Judge extends in-jail competency deadlines to 14 days

SEATTLE – A federal judge has given Washington’s mental health agency more time to conduct in-jail competency evaluations, but her sharply worded order rejected a list of exceptions that the Legislature established for the 14-day deadline.

In her order modifying a permanent injunction on Monday, U.S. District Judge Marsha Pechman said those exceptions “swallow the rule” and leave mentally ill people languishing in jail cells while allowing the state to “continue to make excuses, as has been its pattern.”

The rights groups that filed the original federal case said the strict deadlines will help protect mentally ill defendants.

“The case was brought because people with mental illness were suffering real harms while they waited in jail for many weeks and months for court mandated-evaluations,” said La Rond Baker, staff attorney with the American Civil Liberties Union of Washington, which filed the with Disability Rights Washington. “A 14-day deadline is a great improvement that recognizes their right to a speedy evaluation.”

In April 2015, Pechman ordered the Department of Social and Health Services to conduct in-jail competency evaluations within seven days of a state judge’s order. She said the state was violating the constitutional rights of some of its most vulnerable citizens by forcing them to wait extended periods for evaluations to determine if they can stand trial on criminal charges.

Pechman also set a seven-day limit for the state to provide treatment to restore competency for defendants who were found incompetent.

The state appealed the in-jail seven-day evaluation order, arguing a 14-day limit was needed instead. A federal appeals court sided with the state on the two-week time limit and sent the issue back to Pechman.

On Monday, Pechman amended the injunction by setting a 14-day limit, but limited the state’s exceptions to that rule.

The state has an interest in providing timely competency evaluations, since the average cost of incarcerating a mentally ill defendant waiting for services is $96.13 per day, she said. The longer they wait in jail, often in solitary confinement, the more likely their conditions will worsen and the more likely they’ll commit suicide, she said.

State lawmakers had established a 14-day time limit for conducting the evaluations, but they included exceptions that Pechman found unacceptable.

The statute says the two-week limit can be expanded if there was an “unusual spike” in evaluation orders, she said.

“The Constitution cannot be so pliable,” she said, especially since the statute doesn’t define “unusual spike” and evidence shows that evaluation orders regularly fluctuates over time.

Giving the state agency this excuse is unacceptable because it has not been able to handle the demands for services for years, and the agency “has failed to plan for growth in demand, resulting in hundreds of contempt orders by state judges and a contempt finding by this court last month.”

The agency has “demonstrated a history” of valuing its policies and administrative convenience over court orders and contempt orders, Pechman said, “which suggests DSHS may consider invoking this exception as a financial defense to contempt orders” while valuing its policy preferences “over the constitutional rights of class members.”