Recently in the case of State v. R M, the Court of Appeals warned judges:

We emphasize that a civil commitment is not the mechanism to deal with uncomfortable or unwanted social behaviors, or even to protect an individual’s right of privacy against persons exhibiting invasive or intrusive behaviors…See State v. Pike… "Involuntary commitment for a mental disorder constitutes a serious deprivation of personal liberty and cannot be imposed constitutionally solely to achieve desirable social goals…."

suggest that the same warning is equally applicable to the use of the fitness-to-proceed process in criminal cases as set forth in ORS 161.360-370. In fact, the temptation for judges to use this process to achieve "desirable social goals" surely must be much higher than in the civil commitment arena. That is for several reasons:

The fitness-to-proceed process is both quick and easy. There is no time-consuming and cumbersome process of holds, evaluations and due process hearings required. The judge and the attorneys can take care of the problem in five minutes. There is no need for mental exams or expert opinions. There is no requirement of a finding of dangerousness. There is no need for the prosecution to show that there is even probable cause for the charge that brings the defendant before court.

Just as with a civil commitment, commitment for lack of fitness to proceed is "a serious deprivation of personal liberty." Under the current statutory interpretation even felons who could never see the inside of the penitentiary for the crimes with which they have been charged are subject to being confined in the Oregon State Hospital for up to three years based solely on a finding that they are unable
to understand and assist in the court
proceedings.

Misdemeanants fare little better. They are often charged with a number of usually minor offenses. The court then often "stacks" (runs consecutively) the commitments to bring about a commitment that can reach a period of one year. This again usually far exceeds any local jail time the defendant would receive as a sentence for the crime or crimes.

At any given time, the Oregon State hospital has been averaging between 100 and 120 such fitness-to-proceed patients — roughly 15 percent of the hospital population. A review of the charges that brought these people to the hospital reveals that at least two-thirds of them are in the hospital on exactly the crimes described above: minor felonies and misdemeanors.

If such a large percent of the patients in the hospital based on a lack of fitness to proceed are low level felons and misdemeanants, the obvious question seems to be: why? There are multiple answers to this question.

One answer is that it is an easy way to get a case off the calendar. No judge has ever been reversed for making sure that a defendant is fit to proceed. Judges have been reversed for not doing so. It is also easier to send people to the hospital than to try to get the attorneys to work on finding a community-based solution.

From looking at the crimes with which so many of these patients have been charged, it is fairly easy to conclude that one reason is exactly what the Court of Appeals warned about in State v R M — "to achieve desirable social goals." Put more bluntly, some courts are complicit in allowing police to "street sweep" undesirables who lower the quality of life in various neighborhoods. These folks are arrested on minor offenses (but which are often viewed a being highly offensive), hauled into court, found to be unfit to proceed, and are shipped off to the hospital for some period of time. The street is clean (for awhile).

Yet another answer to the question is that many communities have few if any resources available to deal with defendants who are found to be unfit to proceed. One good piece of news in this regard is that the Department of Human Services has funded pilot projects in a few counties to try to help divert this population out of the hospital and out of criminal justice system where possible. It is too early to know what if any impact these programs will have.

The right of a criminal defendant to not be prosecuted unless able to understand and assist in the defense of the case is a fundamental right that all of us who work in the justice system must take very seriously. Oregon, like most states has established a statutory process to deal with this circumstance. It is critical to the functioning of the justice system that this system be used in the way that is intended and for the purpose intended. Just as in the civil commitment process, the fitness-to-proceed process must not be used to deprive people of their fundamental right to liberty, "solely to achieve desirable social goals."

ABOUT THE AUTHOR
The author, a senior judge in Lane County Circuit Court, is the former special master under appointed by the governor to oversee transformation of the Oregon State Hospital in Salem.

© 2009 Hon. James R. Hargreaves

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