1. HB 3100 Affecting the “front door” of OSH 4 major components: a. “GEI” misdemeanants no longer under PSRB b. restorative services should be provided in community unless not available or person too dangerous c. mandatory community mh eval for Class C “GEI” defendants for possible CR d. certification of forensic evaluators

2. SB 420 Related to the “back door” Created two tiers of criminal offenses— Murder/BM 11 vs. all other crimes Divided responsibility for conducting “GEI” hearings between PSRB and SHRP based on tier and physical placement. i.e. PSRB=Tier 1 and all on CR SHRP=Tier 2 only while in OSH

3. The Insanity Defense and PSRB/OHA Jurisdiction

4. Process by which one comes under the Board Individual is charged with a new crime. --No probation violations Defense counsel seeks an evaluation by a certified psychologist or psychiatrist, forensically trained, to determine if client qualifies for defense. --Not every person with mental illness or mental defect necessarily qualifies

5. Legal standard for insanity defense GEI if: (1) as a result of md/d at the time of engaging in criminal conduct, the individual lacks substantial capacity either to appreciate criminality of conduct or to conform conduct to requirements of law. Applicable to felonies, misdemeanors & juvenile proceedings. Available in DUII and DWS cases

6. (2) md/d does not include any abnormality manifested only by repeated criminal or otherwise anti-social conduct, nor do they include an abnormality constituting a personality disorder. –This is only statutory “definition” of md/d. Bd has admin. rule further defining…859-10-005 –Md/d in remission is considered md/d for jurisdiction purposes –Personality disorders excluded in 1983

7. What constitutes a “personality disorder” was further defined by the Oregon Supreme Court in Tharp v. PSRB, 338 Or 413 (2005). The Court held that alcohol and/or drug dependency is a “personality disorder” as that term is used in ORS 161.295 (2) despite the fact that those diagnoses are found on Axis I in DSM. Result of legislative history. The Court of Appeals indicated the same opinion re: sexual disorders in Beiswenger v. PSRB, 192 Or App 38

8. ORS 161.305 ‘GEI’ is an affirmative defense - Defendant must prove by preponderance - Trial judge cannot impose defense over represented defendant’s objection-- State v. Peterson - Trial counsel cannot assert defense over defendant’s objection--State v. Bozman

9. ORS 161.309 Defendant must give notice of intent to assert defense Notice shall be in writing If fail to do so, court has discretion to permit introduction for just cause

10. ORS 161.315 Once defendant raises defense, State has right to its own certified psych examination. Must give notice to court. Court may order client to OSH for that assessment for no more than 30 days.

11. ORS 161.313 When the defense is raised in jury trial, court must give an instruction. - but it must be complete and accurate statement of the law -- State v.George

12. ORS 161.325 1.Once GEI, either placed under PSRB or OHA (depending on nature of crime and physical placement) or discharged 2. Order shall include: a) offense for which defendant would have been convicted – determination of Tier I or Tier II b) if there’s a victim and whether V desires notification *c) md/d on which defendant relied d) order to submit blood sample for certain offenses

14. Diagnosis on which parties relied is specified Victim notification information Crime(s) for which client found guilty except for insanity Length of jurisdiction set by court

16. ORS 161.327 (1)(a) Once GEI, if crime was felony, court shall order psych eval and report to court if one not provided prior to trial. Placed under PSRB or OHA if court finds defendant is affected by md/d and presents substantial danger to others requiring commitment or CR

17. (1)(b)Length of jurisdiction Equal to the maximum sentence provided by statute for the crime for which the person was found GEI –Consecutive terms may be imposed but must be supported by findings comporting with ORS 137.123 - - State v. Brooks –SGs do not apply -- State v. Nelson –PSRB does not have authority to rewrite court’s order even if court errs in setting max. sentence -- Romanov v. PSRB

18. (2)Physical placement upon GEI finding (a) Commit to OSH -- if substantial danger and not a proper subject for release (b) Conditionally release -- if substantial danger but can be adequately controlled with supervision and treatment and the necessary supervision and treatment are available. In making decision, court shall have as its primary concern the protection of society. * This is other determinant of whether Tier 2 offender is placed under OHA or PSRB

19. (2)(b)Court CR Requirements CR to special conditions of the court that are in the best interests of justice, protection of society and welfare of the person Court must designate some person or agency to supervise person. Prior to designation, the court shall notify person being considered and provide opportunity to be heard. Court shall notify Board in writing of its order, supervisor appointed and all conditions of release.

20. (4)Determination if Court CR Court may order evals, examinations and compliance as provided in ORS 161.336(4) and ORS 161.346(2). If defendant is found GEI of Class C felony(ies) only, the court shall order “that the person be examined by a local mental health program designated by the board and a report of the examination be provided to the court”

21. Order for Court CR Evaluation Questions to be addressed by community provider: Appropriate for CR? If so, what is necessary for supervision and treatment? If appropriate for CR, specific details of treatment plan.

22. Sample Court Conditional Release Order

23. Sample orders for both commitment to OSH (under the jurisdiction of PSRB or SHRP) and conditional release (under the jurisdiction of PSRB) are available electronically from the PSRB.

24. Result of successful defense Placed under PSRB if crime was Tier I felony and court finds defendant is affected by md/d and presents substantial danger to others requiring commitment or CR or if crime was Tier 2 felony and defendant is court conditionally released. Placed under OHA (SHRP) if crime was Tier 2 felony and court finds defendant requires commitment. Discharged or separate commitment process if misdemeanor

25. ORS 161.329 If defendant is no longer affected by md/d or no longer substantial danger to others and is not in need of care, supervision or treatment, the court shall discharge the person.

26. An adjudication of GEI is not a criminal conviction. State v. Gile, 161 Or App 146 (1999). The Oregon Court of Appeals held that a judgment of guilty except for insanity is not a “conviction” for purposes of statutes requiring unitary assessment and allowing awarding of costs. State v. Saunders, 195 Or.App. 357 (2004). The Oregon Court of Appeals held that ORS 161.325 provides the plain language that a GEI is not a conviction for any purpose.

27. Functions of the PSRB To accept jurisdiction To protect the public To balance the public’s concern for safety with the rights of the client To conduct hearings To make findings To monitor progress To revoke CR if client violates plan To issue orders To maintain current history of all clients

28. Mission: To protect the public through on-going review of the progress of persons found “guilty except for insanity” and a determination of their appropriate placement.

29. The Board carries out its mission through 2 arenas: - Hearings - Monitoring.

30. Legal Safeguards for Persons Under the Board/Panel Each is entitled to: –request hearings –be represented by an attorney, appointed if indigent –examine all exhibits –subpoena witnesses and documents –cross-examine all witnesses at hearing –appeal any adverse decision of the Board

31. At Each Hearing, the Board/Panel Must Decide: Does the client continue to suffer from a mental disease or defect? AND Does the client continue to be a substantial danger to others when mental illness is active? –If not, the Board/Panel shall discharge the client.

32. If so, the Board/Panel maintains jurisdiction. It must then determine: –Could the client be “adequately controlled with supervision and treatment” in the community? If not, the client remains committed. If so, is the supervision and treatment necessary available in the community at this time?

33. How Board/Panel assesses readiness for conditional release planning Reviews exhibit file that contains the reports and evaluations of OSH professional staff of various disciplines and others Listens to the testimony of all witnesses Cross examines witnesses to obtain additional information Considers the risk to society that the client may pose if returned to the community

34. Factors considered: Clinical judgments of OSH professional staff Results of psychological testing and risk assessments performed on patient Recommendation of OSH Risk Review Board Availability of resources in the community to compensate for any residual risk

35. Evaluation process for community provider Receive order and client’s PSRB file Review entire file Contact OSH social worker to set appt. Interview client face-to-face Write report to Board within 30 days with reasons for acceptance or denial

36. Types of residential placements available for PSRB clients Secure residential treatment facility (SRTF) Residential treatment facility (RTF) Residential treatment home (RTH) Adult foster home (AFH) Supported Housing (SH) Intensive case management (ICM) Independent living

37. PSRB Conditional Release Process Board holds hearing If Board approves conditional release of patient Client released to community provider pursuant to specific plan Case manager oversees provision of required treatment services and supervises client for PSRB Board staff monitors conditional release status

38. CR of Tier II Clients If OHA determines a Tier II offender is appropriate for conditional release, the SHRP must give notice to the Board prior to conducting a conditional release hearing Board will review the proposed plan and provide SHRP with conditions it deems advisable for this person’s conditional release

39. Tier II Transfer of Jurisdiction SHRP conducts hearing and orders conditional release Once a Tier II client is conditionally released, jurisdiction immediately transfers to the PSRB

40. Monitoring: EPR “hits” on the Law Enforcement Data System (LEDS) terminal Daily calls and correspondence from case managers, providers and others Monthly progress reports*

43. Definition of Revocation The legal process by which the Board orders the return of an individual on conditional release to the state hospital for evaluation and treatment. A revocation order has the same legal effect as an arrest warrant. Law enforcement transports individual to OSH

44. Grounds for revocation Reasonable grounds include: a) violation of the term(s) of the conditional release plan b) a change in mental health status c) absconding from supervision d) the appropriate community resources are no longer available

45. Revocation of Tier II Clients Jurisdiction of Tier II clients who are revoked by PSRB and returned to OSH reverts to OHA. The Panel then conducts the revocation hearing.

47. Who OSH can not serve Individuals without a valid order Individuals who only need detoxification Probation Violators Municipal Ordinance Violators Individuals who require treatment for acute medical conditions that must be provided in general hospitals Defendants who have been found able to aid and assist or never able to aid and assist 47

48. Involuntary Medications Not all patients at the state hospital will receive anti-psychotic medications. OSH/BMRC can only give patients anti-psychotic medications if the patient gives his/her informed consent, or if there is “good cause” to require medication without informed consent as defined in OARs.

49. Involuntary Medication (cont.) Good Cause has 4 elements for most people: OAR 309-114-0020 1. The patient lacks the capacity to make his own treatment decisions (can’t reasonably understand and weigh the risks and benefits of the treatment options); and 2. The proposed meds will likely restore or prevent deterioration of the person’s mental or physical health, alleviate extreme suffering or save or extend the person’s life; and

50. Involuntary Medication (cont.) 3.The proposed meds are the most appropriate treatment for the person’s condition according to current clinical practice and all other less intrusive procedures have been considered and some other factors (dangerousness, seriousness of condition, etc) were considered; and 4. A conscientious effort was made by institution to obtain informed consent from patient.

51. Involuntary Medication (cont.) TWO EXTRA FACTORS must be proven in order to involuntarily medicate someone who is in the hospital because they were found unable to aid and assist in their defense. These factors are based on the Supreme Court decision in Sell v. US, 539 U.S. 166,123 S.Ct. 2174 (2003), that address the unique population of patients who have not yet had any opportunity for adjudication of their case.

52. Involuntary Medication (cont.) 1. Medication must not be requested for the sole purpose of restoring competency for trial; and 2.The patient is being medicated because of the patient’s dangerousness or to treat the patient’s grave disability. OAR 309-114-0020

53. Adult Client Demographics 1/1/2012 Gender:Male84.4 % Female15.6 % Average Age:45.4 years old Ethnicity:Asian02.2 % Black07.3 % Hispanic04.5 % Native American02.8 % White82.2 % Other01.0 % Primary Diagnoses:Schizophrenia Bi-Polar Disorder Secondary Diagnosis:Substance Abuse

54. Adult Clients by Crime Categories 1/1/2012 98.4% for Felony Offenses A Felony – 53.4% B Felony – 22.5% C Felony – 10.6% Unclassified – 13.5% 1.6% for Misdemeanor Offenses

55. * Numbers as of 12/31 of given year Adult Clients under PSRB (by Year*) 2011 731 2010741 2009752 2008 744 2007745 2006712 2005704 2004712 2003646 2002595 2001583

56. Clients under SHRP On January 1, 2012, OHA/SHRP assumed jurisdiction of 122 Tier 2 clients who were residing in OSH.

57. Adult Clients Snapshot as of January 1, 2012: 615 – Total clients 605 – for felony offenses = 98.4% Crime categories: A = 53.4% B = 22.5% C = 10.6% Unclassified = 13.5% 10 – for misdemeanor offenses = 1.6% 18 – Other (UL, DOC, AWOL, etc.) 184 – in Oregon State Hospital 11 – have been found appropriate for conditional release by the Board 24 – have had community evaluations ordered through hearings 413 – on Conditional Release 10 – out of state or country 403 – in Oregon in 21 different counties 18 % = Secure residential treatment facilities 29 % = Residential treatment facilities/homes 13 % = Adult foster homes 15 % = Semi-independent or supported housing 3 % = Intensive Case Management 20 % = Independent (i.e., alone; with family; with others) 2 % = Other in various types of residential settings:

58. Adult Tier One PSRB Clients Snapshot as of January 1, 2012: 464 Terms (458 Clients) 464 – for felony offenses = 100 % Crime categories: A = 57.5 % B = 24.8 % C = 0 % Unclassified = 17.7 % 0 – for misdemeanor offenses 14 Terms (14 Client) – Other (UL, DOC, AWOL, etc.) 201 Terms (182 Clients) – in Oregon State Hospital 11 – have been found appropriate for conditional release by the Board 24 – have had community evaluations ordered through hearings 263 Terms (262 Clients) – on Conditional Release 5 – out of state or country 258 – in Oregon in 20 different counties 19 % = Secure residential treatment facilities 24.6 % = Residential treatment facilities/homes 14.1 % = Adult foster homes 16 % = Semi-independent or supported housing 4.6 % = Intensive Case Management 19.4 % = Independent (i.e., alone; with family; with others) 2.3 % = Other in various types of residential settings:

59. Adult Tier Two PSRB Clients Snapshot as of January 1, 2012: 160 – Terms (159 – Clients) 150 – for felony offenses = 93.75 % Crime categories: A = 40.7 % B = 16.0 % C = 0 % Unclassified = 0.6 % 10 – for misdemeanor offenses 4 Terms (2 Clients) – Other (UL, DOC, AWOL, etc.) 2 Terms (2 Clients) – in Oregon State Hospital awaiting transfer of jurisdiction 151 – on Conditional Release 5 – out of state or country 149 – in Oregon in 19 different counties 14.9 % = Secure residential treatment facilities 33.9 % = Residential treatment facilities/homes 12.3 % = Adult foster homes 16.2 % = Semi-independent or supported housing 1.3 % = Intensive Case Management 20.1 % = Independent (i.e., alone; with family; with others) 1.3 % = Other in various types of residential settings: 154 Terms (153 Clients) – on Conditional Release

60. 2011 63 201063 200982 200870 2007106 200681 200584 2004126 2003110 200278 200176 New Adult Clients (by Year)

61. Adult Clients at OSH (approximate as of 12/31 of given year) 2011 300 2010350 2009367 2008 362 2007351 2006343 2005375 2004403 2003368 2002322 2001327

62. * Numbers as of 12/31 of given year Adult Clients on Conditional Release (by Year*) 2011 413 2010375 2009370 2008 367 2007379 2006354 2005314 2004294 2003263 2002258 2001241

63. Adult Clients on CR by Crime Categories 1/1/2012 97.6% for Felony Offenses A Felony – 50.5% B Felony – 20.3% C Felony – 14.6% Unclassified – 12.2% 2.4% for Misdemeanor Offenses

64. Percentage of Adult Clients on Conditional Release (numbers as of 12/31 of given year) 2011 56.5% 201050.6% 200949.2% 2008 49.3% 200750.9% 200649.7% 200544.6% 200441.3% 200340.7% 200243.4% 200141.3%

65. Court Conditional Releases 2011 22% 201014% 200916% 2008 13% 200715% 200615% 200526% 200425% 200322% 200232% 200130%

66. Adult Clients Revoked from Conditional Release (by Year) 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 27 30 33 41 59 54 68 72 56 47 39

67. Definition of Recidivism The percentage of revocation orders that are issued based on a new felony charge.

68. Recidivism Rate Percentage of Revocations of Conditional Release Based on Commission of a Felony * Numbers as of 12/31 of given year On CR *RevocationsNew FeloniesPercentage 19971814000.00% 19981945600.00% 19992193313.00% 20002354400.00% 20012413912.60% 200225847510.60% 20032635611.80% 20042947211.40% 20053146800.00% 20063545411.90% 2007 379 5923.40% 20083674112.40% 20093703300.00% 20103753013.30% Average = 2.2%

69. Percentage of Adult Conditional Releases Maintained in Community per Month

70. Current Adult Clients on Conditional Release in Given County (1/1/2012) Benton4 Clackamas19 Columbia21 Coos8 Deschutes15 Douglas2 Hood River1 Jackson21 Jefferson1 Josephine8 Klamath6 Lane23 Lincoln4 Linn3 Malheur13 Marion53 Multnomah140 Polk2 Umatilla31 Washington19

71. Questions? 71

72. PSRB Contact Information Mary Claire Buckley, J.D. Exec. Director Psychiatric Security Review Board 620 SW Fifth Ave. Suite 907 Portland, OR 97204 Phone 503-229-5596/Fax 503-229-5085

73. OSH Legal Affairs Department Contact Information Micky Logan, J.D. Oregon State Hospital 2800 Center St NE Salem, OR 97301 Phone 503-947-2937