From the Oregonian – Gordon Friedman, January 27, 2019

Early one Monday last November, police arrested Kobe Yandell for napping in the lobby of a downtown Portland skyscraper. Officers took the wiry 21-year-old, who is homeless and has schizophrenia, to the Multnomah County jail, where he spent the next 52 days in isolation.

A trespassing conviction normally carries little or no jail time. Yandell spent more than seven weeks locked up alone, yet had been convicted of no crime.

Instead, he was awaiting admission to Oregon’s public psychiatric hospital in Salem for a court-ordered evaluation, the usual first step for a defendant like Yandell, deemed by a judge too mentally ill to stand trial. It was familiar territory for him. Just seven months earlier, a judge had sent Yandell to the state mental institution to get healthy enough to face two other low-level cases.

Yandell is not alone in languishing in jail or the mental institution despite never having been convicted of a crime. In Oregon, it is not uncommon for mentally ill defendants to spend more time confined for being ill than they would ever serve behind bars for the crimes they are accused of.

That system is costly and largely ineffective.

In Yandell’s case, after spending most of spring and early summer in a locked ward at the mental hospital, he was deemed competent for court. He pleaded no contest to resisting arrest and assault, both misdemeanors. A judge sentenced him to probation and, without another option, Yandell went back to living on the streets. By autumn, though, his theft of a $1.69 bottle of iced tea from Fred Meyer and his unwelcome nap at the skyscraper landed him back in jail, in court and at the doorstep of the state mental institution.

Yandell’s cases illustrate some of the serious flaws in the way justice unfolds for mentally ill arrestees in Oregon, under a little-known system for people who may be unfit to stand trial.

The process, known as “aid and assist,” stems from the constitutional right of people charged with crimes to be able to help in their own defense. Through it, however, the state metes out extremely high cost care that takes defendants’ liberties away for prolonged periods. And it fails in almost every case to deliver lasting benefits to defendants or to society.

In Oregon, taxpayers spend as much as $35 million a year to provide institutionalized care to mentally ill people charged with misdemeanors, many of whom are homeless, a first-of-its-kind analysis by The Oregonian/OregonLive found. Nearly all those patients eventually find themselves dumped back out on the street with little to no support. Almost one in five are readmitted to the mental hospital within a year under new charges.

A defendant’s entry into the aid and assist system is triggered when an arrestee’s mental fitness appears in serious question. Typically, a judge orders them to the Oregon State Hospital for a psychological evaluation, which can last mere hours or up to 30 days.

A defendant’s criminal case resumes if the evaluation determines the person “able” to aid and assist. In a small number of cases in which defendants are found “never able” to recover, the charges are dismissed and they are released from jail.

Most mentally ill defendants, however, are found “unable” to help with their defense and are sent back to the state hospital for treatment until they can. They can remain there as long as the maximum sentence for the crimes with which they are charged – far longer than the typical person convicted of a misdemeanor would be jailed.

Yandell, for example, spent 52 days in jail waiting for a psychological evaluation for charges that would ordinarily have cost five days in jail.

Between 2012 and 2018, Oregon taxpayers spent at least $165 million on aid and assist treatment at the state mental hospital for people charged with misdemeanors, The Oregonian/OregonLive analysis found. (Treatment for those charged with at least one felony cost taxpayers an additional $324 million in the same period.)

The per-patient cost is a jaw-dropping $1,324 a day. Treatment generally includes medication and legal skills courses to teach them what happens in court, with no guarantee of one-on-one therapy. By contrast, treatment at a small-scale secure residential facility in a person’s home county costs about $100 a day according to Multnomah County figures.

There are about two dozen such centers statewide with 319 beds, far fewer than at the sprawling 620-bed Oregon State Hospital campus in Salem, and nearly all are unavailable to people charged with crimes. In any case, wait lists at most small facilities are so long they’ve stopped adding names.

Officials familiar with the system say it’s ineffective for patients, taxpayers and community well-being. Even the judges, prosecutors and law enforcement officials partly responsible for the churn of homeless defendants through jails and the mental hospital for low-end crimes express a profound understanding of how deeply broken this system is. But those officials as well as state legislators have largely failed to act.

Peter Courtney, president of the state Senate and a longtime mental health care reformer, said he has had trouble marshalling the Legislature to vote for bigger mental health budgets.

Oregon Senate President Peter Courtney, left, and Sen. Betsy Johnson. Stephanie Yao Long/file

“Everybody cares about mental health. Every state senator and state representative does,” Courtney said. “The problem is when it comes to prioritization of funds, everybody wants to do something about mental health but just not today.”

Bob Joondeph, director of the advocacy group Disability Rights Oregon, said, “This is an issue that’s been around for many years now. All the players know about it.” But “enormous institutional inertia” has stopped attempts at reform, he said. State officials are sympathetic to the plight of Oregon’s mentally ill but tend to vehemently resist allocating money away from existing programs. Officials have a common objection, Joondeph said: “Not from my budget!”

So, over the past six years, Oregon has sent at least 1,486 people with mental illness accused of nothing more than misdemeanors to spend months at the state hospital to ready them for court.

As numerous as they are, these cases are extremely difficult to track. There is no clearinghouse for the court filings. The Oregon State Hospital patient roster is confidential for patient privacy reasons. Nearly all the defendants are mentally ill and homeless, making them tough to locate and interview. Journalists for The Oregonian/OregonLive attended court hearings over many months to find the cases and patients referenced in this article.

Also troubling is a pattern of municipal court judges in some jurisdictions sending defendants to the state hospital for aid and assist treatment. Municipal courts – city courts that handle misdemeanors and traffic citations, many of which do not audio record their hearings – are subject to less oversight than county circuit courts, but have nearly identical powers.

For example, a homeless man was charged last September in Eugene Municipal Court with trespassing and drinking alcohol in public. A judge ordered him to the state hospital for aid and assist treatment on Oct. 12, 2018 and he remains there today, more than 100 days later, court filings show.

Municipal courts in Lane County, where Eugene is located, have sent 46 defendants to the state hospital for trial competency treatment in the last five years, said Lane County District Attorney Patty Perlow. Those cases are one reason why the county’s admissions to the mental institution have increased nearly 250 percent since 2012.

Most states don’t rely so heavily on a system that institutionalizes mentally ill people accused of crimes. Oregon ranks seventh nationwide in the rate of such cases, outpacing every other state in the West except Hawaii. Like most states that keep track, Oregon has experienced a dramatic rise in the number of patients over the past two decades.

The surge in admissions has caused the Oregon State Hospital to exceed its aid and assist capacity again and again. In October, for example, hospital officials converted a wing for treatment of patients not convicted of crimes but judged a danger to themselves or others into one for patients admitted under aid and assist orders. That new ward reached its capacity within two months, said Patrick Allen, director of the Oregon Health Authority, the state agency charged with operating the hospital.

Lawyers await the start of the aid and assist docket in Multnomah County, from which mentally ill people charged with committing crimes are often sent to the Oregon State Hospital for evaluations and treatment. If a defendant’€™s mental fitness is questioned, they must be deemed able to aid and assist themselves before the case can progress. Beth Nakamura/Staff

Nearly all misdemeanor aid and assist defendants are very poor and a huge percentage are homeless, according to the judges, public defenders, prosecutors and mental health professionals who cross paths with them. Last year, The Oregonian/OregonLive published an analysis that found more than half the arrests made in Portland in 2017 were of homeless people, the vast majority of whom were charged with misdemeanors. Oregon State Hospital officials do not reliably track how many of its patients are homeless.

And like Yandell, an outsized share of mentally ill people confined at the state mental hospital for low-level crimes are African American. High rates of poverty in the black community and officers’ propensity to stop black men more than those of other races almost certainly contribute to the disproportionality. Over the past seven years, nearly 10 percent of those admitted for misdemeanor trial readiness were black, while black people constitute less than 3 percent of Oregon’s population.

Ed Jones, who in 2017 retired as chief criminal judge of Multnomah County, said he has many concerns about Oregon’s justice system. But the element that most profoundly disturbs him is the way it churns mentally ill homeless people through the courts, jails and state psychiatric hospital.

“We should all be embarrassed,” Jones said.

The situation presents a puzzle for prosecutors and judges.

“What do you do with someone who commits misdemeanor after misdemeanor?” asked Josh Marquis, Clatsop County’s recently retired prosecutor, calling the situation “a real conundrum.” Regardless, Marquis said, “Oregon is clearly flunking.”

In Jones’ view, the criminal justice system is overly punitive to mentally ill people charged with misdemeanors. “You can’t punish people into sanity,” he said, calling this under-the-radar element of the justice system “a total failure.”

Cheryl Albrecht, the current chief criminal judge of Multnomah County, said the situation has reached a “crisis point.”

“These people shouldn’t be in jail,” Albrecht said during in an interview at her courthouse chambers. Just across the street, Kobe Yandell reached Day 50 in a jail cell.

“I can think of nothing more important that we should be focusing on than keeping these people out of jail and out of the court system,” the judge continued. “I know justice isn’t happening right now.”

Josh McCarthy, a public defender who represents about half the defendants on the Multnomah County aid and assist docket, said officials have for too long maintained a “head in the sand” approach to Oregon’s mentally ill defendants.

“Mentally ill people wasting time in jail on misdemeanors is far too common and an extraordinary waste of time and money,” McCarthy said.

“The major problem is the capacity of the state hospital and the capacity of local social service providers,” he continued. “Every misdemeanor defendant who goes [to the state hospital] on some dumb case is taking up a bed and delaying the services for someone who needs it much more.”

It was an easy problem to see coming. A decade ago, Courtney, the Senate president, was instrumental in securing $280 million to renovate and expand the decrepit Oregon State Hospital. At the time, advocates for the mentally ill warned state officials against doubling down on institutionalization. Money should instead flow to the stepped-down, community-based treatment that mentally ill people have a right to, and which is also less expensive for taxpayers, said advocates including Jason Renaud of the Mental Health Association of Portland and Chris Bouneff of the Oregon chapter of the National Alliance on Mental Illness.

But lawmakers did not make it so. Reluctance for wholesale change and the zero-sum game of writing state agency budgets played a role in officials’ foot dragging. So police officers, prosecutors and judges feel they have few ways to help the mentally ill homeless people flooding their courtrooms.

“There’s not a whole lot of options,” said Jason Myers, the Marion County sheriff.

Myers, who has worked in Oregon law enforcement for more than 30 years, recalled the state’s formerly vast system of mental hospitals that warehoused the mentally ill in often horrid conditions: Dammasch State Hospital, the Fairview Training Center and other facilities.

“All of those places closed,” Myers said, “but I don’t think any of the resources flowed to the community.”

Courtney acknowledges the state does not give county mental health departments enough money for community-based treatment centers. “We are not funding mental health to the extent we should at the local level,” he said.

Betsy Johnson, a state senator who is co-chairwoman of the Oregon Legislature’s budget committee, agrees. “I believe this is an area that cries out for legislative scrutiny,” she said this month, weeks before the Legislature convened its 2019 session.

“To criminalize these behaviors that are caused by mental health issues or substance abuse issues or both is inhumane,” said state Sen. Elizabeth Steiner Hayward, the other budget committee co-chairwoman. “And it’s unproductive because we’re repeating the same process over and over again with no improvement in people’s well-being. Last but not least, it’s expensive.”

Despite lawmakers’ apparent dismay, it’s unclear they will take sufficient action to change the status quo. For her part, Steiner Hayward said she is working on a bill that intends to more directly address the aid and assist crisis statewide. “We’re looking at a whole host of things,” she said. “The list is about as long as your arm.”

Meanwhile, the aid and assist docket continues piling up in Multnomah County Circuit Judge Nan Waller’s courtroom, a dimly lit theater of justice on the second floor of the jail building in downtown Portland.

On any given Tuesday afternoon, when Waller hears aid and assist cases, she orders defendant after defendant to the state hospital for evaluation or treatment. Almost none have family members who attend their hearings. Often, they are the most outwardly unwell people to appear in court. Many shout at Waller or at no one in particular. One recently rambled about the president of the United States and said his name was Kurt Cobain. Another had declined food in the jail and withered to a gaunt 75 pounds. Others refuse to leave the jail, so Waller goes to them for a cell-side hearing.

On a recent Tuesday, just one man was released. He faced misdemeanor charges for sleeping outside and going to the bathroom in public. The man’s court-appointed attorney asked Waller to drop the charges; she agreed. Did he have a coat to wear once released from jail? Waller asked, noting the cold January air outside. The man, bearded, thin and wearing a blue jail smock, replied that he did.

A court clerk gave him voucher tickets for a bed at a homeless shelter. Did he know his way? Waller asked. He said he didn’t, so a clerk promised to give him a map. Case closed.

A 64-year-old jurist raised in Portland, Waller brings an uncanny dose of compassion to the bench. She goes to lengths to ensure defendants before her have their say and get all their questions answered. She is calm and patient, even with defendants, and occasionally attorneys, who are extremely distressed.

The law and its intersection with mental health is fascinating, she said during a recent interview, but can be painful to preside over. The jail-side hearings, where a rancid smell “permeates everything,” she said, carry “visions hard to wipe out” of people in clear anguish. Even when defendants are released, she thinks to herself, “Gosh, I hope everything is going to be OK for this person.”

Often, it isn’t.

On the third day of 2018, a 22-year-old Portland native named Josh was living in his 1996 GMC Jimmy at Peninsula Park, knee deep into a methamphetamine habit, when his failure to use a turn signal caught the attention of police officers on patrol.

They pulled him over, arrested him for driving under the influence and drug possession, and booked him at the Multnomah County jail. Josh, who spoke on condition his last name be withheld, was one month from completing 18 months of probation for a prior misdemeanor.

The judge who heard his case offered Josh a spot in a county rehab program called Treatment First. If he agreed to enter it, his new charges would all but certainly have been dismissed. But still under a meth-induced mental fog, Josh demanded a trial.

Multnomah County Circuit Judge Christopher Marshall begged him to reconsider:

“Are we sure about this?”

“I’m pretty sure.”

“You’re pretty sure? … You’re making a big decision if you’re declining to do the Treatment First Program, so you gotta make sure that’s what you really want to do.”

“It is. …”

“I’m not sure you fully understand.”

“I do.”

“You do? OK. … I’m not sure you fully understand what you’re deciding here. But you’re telling me that you do understand.”

“For the most part. … I’m not worried. I’m really not.”

A person who is not identified in the hearing transcripts spoke up and implored Josh to enter the rehab program. He answered, “I refuse.”

Marshall continued:

“Hopefully at some point you realize when someone’s trying to help you and you think about that, OK?”

“Yes, your honor.”

“Can you tell I think you’re making a really bad choice?”

“No.”

“You can’t tell that?”

“Perception varies between age groups and often gets mistaken. …”

“Maybe sometimes the older age group’s been around a little longer and understands a little more about what a younger person might be setting themselves up for. So good luck to you.”

“Thank you.”

“I think you’re gonna need it.”

Josh didn’t realize how out-of-touch with reality he was at the time. So he was surprised when his case was put before Judge Waller in May for a decision on his mental fitness. A mental health evaluator declared him unable to aid and assist.

Officials with the Multnomah County forensic diversion program, an initiative aimed at reducing stays in the state hospital for defendants like Josh, said he was too unwell and would not take him. So Waller ordered him to the state mental hospital.

Josh began to cry as a sheriff’s deputy closed handcuffs around his wrists.

“I don’t understand,” Josh said. “What’s going on? … I feel that this is wrong. … This is so scary for me.”

He cried out to his father, who was sitting in the courtroom. “Dad! Don’t let them do this. I’m so scared.”

Josh spent 90 days in the mental hospital. The treatment was minimal, he said, and he spent more time playing video games than engaging in medical care. There was no one-on-one therapy and he did not receive medication for weeks, he said. And he lived on the same unit as people accused of serious crimes. His wardmates frightened him, he said, and one punched him in the face. “Being around the people I was around was just scary,” Josh recalled.

A state hospital spokeswoman declined to confirm the details of Josh’s stay, citing patient confidentiality rules. She said all 10 of the hospital’s aid and assist units operate under the same rules and offer the same level of treatment.

Among the frustrating parts of his stay, Josh said, were the rudimentary legal skills courses he was made to take. The courses offer the most basic facts about the courts. Test-prep flashcards include questions like “What is a trial?”, “Who is the boss of the courtroom?” and “Who is the defendant?” (The answer: “You are.”)

Josh said he passed the course exams with flying colors, and he began to feel like his normal self again once he was away from amphetamines and on the right medication. “They were telling me I should go to law school,” he said. “I was like, why am I here?” But the weeks dragged on slowly, he said, before his final psychological evaluation, one which concluded he was competent to help his defense.

After a summer confined in the hospital, Josh was transferred back to the Multnomah County jail to finish his case. Prosecutors offered him a deal: plead no contest and enter a diversion program. He accepted.

Finally out of custody, Josh became a lucky outlier because he has family members nearby he remains connected to and can count on. His father, Cliff, allowed him to move into his home, where a brother also lives along with their 11-year-old chocolate Labrador, Hunter.

Cliff, who in his day job is a mental health caseworker, has helped Josh comply with the terms of his probation through the diversion program, including attending meetings with social services providers and court-ordered treatment classes.

Cliff said the months-long process of watching his son go to jail and the state hospital only to be convicted of two low-end misdemeanors was agonizing, especially given his work with mentally ill people. This process, Cliff thought, should be reserved for the worst of the worst criminals and seemed like something out of a television crime drama.

Josh is trying to keep his thoughts on the future. He says he hopes to soon find a job, buy a car and regain his independence. “My goals are to get a normal life back,” he said.

The prospects of recovery are less clear for Kobe Yandell, owing to a life of trauma that preceded his latest troubles. Yandell never knew his father. His mother disappeared when he was 4 and is presumed dead. After the disappearance, Yandell and his sister, Kaila Yandell, lived in homeless shelters and foster homes, where Kaila says they were abused and sometimes drugged by their guardians. Their sibling bond was like a precious heirloom. “He’s all I ever had,” she said.

On New Year’s Eve, Yandell’s 36th day in jail, his court-appointed attorneys filed a motion to dismiss his charges, arguing that the low-end nature of the crimes and the backlog at the Oregon State Hospital translated into an ever-widening gap between his situation and justice. “Further prosecution of this case will have no benefit,” the attorneys wrote.

Yandell’s threads of a family – his sister and pair of his half-siblings’ relatives who live in rural eastern California – caught wind of his case and drove more than 10 hours to attend his hearing. Their goal: to see him released and bring him to California, where they’d arranged treatment for his schizophrenia.

The hearing was held on the young man’s 50th day in jail. Defendants’ cases are called in alphabetical order, so Yandell’s came last, after the family had sat watching for nearly five hours.

They were stunned and furious by all that they’d witnessed.

“This blows my mind. I’m appalled,” said Amber Lein, a surrogate mother to Kobe who is mother to one of Kaila’s half-sisters. “Why aren’t there more shelters? Why aren’t there more group homes?”

Kaila stood and read a statement to Waller in which she pleaded for her brother’s release.

“I just think our family deserves to heal and be together,” she told the judge between heavy sobs. “There is still no help and no mercy.”

Waller wasn’t going to dismiss Yandell’s charges without input from his probation officer, who was to answer a phone call from the court. But because Yandell’s hearing began after 5 p.m., the probation officer had gone home. The court would take up the matter in two days, Waller said.

Dejected, Kaila went downstairs to the information window at the jail entryway. A deputy offered to let her write a note to her brother. She also wanted to send him up a picture of the two of them together – as smiling toddlers, sitting on a mall Santa’s knees – but that wasn’t allowed.

Kaila took a pink slip of paper from the deputy behind the window and began scrawling with a pencil stub.

“I LOVE YOU,” she wrote in all-caps. “COME TO COURT. I’LL BE THERE. WE’RE TAKING YOU HOME.

At the next hearing, which Kobe Yandell did not attend because he was holed up in his cell, the judge, attorneys, mental health workers and Yandell’s family members spent more than an hour trying to figure out what to do with him.

Release into his family’s custody was impractical because Yandell, who for months had been uncommunicative, might not agree to go with them to California, Waller said.

Yet she took extraordinary steps. She had Yandell sent to the Unity Center for Behavioral Health, a 24-hour mental health hospital in Portland, to have an evaluation and get medicated. Once well enough, she ordered, Yandell will be allowed to move to California.

Waller descended from the bench and approached Kaila and the rest of the family to shake hands.

“Good luck to you all,” the judge said. “I hope this works.”