From the Portland Tribune, July 15, 2010

Removing civil rights often depends on deciding who is a hazard

It is hard to imagine a less dangerous looking man than Wilford Harris as he is led by sheriff’s deputies into a courtroom on the second floor of the Multnomah County Courthouse. Or a man more out of place.

Five of the six other people seated around the oval table in Judge Connie Isgro’s courtroom are dressed in suits and ties. Isgro, directly opposite Harris, wears a black robe.

Harris, who says he is 5-foot-5, 115 pounds – a scarecrow of a man with thinning hair – is dressed neatly in a tie-dyed T-shirt and blue jeans. His glasses sit studiously low on his nose. Only the tattered remains of an old undershirt peaking out at his neckline hint that maybe Harris is not as well composed as he appears.

But it is the question of whether the 54-year-old Harris is truly dangerous that has him in Isgro’s courtroom. Ostensibly, he’s here because his pants have a habit of winding up around his ankles. And because, by his own account, he’s lost 50 pounds in recent months. And because police and county mental health investigators have found him living in a garbage-strewn motel room with bottles of psychiatric medications he has stopped taking.

Reliable witnesses will testify on this morning that Harris is delusional and paranoid, and most of the things Harris says will only serve to emphasize both diagnoses. But make no mistake, Harris is aware enough to know what is being discussed and decided: his freedom.

He’s leaning forward, arms perched on the table, as Isgro says, “The issue here today is whether you are mentally ill.”

Civil commitments have become increasingly rare in Multnomah County during the past three decades. Now, a host of civic leaders from Mike Reese, Portland’s chief of police, to downtown businesspeople, want state law changed so it becomes easier to send county residents to psychiatric institutions against their will.

Even many mental health professionals are beginning to question whether it is too hard to civilly commit psychotic people in Multnomah County.

In recent months, the fatal police shootings of Jackie Dale Collins, Aaron Campbell and Keaton Dupree Otis, three Portland residents who suffered mental illness, have revived questions raised in late 2006 when James Chasse Jr. died in police custody, and again two years later when George Grigorieff, homeless and mentally ill, froze to death in a winter storm, unwilling or unable to accept the help of social service agencies sheltering the most vulnerable.

Police are flooded with cases of people with mental illness committing mostly small crimes.

Get these people off the streets and get them help, says Reese, who says the legal standard for commitment has become too high.

“You can starve yourself to death over time or drink yourself to death over time or live on the streets in squalor and kill yourself over time, but the law doesn’t recognize that as an imminent danger,” Reese says.

But others say it makes no sense to send more people to state psychiatric hospitals that are already full and not always delivering adequate care.

“It’s an irresponsible solution,” says Jason Renaud, cofounder of the Mental Health Association of Portland.

Renaud says that if community mental health services were adequately funded, few sufferers of mental illness would get to the point where civil commitment would be an issue.

“The answer isn’t to change the constitution or to diminish people’s liberties,” says Alex Bassos, a public defender who specializes in defending people such as Wilford Harris.

A muted voice

Wilford Harris is having trouble just staying focused on his own case this morning. The testimony has him scribbling notes on a pad of paper, his eyes more often directed at the pad than at the people who are speaking about him.

A civil commitment hearing is more informal than many legal proceedings. The judge and two medical examiners can ask questions at any time. When they direct questions at Harris, sometimes he is able to answer, and sometimes his mind wanders, his words drifting off like dust motes in the stale, courtroom air.

A police officer explains that on one afternoon about a week ago, Harris was found in Glenhaven Park in Northeast Portland with his pants down, saying he wanted to play games with the children. During a subsequent late night call to Harris’ room at the States Motel on Northeast 82nd Avenue, the officer tells the judge, Harris began walking around the patrol car outside, claiming he was a federal officer.

In fact, two years ago Harris came upon an empty police car with the engine running, took the front seat and locked the car doors. He received a sentence of probation after pleading no contest to unlawful entry and resisting arrest.

When asked if he is a federal agent, Harris says, “I can’t say at this time whether I am or am not.”

His voice is muted, as if it is hiding from the people who would use it against him.

Jeff Howes, senior deputy district attorney who oversees civil commitments, is aware of how much harder it is becoming to prevail. In Multnomah County, about 70 percent of people in hearings such as this one end up being committed. Twenty years ago, between 85 percent and 90 percent of county hearings resulted in commitment. Today, county authorities are taking fewer cases to court.

“It’s been tightening up for a long time,” Howes says. “Having to prove ‘imminence’ is where we get hung up.”

Basically, the county must meet one of three standards to commit somebody. Prosecutors must convince Isgro that Harris is an imminent danger to himself, for instance, by suicide, or an imminent danger to others. Or, in a more vaguely interpreted category, show that he cannot meet his basic survival needs in ways that might result in serious harm in the near future.

Imminence is a fairly recent addition to the standards. That means someone who is homeless and not eating or taking medications, who might in fact die in a few weeks or a few months, does not necessarily qualify.

“If they’re not within a hair’s breath of expiring, then it’s not seen as imminent,” says Leesa Cannon, an investigator for Multnomah County’s involuntary commitment department. “It might be in a couple weeks, but that’s not imminent.”

That’s too high a standard, says Joseph Bloom, a psychiatrist and Oregon Health and Science University dean emeritus.

“I think we’re headed toward a functionally extinct civil commitment system,” Bloom says. He believes Oregon’s original commitment process, based on laws promulgated in the 1860s and focused on helping patients, was more humane than today’s. Now, he says, with appellate judges aware of the shortage of psychiatric beds and the costs of keeping people in them, the goal is protection of society.

“We used to care for people,” Bloom says. “Now everything is pushed to this dangerousness standard.”

Bloom has studied the history of civil commitment in Oregon and found that the greatest change isn’t in who wins or loses in court, but in county health officials’ reluctance to bring cases to court. Most weeks, Multnomah County health officials consider 80 people suffering mental illness for possible commitment, but last year, aware of the imminence standard, they only took 262 to court.

Abstract concepts

Nobody in the courtroom today doubts that Wilford Harris is suffering from mental illness. But that isn’t enough to take away his civil liberties. These hearings are virtually the only instance when an American citizen can have his or her freedom taken away not for what he or she has done, but based on speculation of what he or she might do.

The standard for commitment needs to be high, says public defender Bassos.

“Dangerousness is a very abstract concept,” Bassos says. “It’s all about predicting.”

Bassos has file upon file of local cases in which a judge committed someone, but the appellate court reversed the decision – long after the commitment had been served. One involved a man who caused a car accident because he was hearing voices that distracted him. The judge committed, the appellate court later said that was a mistake.

Bassos’ take? “You can’t predict from a single incident what’s going to happen in the near future.”

Bassos says with the bar set at imminent dangerousness, if his clients dress well and speak lucidly, they have a good chance of getting off, especially if they can say at least one thing that tells the judge their past actions don’t predict their future.

Generally, all a client needs to do, Bassos says, is wait for the judge to ask about their plans for the future, and answer that they have a plan for the next time they feel themselves losing touch with reality, or that they have someone to call. If a client has been suicidal, they need to say something to show they have a reason to live. But many can’t do that.

Bassos says that the commitments most likely to be overturned are those based on someone not being able to take care of their basic needs.

“Those are the ones we have a tendency to be most paternalistic and speculative about,” he says.

Judge Isgro clearly is concerned about Harris meeting his basic needs today. She asks him where he will go if he is set free. Harris takes his time before answering that he wants to be with his family and friends.

“My family is around here somewhere,” he says.

Why did he wander around his motel, even into other units, with his pants down?

“I got tired of looking at the same apartment,” he says.

What kind of games did he want to play with the children in Glenhaven Park?

“Baseball, football, whatever,” he says, his hands playing with a ball point pen beneath the table as he explains that his food is poison, and that’s why he has stopped eating. His medication is poison too, he adds.

As for his pants, Harris explains that because he has lost so much weight they are too loose and won’t stay up.

Asked if he has ever attempted suicide, he answers elliptically, “If I did, it was a call for help.”

But he is not so delusional as to be unaware of what is at stake.

“You’re trying to take away my constitutional rights,” he tells the judge. “I’ve got rights and they haven’t been read. I don’t want to be put away civilly. I’ve got a piece of this constitution, too.”

Jason Renaud couldn’t agree more. Renaud says more is at stake with Harris’ commitment than most people recognize.

“He’s in serious jeopardy of losing his civil liberties indefinitely,” Renaud says.

If Harris is committed, the judge will say his commitment is for no more than 180 days. But after 180 days, if hospital authorities think Harris can’t take care of himself, he can get recommitted. Multnomah County statistics show that happens fairly frequently.

The committed, after their hearing, are sent to the psychiatric unit of a local hospital, usually for about five weeks. After that, many are sent to the Oregon State Hospital system. Out of 240 Multnomah County commitments last year, 96 eventually were transferred to the state hospital system. And the average length of stay for committed people in the Oregon State Hospital system was 411 days.

Renaud says that state hospital administrators have told him some of their patients are waiting for community services and housing to open up and are not receiving any real treatment.

“They’re there for hospital treatment and there is no hospital treatment occurring, yet they’re held against their will,” Renaud says. “That’s a grotesque violation of their civil liberties.”

Today, Wilford Harris’ jeans aren’t falling down. He appears respectable, a timid man confused by what is going on around him. Toward the end of the hearing the county’s two examiners testify that Harris, who has received psychiatric treatment at the Oregon State Hospital before, should be committed because they don’t believe he is able to meet his own basic needs.

Gabriel Biello, Harris’ court-appointed attorney, says that conclusion stems mostly from Harris’ own testimony, which shouldn’t be enough.

“Mr. Harris is delusional, but I don’t think he’s an accurate historian,” Biello says.

But Judge Isgro is the one who decides. Isgro sides with the district attorney and the two medical examiners and commits Harris, saying she doesn’t believe he will be able to meet his own basic needs. She cites his lost weight and his unwillingness to eat or take medication.

As Isgro speaks, Harris looks straight at her across the table, expressionless. Beneath the table his hands have ratcheted up their activity. They are playing hard and fast with his pen, twisting it open and closed so quickly it begins making squeaky noises, until sheriff’s deputies lead him out of the courtroom.

‘Insanity is when you have to wait for people to get that bad’

Even today, Felesia Otis wonders if her son, Keaton, could have ever been civilly committed. Keaton Otis was the most publicized of a number of high-profile cases this year involving local residents suffering mental illness who died at the hands of police. He was shot to death after pulling a gun on a police officer following a traffic stop in May.

Keaton Otis was paranoid and delusional. His mother wanted to have him civilly committed and was told that Keaton probably didn’t meet the standard of being an imminent danger to himself or others. That, despite the fact that he had stopped eating, often wouldn’t come out of his room, and was barely communicative. At the time of his death, the 6-foot-4 Keaton Otis weighed 145 pounds, according to his mother.

But Keaton Otis could, for brief periods, pull himself together well enough to appear normal. His mother recalls a Census taker coming to the house this spring and Keaton providing his name and basic information in a normal manner. And she notes that somehow Keaton had the presence of mind to obtain a gun and bullets without her being aware.

“Keaton could carry that off,” his mother remembers. “Keaton was getting sicker and sicker, but there was still a part of him that could look not sick.”

Ironically, says Felesia Otis, if Keaton had not been killed by police, he likely would have been arrested and maybe, after a criminal trial, would have ended up in the Oregon State Hospital rather than jail. That might have been the only chance he had for getting the psychiatric inpatient help he needed, she says.

That doesn’t make sense to Felesia Otis, who would like to see more flexibility in the way civil commitment laws are administered.

“The insanity to me is when you have to wait for people to get that bad, then they get that bad,” she says.