COVID-19, Mink-Bowman, and Court-Ordered Psychiatric Services in Oregon.

COVID-19 strongly affected referral of individuals from Oregon's courts and the ability of Oregon State Hospital (OSH) to accept patients. Despite acceleration in the decline in civil commitment, competency to stand trial (CST) admissions increased, causing a bed crisis at OSH, which in turn affected community hospitals and jails. In 1993, the Ninth Circuit Court of Appeals mandated admission of jail detainees to OSH within seven days after a judicial order for CST evaluation or restoration. During COVID, as the number of such patients increased to crisis proportions, average jail detention times exceeded seven days. An inevitable judicial process intensified in the U.S. District Court of Oregon after OSH requested a COVID-related modification of the seven-day limit. This commentary demonstrates more clearly than in the past that there is a negative correlation between civil commitment and competency restoration as components of an interrelated system. After updating the situation in Oregon, this article ends with suggested interventions to improve Oregon's civil and criminal commitment processes, hoping for better care of patients and improved administration of justice.

The Dramatic Decline of Civil Commitment in Oregon, 1972 to 2020.

The rate of civil commitment in Oregon fell from 53.2/100,000 in 1972 to 9.2/100,000 in 2020. The paper discusses this decline in civil commitment as related to statutory and case law changes and complex interactions including bed availability at Oregon State Hospital (OSH). The latter was in turn influenced by the significant increase in the last decade of hospitalization at OSH of competence to stand trial evaluation and restoration (CST) patients. Multnomah County, which contains the city of Portland, was responsible for the largest number of investigations and commitments and led the state in using a 14-day diversion alternative to commitment. This analysis may serve as a model for other states to engage in similar longitudinal research to shed light on the functioning of their involuntary commitment statutes.

Competency to Stand Trial, Civil Commitment, and Oregon State Hospital.

This article examines the explosive growth of individuals referred for competency to stand trial evaluation and restoration services in the state of Oregon and at Oregon State Hospital between the years 2000 and 2020. This paper also examines the links between competency to stand trial and civil commitment statutes. As yearly civil commitments rates have decreased in Oregon, competency to stand trial commitments to Oregon State Hospital have increased, suggesting an inverse relationship between these two important statutes. There is an overlap in the jurisdiction of these statutes, with both needing to function harmoniously for the civil and the criminal justice processes to each work for the benefit of the individuals involved in the criminal justice and mental health systems.

Arizona's Insanity Defense, Clark, and the 2007 Legislature.

In the post-Hinckley era, four states (Montana, Idaho, Utah, and Kansas) abolished their traditional insanity statutes in 1979 in favor of what are in certain circumstances mens rea insanity statutes. These changes were controversial and attracted early attention of legal scholars and courts in the individual states and at the U.S. Supreme Court. A 2006 Supreme Court decision in Clark v. Arizona had distinct but related concerns that helped crystallize the Court's attention on both mens rea and traditional insanity defense statutes. This decision led to a dramatic precedent that may have settled these matters for generations to come. This article will discuss the changes in the Arizona statutory and case law and the interplay between these changes and the important decisions of the U.S. Supreme Court during the same time span. The result of the changes has led to a situation in Arizona where, for the most serious criminal defendants with mental illness, there is no current mechanism to acquit a defendant on the basis of insanity by a mens rea statute or otherwise.

The Ninth Circuit Court of Appeals and Jail-Based Competency Evaluation and Restoration.

The U.S. Ninth Circuit is the largest of the federal appeals courts, encompassing the states of Alaska, Washington, and Oregon to the north, Hawaii, Guam, and the Northern Mariana Islands to the west, California and Arizona to the west and southwest, along with the three intermountain states of Idaho, Montana, and Nevada. The landmass within the Ninth Circuit represents great diversity of geography, climate, population density, and cultural and political traditions. This article considers two landmark Ninth Circuit decisions, one from Oregon and the other from Washington, two states that share geography, culture, and political orientation. Informed by these decisions, we consider how the Ninth Circuit might view the jail-based competency evaluation and restoration programs in the state of Arizona. We explore: the due process rights of jail detainees who are awaiting an evaluation of trial competency; and the time necessary for admission to, and the adequacy of, Arizona's jail-based competency restoration programs after a finding of incompetency.

Mens Rea, Competency to Stand Trial, and Guilty but Mentally Ill.

The recent U.S. Supreme Court case of Kahler v. Kansas determined that the Kansas mens rea laws were sufficient to stand as the state's only insanity defense statute. In this issue of The Journal, Landess and Holoyda describe the legal reasoning that led to this decision and the persistent concerns about the wisdom of the decision. This commentary is meant to serve as a mirror image to Landess and Holoyda's article, as it focuses on the impact of Kahler on severely mentally ill individuals faced with criminal charges in the four mens rea states: Montana, Idaho, Utah, and Kansas. The authors assert that the absence of a traditional insanity defense disrupts the criminal justice process, adds the pressure of greater numbers of individuals pushed into the competency-to-stand-trial and competency-restoration systems, resurrects the guilty but mentally ill verdict from the condemnation of history, and forces people with serious mental iillness into prisons without any evidence that the prisons are up to the task of adequately caring for them.

Incompetent to Stand Trial, Not Restorable, and Dangerous.

This article focuses on the preferred disposition for an individual charged with a serious crime against another person, adjudicated incompetent to stand trial and not restorable to competence, whose original criminal charges are dismissed without prejudice, and who is regarded by the state as dangerous to the general public. Three current models used today in California, Oregon, and Ohio are described. All three rely on modifications of various aspects of civil commitment law. We then propose a fourth model based on a modified version of the 1989 American Bar Association (ABA) Criminal Justice Mental Health Standards, in which individuals who are found incompetent to stand trial and not restorable to competence and are considered dangerous would be committed under the same special procedures governing the management and treatment of insanity acquittees.

Treatment Refusal in Arizona's Jail-Based Competency to Stand Trial Restoration Programs.

In 2003, Arizona began a jail-based restoration to competency program for detainees in its largest jail system in Phoenix. Today, jail-based competency programs have become the rule statewide to the degree that very few incompetent detainees are now referred to the Arizona State Hospital for restoration services. This article focuses on the topic of treatment refusal and the use of forced medications for detainees who are in these jail-based restoration programs. We describe Arizona's novel statewide jail-based programs, Arizona's statutory and case law approach to treatment refusal, and the restoration to competency programs in one large county jail that has no legal mechanism outside of civil commitment for the determination of whether forced treatment will be permitted. We conclude with a discussion of specific override procedures that might apply directly to incompetent detainees in a jail-based competency restoration program and whether the use of these procedures is prudent in a jail environment.

The Migration of Arizona's Post-Insanity Defense Procedures to a Modified GBMI Model.

Arizona's insanity defense and post-insanity procedures have evolved over the last 30 years into a unique system. Arizona moved from a typical M'Naughten-based insanity defense to an adaptation of the Oregon Psychiatric Security Review Board (PSRB) model and then to its current form, in which the PSRB is cast in a correctional framework. These changes have resulted in a correctional statute, with outcomes that may subject the guilty except insane (GEI) offender to a disposition similar to that of someone found guilty but mentally ill (GBMI). We review the literature on the GBMI defense first developed in Michigan in the 1970s and compare Arizona's current system to the earlier GBMI models. We conclude with a discussion of Arizona's GEI verdict and implications of managing these offenders in a correctional framework, resulting in a modified GBMI statute.

Jail-Based Competency Restoration.

One of the most traditional, longstanding, and essential methods of providing the proper level of psychiatric treatment for severely disturbed jail inmates with serious mental illness has been hospital transfer. Transfer does not necessarily imply diversion from trial, but diversion from jail, at least while the detainee is in need of higher level care. Unfortunately, hospital transfer has become increasingly unavailable. Two responses to the unavailability of hospital care for pretrial detainees have been used as justification for maintaining this deficiency: the development of jail-based competency restoration programs and the acceptance of enforced medication of pretrial detainees in jail. The authors analyze each of these practices as inadequate responses to the state's failure to provide timely pretrial hospitalization to detainees who have a serious mental illness and are in need of this level of service.

The Forensic Mental Health Services Census of Forensic Populations in State Facilities.

This article focuses on the development of a Forensic Mental Health Services Census (FMHSC), proposed to differentiate between five different patient populations institutionalized in state facilities. The FMHSC would comprise patients who are civilly committed for mental illness or sexual dangerousness, those found incompetent to stand trial, those committed after a verdict of not guilty by reason of insanity, and those voluntarily committed. The census would be performed by state mental health authorities for each of these populations within the particular jurisdiction and then would be reported to a national coordinating organization. These data are important because of the large number of persons involved and the significant resources devoted to the management and treatment of each involuntary group. The census is necessary for clinical, research, and policy purposes, to provide more rational management of these populations, both within and across jurisdictions.

The Oregon Court of Appeals and the State Civil Commitment Statute.

In 1973 the Oregon Legislature passed a major revision of its civil commitment law adopting changes that mirrored those taking place across the United States. The new sections offered significant protections of the rights of individuals who are alleged to have mental illness, a limitation on the length of commitment, the adoption of both dangerousness and gravely disabled type commitment criteria and the adoption of "beyond a reasonable doubt" as the standard of proof for commitment hearings. From 1973 to the present time, the Oregon Court of Appeals adjudicated a large number of appeals emanating from civil commitment courts. This article is based on a review of 98 written Oregon Court of Appeals commitment decisions from the years 1998 through 2015 and is accompanied by a review of legislative intent in 1973. It appears that the court of appeals has significantly altered the 1973 legislative changes by moving the dangerousness criteria to imminence and the gravely disabled criteria to a focus on survival. Empirically, civil commitment has dramatically decreased in Oregon over a 40-year period and the case law, as developed by Oregon Court of Appeals, has had a significant contributing role in this reduction.

Conditional Release Placements of Insanity Acquittees in Oregon: 2012-2014.

Between January 1, 2012 and December 31, 2014, there was a large population (N = 200) of insanity acquittees placed on conditional release (CR) in the state of Oregon. This article looks at the demographic and system characteristics of this large group of individuals. The authors then focus on the initial housing placement and what happens to individuals after their release in relation to their housing placement. In Oregon, insanity acquittees are either conditionally released directly by the court or placed in the hospital prior to potential CR by a supervising board. In general, once CR occurs, individuals tend to stay in their initial placement without moving to less structured levels of care, raising concerns about transinstitutionalization. This is especially true for individuals released to the most structured living arrangement (secure residential treatment facility). Those individuals who are conditionally released to less structured settings have a higher rate of revocation back to the hospital. Those individuals who do move to less structured levels of care usually have longer hospital stays and start off in more structured levels of care to start their CR. Copyright © 2016 John Wiley & Sons, Ltd.

Psychiatric Boarding in Washington State and the Inadequacy of Mental Health Resources.

Psychiatric boarding is a term derived from emergency medicine that describes the holding of patients deemed in need of hospitalization in emergency departments for extended periods because psychiatric beds are not available. Such boarding has occurred for many years in the shadows of mental health care as both inpatient beds and community services have decreased. This article focuses on a 2014 Washington State Supreme Court decision that examined the interpretation of certain sections of the Washington state civil commitment statute that had been used to justify the extended boarding of detained psychiatric patients in general hospital emergency departments. The impact of this decision on the state of Washington should be significant and could spark a national debate about the negative impacts of psychiatric boarding on patients and on the nation's general hospital emergency services.

Oregon's Gun Relief Program for Adjudicated Mentally Ill Persons: The Psychiatric Security Review Board.

This article describes the State of Oregon's implementation of two programs designed to comply with federal gun laws regarding reporting individuals who have received mental health adjudications in criminal and civil courts. One mandate requires that states submit names of adjudicated individuals to the National Instant Criminal Background Check System (NICS) while the second requires that the state establish a qualifying gun restoration program for those disqualified from gun ownership. In 2009, Oregon's Legislature developed an administrative approach to gun restoration and assigned the responsibility for conducting these hearing to the Oregon Psychiatric Security Review Board (PSRB). The PSRB is a state administrative board that has existed since 1977 and has been primarily focused on the supervision and treatment of adult and juvenile insanity acquittees. The gun restoration program began in 2010, but to date has only received three completed petitions requesting restoration of firearm rights. The article concludes with a discussion that surmises why very few of the Oregonians who are listed in NICS have submitted petitions for relief.

Statewide survey of living arrangements for conditionally released insanity acquittees.

There is a large population (n =389) of insanity acquittees on monitored conditional release in Oregon. This article focuses on the living situation for these individuals, which can range from a secure residential treatment facility to independent living. This article will define all the different placement options available and then review the current living situation for all conditionally released insanity acquittees in the state of Oregon on a single day, February 1, 2014. This article shows that the majority of individuals on conditional release live in the most highly structured settings available. The article then ends with a discussion of these findings, including a comparison of current placement options, with previous descriptions in the literature demonstrating that current community options offer more structure and more individuals reside in structured settings than was previously the case. Current findings will be related to inpatient psychiatric bed reduction strategies and the question of possible transinstitutionalization.

The Oregon Psychiatric Security Review Board: 1978-2012.

This commentary describes the functioning of the Oregon Psychiatric Security Review Board (PSRB) from 1978 through 2011, when the Oregon Legislature altered the authority of the PSRB in regard to certain hospitalized insanity acquittees. Following the Hinckley verdict, the American Psychiatric Association recognized the PSRB as a possible future model for the management and treatment of insanity acquittees. The commentary provides an overview of the board from administrative and empirical viewpoints over this 34-year period and discusses the changes made in PSRB statutes in 2012 and the implication of these changes for the future management of insanity acquittees in Oregon.

Limitations of constitutional protections in Jackson v. Indiana pertaining to charges with no statute of limitations.

There has been a long-standing link between the civil and criminal commitment procedures for individuals found incompetent to stand trial (IST). In the criminal system, when restoration of competency fails to be realized in a reasonable time, the civil commitment process becomes the default system for commitment. While there have been recent calls for improved mechanisms for predicting competence restorability, there has been little attention paid to individuals who can oscillate indefinitely between commitment in both the criminal and civil systems. We provide an example of one such case where an individual falls into the legal space that sits outside of the judicial guidance outlined in the landmark case Jackson v. Indiana. This review of Oregon public documents surrounding an ongoing murder case highlights the potential for indefinite detention of individuals who have been charged with serious crimes that do not have a statute of limitations, who are unlikely to be restored to competency to stand trial, and who are inconsistently found to be dangerous under civil commitment standards.

CRIPA, Olmstead, and the transformation of the Oregon Psychiatric Security Review Board.

This commentary explores the relationship among the 1999 U.S. Supreme Court Olmstead decision; the Department of Justice, Civil Rights Division, in its application of CRIPA (the Civil Rights of Institutionalized Patients Act); and the application of both CRIPA and Olmstead to the question of individuals hospitalized in state mental institutions following commitment from criminal courts. Using Oregon as an example, the commentary illustrates the interplay between state and federal governments as Olmstead and CRIPA are expanded into the realm of criminal court commitments to state facilities and into the arena of community mental health services for deinstitutionalized persons.