Group wants ‘fair shake’ from state psychiatric security board

Advocates push for more freedom; board sees trouble ahead

From the The Portland Tribune, April 26, 2012

Matthew Kirby, a mental health activist in the new group Fair Shake, is challenging the authority of the state’s Psychiatric Security Review Board.

Matthew Kirby, a mental health activist in the new group Fair Shake, is challenging the authority of the state's Psychiatric Security Review Board.

Matthew Kirby, a mental health activist in the new group Fair Shake, is challenging the authority of the state’s Psychiatric Security Review Board.

For a decade, Rex Gorger had lived at the Oregon State Hospital in Salem following a 2002 conviction for murder in Washington County, where he was found guilty except for insanity.

The 31-year-old Gorger is preparing for a new life after the state Psychiatric Security Review Board approved his release, accepting the hospital’s claim that he was stable.

All he wanted was to avoid the stigma of mental illness that would follow him outside the hospital walls, possibly into a group home or other facility that could limit his freedom.

Today, Gorger is part of a group called PSRB Fair Shake that is promoting state legislation in 2013 to challenge the Psychiatric Security Review Board’s public safety mandate. The group wants to add a clause to the board’s mission statement giving people under its care more autonomy.

In January, four members of Fair Shake asked state Rep. Mitch Greenlick, D-Portland, to sponsor the bill and recruited a Fair Shake member to intern in his office. The group, which has about 30 members, wants the state to loosen its legal grip on people who have been convicted of crimes through the insanity defense.

“The idea of keeping society safe from ‘us crazies’ once we leave the hospital is based on stigma,” says Matthew Kirby, 22, of Portland, one of Fair Shake’s leaders.

In February, Kirby, who had been charged with first-degree burglary and found to be guilty except for insanity in 2009, was appointed to the hospital’s advisory board.

The group’s effort has raised red flags with Mary Claire Buckley, Psychiatric Security Review Board executive director, who says Fair Shake members are giving the public a warped view of their situation.

“They want to pose as these poor mentally ill people that are being mistreated,” Buckley says. “That’s the kind of stuff you’ll hear, but these people committed serious crimes and they chose to insert the insanity defense. Our mission is to protect society.”

According to the board, Only 2.2 percent of its clients commit new felonies after their release, compared to about 27 percent of people who are released from state prisons managed by the Oregon Department of Corrections.

“We should be committed to creating an actually therapeutic system, not just locking people up,” says Greenlick. “It might take three or four sessions.”

A balance of priorities

Buckley became executive director of the board in 1978, around the time the Legislature founded it. John Beatty, a retired Multnomah County senior judge, led a 1975 subcommittee that examined criminal arrests and sentencing for people with mental illnesses.

“It made sense to have control over people with mental illnesses for a longer period of time,” Beatty says. “The problem was, you’d send people to the state hospital, and the hospital would give them meds and turn them loose. There were no requirements to help people stay well after they got out.”

Today, Oregon and Connecticut are the only states with independent adjudicators overseeing people found guilty except for insanity; in other states they are assigned to the courts. The Oregon board’s clients rose from about 300 in 1980 to more than 700 in 2011.

“Maybe it was a bit overrated in the beginning, and that meant defendants flocked to it. And now it’s overly criticized,” says Joel Dvoskin, a forensic psychologist in New York who has trained Oregon Psychiatric Security Review Board members.

Imposing limits on people is sometimes considered good care, Dvoskin says. “There’s nothing about the recovery model that says there are no restrictions on personal freedom. It’s a message of hope and autonomy. It’s also about responsibility.”

About half of the board’s clients live in communities today under sometimes strict conditions, a 255 percent increase since 1992. Buckley says the rise reflects the board’s growing ability to balance the priorities of safety and freedom.

Limits on freedom

Following his 2009 conviction for burglary, Kirby found himself sentenced to be under the board’s supervision for 20 years. When Kirby was released from the state hospital to a Southeast Portland group home, he challenged the limits he faced, including a system of graduated freedom — the privilege to leave the house was automatically six months in the future — that he says was superficial.

“We put it in place for security, for the PSRB,” says Eric Sevos, clinical director of forensics at Cascadia Behavioral Healthcare, a community provider contracting with the state to house Kirby and about 50 other board clients in Multnomah County. “It does feel like it groups folks too much, like it’s not individualized. We were looking at it before, but Kirby put the gas pedal on the scrutiny.”

Sevos says the board’s public safety priority often conflicts with a person’s recovery. “As a social worker, I might want to see a person take a risk, take chances, prove that they can live on their own,” he says. “We might have to talk to that person and say, ‘Look, it’s going to be hard for us to convince the board.’ So that person stays at a certain level of care longer than I think is good for them.”

Kirby and Fair Shake’s members aren’t strangers to advocacy. During the 2011 legislative session, Kirby, then a state hospital resident, wrote letters to lawmakers and testified in support of measures to limit the Psychiatric Security Review Board’s authority. Two of the bills that he supported — House Bill 3100 and Senate Bill 420 — became law in August 2011, reducing some of the board’s authority as of Jan. 1, 2012.

That’s what Fair Shake members say they aim to do more of during the 2013 legislative session, Kirby says. “It’s our Arab spring.”

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The high price of Oregon’s insanity plea: Patients sent to the state mental hospital cost millions

From The Oregonian, February 12, 2011

Wayne Richards landed in the state mental hospital in Salem after he stole a scooter from a Fred Meyer store and abandoned it in a parking lot across the street. Oregon taxpayers will spend $17,661 every month he stays there, in one of the most expensive and most secure treatment settings the state has to offer.

Wayne Richards, 27, must have staff with him whenever he's outside on the grounds at the Oregon State Hospital in Salem. He was sent to the state mental hospital in August 2009 after he was found guilty except for insanity of stealing a scooter from a Fred Meyer. It could cost taxpayers more than $1 million if he stays here the entire time.

Wayne Richards, 27, must have staff with him whenever he's outside on the grounds at the Oregon State Hospital in Salem. He was sent to the state mental hospital in August 2009 after he was found guilty except for insanity of stealing a scooter from a Fred Meyer. It could cost taxpayers more than $1 million if he stays here the entire time.

The tab so far? Close to $300,000, for one guy who stole a scooter.

Richards, a stocky man with pale blue eyes, has battled mental illness since he was 11. He was a runaway at 14, and by 25, he had a long record of arrests for meth, marijuana, theft and trespassing. Though not violent, the scooter incident took him to a whole new level.

He pleaded guilty except for insanity.

Of the 503 patients who were at the Oregon State Hospital in Salem last week, 344 have been found guilty except for insanity. Some of them are dangerous folks, convicted of murder and rape; others are not violent. Nearly 100 have committed low-level felonies or misdemeanors, such as theft or criminal mischief, that might have gotten them probation. But because they pleaded insanity, all will stay in secure wards — often longer than the sentences they would have served in prison.

To examine this system, The Oregonian monitored psychiatric security hearings, interviewed patients, advocates, lawyers and judges, and reviewed records obtained under the state open records law. The evidence shows a mental health system that is professionally inconsistent, financially inefficient and often sadly inhumane. There are no statewide standards for evaluating which defendants should plead the insanity defense. If they do and are then locked up in the state hospital, even stable patients find it difficult to get out. Many who have been determined ready for release remain there for months.

At the same time Oregon taxpayers are pouring hundreds of millions of dollars into treating a few hundred criminally insane patients in the state hospital, thousands more sit in prison with limited mental health treatment, and thousands more live on the street with no treatment at all.

Richards was one of those who says he sought treatment but was often told to come back another day.

Now 27, he says he was drunk the night he went to the shopping center in The Dalles, scared a clerk and stole the scooter.

He agreed to plead guilty except for insanity in August 2009 because he thought he’d get the mental health attention he couldn’t find on the outside. He also admits he took the plea because he knew he’d have warm meals and a roof over his head.

It was only later that he says he learned he would be under the jurisdiction of the Psychiatric Security Review Board for five years — likely twice as long as he would have been in prison.

While there are no bars on the windows in the building where Richards lives, there might as well be. Every unit has a locked door, the stairs and elevator require security keys, and the only way outside is through two sets of locked gates. If he stays there the entire time he’s under the board, the bill will top $1 million.

He’s glad to have treatment, but Richards wonders if there could have been a better option for him and for taxpayers.

“It’s not worth it,” he says, “not worth it at all.”

Pleading insanity

A handful of states don’t offer an insanity defense. People who commit crimes while mentally ill go straight to prison just like everybody else. That happens in Oregon, too. More than half the inmates in Oregon prisons have some kind of mental health diagnosis, and nearly one-quarter have high to severe treatment needs, according to the Department of Corrections.

“There are people who have committed aggravated murder, murder, first-degree assault, and I have to tell you, the outcome is no different for the victim whether the offender is insane or not,” says Steve Doell, president of Crime Victims United of Oregon.

In 1978, Oregon became the first state to create a Psychiatric Security Review Board with its primary responsibility being to protect the public.

The board does a good job of that.

The number of people who commit a new felony while under the board’s supervision has averaged 2.2 percent since 1997. That’s compared with the 25 percent who commit new felony crimes after being released from prison.

What it means
Here are some of the common terms used when people who suffer from mental illness commit crimes:

  • Guilty except for insanity: Under Oregon law, defendants can be found guilty except for insanity if they suffered from a “mental disease or defect” that drastically impaired control or judgment at the time of the crime.
  • Forensic: A label used for state mental hospital patients who have either been found guilty except for insanity or are at the hospital for evaluation following a crime.
    Psychiatric Security Review Board: The board has five part-time members – including a psychiatrist, a psychologist and an attorney with criminal law experience. The board’s jurisdiction is equal to the maximum sentence provided under the law for the crime the person committed while mentally ill.
  • Conditional release: The Psychiatric Security Review Board holds regular hearings to decide whether a patient is ready to leave the state hospital under conditional release. If a patient suffers a relapse, commits a crime or does not follow specific rules, then the board will order the patient back to the hospital.
    In almost every case, Oregon defendants use the insanity plea as the result of an agreement of the defense attorney, prosecutor and judge, and relying on evaluations from at least one psychologist or psychiatrist.

The depth of those evaluations varies, however. Sometimes reports are a scant two pages while others can fill 22 pages or more.

“My sense is that communities may say, ‘OK, the only way we can be sure we’re going to get this guy off the street is to prosecute him,’ And so we have people in our mental hospital that, on another day, in another town, maybe wouldn’t have been criminally committed and would not have a criminal record,” says Harris Matarazzo, a Portland attorney who specializes in insanity defense.

And once a person is at the state hospital, Matarazzo says, the board is “extremely cautious” about allowing them to move back into the community.

“The board is going to be less criticized for keeping somebody than for releasing them, so the bias is always going to be in that direction,” he says. “At the same time, if the state spent that money instead upfront, on community mental health, you might not see them in the criminal justice system at all.”

Who gets committed

Judges, prosecutors and attorneys have found Oregon’s guilty except for insanity law a useful tool. Courts placed 63 people under the psychiatric security board’s jurisdiction last year, 82 in 2009.

By comparison, Connecticut, with a population slightly smaller than Oregon’s, placed six people under its psychiatric board’s jurisdiction in the last year.

Why is Oregon committing at least 10 times more?

Theories vary.

One clear difference is that Oregon courts put people who have committed misdemeanors in the state mental hospital.

Also, Oregon courts put a mentally ill defendant under the board for a defined time — usually the maximum prison sentence assigned to the crime. In Connecticut, there’s no definite end, which may discourage many from using the insanity plea, says Ellen Lachance, executive director of Connecticut’s board.

Retired Circuit Judge James Hargreaves, appointed by Gov. Ted Kulongoski in 2008 to guide improvements at the state hospital, says it’s an “egregious misuse of resources” to put people who have committed misdemeanor or low-level felony crimes in the state hospital for extended stays.

“The district attorneys are usually OK with it,” he says, because the psychiatric security board has been so restrictive. “They’ve got people in the hospital and under supervision in most cases longer than they will be in prison.”

“The judges, quite frankly, don’t care,” he says. “It gets the case off their docket. That comes down to the defense attorney, and I wonder, ‘Do they understand that they’re signing their client up for long-term hospitalization or supervision?’ I think there are a lot of defense lawyers out there who simply don’t understand how this all works.”

Hard to get out

Marvin Parker, 50, was found guilty except for insanity of burglary. The psychiatric security board has agreed to consider his release from the state hospital but Parker has waited months to get the necessary evaluations.

Marvin Parker, 50, was found guilty except for insanity of burglary. The psychiatric security board has agreed to consider his release from the state hospital but Parker has waited months to get the necessary evaluations.

Marvin Parker says he figured he was “going to the circus for a few months” when he agreed to plead guilty except for insanity on a burglary charge nearly eight years ago.

Parker was drunk at the time of the crime and says he doesn’t remember breaking into a neighbor’s apartment and stealing “stupid stuff — like stuffed animals.”

An alcoholic, Parker says he was in the Jackson County jail, sick and shaking from withdrawal, when his lawyer suggested he see a psychiatrist for evaluation.

“I’d been around,” says Parker, now 50, with neatly trimmed salt-and-pepper hair. “I thought I was getting one over on the system. But it’s getting one on me.”

Instead of the 17 months Parker feared he’d get in prison, he got 20 years under Oregon’s Psychiatric Security Review Board.

His story shows how hard it is for patients to get out of the hospital and back on track. Twice, Parker has been granted conditional release by the board and allowed to live in a group home. Both times he was ordered back to the hospital he broke the rules. He didn’t commit a new crime. But he did drink alcohol.

The second time he was caught, four years ago, Parker says he led the group home manager to a dozen empty bottles he’d stashed in the backyard near a lawn mower. He wanted to come clean, he says, “to get all the laundry out at one time.”

In May, Parker appeared before the board to ask for another chance. The panel agreed to consider it, ordering the hospital staff to conduct an alcohol and drug evaluation and a violence-risk assessment, both routine tests before patients are released. Parker got the substance abuse evaluation, but he’s still waiting for the risk assessment. The eight-month delay has put another $141,288 on taxpayers’ tab.

Backlog of evaluations

The federal government — through Medicaid — does not share the $17,661 monthly cost of keeping a person who has committed a crime in the state hospital. It does help pay the bill when that person is discharged to a smaller residential facility. Those costs average $14,360 a month for secure treatment to $2,230 for an adult foster home.

Oregon State Hospital Superintendent Greg Roberts said he didn’t know the specifics of Parker’s situation. But Roberts concedes that a backlog of evaluations has been a problem at the hospital.

When Roberts came to Salem to start his new job last fall, he says he found 140 substance abuse evaluations ordered by the board but not completed.

“Today that number is five,” Roberts says.

Although the rest of the world entered the computer age long ago, many of the records at the state mental hospital are still kept on paper. Sometimes the order doesn’t catch up to a file. Roberts says he wants to establish a new office of legal affairs to ensure that patients are not stuck in the hospital simply because they’re waiting for the paperwork.

As of Feb. 6, hospital records showed 76 patients had been determined by their treatment teams to be well enough for release. Of those, 30 had undergone all the evaluations ordered by the hospital and psychiatric board and were either waiting for a hearing or for a bed to open up in the community.

“The sense among patients is that they’re never getting out,” says Angela Kimball, the Portland-based director of state policy for the National Alliance on Mental Illness. “What’s your incentive for recovery if your stay is likely to extend far past what you need from a clinical standpoint, and worse yet, there’s a high likelihood of being revoked and sent back in for an extended period of time?”

Parker says he was told by staff a few weeks ago that he’s on the list to have his violence-risk assessment — soon. While he waits, he spends his days attending AA meetings and taking part in other activities at the hospital.

“I have a cooking group,” Parker says. “I already know how to cook. I just do it to kill the time.”

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Balancing Recovery and Public Safety: A Look at Oregon’s PSRB

On Dec. 13, 2007, Mental Health America and the MHA of Oregon cohosted a policy strategy meeting titled Balancing Recovery and Public Safety: A Look at Oregon’s PSRB.

Over 60 attendees participated from Portland and participating satellite sites in Salem, Corvallis, Eugene and Ontario.

The meeting provided an opportunity for local law enforcement, public defense, mental health consumers, advocates, national justice/policy experts, and local districts attorneys to discuss some of the challenges and success of Oregon’s Psychiatric Security Review Board (PSRB).

Attendees worked toward key concept goals to promote a more recovery-oriented system, and committed to forming a forensics coalition to address the needs of people with mental illness within the PSRB system.

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