New GEI Legislation
by: Abassos • July 30, 2011 • no comments
HB 3100 and SB 420, both passed in the last session, contain important changes to the GEI scheme.
First, misdemeanors adjudicated GEI will automatically result in discharge. That is, the adjudication would be on the defendant's record but there will be no supervision by the PSRB, even in the community. Although, if the defendant is a substantial danger to others, the judge could sign a commitment order to the State Hospital where the case would essentially be treated like a civil commitment.
Second, C felonies adjudicated GEI will automatically receive an assessment for conditional release, ie PSRB supervision in the community rather than commitment to the Hospital. This should increase the number of conditional release assessments and, as a result, make it easier to obtain a conditional release on more serious cases.
Third, the PSRB will no longer have power over non-M11 cases while the person is in the Hospital. The Oregon Health Authority (basically OSH) will determine when the person is ready for discharge, after which the person will be transferred to the PSRB for supervision in the community. SB 420
Fourth, in order to raise the insanity defense, the defense will have to file a psychological evaluation from a certified evaluator. The strict sounding certification requirement is really aimed at pleas, which currently comprise the overwhelming majority of GEI adjudications. The court may allow a GEI defense to be raised at trial without a certified evaluation. Certification means that the state (through the Oregon Health Authority) will create standards, qualifications, baseline expectations for evaluations, trainings, etc.. The idea is to raise the quality of evaluations statewide. It is the belief of those in power that bad evaluations are leading to baseless GEI adjudications and hospitalizations that should not occur. In other words, there is a widespread belief that better evaluations will save Hospital bed space and money. Personally, I'm dubious of the underlying proposition. If a GEI evaluation is terrible then the DA can simply not agree to the plea. Or, alternatively, the judge could reject the evaluation in making findings. Or, the DA can exercise their statutory right to have their own evaluation. There are so many checks and balances that it's hard to believe there are a non-trivial amount of baseless GEI evaluations causing hospitalizations. In any case, this was neither a winnable battle nor one worth fighting. I have been assured by the people in charge of the certification process that the point is solely to raise the quality of evaluations and that they'll be cognizant of the danger of driving good evaluators out of the system. Assuming they do it right, there's little downside and some potential for better and more standardized evaluations.
If you have a client on a C felony, the likelihood is that under the current system that person, if adjudicated GEI, would go down to OSH and stay a very long time. Under the new scheme, there's a much higher chance that there will be a conditional release.
For misdemeanors, there will be no risk at all of PSRB supervision. However, there is a new commitment process for those adjudicated GEI on misdemeanors. That process is wide open and, frankly, until we know more about how the new commitments are implemented, I wouldn't willingly send a client into that minefield.
For other non-Measure 11 cases we'll just have to wait to find out what the new Oregon Health Authority run board looks like. That board will still have to follow the same regulations and standards as the PSRB, so it is unlikely that the decisionmaking process for individual cases will be drastically different.
Ultimately, the point of these bills is to make sure that the most appropriate people are utilizing the highest, most expensive level of treatment. Folks that can be treated in the community ought to be treated in the community. The Hospital ought to be reserved for those who need it most. What's happening now is that there are people being denied entry into the state hospital on civil commitment who unquestionably present more of a risk to the community than some of the people who are in on GEI. It is my hope that because the Oregon Health Authority will now be thinking about release for part of the GEI population, there will start to be a broader look at both populations to determine which individuals ought to be utilizing that resource.
