Michelle: The main thing I think I've learned so far from doing a lot of these interviews is that no matter what state I'm in, I will not voluntarily be committed. Do you think I'm missing a subtlety here?
Jesse: Well, the subtlety would be that the decision of voluntary or involuntary is a really personal one, with a lot of complicated factors involved, so everyone should be empowered to make that decision for themself. But unfortunately, far too often voluntary is misrepresented and people are coerced into signing that form without really being told what that means.
Michelle: And I think it's also a cultural thing. I mean, if someone says to someone else, this person voluntarily committed themselves. Everyone imagines that at any point you could just say, thanks, this was great, I'm gonna bounce.
Jesse: Right, voluntary does not mean that you can leave whenever you want to, which is another fun fact brought to you by…
Michelle: This is Committable.
Jesse: Perfect, and now onto the music.
Jesse: This is Committable, a podcast about involuntary commitments. I'm Jesse Mangan and I'm here with Committable producer Michelle Stockman.
Michelle: Uh, I'm just gonna grab a snack.
Jesse: Wait, what…
Michelle: Popcorn…
Jesse: (laughter)
Michelle: Just pulling up a big old bowl of popcorn for Oregon. Ready!
Jesse: Well, I'm glad you're ready to talk about mental health laws in Oregon because to learn more about those laws I spoke with KC Lewis.
KC Lewis: My name is KC Lewis, I am the managing attorney for the Mental Health Rights Project with Disability Rights Oregon. Disability Rights Oregon is an organization, we're what's called a Protection and Advocacy Agency. So we have a federal mandate to advocate for people with disabilities, protect their rights. And within Disability Rights Oregon my sort of little slice of the organization, the Mental Health Rights Project, focuses specifically on people who are living with mental illness. Advocating for them, helping them advocate for themselves, and enforcing their rights sort of through policy, litigation, however, we need to. I also identify as a person with mental illness myself, which I think is important to what I bring to the work.
Jesse: When looking at mental health laws, we aren't just talking about one isolated process, we're often looking at interlocking systems with many different entry points. And often a person is brought into this interlocking network through some form of detention for evaluation. So I asked KC, how does that detention for evaluation process work in Oregon?
KC Lewis: So on the civil side of things, we have basically a two-party process for people to be committed. So two people have to sort of sign a court document saying like, I have concerns that this person, there's three criteria that a person can meet in order to be civilly committed. They're either a danger to themselves, they're a danger to other people, or they're unable to meet their basic needs. Which means that due to a mental illness, they are not feeding themselves, they're not able to cloth themselves, they're sort of putting themselves in danger due to a lack of ability to take care of themselves. And so once someone is in that system, they can be detained for a period of up to five judicial days, and then they're entitled to a hearing. They will have someone appear on the side of the state to make a case for why they do need to be committed, why they meet those criteria. And then they are also entitled to a lawyer themselves who, if they do not want to be committed, will defend them from being committed. And depending how that goes, they can be committed to the state hospital, they can be committed to a residential program, depending on sort of the level of care that they need. But that's the process by which someone is civilly committed. And I will say that that makes up a relatively small fraction of the people who are committed to the state hospital right now, which is one of the problems with our mental health system currently.
Jesse: So if the people who are being civilly committed make up a small percentage of the people in state hospitals, what is the other percentage of people being committed to state hospitals?
KC Lewis: So there are two other populations. The first one is people who have been found guilty except for insane of a crime. So that's when someone has gone through the entire trial process and basically a court has determined, yes, you did commit this crime, but at the time that you committed it you had a mental illness that prevented you from sort of formulating the mental state that it would be necessary for you to formulate to have that crime. And so those people are committed to the state hospital for sort of a period to serve out as their sentence. But really the point of that is supposed to be to get them well, get them to the point where they can be safely reintroduced into the community and will not be a danger to themselves or others. The other population, and this is the one that's really causing issues in terms of our capacity in our mental healthcare system in general, but particularly at the state hospital, is what's called the Aid and Assist population, or the 370 population. That's named after the law that allows people to be committed. And that is people who have not been convicted of a crime, but they have been accused of a crime and because of a mental illness that they are currently undergoing, they're not able to understand the proceedings against them. So they're basically unable to appear in court and help their defense attorney defend the charges against them. And because they are constitutionally entitled to be able to defend themselves, the case can't go forward if somebody is unable to aid and assist. So when someone is unable to aid and assist, the court will generally send them to the state hospital in order to be restored, or have their capacity restored is what it's called. They basically have to get them back up to a level where they can understand a court proceeding. But unfortunately with the criminalization and mental illness that we've seen in our society, the criminalization of houselessness, which often goes hand in hand with mental illness, the Aid and Assist population in our state hospital has just absolutely exploded over the past decade or so. And currently, if someone is civilly committed, they just literally cannot be sent to the state hospital because there's no room for them. So people who are civilly committed are not currently being served in our state hospital. They're being kept in sort of hospitals all over the state where they're being boarded and given sort of whatever treatment they can. And that's taking up resources that could then be used to serve other people in the community as well.
Jesse: And do you have a sense of why the Aid and Assist population, why there would be such a rise in that population being sent to state hospitals over the past decade or so?
KC Lewis: I mean, I really think that the issue is a lack of community mental health resources. So people who should be getting treatment in the community are instead sort of not receiving treatment until they end up in a mental health crisis. And then often when someone is in the mental health crisis, the first people who show up are the police. So the police show up, a person is potentially in a situation where they're trespassing, where they're causing a public disturbance, things like that. Police are not trained to recognize that someone is going through the symptoms of a mental health crisis rather than just committing a crime. And so they end up swept up in this system that really is not designed to serve them. And I think that we've seen that increasing in the past decade. I mean, to give you just some numbers, a decade ago there were three times as many civil commitments in the Oregon State Hospital as there were Aid and Assists in the Oregon State Hospital. Now there are six times as many Aiden and Assists as there are civil commitments.
Jesse: So the three processes that we're discussing are civil commitments, guilty except for insanity, and Aid and Assist. Civil commitment does not require any allegation of criminal conduct. Guilty except for insanity requires a belief that this person has committed a crime, but was in some way not capable of understanding what was happening when that crime took place. And Aid and Assist refers to situations where a person has been alleged to have committed a crime, is awaiting trial, and then someone involved in that criminal process suspects that this person does not adequately understand the criminal system that they have been forced into. But what is the goal of the Aid and Assist system? Is it designed to restore a person to a place of stability? Or is the goal of Aid and Assist to simply get that person to a point where the criminal trial process can continue?
KC Lewis: Aid and Assist is not a restoration to health, it is a restoration to competency. So when you go to the state hospital on a civil commitment their goal is to get you to the point where you can exist in the community and you can not be a danger to yourself or a danger to others. They are trying to get you healthy. It's the same for a guilty except for insanity, that is their ultimate goal is to restore your mental health. When you go to the state hospital on an Aid and Assist, their goal is to get you to the bare minimum level where you can stand up in court and say, I understand what a judge is, I understand what my defense attorney is here for, I am mentally able to be processed through the criminal justice system. And so what we see, and what we hear from state hospital employees is they see the same people coming through again and again because they never get well. They get to the point of being able to aid and assist, they send them back to the county that they came from, where often they will wait in jail for weeks or months to be able to be taken to trial. And then once they get back to the courtroom, they're not able to aid and assist again because their mental health has been deteriorating in jail. So the Aid and Assist system is sort of a self-perpetuating flawed system where the more people who go into it, the fewer people are getting the actual help they need. And those people just get caught in this revolving door of never quite being well enough to escape from the system, but just constantly sort of getting to this level of being the bare minimum of well where they go back into the criminal justice system.
Jesse: Does that mean that based on an initial allegation of some fairly minor crime they could spend months, if not years, in the facility? Possibly longer than they would've spent in prison if they'd actually been found guilty?
KC Lewis: In almost all cases it will be longer than they would've spent in jail or in prison if they would've been found guilty. And this goes down to a quirk of Oregon sentencing law. So basically if you're found unable to aid and assist and you're being held to be restored, you can only be held for the maximum amount of time that you could potentially spend in jail for that crime. And so for instance, for an A level, the highest level of misdemeanor, the maximum sentence you can get is one year. So they can't hold you in the state hospital longer than a year trying to restore you to being able to aid and assist. The issue with that is that for a lot of people with a short criminal record, or with other sort of mitigating circumstances such as having a mental illness, probably if they had come in and pled guilty to the charge, they probably would've spent a few days in jail, maybe a week. Similarly, if you're looking at higher level stuff, if you're looking at felonies, they can spend three years in the state hospital for Aid and Assist for a C-level felony. The guidelines for those things in terms of our sentencing grid is generally presumptive probation. So that means that they probably would not have spent a day in jail for the crime, but they can spend up to three years at the state hospital trying to get restored to aid and assist.
Jesse: If current competency is the sort of determining factor for someone getting cycled through this system, how do you determine competency? What is the legal definition of competency?
KC Lewis: So they need to be able to understand the legal proceedings going on, and they need to be able to meaningfully assist in their defense. Which means that they need to be able to communicate with their defense attorney, be able to sort of tell them what happened, be able to make legal decisions in order to have their defense go forward. And once there is doubt as to whether or not someone can aid an assist, and that doubt is often raised either by their defense attorney or by the judge in the case, then there will be an evaluation that is done by a mental health expert to determine whether or not the person is able to aid and assist. If the expert makes a determination that one side or the other doesn't like they can bring in their own experts to make that determination. And then sometimes people are found never able to aid and assist. That's when an expert makes the determination that not only can this person not aid and assist, but their mental health is such that there is no level of restoration that will make them be able to do so. And at that point a criminal case can't go forward against them. But what we see a lot is that prosecutors will contest those findings in order to be able to sort of keep the case going. And so you have people who have been found by experts really to not be appropriate for the criminal justice system, but the criminal justice system, uh, it does not get its claws out of people if it has any way of keeping them in.
Michelle: I mean, I just want him to be in charge of all of mental health in Oregon. Can we make that happen?
Jesse: Yeah, yeah, sure, let me just push this mental health czar button right here.
Michelle: Yeah, mental health czar.
Jesse: Okay, so now that that's solved.
Michelle: Perfect.
Jesse: We have these three different processes that can have different entry points, different goals, different types of safety concerns. But these three different paths can all lead, potentially, to the same facility. So how do staff and clinicians at a state hospital provide an appropriate environment, and give appropriate attention, to these three different communities?
KC Lewis: So it's been a real struggle for them, and I will say we have been talking to a lot of state hospital employees recently about the issues that they have at the state hospital currently, and there are many of those issues, but the one that really rises to the top for everybody we've talked to is they say, we did not sign up to warehouse people for the criminal justice system. We took these jobs because we wanted to help people get well and we used to be able to do that. We used to be treating a population that was much more balanced between people who are here for their own benefit and people who are here just because the criminal justice system needs us to restore them to competency. And now it's so overwhelmingly shifted the other way that it's really hurting morale at the state hospital. It's really leading to people being very dispirited. We've heard a lot of concerns about them feeling like they haven't received the proper training to be dealing with this different population, but really they filter them. They put them in different cohorts based on why they're there. And they do receive different kinds of treatment because of that, but from what we have heard the people who have been working at the state hospital are very frustrated by the fact that the system has been so thoroughly taken over by these people who are just there for competency restoration.
Jesse: If your goal is to get someone to understand what a court hearing is, and how a court hearing works, are they being put through classes on how a court hearing works while they're in the facility?
KC Lewis: Yes, there are specific sort of restoration classes. And a lot of the complaints we've heard are, we feel like other classes, other opportunities that we present, would help these people as well. I mean, teaching someone how to be able to sort of emotionally regulate helps prevent them from, you know, yelling in court, which is one of the things that can lead to them being found unable to aid and assist. Just generally sort of helping people deal with their mental illness and be healthier, ultimately long-term helps solve the aid and assist problem too. But the problem is the population has grown so much that the priority is just on moving them through as quickly as possible. And so really as soon as they've gotten them to the point where they can, I mean, I've heard it described as literally there is like a picture of a courtroom. They'll point to the judge and say, what does this person do? And they'll point to the defense attorney and say, what does this person do? And once they've gotten them to the point where they can be able to sort of regurgitate what they're being told about how the court system works, then they're out the door. And often, I mean, the way our court system works with more than 90% of cases ending in plea bargain, they're literally just trying to get them to the point where they can stand them up in front of a judge, have them plead guilty, and then sort of get them out the door so that the next person can come in. So there's this sort of prioritization within the system for people going through the Aid and Assist process, they have to be sent somewhere. They have to be accepted by the jail. They have to be accepted by a state hospital. Which uses up a bunch of the resources so that someone who may or may not be in some sort of distress who's going through the civil commitment process, they might not be able to get into a state hospital.
Jesse: If that's the case, if someone going through a civil commitment process is in some sort of a hospital, an ER somewhere, and they're being evaluated. Do they just stay there until a bed is found?
KC Lewis: I mean, right now they just stay there until they can be discharged, until they no longer meet the criteria for civil commitment. Because the state hospital isn't taking civil commitment patients, and it hasn't for quite some time. And it doesn't anticipate that it's going to be able to for quite some time. And this gets into the litigation that we're involved in. We have a case that's been going on since 2002, it's called Oregon Advocacy Center versus Mink. We used to be called the Oregon Advocacy Center before we were Disability Rights Oregon. And that was a case where we were looking at people who are under Aid and Assist orders and again, I cannot emphasize enough, these are people who have not been convicted of any crime. These are people who have been accused of something but they have not had their day in court, and people were sitting in jails just waiting to be sent to the state hospital. And the finding in that original 2002 case Mink was that these people have been committed for treatment, they have not been committed for punishment. So you can't keep them in a jail for longer than it is absolutely necessary to make the arrangements to transport them somewhere where they can get treatment. And so what that did was establish a seven day timeline saying basically a person cannot wait in jail longer than seven days to be sent to the Oregon State Hospital because they're not there for punishment, they're there for treatment, and they need to be sent to the place where they can get the treatment. This was fantastic for people who are on Aid and Assist because what we know is that jail is absolutely horrible for their mental health, and often they will deteriorate very quickly in jail. But one of the effects of that also is that the state hospital is prioritizing those people because it has to get them out of jail within seven days. Now, they haven't been in compliance with that order for a while, they're not currently in compliance with that order. But that is one of the realities behind kind of the state hospital population, is they have populations of people who they are constitutionally required to accept. It has recently been found to apply to the guilty except for insane population as well by another federal judge. So the fact that we have this limited resource and the criminal justice system is using up so much of it is an entirely sort of preventable issue. But it requires the criminal justice system to exercise more restraint, and exercise more discretion of who it's actually sending into the system. Because once they're in jail we can't just let them sit there, it's not right and it's not constitutional.
Jesse: In relation to mental health laws, the distinction between punishment and treatment has value. Because it can serve as a sort of litmus test for the conditions of release. But I have also many times heard people argue that expanding mental health laws, adding new ways to strip people of their rights, is a good thing because it's not punishment, it's treatment. But for many of us who have been forced into these systems, the practical reality of that distinction is little more than semantics because being committed often looks, and feels, like punishment.
Michelle: Yeah, because we don't know how to deal with not liking you in any other way. We don't like you, we don't like your actions. Like, how will you stop doing things we don't like if we don't punish you? Punishment is easy. The things that are hard are things like understanding, and recovery, and forgiveness. And I think we struggle to figure out as a society how to do any of those things.
Jesse: And that connects to my last question in the interview with KC. It is clear that the Aid and Assist system can lead to some horrific outcomes. So what should we be doing differently to actually help the people who are being forced into these systems?
KC Lewis: So there's a few answers to that. The number one best solution is to create community resources so that people never reach the point of being in the criminal justice system in the first place. And that looks like supportive housing, looks like having people who can help people with medication management, who can provide therapy to them, who can generally keep them from reaching the point of crisis where they have contact with law enforcement. I think the next answer is law enforcement discretion and prosecutorial discretion. When they have contact with people who are clearly in crisis just saying, we don't need to have anything to do with this. And like I said, there's a level at which some police are already doing that, saying we're gonna give this person a ride to where they can get help, but other than that that's what we see as our role being. We don't need to charge them with anything based on behavior that they couldn't help. I think we need to see more of that in sort of the world of the prosecutors, because I don't think that we have nearly as much of that discretion being exercised by criminal prosecutors. I think it's just too easy for them, once they have a case in front of them to say, I'm going to see this through to the end. But the other thing is once we've built up those community resources then even if somebody is in the criminal justice system, we do have an option in our law for community restoration. Which is to say they don't have to go to the state hospital. The judge can say, this person needs to be restored to competency but they can be restored in the community and they can be, you know, they can either stay at a residential facility, or they can go home and they can be doing classes to get them to the point where they're able to go forward with their case. What we're seeing unfortunately is that those resources just don't exist in the community, and so even though judges have that option they're not exercising it because they have nobody to send anyone. And the flip side of that that makes it even more of a good option is that we would then also have places for people to step down to from the state hospital. So instead of them just being sent back to jail once they've been restored to competency, we could have placements for them to go to where they would continue to receive services and receive that continuity of care that we were talking about. So really it all comes down to community resources. And I mean, this just goes back to the history of how we got here in the first place. As we said we're not gonna put people in state asylums anymore, and we're going to put them out into the community, and then we never funded those resources. And what happened is we just ended up with our criminal justice system taking their place because it's the only system that can't turn anyone away. It's the only system that when you get brought into jail they have to take you. And then once they've taken you you can't be tried unless you're mentally able to be tried. And so the state hospital has to take you then and it just goes around and around.
Michelle: That's the US right there, the criminal justice system, the only people that will never turn you away. You're always welcome.
Jesse: Yeah, and another indication of how intertwined these criminal and civil systems have become is that we continue to see carceral forms of forced treatment justified because they're said to be better than criminal incarceration, as if those are the only two options.
Michelle: It's like talking about the lesser of two evils. I do appreciate that when we talk about that there is one that is less evil, and I do want the less evil one because less evil is better than more evil. But I don't really wanna focus on less, I wanna focus on evil. And so it's the same thing, you know, yeah, I get it, treatment versus punishment, that is important. I do recognize the difference and I appreciate the difference, it's just not really what I want to be focusing on. I wanna be focusing on the rights stripped from the human being. Focus on that part.
Jesse: Well, there will be plenty more opportunities to focus on systems that strip people of their rights because next time on Committable we'll be talking about mental health laws in Minnesota.
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.