Wash. To Pay $100M For Pretrial Mental Health Exam Delays

By Rachel Riley | July 10, 2023, 7:41 PM EDT ·

A Seattle federal judge has slammed a state agency for committing "inexcusable" constitutional rights violations by letting people with mental illness languish in local jails while awaiting trial, ordering the state to pay $100 million for violating a class action settlement over delays in court-ordered competency services. 

U.S. District Court Judge Marsha J. Pechman concluded on Friday that the Washington State Department of Social and Health Services had repeatedly failed to provide timely competency and restoration services for more than eight years, since it was first ordered to shorten wait times for those at city and county jails who must be evaluated for mental fitness to stand trial on criminal charges. Judge Pechman found that the state has yet to live up to its promises under the 2018 agreement, including a pledge to add nearly 100 more beds at state psychiatric hospitals for class members, and instead prioritized open beds for people freed from jail for civil commitment proceedings.

"Although several factors impacted the rise in wait times, the primary reason Class Members suffered was DSHS's own lack of foresight, creativity, planning, and timely response to a crisis of its own making," Judge Pechman wrote, saying the hefty penalty was necessary to redress the "inexcusable violation of Class Members' constitutional rights from at least September 2022 through May 2023."

The class consists of anyone, now or in the future, held in a Washington jail awaiting competency evaluation or restoration services through DSHS.

Since a trial in 2015 and a permanent injunction issued in its wake, the court has imposed $400 million in fines, $100 million of which have already been paid by the department, with the rest held in abeyance in the hopes that DSHS would one day comply with wait time limits. The state has also twice been held in contempt of the injunction, and the court appointed a monitor to look at the department's compliance efforts and held more than 30 hearings, Judge Pechman said.

Following a four-day evidentiary hearing last month, Judge Pechman's Friday order gives the department 30 days to pay an additional $100,318,000 fine and outlines other steps the state must take to free hospital beds for class members and get closer to the required competency and restoration timelines under a modified version of the injunction.

Judge Pechman called for a working group to decide how the money should be distributed. Past fines in the case have funded diversion programs to keep people from being jailed in the first place and several mental health charities, among other uses. 

According to Judge Pechman's order, the modified injunction calls for jail-based competency evaluations within two weeks of a court order, or within one week if the pretrial detainee must be evaluated at a state hospital. For those ordered to receive restoration services, the individual must be admitted within a week of the court order.

Over the nine-month span that Judge Pechman examined, class members waited, on average, 13 to16 days to receive jail-based competency evaluations; 45 to 133 days to undergo inpatient competency evaluations; and 82 to 130 days for restoration services. The judge emphasized that restoration is not the same as mental health treatment, but merely enough support and education to stabilize the person so that they can understand the criminal charges they face.

"Prolonged incarceration exacerbates Class Members' underlying mental illnesses, denies them access to consistent mental health treatment, and adds yet more trauma that leads to recidivism, Judge Pechman wrote.

The court attributed the DSHS's latest lapses to its failure to anticipate that the backlog of class member evaluations would strain state hospitals' capacity by increasing the number of "civil conversion" orders as prosecutors dropped charges to ensure fewer people are sitting in jail awaiting competency services. At the same time, the COVID-19 pandemic exacerbated the criminal justice system's existing backlogs, and the state shuttered five wards of one state hospital to begin construction on a new facility that won't open until 2029, eliminating more beds meant for those in civil commitment proceedings.

Judge Pechman remarked that she was "particularly struck" by the DSHS's decision to prioritize beds for civil conversion patients while knowing that people facing civil commitment are not behind bars and thus don't have the same constitutional right to speedy services as the incarcerated class members. She cited testimony and a September 2022 memo from an assistant DSHS secretary as proof that the department "consciously chose to ignore the Settlement Agreement and the Court's Permanent Injunction."

The department contended that the pandemic's Omicron wave in 2022 increased wait times by making it more difficult to move patients through the different wards at the psychiatric hospitals according to the order. It also pointed to continued staffing shortages, consistent with nationwide data showing it's hard to keep employees in the behavioral health field.

The average class member is a person of color who is destitute, homeless, and suffering from addiction to drugs or alcohol, Judge Pechman said. These individuals have intellectual and developmental disabilities, debilitating mental health or substance use conditions, traumatic brain injuries or other cognitive impairments. About one-third of them have a chronic physical disease, too, the judge said.

Often, they are accused of crimes linked to poverty or homelessness, such as theft of food, public urination because of a lack of access to restrooms or trespassing on private property to sleep, the judge said. They tend to cycle through the criminal justice system, going through the same thing over and over. The average class member has been ordered to undergo competency evaluations three times in the past five years, the order says.

Disability Rights Washington, which helped bring the initial suit against the state alongside the lead plaintiff, Cassie Cordell Trueblood, says the state's continued failures cause those with serious behavioral health conditions to suffer, sometimes resulting in irreversible harm. In a Monday news release, the nonprofit organization and its attorneys reiterated its message that the competency and restoration system is a broken one that repeatedly punishes the same vulnerable people without advancing public safety.

"We just keep throwing away resources and causing harm trying the wrong solutions," said Christopher Carney of Carney Gillespie PLLP, representing the class. "If what we want is to save lives and improve public safety, we know arrest and competency services are not the way to get there. Our clients need homes and help, not more punishment."

A spokesperson for DSHS declined to comment on the order on Monday, beyond saying the department was reviewing it.

"At this time, DSHS is assessing the ruling and understanding what the court wants us to do," Tyler Hemstreet, a media relations manager for the department, told Law360 in an email.

The class members are represented by David R. Carlson and Kimberly Mosolf of Disability Rights Washington and Christopher Carney of Carney Gillespie PLLP.

The state is represented by Nicholas A. Williamson, Marko Pavela and Anthony Vaupel of the Washington State Attorney General's Office.

The case is Cassie Cordell Trueblood et al. v. Washington State Department of Health and Human Services et al., number 2:14-cv-01178, in the U.S. District Court for the Western District of Washington.

--Editing by Peter Rozovsky.

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