SEATTLE — The state of Washington is experiencing a self-described “crisis” with the biggest backlog in state history of mentally ill defendants sitting in jails waiting for court-ordered access to medical help.
Record-breaking wait times behind bars for people with serious mental illness – defendants deemed unable to understand the charges against them – are creating chaos, suffering, and a potentially massive financial toll for the state.
The KING 5 Investigators found the failure to comply with court orders and state law to move defendants deemed incompetent to stand trial into state psychiatric hospitals in a timely manner could cost the Department of Social and Health Services (DSHS) $300 million in fines that are currently in abeyance.
“That’s the taxpayer’s dollars, so of course, it’s concerning. I would rather have those dollars spent on patient services than fulfilling some sort of fine that doesn’t go directly to patient care.”
Seven years ago, after civil rights advocates including Disability Rights Washington and ACLU Washington filed a class action lawsuit against DSHS, known as the Trueblood case, a federal court ruled the state was “violating the constitutional rights of some of its most vulnerable citizens” by allowing mentally ill people accused of a crime to wait in jail for weeks or months before receiving treatment aimed at stabilizing them. The service is called competency restoration – efforts to bring patients to a point where they can participate in their legal case.
“Our jails are not suitable places for the mentally ill to be warehoused while they wait for services. Jails are not hospitals, they are not designed as therapeutic environments, and they are not equipped to manage mental illness,” wrote Chief United States District Judge Marsha Pechman in the 2015 Trueblood Order.
Pechman ordered DSHS to provide competency evaluations to people presenting with serious mental illness within 14 days of incarceration and if deemed necessary, competency restoration services within seven days.
Despite the federal court’s ruling and millions of dollars spent to add resources, state records show wait times have gotten worse, not better.
In hearings this year at the King County Superior Court in Seattle, public defenders said their clients were suffering from the state’s failures.
“(My client) desperately needs medical attention and each day that she spends (in jail) compounds that harm,” said one attorney at a hearing in July. “Your Honor, the suffering here is egregious, and my client should not bear the brunt of the state’s misconduct and willful and intentional mismanagement.”
“When I visited (my client) I’ve seen the conditions personally that he is living in, and they are horrifying," another public defender said in July. "He is in a concrete bunker all day. These are people that are living in their own excrement, in their own filth for all hours of the day."
State in contempt
Trueblood Court Monitor reports show in 2015 the average wait time for competency restoration services at Western State Hospital was less than a month. In 2022, the wait has increased more than four times that with people waiting four months or longer.
“I’m very disappointed. It’s a real human tragedy,” said ACLU Washington Legal Director La Rond Baker. Baker was on the legal team that litigated the Trueblood case that led to the seven-day deadline to move defendants to the hospital. “I was shocked and I’m still in shock that seven years later we’re in this position. We’re such a progressive and liberal state but we really don’t fund and don’t prioritize the provision of mental health services for people who are most dire in need of it.”
DSHS: We’re caught in a 'perfect storm'
Top state officials who oversee Western State Hospital and programs for mentally ill defendants in Washington said the state was hit with a “perfect storm” this year that led to the increase in wait times. Dr. Thomas Kinlen, director of the DSHS Office of Forensic Mental Health Services, said the effects of COVID-19 are hitting the state especially hard now. Western State Hospital had several hospital admissions freezes during the pandemic, which created a backlog of cases now clogging the system.
“(We’re in) a competency crisis for sure,” Kinlen said. “It’s crushing. It’s disheartening. Each morning I want to see the waitlist lower.”
State officials said they’re also plagued by critical staff shortages. At Western State, approximately a quarter of the jobs are sitting unfilled.
“We’re in a situation where we might have money for a program but then we have to have staff to run it,” Kinlen said. “We’re doing everything possible to get them out of (jail) as quickly as possible. We don’t want them in jail. That’s not what we view as the treatment they need.”
DSHS officials said the biggest factor in elongated wait times is an increase in demand for competency restoration services. In the last year alone, Western State saw a 40% increase in referrals from courts in western Washington, according to a DSHS court declaration.
“We knew ahead of time that services would be increasing over time. We knew that,” said Waiblinger, the DSHS chief medical officer. “What happened recently, we don’t understand that, and we didn’t predict it, certainly. I don’t think anyone expected that to happen.”
Alexander Jay of Seattle is one of the defendants in the King County Jail waiting for medical help to restore competency to stand trial. His case has drawn widespread attention for his alleged random acts of violence perpetrated on strangers, including an alleged murder on Capitol Hill and an attack in the International District caught on Sound Transit security cameras in March.
In April, King County Superior Court Judge Johanna Bender found Jay was incompetent to stand trial and ordered DSHS to begin treatment at Western State within seven days. Jay’s been waiting behind bars for more than seven months.
“The amount of time that Mr. Jay is being required to wait is barbaric,” said Bender at a hearing in September.
“It’s unbelievable. You want to go on with your life, you want it to be done,” said Kim Hayes, a Harborview trauma nurse who Jay allegedly attacked in the light rail station as she commuted to work.
She suffered a broken clavicle and ribs and thought she would have been killed if she didn’t fight back.
“It changes your life forever. And you never feel as safe as before," Hayes said. "I want to move on with my life, but I would move on quicker if there was a resolution for him getting into an appropriate bed, an appropriate place. I want him to get the care he needs.”
Why hundreds of millions of dollars in fines could come due
As the Trueblood case progressed through the court system, Pechman, the U.S. District judge, twice found DSHS in contempt for failing to meet deadlines.
“(DSHS has) failed to meet all deadlines, including those set by themselves,” wrote Pechman in a 2017 order. “Their excuses remain the same and their planning remains inadequate…The court is hopeful (the state) will stop their procrastination and false promises.”
At the time she imposed sanctions to try to compel “compliance with orders.” From 2016 to 2018, lack of compliance cost DSHS $88 million in fines. After that, a 2018 settlement agreement put the fines on hold, but they’re still being tallied for failing to meet deadlines. State records compiled by KING 5 show if the total bill had to be paid today, it would exceed $300 million.
“That’s an unbelievable number,” said Kinlen, the DSHS forensic mental health services director.
The number is growing. In August, the recorded fine against the state was $13,455,000. The month of September saw the highest fine to date, at $14,046,250.
The settlement agreement makes clear that if the state is found to be in "material breach" of the agreement, the accumulated fines will be reduced to judgment, meaning the bill would be due.
"The state is always aware that (we may have to pay the fines)," Kinlen said.
“We are thinking innovatively,” Waiblinger said. “We’re having these conversations probably every day. We’re having these strategy conversations: ‘What can we do differently?’”
The Trueblood fines reduced to judgement, paid to date, have been used to enhance the state’s efforts to help people get services before crimes are committed. DSHS and the Washington State Health Care Authority have created several “diversion programs” aimed at reducing both contact with the legal system and the demand for competency services. Diversion programs are located in counties including Clark, King, Pierce, Snohomish, Thurston, Spokane and Yakima.
In addition to the diversion programs, DSHS has added approximately 160 additional psychiatric beds since the Trueblood trial in 2015. More new beds are expected to become available in the next few years:
“We’re adding capacity as fast as we can, but adding beds, building beds takes time to do,” said Kinlen. “Unfortunately, the demand for competency restoration services continues to grow and grow and grow.”
From the bench, Bender, the King County judge, said DSHS should have expected an increase in needed services and planned accordingly.
“The delay imposed by the government is unconscionable," Bender said. "It is inconsistent with the behavior of a civilized society. It is absolutely outrageous."