Oregon district attorneys worry that new state hospital stay limits will affect public safety

By Conrad Wilson (OPB)
Sept. 8, 2022 1 p.m.

U.S. District Court Judge Michael Mosman signed a ruling this month that limits how long people charged with crimes can stay at state hospital

Several district attorneys in Oregon are raising concerns about a new federal court order that will limit the amount of time patients can stay at the state’s psychiatric hospital.


Dozens of people across the state who’ve been accused of crimes and need mental health care are stuck in jail. That’s because there’s no room for them to be treated at the Oregon State Hospital.

A new ruling signed last week should free up more beds. A federal judge recently ordered the hospital to limit how long some patients can stay.

The ruling upholds a compromise recently reached by the state and disability rights advocates. But several Portland area district attorneys have concerns and say this move could pose a threat to public safety.

Oregon State Hospital, Jan. 27, 2022.

Oregon State Hospital, Jan. 27, 2022.

Kristyna Wentz-Graff / OPB

The majority of patients at the Oregon State Hospital are there because they’re facing criminal charges, but aren’t fit to stand trial. The state cannot prosecute someone for a crime if they don’t understand what’s happening to them. A stay at the state’s psychiatric hospital is meant to “restore” them to a state in which they are capable of working with an attorney to aid in their own defense.

Twenty years ago, a federal judge in Oregon issued a ruling that says the state hospital has to admit people within seven days. These are people coming from jails to the state hospital to get treatment.

In recent years, the hospital has struggled to admit people within that seven-day window, leaving many who are in various degrees of mental health crisis stuck in jail. As of Tuesday, 73 people were waiting in jails for admission to the hospital — many charged with crimes — in violation of the long-standing order.

Disability Rights Oregon and Metropolitan Public Defender have sued the state over this situation. They’ve tried to force the state to follow that old court order. The state has had staffing issues, there’s been COVID-19, and it’s a very challenging population to care for.

But finally, the two sides came to an agreement. And on September 1, U.S. District Court Judge Michael Mosman signed off on an unopposed motion to limit the amount of time people can stay at the state hospital.


The new rules grant:

  • 90 days for people charged with misdemeanors
  • six months for non-violent felonies
  • one year for violent charges that carry mandatory minimum sentences under Ballot Measure 11

An independent expert working on fixing some of the issues at Oregon State Hospital had recommended this step so that more people could be admitted in a timely fashion.

“The order won’t be implemented overnight,” said Jesse Merrithew, an attorney representing Metropolitan Public Defender, a public defense nonprofit that works in Washington and Multnomah counties. “The hospital is taking a safe and practical approach to getting through these discharges because there are currently over 100 people who are past the state limitations. And it is not safe or reasonable to simply discharge all those people overnight.”

Merrithew says those with the least serious offenses will be released to the counties first, followed by those charged with more serious crimes. Under the new plan, the hospital will send a 30-day notice to the counties receiving released state hospital patients. Prosecutors and judges will have that time to decide what to do next.

Dr. Debra Pinals, director of the Program in Law, Psychiatry and Ethics at the University of Michigan and the neutral expert appointed by Mosman to the case, has said most people who can be restored to competency will be within these new timeframes.

But some district attorneys are worried that people will be released who are not actually better, many of whom are accused of violent crimes, and that those people will put the public at risk.

“One solution is you can just say we don’t have the beds, we don’t have the people, we don’t have the staff and so we need to release individuals who are a danger to other people,” Marion County District Attorney Paige Clarkson said. “Another potential solution is we need to increase capacity. There needs to be more beds, there needs to be more staff, more people to address this crisis.”

Washington County District Attorney Kevin Barton and Clackamas County District Attorney John Wentworth have also joined with Clarkson, hiring former U.S. Attorney Billy Williams as their attorney. The county governments of Marion and Washington counties are also now involved in the case.

Last year, Oregon lawmakers decided to spend some $350 million on the state hospital as well as other mental health programs. Some of that money has already increased capacity. But it’s also a lot of money and it will take time before it really has an effect.

Clarkson said she and the other DAs who have complained will continue to push for greater hospital capacity to treat people, despite the recent federal ruling. They will likely clarify their arguments in future court filings.

Everyone seems to agree that the state lacks the capacity to care for these people accused of crimes and in need of mental health care that is maybe slightly less intensive than what is provided by the state hospital. Many who might be released earlier are through an initial crisis but are still in need of some care. But the solutions to that problem are complex.

Some worry that expanding the state hospital will grow an expensive system that the state would ultimately just fill with more patients until another backlog is created. Disability advocates are pushing for the state to offer different levels of care. Ideally, this would give officials a chance to intervene before someone would need to go to a hospital at all.

“Ultimately, where we need to get as a community is to get these folks out of the criminal justice system entirely,” Merrithew said. “We shouldn’t have a criminal system that has so many people coming into it as a result of mental illness. We need to have better resources in our local communities so that those folks never hit the criminal system at all.”