Legislation would make civil commitment stays lengthier, getting out tougher

KeysThe Lane County DA says the senate bills would only affect the most extreme criminal cases.  However, typical civil commitments for non-Measure 11 offenders would still go from six months to two years.  The hospital director could not release a patient who is cured or no longer dangerous without a judge’s say-so.  And patients would have to serve their whole term of commitment in a secure psychiatric facility, which could mean no transitional living situations in the community. –Ed.

By Saul Hubbard, The Register-Guard, Jan. 23, 2013

The wife and father of slain Eugene police officer Chris Kilcullen are pitching legislation that would make it more difficult in Oregon for people to leave secure state psychiatric hospitals after they’ve been deemed mentally unfit to stand trial for crimes they’ve committed.

Senate Bills 421 and 426 were introduced for the 2013 legislative session by state Sen. Floyd Prozanski, a Eugene Democrat, on behalf of Kristie and John Kilcullen, just as discussions about mental illness have become a key facet of the national debate about gun control.

Chris Kilcullen was fatally shot by Cheryl Kidd, a Springfield resident, during an attempted traffic stop in April 2011. She was subsequently deemed too mentally ill to stand trial.

In Oregon, there are approximately 100 defendants such as Kidd who lack the ability to understand the charges they face or to assist in their own defense. This essentially puts them outside the framework of the normal judicial system.

Under state law, these individuals can be hospitalized involuntarily for a maximum of three years if there is a chance their condition will improve and they still can face criminal charges.

Once that time is up, if a defendant is still unable to stand trial, the charges are dismissed — barring a future improvement in their mental health, in which case the charges can be refiled. However, if a defendant is deemed to pose a continued threat to themselves or others, the state can, in a separate process, seek a civil commitment order.

A commitment order lasts approximately six months, but can be continually renewed by a judge, should the individual still be considered dangerous.

The bills brought forward by the Kilcullen family would extend the length of a standard civil commitment order for people unable to stand trial for their crimes. The proposals wouldn’t have any effect on the three-year involuntary hospitalization period that some defendants, including Kidd, go through before being committed.

Under SB 421, a judge would be able to order a commitment period of up to five years for individuals charged with violent, Measure 11 crimes and whose mental conditions are unlikely to improve. The bill would prevent those patients from requesting a commitment hearing every six months. Instead, they could request a hearing two years into their commitment and again every two years after that.

If the law is passed, it could apply to Kidd, who has not yet entered the civil commitment process.

John Kilcullen said Tuesday that the family “didn’t want to have to go through that (commitment) process every six months,” given that mental health professionals don’t expect Kidd to improve in that kind of time frame.

“That would be difficult emotionally for us,” he said. “I have no forgiveness in my heart for her.”

Lane County District Attorney Alex Gardner said that, with the six-month commitment orders, crime victims’ families “are constantly involved” and the crime “never leaves their radar screen.”

“Those families deserve some respite at some point,” he said.

SB 426 would similarly extend the typical civil commitment orders for non-Measure 11 criminals from six months to two years.

Prozanski said that, compared with adjacent states, Oregon is “at the low end” with its standard six-month civil commitment period.

But advocates for individuals with mental illnesses are critical of the proposed legislation.

Bob Joondeph, the executive director of Disability Rights Oregon, says he believes elements of the bill would take away power from mental health professionals by giving them less leeway in how they handle their patients.

For example, under SB 421 — which deals with Measure 11 offenders who are unfit for trial — the director of a psychiatric institution would need to seek approval from a judge to release a patient who is considered either cured or no longer dangerous. Now, directors have the power to do that without court approval.

The bill also mandates that those same patients stay in a secure psychiatric hospital for the duration of their commitment. Joondeph said that would prevent patients from being transferred to community-based facilities or to be eligible for an early conditional release. Such steps can be a key factor in helping mentally ill patients rehabilitate and reintegrate into society, he added.

The Kilcullens’ proposals “present an all-or-nothing approach” to mental health care, he said.

Medical professionals “have to have the ability to get people to the right level care,” he added.

Gardner said people “shouldn’t infer any negative judgment about” medical professionals because of the proposals in the bills.

But, he added, “in some instances, health care professionals have a duty to be advocates for their patients and not necessarily for the overall public safety of the community.”

Going before a court before making release decisions adds a counterbalance to the system, he said.

Chris Bouneff, executive director of National Alliance on Mental Illness Oregon, argues that the proposals “create a prosecutorial tool to lock up someone who has mental health issues.”

Proponents are using “examples of extreme outliers” — in terms of the severity of a patient’s crime — to pass policies that “go against the tide” of nationwide efforts to place more individuals with mental illness in community facilities rather than big-box hospitals, he added.

Joondeph said that while he understood that law enforcement officials don’t want dangerous people released, state psychiatric hospitals should not be treated like “mental dens” or “prisons.”

“We need to move away from this stereotype that state hospitals have big walls and are for scary people,” he said.

Gardner countered that the proposal is intended only to make sure that “the few who would stay in hospital would be very dangerous.” The proposals are likely to be reworked and amended once the Legislature starts its work in earnest next month, he said.

But “the filter has to be broad enough to include all Measure 11 criminals,” Gardner said.

For John Kilcullen, a Eugene attorney and former Lane County sheriff’s deputy, the bills that were actually submitted “don’t go far enough.”

His preference, he said, would be for Kidd and others unfit to stand trial to be placed in secure psychiatric settings for at least the amount of time they would have faced in prison if convicted of their crimes. But there were “concerns about whether (such a law) would pass constitutional muster,” he said.

Kilcullen added that he is “confident” SB 421 and SB 426 will be approved by the Legislature.

“Recent events have brought the issue of mental illness into focus,” he said. The current systems “failed in the case of Ms. Kidd.”

Asked about his personal involvement in trying to pass laws that could directly affect his son’s killer, Kilcullen responded: “That’s how a lot of issues get pushed to the forefront” in the Legislature.