SEATTLE — A federal judge has deemed unconstitutional Washington’s practice of holding mentally ill people in jails while they await competency evaluations and treatment and during a trial that starts Monday, lawyers for mentally ill defendants and the state will try to find a remedy.
The trial in U.S. District Court in Seattle comes as the Legislature debates bills that seek to fix the problem ahead of a court ruling. But one lobbyist for a state defender’s group said the judge is unlikely to approve either of the measures lawmakers are considering to shorten wait times and provide treatment.
In a criminal case, if there’s a question on whether a defendant is mentally able to participate in his defense, the judge will order a competency evaluation. Under state law, the Department of Social and Health Services then has seven days to conduct that review, usually at Western or Eastern state hospitals. If the person is found incompetent, the state has another seven days to provide treatment to restore competency.
But bed and staffing shortages at the psychiatric hospitals have resulted in hundreds of mentally ill defendants waiting weeks or months in jail cells. These defendants who often spend 23-hours a day in solitary confinement don’t receive treatment while on the competency wait lists.
Some judges who were angry that Washington was not following their orders in a timely fashion started holding the state in contempt and ordered sanctions ranging from $200 to $500 per day for each day the person waited in jail. The fines have topped $200,000.
As of March 6, 10 people were awaiting competency evaluations at Western State Hospital, and seven had waited longer than seven days, according to Kathy Spears, spokeswoman for the state’s behavioral health and service agency. Another 83 people were awaiting restoration treatment and 72 had spent more than seven days in jail, Spears said.
The numbers were lower for Eastern State Hospital. Six were waiting more than seven days in jail for evaluations and another six spent more than seven days waiting for treatment, Spears said.
Lawyers for Disability Rights Washington and the American Civil Liberties Union filed a class-action lawsuit last year asking a federal judge to force the agency to deal with the problem.
In December, Judge Marsha Pechman granted the lawyers’ motion for summary judgment, saying the practice violates the defendants’ due process rights.
“The state has consistently and over a long period of time violated the constitutional rights of the mentally ill — this must stop,” she said in her order.
Pechman acknowledged that lawmakers are addressing the issue during the 2015 session.
“Legislation passed by both houses of the Legislature can be brought forward by either party during trial for determination of its relevance,” she said in a March 9 order.
To date, the bills cover two areas — the amount of time a defendant can be on the wait list and where evaluations and treatment can be conducted. But Bob Cooper, a lobbyist for the Washington Defenders Association, said he doubts the judge will go along with those plans based on comments she has made in previous orders.
The Legislature passed, and on Thursday, Gov. Jay Inslee signed House Bill 5889, a measure that sets a new time limit for the state to provide evaluations or restoration treatment. The bill changed the seven day deadline to 14 days.
“I would be surprised if she finds 14 days acceptable,” Cooper said of the judge.
In her Dec. 22 order granting summary judgment, Pechman said: “It is clear to the court that wait times of less than seven days comport with due process, and that anything beyond seven days is suspect. The precise outer boundary permitted by the constitution depends on facts proven at trial… some detainees are held in solitary confinement — isolated for 22 to 23 hours per day — because city and county jails are ill equipped to handle the challenges posed by mentally ill detainees,” Pechman said. “For many, solitary confinement exacerbates mental illness and increases the chance of suicide.”
Several other bills encourage the state to develop alternative sites for competency restoration. The bills would allow treatment to be conducted in jails. However, they say the jails should keep those defendants separated from other inmates.
Cooper said he doubts Pechman would approve that idea.
“If you look at her decision, three times the judge states that jails are not therapeutic environments,” Cooper said.
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