Oregon ranks seventh in the U.S. in state spending on behavioral health supports. Yet it is ranked 48th in positive behavioral health outcomes.

Every day, people who need behavioral health treatment and support are unable to secure them. These problems have now reached crisis proportions. As the Legislature continues to wrestle with these challenges, an extraordinary opportunity exists now to build a system that effectively serves the needs of community members with severe behavioral health challenges and reduce their impact on the community.

It is vitally important that these efforts include structural changes that are targeted to respond fairly, humanely, and effectively to people who are in, or at risk of entering, the criminal justice system.

Judges see the wreckage that occurs at the intersection of the behavioral health and justice systems. We see how the failure of housing and treatment bleeds into the justice system. We see, too, how the justice system becomes a never-ending highway of pain as it maneuvers people on a needless journey with no off-ramp to effective supports and treatment, just periodic law enforcement stops and the occasional interlude to life behind bars.

As judges, we see hundreds of people charged with quality-of-life crimes like disorderly conduct being deflected into the criminal justice system. They appear in the courtroom with an expectation that the treatment and housing that eluded them in the community will become available and mandated through their involvement in the criminal justice system.

Instead, following costly psychological evaluations, their charges are dismissed after they are found legally unable to assist in their defense and because the time they have now been jailed and low harm of their crime do not justify a commitment to the state hospital. They leave the courtroom with no housing and no treatment, only to return in short order to repeat the whole process.

Some cases involve people with psychiatric disabilities or substance use disorders who engage in behavior that places others at risk. For example, a defendant may have entered someone’s home and threatened the homeowner. That defendant was experiencing a thought disorder that convinced him that he owns the home and that the owner has no right to be there.

Another defendant, addicted to heroin and methamphetamine, continued to break into her elderly parents’ home, stealing their property, and intimidating and threatening their physical safety. These behaviors are fueled by the person’s psychiatric and substance use disorders, but they are not petty misdemeanors. These are cases that expose the significant disconnect between the justice and behavioral health systems.

When people like these are charged with a crime, judges want to know what services are available that could effectively interrupt the person’s dangerous behavior. We want to know that they will get treatment, and that they will have housing and peer support. We want to know we are not placing other people at risk when we make a decision regarding the defendant standing before us. We need a coherent system that is structured to facilitate service delivery in a manner that maximizes opportunities for recovery by individuals involved in the criminal justice system while also accounting for the safety of people who may be at risk from the person’s behaviors.

Currently, our answer to the problem is telling a defendant who is unhoused, on meth and experiencing delusions that their appointment for an assessment with a treatment provider is two Thursdays from now, at ten o’clock. Then when the defendant misses the appointment, telling them that there is no follow up, and losing that defendant until there is another law enforcement contact.

A cycle of arrest, jail, and release until they commit a crime that results in prison should not be their inevitable fate. At the same time, the public has the right to be safe. Unless both sides of this equation are recognized, the problem cannot be solved. The justice and behavioral health systems must work together to respond to the needs of both society and defendants with behavioral health and substance abuse problems in a way that respects the complicated individual and social dynamics at issue.

It is incumbent on those of us who work in the criminal justice system to convince policy makers on the importance of providing access to services, housing, and treatment to persons with behavioral health conditions in the criminal justice system. If we can do so, we will alleviate not only threats to public safety, but we will alleviate the suffering addiction and mental illness cause the entire community as well as the individual.

Judge Nan Waller currently serves as the Mental Health Court judge and manages the competency docket for the Multnomah County Circuit Court. As a lawyer she worked for Legal Services in Montana and for the Metropolitan Public Defender’s office in Portland. Judge Waller is a member of the Criminal Justice Workgroup of the National Judicial Task Force to Examine State Courts’ Response to Mental Illness.

As a lawyer, Suzanne Chanti represented people with civil rights claims including those who had been discriminated against on the basis of physical or psychiatric disability. As a trial court judge her work included overseeing adult and juvenile drug courts, veterans court and mental health court. She is currently a senior judge for the Oregon Judicial Department. Judge Chanti and Judge Waller co-chair the Chief Justice’s Behavioral Health Advisory Committee.

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