From the Salem Statesman Journal, September 18, 2011

A bill that modifies how mental patients with criminal pasts are released from the Oregon State Hospital has left confusion, bitterness and dueling state legal opinions in its wake, months after its passage by the 2011 Legislature.

Senate Bill 420 cleared the Legislature after an intense lobbying battle, pitting law enforcement officials on one side against mental-health advocates and patient activists on the other.

READ – Senate Bill 420
READ – Attorney General John Kroger’s opinion (not yet online… )
READ – All the recent excellent SSJ coverage of the Oregon State Hospital at StatesmanJournal.com/OSH

The approved bill, described as a compromise between the competing constituency groups, set the stage for the advent of a new two-tiered patient-release system.

Starting on Jan. 1, release authority for criminally committed patients will be divided between the existing state Psychiatric Security Review Board and a new panel to be created by the hospital.

By many accounts, SB 420 lacked clarity on key points, requiring an attorney general’s legal opinion to cut through the fog.

But the recently issued AG’s opinion also drew fire from hospital patients and a key Salem legislator who said it failed to accurately reflect the Legislature’s intent in approving the bill.

Amid lingering concerns, mostly expressed by patients who remain under the PSRB, here’s how the new system will work:

Tier 1 patients, judged guilty except for insanity of Measure 11 crimes such as murder, rape and first-degree assault, will be under the jurisdiction of the PSRB.

Tier 2 patients, deemed guilty except for insanity of non-Measure 11 crimes, will be under the jurisdiction of the Oregon Health Authority, which oversees the state hospital. Hospital officials said plans call for establishing a new board to make release decisions for these patients.

At the crux of the confusion caused by the bill: Which entity — the PSRB or the Oregon Health Authority — will have jurisdiction over the about 120 current patients who meet the non-Measure 11 criteria?

“If you read the law, it doesn’t state one way or another,” about the fate of the current patients, said Greg Roberts, hospital superintendent. “That was one of the issues. Because it wasn’t specifically clarified in the law, we had to get a legal opinion about it.”

The hospital and the PSRB jointly asked the state Attorney General’s Office to resolve the dilemma.

In a memorandum issued on Aug. 19, the AG concluded that all current patients must remain under PSRB jurisdiction, that the language of the bill is not written in a way to apply to current patients.

The legal opinion noted, in part, that “there is no provision in SB 420 that provides for retroactive effect,” and that “it may be inferred that the legislature did not intend that jurisdiction automatically transfer upon the bill’s effective date.”

State Sen. Jackie Winters, R-Salem, a chief sponsor of the bill, was taken aback by the AG’s assessment.

“I don’t think their interpretation is accurate,” she said. “That was not our legislative intent.”

Contrary to the AG’s opinion, lawmakers intended for control over the 120 patients now at the hospital for non-Measure 11 crimes to shift away from the PSRB, Winters said.

The veteran lawmaker asked legislative counsel, which assisted lawmakers in crafting SB 420, to draft a rebuttal response. She said it would “give an opinion from our side.”

As of Friday, legislative counsel still was working on the counter-response to the disputed AG’s opinion, Winters said.

Meanwhile, officials at the state hospital and the PSRB have said they will conform to the AG’s directive.

“Starting in January, we will have jurisdiction over the (incoming) non-Measure 11 patients and PSRB will maintain jurisdiction over the Measure 11 patients, plus the existing patients,” Roberts said.

For some patients who had urged state leaders to abolish the PSRB, the prospect of remaining under board control is a discouraging development.

Several patients described frustration in recent telephone interviews with the Statesman Journal.

Fed up with the board’s refusal to approve him for conditional release, Richard Laing said he is pursuing alternate ways to get out of the hospital.

“I’ve got an application for clemency with the governor, two appeals on habeas corpus and four lawsuits against these people,” he said. “I’m doing the best I can.”

The PSRB was created in the late-1970s to provide added safeguards to the hospital’s release process.

Law enforcement officials praise the board for carrying out its primary responsibility, which is to protect the public. But patients and mental-health advocates contend that the board’s conservative approach to releasing patients results in long and costly stints of hospitalization.

“The PSRB is an archaic and outdated system” said patient Matthew Kirby, leader of the consumer council at OSH. “By law, its only duty is to protect the public. That, of course, is a necessary piece. But they forgo the civil rights of people with mental-health issues by locking them up for years and years on end. It’s well known that they are very conservative, and their discharge processes are very convoluted.”

Kirby was part of a group of patient activists who urged legislators to curtail the PSRB’s authority. Patients lobbied for passage of the original version of Senate Bill 420, which called for stripping the PSRB of all release authority and giving the hospital final say on discharges.

“The original intent of Senate Bill 420 was to bring more science and fact into the discharge process, not fear and stigma,” Kirby said. “To hand the authority for discharge over to the clinicians and the physicians and the staff that work with us on a daily basis, not some foreign body that meets with us for 20 minutes and decides to keep us in the hospital.”

The original bill drew strong opposition from Oregon district attorneys and other critics, who warned legislators that it could lead to a slipshod release system, potentially jeopardizing public safety by putting dangerous offenders back on the streets.

Chuck French, a Multnomah County deputy district attorney who opposed the initial bill, said its passage would have turned back the clock to a troubling era in the 1970s when dangerous patients were freed “and went back to the community and killed people, raped people.”

During the legislative session, such warnings prompted legislators to back away from the original bill.

Ultimately, a “compromise” bill was fashioned and the amended version of SB 420 gained approval during the waning days of the legislative session, mandating creation of the two-tiered system.

French described the retooled bill as a satisfactory compromise.

“We’re relatively happy with what ended up coming out because we feel public safety is going to be maintained, at least with the most dangerous offenders,” he said. “It gives us a chance to monitor how this works out, without putting the most dangerous people out there as a test case.”

French said law enforcement officials strongly support the PSRB.

“I think by and large the PSRB has done a very good job,” he said. “I mean, we’ve had disputes with them, here and there. But as far as law enforcement is concerned, they have done their job.”

For Kirby, the fight to transform hospital release practices is far from over. He vowed to keep pushing for what he described as additional reforms during next year’s legislative session.

“Due to the fact that it got watered down by the DAs, SB 420 was less than what we had hoped for,” Kirby said in an e-mail to the newspaper. “That said, we still consider it a victory and an important psychological win because it was the first change to the outdated system in 30 years and was largely driven by patient lobbying efforts.

“Furthermore, in speaking with legislators, everyone is in agreement that the system is indeed broken and needs to be completely revamped. Unlike the PSRB, forensic psychiatry has come a long way since the 1970s, and we, along with our fellow patient and civil right advocates, are ready to come back to the table until we see the necessary changes to bring the system up to the modern standards of treatment and care.”

Criminal patients

As of Aug. 1, the Oregon State Hospital housed 308 patients who were committed to the psychiatric facility after being judged “guilty except for insanity” of crimes, according to a state database obtained by the Statesman Journal through a public records request filed with the Psychiatric Security Review Board.

Of the total, 186 committed Measure 11 person-to-person crimes, or violent crimes committed prior to the voter-approved sentencing system; 28 committed murder, 40 committed rape, sexual abuse or other sex crimes.

A smaller number, 122 patients, committed non-Measure 11 crimes, such as burglary, identity theft, disorderly conduct and other felonies.

About The PSRB

In 1978, Oregon became the first state to create a Psychiatric Security Review Board to determine release dates for criminally committed patients at the state hospital in Salem.

By law, the board’s primary responsibility is to protect the public.

The board holds regular hearings to decide whether a patient is ready to leave the state hospital under conditional release. If a released patient suffers a relapse, commits a crime or does not follow specific rules, the board can order the patient back to the hospital.

The number of people who commit a new felony while under the board’s supervision has averaged about 2 percent since 1997. In comparison, about 30 percent of the inmates released from Oregon’s prison system commit new felony crimes within three years of getting out of prison.

Mary Claire Buckley, executive director of the PSRB, said the board puts public safety considerations first and foremost, as mandated by state law.

She deflected criticism from patients and mental-health advocates who say the board takes an ultra-conservative approach to releasing patients, resulting in long and costly stints of hospitalization.

“The board has never said these people all belong at the state hospital,” Buckley said. “But you need to have the resources in the community to serve them. I’m not a big one for the blame game, but I think everybody from the Legislature on down would have some role in how we got here. We didn’t keep pace with the need for community resources, which caused the hospital to become overcrowded.”

Hospital overcrowding has eased amid a drop in the patient population, partly because of increased funding for community-based housing and mental-health supports for patients coming out of the hospital.

That, in turn, has prompted the board to be less leery about granting patients conditional releases, Buckley said.

“My experience is that the current board has been very active in trying to move people out of the hospital,” she said. “We have more people on conditional release today than we ever have. There have been great strides. I think the data will show you that when community resources were made available, the board didn’t hesitate to let people out.”

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