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State hospital’s actions challenged in court

Case centers around inmates kept in jail for extended periods

Officials with the Oregon State Hospital appeared virtually Friday before Jackson County Circuit Court Judge Paul Moser to explain why people found “guilty except for insanity” have had to wait in local jails to begin court-ordered sentences of psychiatric treatment.

One of two people sentenced to receive such mental health care waited in the Jackson County Jail for 10 months while another has been waiting in the jail for almost four months.

Whitley

Aaron David Whitley was transferred Thursday from the Jackson County Jail into the Oregon State Hospital in Salem for psychiatric treatment ordered for him 10 months ago.

On Jan. 15, Jackson County Circuit Court Judge Laura Cromwell sentenced Whitley, 39, to receive psychiatric care after he attempted to commit a carjacking in Ashland in February 2020. Cromwell declared him guilty except for insanity because he’s suffering a mental disorder. The judge’s order also stipulated that Whitley be transported to the Oregon State Hospital “forthwith,” according to previous reports.

Whitley’s attorney Alyssa Bartholomew of Southern Oregon Public Defenders Inc. has taken legal action on Whitley’s behalf because of the 10-month hold after his sentence was meted out and began pursuing some sort of legal remedy.

Walker

Darryl Walker, another inmate at the Jackson County Jail found guilty but insane was sentenced to receive psychiatric treatment by the state in late July and has been waiting there for nearly four months to be admitted to the state hospital.

Walker, 43, was declared guilty except for insanity after tying up and stabbing a family member while hallucinating that the victim was someone else, a person who had kidnapped him as a child, according to a probable cause affidavit.

Whitley had been housed at the county jail since he was apprehended in February 2020, and Walker has been there since his arrest in February of this year, but this legal action focuses on the sentence not being carried out.

He had been the guilty except for insanity patient with the highest ranking for a bed, which meant he was supposed to go first, Bartholomew stressed.

Bartholomew asked that the court find the Oregon State Hospital and the Oregon Health Authority to be in remedial contempt of the court for not fulfilling the commitment orders issued for the two men.

Friday’s hearing had been postponed twice after originally being scheduled to occur several weeks ago.

Bartholomew pointed out that Whitley’s transfer occurred the day immediately after the state hospital announced Wednesday that it has added 24 beds in its Junction City hospital for people who have been judged as guilty but insane.

She said that a federal injunction ordered that two other people declared guilty but insane be admitted to the Oregon State Hospital to begin their psychiatric treatments. The federal injunction might have been the motivation for the state to have finally increased the number of beds last week, she added.

OHA said in a press release that the addition of 24 beds available for guilty but insane patients had been contingent on a long-awaited increase in funding by the state Legislature.

Whitley, Walker and other inmates have been waiting to begin state psychiatric treatment because the state hospital is choosing not to take them in and that management choices have allowed these people to “languish in county jails,” Bartholomew said to Moser.

She said the Jackson County Jail isn’t a mental health facility and that the OHA doesn’t provide county jails with funding to provide that type of care to inmates.

Unlike being in county jail, people receiving care in the state hospital can “receive care packages, walk around outside ... and have more freedom than being in jail,” Bartholomew said. The view “that the jail is the same as OSH is absurd.”

State responds

Oregon State Hospital and OHA officials assert that their system has been affected by increases in the number of guilty but insane verdicts by judges across the state, resulting in demand for this specialized form of care to reach a “historic” level, said Eliot Thompson, senior assistant attorney general.

Further complicating matters is that COVID-19 precautions have reduced capacity to keep patients and staff safe, and the state has to comply with a court-ordered priority of ensuring that people in need of mental health care receive it to help them understand criminal charges being brought against them.

This is so they can assist in their own court defense, according to the OHA.

The result of all this, said Thompson, is “not enough beds for everyone.”

Dr. Derek Wehr, deputy superintendent of the state hospital in Salem, was asked to speak virtually with both lawyers.Thompson was his counsel in this case.

Thompson asked him whether the state hospital could decline a court order, and Wehr said that the hospital “cannot admit a patient when we don’t have bed.”

Demand for space to accommodate those with “aid and assist needs“ are rising, which has resulted in a lack of beds for guilty but insane patients, Wehr said.

The system can’t function when all beds are full because situations can arise that require that one or more patients be moved or separated at any time. Circumstances can be “so unpredictable,” he explained.

These include being able to move someone when they are psychotic or suicidal, or when two patients sharing a two-bed area can’t get along, which sometimes results in physical disputes.

Some psychotic or violent patients “can’t have roommates,” Wehr said. “Such assaults occur several times a week.”

And units aren’t interchangeable. Some are for COVID-19 patients or for quarantining patients until their COVID status is known.

Some spaces are needed to allow for emergency placements, which includes people whose safety is at risk, he added.

Thompson asked Wehr what the industry standard patient occupancy limit was for facilities such as the state hospital. He said it was 85% for hospitals but that they are at 95%.

Going to 100% would likely result in pairing of patients that could be unsafe, Wehr said.

Ensuring there are enough employees to provide adequate care has also become more challenging.

The National Guard has been deployed to the state hospital twice, and scores of contractors employed, he said.

The state hospital couldn’t have “lawfully and safely” admitted more guilty but insane patients, Wehr said.

Compensation

Bartholomew asked that Whitley receive financial compensation for the state’s court order violation due to “the loss, injury and costs suffered by him as the result of the contempt of court” as well as creation of another court order to ensure “compliance with the prior court order.” Attorneys’ fees were also sought.

Thompson said there hasn’t been enough evidence presented that the two men have suffered injury or loss.

“Both men are indigent,” he told Moser.

Thompson also argued that Whitley is now out of the county jail and at the state hospital starting his treatment.

Bartholomew told Moser that even though Whitley was transferred to the state hospital a day before the hearing Friday, state law allows for sanctions covering the period in which Whitley was in custody.

Her earlier written motion also contends that the statute applies no matter whether the contemptible action has ended or is ongoing, and “within two years of the act or omission constituting the contempt.”

“It’s not a moot point,” Bartholomew said about Thompson wanting to exclude Whitley.

Moser said he would issue a written opinion about the matter soon.