Oregon Insanity defenses come with high cost to taxpayers Legal professionals find state's guilty except for insanity law a useful tool

By Michelle Cole

The Oregonian

PORTLAND, Ore. (AP) -- Wayne Richards landed in the state mental hospital in Salem after he stole a scooter from a Fred Meyer store and abandoned it in a parking lot across the street. Oregon taxpayers will spend $17,661 every month he stays there, in one of the most expensive and most secure treatment settings the state has to offer.

The tab so far? Close to $300,000, for one guy who stole a scooter.

Richards, a stocky man with pale blue eyes, has battled mental illness since he was 11. He was a runaway at 14, and by 25, he had a long record of arrests for meth, marijuana, theft and trespassing. Though not violent, the scooter incident took him to a whole new level.

He pleaded guilty except for insanity.

Of the 503 patients who were at the Oregon State Hospital in Salem last week, 344 have been found guilty except for insanity. Some of them are dangerous folks, convicted of murder and rape; others are not violent. Nearly 100 have committed low-level felonies or misdemeanors, such as theft or criminal mischief that might have gotten them probation. But because they pleaded insanity, all will stay in secure wards -- often longer than the sentences they would have served in prison.

To examine this system, The Oregonian monitored psychiatric security hearings, interviewed patients, advocates, lawyers and judges, and reviewed records obtained under the state open records law. The evidence shows a mental health system that is professionally inconsistent, financially inefficient and often sadly inhumane. There are no statewide standards for evaluating which defendants should plead the insanity defense. If they do and are then locked up in the state hospital, even stable patients find it difficult to get out. Many who have been determined ready for release remain there for months.

At the same time Oregon taxpayers are pouring hundreds of millions of dollars into treating a few hundred criminally insane patients in the state hospital, thousands more sit in prison with limited mental health treatment, and thousands more live on the street with no treatment at all.

Richards was one of those who says he sought treatment but was often told to come back another day.

Now 27, he says he was drunk the night he went to the shopping center in The Dalles, scared a clerk and stole the scooter.

He agreed to plead guilty except for insanity in August 2009 because he thought he'd get the mental health attention he couldn't find on the outside. He also admits he took the plea because he knew he'd have warm meals and a roof over his head.

It was only later that he says he learned he would be under the jurisdiction of the Psychiatric Security Review Board for five years -- likely twice as long as he would have been in prison.

While there are no bars on the windows in the building where Richards lives, there might as well be. Every unit has a locked door, the stairs and elevator require security keys, and the only way outside is through two sets of locked gates. If he stays there the entire time he's under the board, the bill will top $1 million.

He's glad to have treatment, but Richards wonders if there could have been a better option for him and for taxpayers.

"It's not worth it," he says, "not worth it at all."

A handful of states don't offer an insanity defense. People who commit crimes while mentally ill go straight to prison just like everybody else. That happens in Oregon, too. More than half the inmates in Oregon prisons have some kind of mental health diagnosis, and nearly one-quarter have high to severe treatment needs, according to the Department of Corrections.

In Oregon, the philosophy has been that people who commit crimes while mentally ill should receive help, not hard time. But the philosophy also holds that those who assert the insanity defense should be culpable for their actions and closely supervised, if they are allowed to rejoin the community.

"There are people who have committed aggravated murder, murder, first-degree assault, and I have to tell you, the outcome is no different for the victim whether the offender is insane or not," says Steve Doell, president of Crime Victims United of Oregon.

In 1978, Oregon became the first state to create a Psychiatric Security Review Board with its primary responsibility being to protect the public.

The board does a good job of that.

The number of people who commit a new felony while under the board's supervision has averaged 2.2 percent since 1997. That's compared with the 25 percent who commit new felony crimes after being released from prison.

In almost every case, Oregon defendants use the insanity plea as the result of an agreement of the defense attorney, prosecutor and judge, and relying on evaluations from at least one psychologist or psychiatrist

The depth of those evaluations varies, however. Sometimes reports are a scant two pages while others can fill 22 pages or more.

"My sense is that communities may say, 'OK, the only way we can be sure we're going to get this guy off the street is to prosecute him,' and so we have people in our mental hospital that, on another day, in another town, maybe wouldn't have been criminally committed and would not have a criminal record," says Harris Matarazzo, a Portland attorney who specializes in insanity defense.

And once a person is at the state hospital, Matarazzo says, the board is "extremely cautious" about allowing them to move back into the community.

"The board is going to be less criticized for keeping somebody than for releasing them, so the bias is always going to be in that direction," he says. "At the same time, if the state spent that money instead upfront, on community mental health, you might not see them in the criminal justice system at all."

Judges, prosecutors and attorneys have found Oregon's guilty except for insanity law a useful tool. Courts placed 63 people under the psychiatric security board's jurisdiction last year, 82 in 2009.

By comparison, Connecticut, with a population slightly smaller than Oregon's, placed six people under its psychiatric board's jurisdiction in the last year.

Why is Oregon committing at least 10 times more?

Theories vary.

One clear difference is that Oregon courts put people who have committed misdemeanors in the state mental hospital.

Also, Oregon courts put a mentally ill defendant under the board for a defined time -- usually the maximum prison sentence assigned to the crime. In Connecticut, there's no definite end, which may discourage many from using the insanity plea, says Ellen Lachance, executive director of Connecticut's board.

Retired Circuit Judge James Hargreaves, appointed by Gov. Ted Kulongoski in 2008 to guide improvements at the state hospital, says it's an "egregious misuse of resources" to put people who have committed misdemeanor or low-level felony crimes in the state hospital for extended stays.

"The district attorneys are usually OK with it," he says, because the psychiatric security board has been so restrictive. "They've got people in the hospital and under supervision in most cases longer than they will be in prison."

"The judges, quite frankly, don't care," he says. "It gets the case off their docket. That comes down to the defense attorney, and I wonder, 'Do they understand that they're signing their client up for long-term hospitalization or supervision?' I think there are a lot of defense lawyers out there who simply don't understand how this all works."

Marvin Parker says he figured he was "going to the circus for a few months" when he agreed to plead guilty except for insanity on a burglary charge nearly eight years ago.

Parker was drunk at the time of the crime and says he doesn't remember breaking into a neighbor's apartment and stealing "stupid stuff -- like stuffed animals."

An alcoholic, Parker says he was in the Jackson County jail, sick and shaking from withdrawal, when his lawyer suggested he see a psychiatrist for evaluation.

"I'd been around," says Parker, now 50, with neatly trimmed salt-and-pepper hair. "I thought I was getting one over on the system. But it's getting one on me."

Instead of the 17 months Parker feared he'd get in prison, he got 20 years under Oregon's Psychiatric Security Review Board.

His story shows how hard it is for patients to get out of the hospital and back on track. Twice, Parker has been granted conditional release by the board and allowed to live in a group home. Both times he was ordered back to the hospital he broke the rules. He didn't commit a new crime. But he did drink alcohol.

The second time he was caught, four years ago, Parker says he led the group home manager to a dozen empty bottles he'd stashed in the backyard near a lawn mower. He wanted to come clean, he says, "to get all the laundry out at one time."

In May, Parker appeared before the board to ask for another chance. The panel agreed to consider it, ordering the hospital staff to conduct an alcohol and drug evaluation and a violence-risk assessment, both routine tests before patients are released. Parker got the substance abuse evaluation, but he's still waiting for the risk assessment. The eight-month delay has put another $141,288 on taxpayers' tab.

The federal government -- through Medicaid -- does not share the $17,661 monthly cost of keeping a person who has committed a crime in the state hospital. It does help pay the bill when that person is discharged to a smaller residential facility. Those costs average $14,360 a month for secure treatment to $2,230 for an adult foster home.

Oregon State Hospital Superintendent Greg Roberts said he didn't know the specifics of Parker's situation. But Roberts concedes that a backlog of evaluations has been a problem at the hospital.

When Roberts came to Salem to start his new job last fall, he says he found 140 substance abuse evaluations ordered by the board but not completed.

"Today that number is five," Roberts says.

Although the rest of the world entered the computer age long ago, many of the records at the state mental hospital are still kept on paper. Sometimes the order doesn't catch up to a file. Roberts says he wants to establish a new office of legal affairs to ensure that patients are not stuck in the hospital simply because they're waiting for the paperwork.

As of Feb. 6, hospital records showed 76 patients had been determined by their treatment teams to be well enough for release. Of those, 30 had undergone all the evaluations ordered by the hospital and psychiatric board and were either waiting for a hearing or for a bed to open up in the community.

"The sense among patients is that they're never getting out," says Angela Kimball, the Portland-based director of state policy for the National Alliance on Mental Illness. "What's your incentive for recovery if your stay is likely to extend far past what you need from a clinical standpoint, and worse yet, there's a high likelihood of being revoked and sent back in for an extended period of time?"

Parker says he was told by staff a few weeks ago that he's on the list to have his violence-risk assessment -- soon. While he waits, he spends his days attending AA meetings and taking part in other activities at the hospital.

"I have a cooking group," Parker says. "I already know how to cook. I just do it to kill the time."

Published: Tue, Feb 15, 2011