By Paul Kiefer

The Washington State Department of Social and Health Services (DSHS) won’t appeal a ruling by state Court of Appeals that could enable people held in jails for weeks while awaiting mental health evaluations to receive financial compensation for their lengthy, and possibly unconstitutional, confinement.

The ruling signals a possible turning point in a push by public defenders and disability rights advocates to overhaul how Washington’s criminal legal system treats jailed people with serious mental illnesses.

When someone’s mental health during and after an alleged crime comes into question, the state gives them a “competency evaluation” to determine whether they are competent to stand trial. If they’re not competent, their case can be paused while they are treated at a state facility, where staff can “restore” them to competency by using medication and therapy to treat their mental illness. The goal of restoration is to return people to a point where they can understand the charges against them, return to jail or the community, and eventually go to trial.

The ruling, which the Court of Appeals issued at the end of November, centered on Shymila Luvert, who spent four months languishing in a jail cell last year while awaiting a mental health evaluation that never came. Luvert, charged with a second-degree assault and booked into King County’s Maleng Regional Justice Center in Kent last spring, didn’t appear to understand what was happening to her.

A King County judge ordered that Luvert receive a competency evaluation in her jail cell. When she refused to engage with the evaluators from DSHS, the court changed strategies, directing the department to move her to Western State Hospital in Lakewood for an inpatient evaluation within a week.

As Luvert waited for a bed to open, she sank deeper into her mental health crisis. “It was clear that she was not understanding what I was doing there, or what I was talking about,” said Ramona Brandes, the King County public defender who represented Luvert. “She was just sitting in jail, and she didn’t understand why. It was doubly sad because I couldn’t move her case forward in any way and I couldn’t get her the services she needed.”

As weeks turned to months, the court gave the department an ultimatum at the end of July: Find a bed for Luvert in less than a week or temporarily release her. When DSHS didn’t comply, the court ordered the department to pay Luvert $250 for each day she spent in jail beyond the first two weeks of her stay.

The push to force DSHS to compensate individuals with disabilities for long wait times is new, but the underlying problem is not. The number of people with mental disabilities and illnesses left waiting for mental health services in jails across Washington has risen steadily for years. Many spend their time in isolation cells with only occasional visits from mental health care providers, and their mental and physical health often deteriorates as time drags on. Some people spend more time in jail waiting for evaluation than they would have if they were simply convicted of the crime and sentenced to jail time.

In 2014, a group of public defenders and mental health advocates sued DSHS and its two major hospitals in federal court on behalf of more than 100 defendants statewide who had languished in jail while waiting weeks or months for evaluation or to have their competency “restored.” That case, known as Trueblood—named for one of the public defenders who filed the lawsuit—appeared to mark a turning point.

“Jails are not hospitals, they are not designed as therapeutic environments, and they are not equipped to manage mental illness or keep those with mental illness from being victimized by the general population of inmates,” US District Judge Marsha Pechman wrote in her ruling in April 2015. The court ordered the state to complete initial in-jail mental health evaluations within two weeks, and to transfer anyone who does not appear mentally competent to a state psychiatric hospital within seven days.

But in the years since the case, DSHS hasn’t been able to consistently reduce wait times for people in need of competency evaluations or restoration. “[Trueblood] gave us all this hope that there is going to be a change, that things were going to get better,” Brandes said, “and that DSHS was going to start transporting people in a timely fashion. And then they didn’t.”

Instead, the department has paid more than $85 million in contempt fines to the federal court, along with millions to county courts. Those dollars were set aside to pay for new mental health services, staff and facilities, both in county jails and in DSHS hospitals. In 2018, DSHS reached an agreement with disability rights advocates in federal court to take a new approach. Rather than paying contempt fines, the state agreed to devote more resources not only to meeting the court’s intake timelines, but to scaling up diversion and crisis intervention programs. The court didn’t fully waive contempt fines; instead, DSHS has accrued another $100 million in fines that it will need to pay if it can’t meet its promises to improve wait times and diversion programs.

Kim Mosolf, the director of the treatment facilities program at Disability Rights Washington—the nonprofit that negotiated the settlement with DSHS in 2018—said the new emphasis on diversion, which keeps people out of both jails and hospitals, is a way to stem the flow of people with disabilities into jail and psychiatric hospitals. DSHS, she said, “had been trying to build their way out of the Trueblood contempt fines for several years without luck,” opening hospital beds slower than the demand for them rose.

The number of people who need in-patient evaluation or restoration outpaced the department’s ability to open new hospital beds and hire staff, keeping wait times long for people awaiting transfers from jails. The COVID-19 pandemic, which forced Western State Hospital to temporarily pause intake to contain an outbreak, only exacerbated delays.

Mosolf added that adding beds to speed up the process of competency restoration isn’t a long-term fix. “Restoration is not treatment in the way that most people consider treatment,” she said—the purpose of restoration is to make a patient competent enough to stand trial, even if their improvement is temporary. “The state’s own data shows that experiencing restoration does not lead to longer-term stability and health for people—so investing in more inpatient restoration beds is actually a very bad investment in terms of the returns.”

Programs that can intervene before a person is sent to jail, Mosolf said, are the only way to mitigate the crisis—and the diversion programs currently funded with Trueblood contempt fines are stretched thin. Mosolf thinks the Court of Appeals decision, and the new avenue for fining DSHS that it created, will have a ripple effect. “It might also inspire prosecutors to take a harder look at whether some cases might benefit from diversion programs instead of criminal prosecution,” she said.

The promise of shorter wait times and diversion programs in the future doesn’t address the harm done to people like Luvert, Brandes said. “Putting money towards ameliorating future harms doesn’t remedy the suffering of people now,” she said. “These are people, not widgets. People who are suffering, people who are trapped in limbo, and people who may not even understand what’s happening.”

The King County judge’s decision to award Luvert compensation for her wait, Brandes said, is a chance to acknowledge the harm done to individual people. “This could open the floodgates for more people in [Luvert’s] situation to hold the state accountable,” she said. Brandes has already begun spreading the news of the Court of Appeals’ ruling to attorneys across Washington; in less than a month, she’s heard from two attorneys who are citing Luvert’s case as precedent to compensate their own clients who waited in jail to receive mental health treatment. “I hope this holds DSHS’s feet to the fire,” she said.

But not every advocate agrees that imposing more fines on DSHS will push the department to improve. “It is much better for money to go to the people who have been harmed,” said Kari Reardon, a public defender who has represented clients in the competency evaluation and restoration process in three Washington counties. “The problem is that we still haven’t fixed the problem itself. I don’t know if taking money out of a budget that’s already stretched thin does much to help the next person in need of services.”

After DSHS was unable to transfer Luvert to Western State Hospital by August 2020, a King County judge had her released. She moved in with her family, still waiting for a hospital bed. In April 2021, the opportunity came, and Luvert agreed to move to the hospital for evaluation and treatment. By the time her competency was restored at the end of the summer, the victim in her assault case was no longer interested in pursuing charges. The King County Prosecutor’s Office dropped the case, and Luvert returned home.

As of September, the average person in need of an inpatient competency evaluation or restoration had to wait 30 days or more to be transferred from jail to Western State Hospital. For people transferring from jail to Eastern State Hospital near Spokane, average wait times approached 40 days. This year, courts across the state have ordered inpatient competency services for 1,749 people.