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A Prescription for Therapeutic Justice

At a time when a third of Oregon prisoners have mental health needs, activists and leaders are looking at alternatives to jail for intervention and treatment for serious mental illness.
March 19, 2018

In Oregon and other states, mental illness and addiction may land you in jail, or worse. The message coming out of the March 2 Oregon Law and Mental Health Conference in Portland was clear: The criminal justice system is a poor tool to deal with mental health matters.

But the medical system does not offer adequately funded and easily available mental health treatment and other support services. That means jails and prisons have become default psychiatric wards. In Oregon, one-third of people in prisons have mental health treatment needs, and about one-quarter of inmates have serious mental illness, including major depression, bipolar disorder and schizophrenia, conference organizers wrote in the program, citing the Department of Corrections.

“We recognize jail is not the solution,” said Bob Joondeph, executive director of Disability Rights Oregon, at one of the sessions. “The question is what to do about this. We need other ways to think about public safety and how to get people the care that they need. It’s complicated and difficult and has to be done over time.”

The day-long conference, now in its third year, brought together nearly 400 public officials, clinical practitioners, students, community providers, attorneys, and advocates to discuss the legal landscape. Twelve sessions illustrated the complexity of the long-standing issues. One considered ways to improve conditions and services for people with mental illness who end up in custody in Multnomah County’s jails. Another examined forensic peer best practices for people with substance use disorder. A third session reviewed the insanity defense, the creation of the Psychiatric Security Review Board, and conditional release of clients.

Two dozen speakers included judges, police chiefs, lawyers, social workers, psychiatrists, and counselors. The lively discussions at the ends of the sessions featured additional perspectives from people living with mental illness and their families.

“When cops say [people with mental illness] are behaving badly, we don’t necessarily need criminal prosecution,” said Edward Jones, who retired in December as chief criminal judge at Multnomah County Circuit Court. “Sometimes the best we can do is an intervention.” Jones is now interim executive director of Multnomah Public Defenders, a large non-profit law group for people living in poverty.

Several sessions focused on ways to channel people into effective care instead of prisons. Options included the Early Assessment and Support Alliance, a self-described “network of programs and individuals across Oregon who are focused on providing rapid identification, support, assessment and treatment for teenagers and young adults who are experiencing the early signs of psychosis,” as well as mental health courts.

“We cannot allow the criminalization of people with mental illness to continue,” said Judge Ginger Lerner-Wren, the lunchtime keynote speaker, who also participated in a session on mental health courts in Oregon. “It is quite clearly a human rights violation.”

Lerner-Wren has presided over the Broward County, Florida, mental health court since its inception in 1997. The first mental health court session was held on the lunch break from Lerner-Wren’s regular criminal division court, according to her new book, “A Court of Refuge: Stories from the Bench of America’s First Mental Health Court” (Beacon Press, 2018). The book officially goes on sale on March 27, but signed copies were available for purchase at the conference.

“The mental health court is an outgrowth of the chronic underfunding of mental health since 1960s,” Lerner-Wren said in her keynote. “It has never ever improved. We don’t think we should have mental health courts. We want systems of [community mental health] care that are well-funded, evidence-based, and recovery-driven.” Instead, she said, Florida is the third largest state in the country but dead last in mental health funding per capita – and the state opted against the Medicaid expansion allowed by the Affordable Care Act.

Broward County’s Mental Health Court grew out of a tragic story of a college-bound young man, Aaron Wynn, whose life was derailed by a motorcycle accident that left him with a traumatic brain injury and a dramatically changed personality. His parents unsuccessfully sought mental health treatment for him from public agencies and institutions. A law enforcement encounter landed him in two state forensic hospitals, one of which kept him in solitary confinement for two and a half years.

Wynn was released in worse condition than when he entered care, with multiple severe mental illness diagnoses and without a discharge plan. His parents could not manage him at home, because of his aggressive behavior. One day, standing in line at a grocery story, he had a psychotic episode and ran outside. He bumped into a woman, age 85, who fell down, hit her head on the concrete curb, and died. He was arrested for first-degree murder. His public defender convinced a grand jury that his actions were a direct result of his inability to secure mental health and rehabilitative services. The resulting grand jury report on the county’s mental health system was scathing, Lerner-Wren writes in her book.

Each mental health court is different. Lerner-Wren casts a wide net and conducts all proceedings in the open. Oregon mental health courts tend to hold confidential discussions called “staffings.” Teams handling the mental health court cases typically are an equal mix of legal and mental health professionals, often volunteers.

Clatsop County Judge Cindy Matyas holds mental health court every Monday and screens every referral, including those with traumatic brain injury. Judge Patrick Wolke, of the Josephine County Circuit Court, “takes everyone under the sun, so long as the district attorney and the victim are on board” with the mental health court referral. Meanwhile, Clackamas County’s mental health court takes major mental illnesses—bipolar, schizophrenia, or the equivalent—and excludes primary personality disorders and driving under the influence cases.

“Each county has come up with its own way” of addressing people with mental health needs that are being processed as criminals in its courts, retired judge Edward Jones said. The policy differences show up in statistics. A judge can send an accused person to the state hospital for expert assessment about whether or not a person can function as a defendant and understand the legal proceedings. Such admissions to the state hospital vary widely among the state’s five largest counties, according to statistics Jones handed out

Several speakers at different sessions observed that a new generation of people with mental illnesses and their advocates had the expectation of recovery and function in the community, in contrast to an older model of irreversible disease and lifetime institutionalization. “There’s a push nationally for states into [support] services, such as housing and outreach teams,” said Joondeph. “The state hospital is a good resource, but it’s very expensive. We must use it carefully.”

In an afternoon session, Octavio Choi, director of the Forensic Evaluation Service at the Oregon State Hospital, expanded on a TEDx talk he gave last month on psychopaths. Psychopathy is a relatively rare extreme antisocial personality disorder and is thought to be responsible for half the violent crimes. Researchers have documented a biological basis for psychopathy—low in empathy and impulse control, high in immediate satisfaction, he said, but the courts have been very clear that psychopathy is not a qualifying mental disorder for diversion. The criminal justice system is not suited to rehabilitate their neurological condition, he said.

“You can punish them up the wazoo,” Choi said, but “it just doesn’t seem to stick.” He cited a Wisconsin program that has had success in treating these “callous traits,” reducing time to recidivism for the worse offenders.

In a morning session on civil commitment and involuntary treatment, one audience member received the most applause when she observed, “I’m struck by language—restrictive, forced, involuntary. Wouldn’t it be wonderful if the mental health system was a place to relax and restorative? Where people wanted to go to get treatment, rather than avoid?”

Carol can be reached at [email protected].