A judge said Tuesday the Oregon State Hospital is in contempt of court because defendants ordered to receive treatment there instead languished in jail.

Washington County Circuit Court Judge D. Charles Bailey found that the state hospital “willfully violated” his order to admit inmates being held in the Washington County Jail. He ruled the hospital took too long to get several defendants admitted.

Blossoms bloom in front of the Washington County Courthouse.

Blossoms bloom in front of the Washington County Courthouse.

Michael Clapp/OPB

“Based on evidence presented and the current law, the court finds OSH in contempt for willfully violating the court’s orders,” Bailey wrote in his decision.

Judges can order defendants in criminal cases to be sent to the Oregon State Hospital for psychological evaluation or to be treated, until it’s determined the person can aid in their own defense. Under a 2002 federal court order, defendants who can’t assist are supposed to be admitted to the state hospital within seven days. The ruling compounds problems facing the Oregon Health Authority, which oversees the state hospital, as it’s also facing a lawsuit in federal court over that same 2002 order. 

OHA said Tuesday it was disappointed in Judge Bailey’s ruling and is exploring an appeal.

“Oregon State Hospital can’t continue to absorb patients at the rates that they are being sent by local courts and jails,” OHA Director Patrick Allen said in a statement. “This problem will continue to be difficult to solve so long as some communities continue to over-rely on Oregon State Hospital for treatment for people who can be served in their communities.”

In his ruling, Bailey found four defendants waited longer than seven days to get admitted to the state hospital for treatment so they could aid in their own defense.

One of the four, Gale Merrill, is charged with a felony for eluding police in a vehicle as well as two misdemeanors.

In January, he was ordered to the hospital for a mental health evaluation. In March that still hadn’t happened, so a judge sitting in for Bailey ordered Merrill to be transported to the hospital within seven days.

Months later, Merrill remains locked up in the Washington County Jail. No psychological evaluation has been done.

“In the meantime his mental health is rapidly deteriorating,” said Casey Kovacic, his defense attorney.

Kovacic said his client is looking at a relatively short sentence, perhaps time served.

“But he’s stuck because we can’t proceed until he’s found competent,” Kovacic said. “He won’t be found competent until he’s evaluated at the State Hospital and then treated.”

Evaluations aren’t covered as part of the 17-year-old federal court order, though Bailey said in his order that whether someone is being admitted for longer term treatment or an evaluation – which can last hours or up to 30 days – their due process rights are the same.

“It is largely undisputed that each defendant was not transported within seven days of a court order,” the judge wrote. “It is also largely undisputed that jails are inferior to the OSH for evaluations and treatments.”

Mental health experts point to research that shows defendants with mental illnesses often get sicker the longer they stay in jail, and may not fully recover. In another case, Bailey wrote, the defendant’s mental state deteriorated in jail to the point he was shouting delirious statements during court hearings.

That defendant was Carlos Zamora-Skaar. 

He’s facing a felony burglary charge as well as two misdemeanors, and was originally ordered to the state hospital in January for a psychological evaluation. But by April that still hadn’t happened, so Bailey found Zamora-Skaar unfit to proceed.

It took until May before he was actually transported to the state hospital, according to his attorney Amanda Thibeault.

“No court order can give back to our clients what they have lost by languishing in jail due to an outdated and underfunded bureaucratic system,” Thibeault wrote in an email. “The court shouldn’t have to be taking up these issues.”

In his ruling, Bailey said he’s fining the Oregon Health Authority $100 per day, per defendant. He noted that evidence presented during court hearings showed there was bed space at the state hospital and the state did nothing to tell the court it wouldn’t be able to comply with Bailey’s orders.

Allen, who oversees OHA, responded to that in his statement.

“We cannot compromise the health, safety and civil rights of our current patients by going above our managed capacity,” Allen said. “We continue to work with the legislature and counties to change the law to better serve people with mental illness and expand community treatment in every part of the state.”

OHA and the state hospital are the subject of a federal lawsuit brought by Disability Rights Oregon and Metropolitan Public Defenders, a nonprofit that provides public defense services in Washington and Multnomah counties. They argue the state hospital is violating the 2002 federal court order. 

It mandates that criminal defendants deemed “to be unfit to proceed to trial because of mental incapacities” must be admitted to the Oregon State Hospital within seven days for treatment.

Next week, a federal judge in Portland will hear arguments in that case. 

Mental health advocates and attorneys say there are dozens of people stuck in local jails across the state waiting to get admitted to the state hospital for treatment.