As state officials face a potential contempt order for failing to adequately treat people with mental illness, a federal judge is demanding answers about what the state is doing to stem ongoing civil rights violations.
The advocacy group Disability Rights Oregon filed a contempt motion earlier this month asking a federal judge to force changes to the state’s behavioral health system and impose fines. And now U.S. District Court Judge Adrienne Nelson wants state officials and the groups involved in the decades-old litigation to come to a hearing this Friday ready to answer a list of pointed questions about the state’s efforts and potential solutions.
While the hearing is a check-in, not a formal hearing, a contempt order could entail substantial fines and additional policy directives issued by the judge — similar to a scenario that unfolded in Washington state in recent years. Nelson has previously signaled an openness to issuing a contempt order against the state.
On Wednesday Nelson issued a list of 16 questions to tee up the hearing scheduled for just two days later. A lawyer following the case told The Lund Report that the judge is showing a level of detailed interest that hasn’t been seen since then-federal judge Owen Panner wrote the 2002 order that first tackled the situation. He required the state hospital to admit within seven days people housed in jails who had been deemed unable to “aid and assist” in their criminal defense.
That order was intended to uphold the civil rights of people with mental illness and has since guided litigation over the psychiatric hospital. The state hospital fell out of compliance with the order in 2019, renewing litigation and attracting interest from state judges, prosecutors and others.
In anticipation of the hearing, lawyers for state health officials and other groups have submitted briefs reaching different conclusions on how to move forward.
State judges ask not to give “keys of compliance” to state hospital
Well before a formal contempt motion was filed, Nelson brought up the idea of a contempt order against the state in response to concerns expressed by a group of state judges granted formal status in the case.
In advance of the Jan. 24, hearing, those judges doubled down on their earlier concerns in a new filing. In it, they shared updated data concerning the effects of a controversial federal order issued by U.S. District Judge Mike Mosman, who was rotated off the case last year. In 2022 he set deadlines for discharge of state hospital patients facing criminal prosecution even if they had not been fully treated or restored to face charges.
Since that order, the judges wrote in their Jan. 22 filing, prosecutors have dropped charges against 579 defendants who’d been released from the hospital before they were ready for trial, many of them accused of major felony crimes — even murder.
“If the parties are not able to answer these questions, they should have persons who have the ability and authority to do so appear at the status conference to provide the Court with the answers through oral testimony."
In the same time period, the state hospital is having a harder time restoring patients to a point where they can face prosecution and that many of those released faced new charges, according to the judges
The state hospital’s ability to restore aid and assist patients decreased by 18 percentage points across all charge categories, according to the brief. Additionally, there has been a 46% increase in discharged patients being charged with new felonies and a 96% jump in new misdemeanors.
“The data continues to show, with little variation, significant harm to victims, their communities, defendants, and the Oregon criminal justice system itself as byproducts of the (orders),” the judges’ brief states.
However the judges took issue with the remedies proposed by Disability Rights Oregon,” saying they overwrite state law even further” than Mosman had. They said it would empower state hospital officials to make decisions about the discharge of patients.
“The legislature expressly has committed that decision to the state’s judiciary based, at least in part, on intentionally requiring judges to use different, broader decisional criteria than hospital employees when deciding what level of care is needed,” according to the brief.
It added that “giving the keys of compliance” to the agency “that is most directly violating the U.S. Constitution, as DRO asks the Court to do, seems fraught with potential peril.”
Health authority claims it was overwhelmed
Lawyers representing the Oregon Health Authority conceded in a brief filed Thursday that they continue to violate compliance the requirement that the state hospital admit mentally ill defendants from jail within seven days.
They blamed the situation on the “unprecedented increase” in court orders committing aid and assist patients to the state hospital is beyond the control of state health officials. The brief said the frequency of the orders has tripled to 97 a month since 2012.
However, the state has increased capacity at the state hospital facilities in Salem and Junction City. Over the last five years, the number of patients served increased from 1,565 to 1,759 and the staff rose from 2,000 to 2,400, according to the brief.
"The legislature expressly has committed that decision to the state’s judiciary based, at least in part, on intentionally requiring judges to use different, broader decisional criteria than hospital employees when deciding what level of care is needed."
The state “has significantly increased funding” to place patients in residential treatment homes and other community-based settings where they will continue to receive services, the brief states. Spending on aid and assist contracts grew to $15 million for the current fiscal year from $3.5 million five years ago.
The health authority contracts with county-based mental health programs to find placements for patients. However, the brief states that these programs “do not have authority to admit or evict a patient from a particular placement” and that they generally do not pay the provider, which instead relies on Medicaid and other sources.
Public defenders, prosecutors, health systems and crime victims weigh in
In a Jan. 23 filing, Metropolitan Public Defenders, which is partnering with DRO in pursuing the case filed a brief joining with DRO in its contempt motion while making additional recommendations for what that order should look like
However, lawyers representing state prosecutors, crime victims and health systems joined in a brief that took a different tack — while agreeing a contempt order is called for. It took issue with the policy changes sought by DRO, saying its recommendations would mean patients would be discharged to places not equipped for them.
Doing so would “redirect offenders with mental illness to facilities, institutions, and public places where they are at risk of decompensation and may pose a safety risk to others,” the brief claimed.
Nonanswers not allowed
In her list of questions, Nelsons asks the parties to weigh in on what is keeping the state hospital from complying with the seven-day admission requirement and whether changes to state law are needed.
Additionally, she asked what specific efforts have been undertaken to ease the situation to date and what others are planned.
In the previous status conference in November, the judge had asked questions of the top state attorney handling the case for the Oregon Health Authority, Carla Scott, that she was not prepared to answer — though she assured the judge that state officials had been doing their best.
The lack of answers led to the judge to more overtly threaten the state with a contempt order, noting that it had been done in the Washington state case known as Trueblood —which has led to roughly $400 million in fines levied against that state.
“Ms. Scott, I understand that your perspective is that there's nothing else to be done. You know, quite frankly, I'm sure everyone is aware of Trueblood. That is another option,” Nelson said.
For the hearing Friday, Nelson made clear in her Jan. 22 list of questions that nonanswers are not an option.
“If the parties are not able to answer these questions, they should have persons who have the ability and authority to do so appear at the status conference to provide the Court with the answers through oral testimony,” she wrote.