clients are unfit.
”Too much time has passed, too little ground has been gained (and, even then, lost), and the consequences to everyone involved—and public health and safety as well—are too great to accept progress measured in years and a collection of studies and informational legislative hearings,” the filing states.
Expert offers priorities
Pinals, the outside expert monitoring the state hospital, offered possible short-term solutions in her report published earlier this week.
They include:
- Hiring three additional forensic evaluators to help the state hospital address its backlog of patients who need competency evaluations. There is a backlog of 292 patient evaluations. Pinals wrote that hiring the additional evaluators would allow the state hospital to clear the backlog within four to six months, which would improve the flow of patients .
- Set up a $3.5 million fund to keep released patients housed. Pinals wrote that housing instability increases recidivism and that helping released patients with rental assistance, application fees, eviction avoidance and other costs would help.
- Expand the number of secure residential treatment facility beds to help released patients find a landing spot. Pinals wrote that the health authority's budget includes $9.4 million earmarked for community-based treatment settings. Prioritizing released patients would shorten the state hospital waitlist, she wrote.
- Expand the community navigator pilot program. The program has shown success in helping released patients find housing and participate in treatment after leaving the hospital. Pinals wrote that expanding the program to add additional staff would cost about $2.9 million.
She also wrote that due to new funding, new community residential beds should be opening around the state at a rate of about 13 a month. "Between 2/29/24 and 12/31/25, new grant agreements across the state should open up 284 new community residential slots."
Not mentioned in her report: a bid by PeaceHealth to build a new 96-bed behavioral hospital in Springfield, taking advantage of an expected reimbursement increase resulting from Kotek getting involved.
Williams, the attorney representing prosecutors in the case, said the state is bending over backwards to push for solutions other than expanding capacity at the Oregon State Hospital — which he says needs to be part of the fix.
“What really needs to happen is for there to be an honest assessment of what's needed to fix the crisis at hand,” he said, “Which has been going on for far too long.”
At a health care conference in Portland Thursday called State of Reform, Central City Concern President and CEO Andy Mendenhall echoed the call for more beds for the acutely mentally ill. He noted that since 2020 people who are civilly committed as a danger to themselves and others haven’t been able to be admitted to the Oregon State Hospital. Instead, people facing criminal charges fill it.
That change and a general lack of capacity are hurting people and driving up costs for the whole system, he said, adding “We have to create additional acute-care inpatient psychiatric beds.”