In contrast to the purely civil commitments discussed in the preceding section, there are several forms of commitment, or involuntary treatment, that occur in the context of criminal proceedings. These commitments are closely connected to the underlying criminal case, but the commitment is not a sentence or a punishment (though it may be perceived that way).

A person who is facing criminal charges may be committed for treatment if they are incompetent to resolve their criminal charges (either temporarily or permanently), or if they are found not responsible for criminal acts due to insanity. These situations pause or end the underlying criminal proceedings and give rise to the proceedings described in this section.

A less common type of commitment occurs after conviction and incarceration, where a person (usually a sex offender) remains dangerous due to a mental disorder and may face continued confinement and treatment to manage that danger.

9.4.1 Commitment to Restore Competence

State psychiatric hospitals across the country, including those in Oregon, are overflowing with committed patients. These are not patients who have been civilly committed due to danger—a group that, as discussed, is now relatively small. Rather, these are patients who were arrested and brought into the criminal system, and then were committed to the hospital. As discussed in Chapter 6 of this text, this group of patients is in the hospital because they are mentally incompetent to proceed in their criminal cases, or as it is commonly known, they are unable to “aid and assist” in their defense. In Oregon, this commitment takes place pursuant to ORS 161.370, and the commitments are most commonly called “370” commitments.

These “aid and assist” or “370” patients have been found incapable – due to mental disorders – of resolving their criminal charges, and they are in the hospital for “restoration” of their competence. These patients may spend months or even years committed to the hospital, until their competence to resolve their criminal charges is restored or it is determined that they cannot be restored. If restored, the person will then return to the criminal system to resolve their charges.

Oregon is certainly not alone in being overwhelmed with criminally incompetent patients, but it is a good example of the problem. The Oregon State Hospital’s daily average population of “aid and assist” patients has gone up, and then skyrocketed in recent years:

• In 2000, the hospital had a daily average of 74 aid and assist patients (just 9 percent of the total hospital population).
• In 2019, the hospital reported an average daily population of 260 aid and assist patients, now over 40 percent of the hospital’s patients.
• In the spring of 2022, there were over 400 daily aid and assist patients – with waiting lists of people in jail needing to enter the hospital for restoration.

Though patients average fewer days in the hospital now than before, even a faster process cannot keep up with the demand for beds (Oregon Health Authority, 2019). As a result, there is a concern that people too mentally ill to resolve their criminal cases must remain in jail for lengthy periods, awaiting their (also lengthy) hospital commitment to undergo a process that will allow them to return to jail.

Lawsuits have pushed for faster hospital admissions, alleging that it is a violation of civil rights to endlessly delay needed treatment for these patients. The legal cases have pointed out the negative health consequences and the fairness problems of keeping very mentally ill people in jail. In Oregon, a federal court order resulting from the lawsuit Oregon Advocacy Center v. Mink (D. Oregon 2002) demanded that the state psychiatric hospital take no more than seven days to admit patients who were unable to aid and assist in their criminal defense. Other states have been similarly directed by courts facing this problem. But over the years, compliance is problematic, hampered by shortages of mental health care professionals and the lack of beds in state hospitals.

And even while federal courts have demanded hospitals prioritize this set of patients, some have noted that other groups are suffering at the expense of this one. Only so many beds are available in a state hospital. Should some of them be reserved for civil commitment patients you have just learned about—those who have committed no criminal offense? And what about patients who have been found guilty except for insanity of serious crimes? Beds must be available to hold patients who have nowhere else to be safely held.

The reasons for the daunting numbers of competence commitments are numerous and complex. Among them: lack of community mental health treatment. People aren’t getting the mental health care they need prior to criminal system involvement. Untreated, people with mental disorders are coming into the criminal justice system in large numbers, and patients who are not competent to resolve their cases are a portion of that group. Additionally, shortages of mental health professionals at all levels, including staffing at hospitals and alternative community settings, have plagued Oregon and other states, slowing patient progress through the system (Kaiser Family Foundation, n.d.; Zhu et al., 2022). In 2022, the Oregon State Hospital faced ongoing struggles with staff shortages that required closure of units and reduction of admissions (Salem Reporter, 2022).

Further, despite efforts to move patients through the process, restoration of competence is often a slow process. For example, there are limits on the treatment that can be provided to advance competence; it may be clear that psychiatric medications would benefit a patient, but if those are declined, there are limits on doctors’ ability to administer those involuntarily in order to make a person competent to stand trial. Sell v. United States (2003).

Fortunately, perhaps, restoration efforts are not endless. Courts have set limits on the time allowed to attempt competency restoration generally, but those were not enough to manage the rising numbers of patients. Under previous rules in Oregon, patients could attempt restoration for years in a hospital setting. In August of 2022, however, a federal court in Oregon set new, much shorter, time allowances for restoration of patients at the Oregon State Hospital. Under these new rules, lower level offenders being restored must be released after no more than 90 days, and those who are charged with nonviolent felonies must be released in 6 months (Oregon Health Authority, 2022). After this adjustment, hospital overcrowding may be reduced, but there remains the question of where these patients will go and whether they (and the community) will be adequately served.

Some patients, despite attempts at restoration, are found “never able” to aid and assist. That is, they are deemed permanently or indefinitely incompetent to resolve their criminal cases. At this point, prosecutors are generally forced to dismiss charges (at least temporarily) against the person who cannot be made competent to resolve those charges. This can be a terribly unsatisfying solution for the justice system, and certainly for victims. It is a difficult situation for the accused person as well, who is left in a sort of limbo, unable to resolve their case with finality.

9.4.2 Extremely Dangerous and Resistant to Treatment

Oregon’s solution to a one part of the “never able” population was a statute, enacted several years ago, providing for the involuntary commitment of people who are deemed Extremely Dangerous and Resistant to Treatment. ORS 426.701 & 702. This statute is specifically targeted and used to manage people who have committed a most serious offense (e.g. murder, rape), and who have an entrenched mental disorder that is not amenable or responsive to psychiatric treatment. In practice, this often involves people who were charged with a very violent offense, but who cannot be made competent to resolve that charge.

The law first requires that the person be found “extremely dangerous,” a criteria based on the offense committed and a likelihood of repeated harm. The person must also be “resistant to treatment.” If restoration to competence was attempted and failed, and the person was found never able to proceed to trial – and continues to exhibit those same challenges – that information would indicate resistance to treatment.

If a person meets the qualifications, they can be committed to involuntary hospitalization and treatment for two years, and they can be recommitted every two years if they continue to meet the statutory criteria. If the person stops qualifying for recommitment, and becomes competent to proceed to trial, the prosecutor can re-open the underlying criminal case against them.

Oregon patients committed under this statute continue to receive treatment for their underlying mental disorders—and, despite barriers, are sometimes able to move out of the hospital and into less restrictive housing and treatment options. Patients committed under the Extremely Dangerous statute are supervised by the Oregon Psychiatric Security Review Board, discussed in more detail in the next section.

9.4.3 Criminal Commitments

Competing for bed space at state hospitals are patients who have been committed for treatment after successfully asserting the insanity defense in criminal court. These are patients who have been found not guilty by reason of insanity, or, in Oregon, guilty except for insanity (GEI). As you have learned, a successful insanity defense excuses a person from criminal responsibility for an offense based on the impact of a mental disorder. See Chapter 6 for a detailed discussion of the insanity defense. The excused person is not simply released as they would be with other “not guilty” verdicts; they are ordered into a term of treatment designated by state law. This type of involuntary treatment after a criminal matter is sometimes referred to as a criminal commitment — as distinguished from the civil commitments discussed at the beginning of this chapter, which do not involve criminal charges.

Most people who are excused from criminal responsibility due to insanity are committed to a public psychiatric hospital (in Oregon, the Oregon State Hospital) for psychiatric treatment and to ensure community safety. The details of hospital treatment programs are beyond the scope of this text, but this link provides some information about programs available for different types of patients at the Oregon State Hospital. Programs will differ by state.

Legal oversight of a person’s criminal commitment is managed by some combination of medical providers and legal personnel in the criminal justice system. In the federal system, for example, the person is supervised by a U.S. Probation officer, sometimes for life. A few states, including Oregon, have specialized systems to supervise people under criminal commitments. Oregon’s Psychiatric Security Review Board, or PSRB, is a somewhat unique oversight board that is composed of professionals from multiple relevant disciplines. Oregon’s PSRB is charged with  ensuring proper management and community safety with respect to all GEI patients. Board members include a psychiatrist, a psychologist, a criminal lawyer, a parole and probation officer, and a community member – each bringing different expertise and perspective to their supervision duties.

In order to perform its duties, the PSRB holds public hearings where the supervised person is in attendance, represented by an attorney. The state, interested in public safety, is also represented by an attorney at PSRB hearings. Hearings may involve testimony from witnesses – primarily treatment providers – who will advise the Board of the person’s mental health status and progress in treatment. Sometimes, hearings are an opportunity for the person and their treatment providers to request that a person be allowed conditional release from the hospital, meaning that the person is permitted to live in the community, often in a group setting, to participate in treatment under a set of rules and safeguards. If those conditions of release are violated, the person may be returned to the hospital.

Typically, people who have been criminally committed after an insanity verdict are ordered to remain under the supervision provided in their state for either an indefinite period or for the maximum length of time allowed by their underlying offense. For example, a burglary charge excused for insanity will likely result in the person being placed under supervision for 20 years, the maximum amount of time the person could have been sent to prison for that offense, if convicted.

However, if at some point it is determined that the person no longer meets criteria for a criminal commitment  – they no longer have a qualifying mental disorder or it no longer makes them dangerous to others – then the person must be released early from supervision. Again, the standards for continued commitment and supervision in these circumstances will vary according to the law of the jurisdiction. However, note that the criminal commitment standard is different from that used to civilly commit a person as discussed earlier in this chapter. Civil commitment can be based on a person’s danger to themselves. A criminal commitment requires that a person be dangerous in a serious way to other people.

Regardless of how patients are managed or supervised in a particular state, their treatment can be a source of stress and concern to victims who may feel that justice was not served when the person with a mental disorder was “excused” from responsibility (Lyons, 2007). There can also be an understandable sense of resentment against patients who are able to access mental health care after committing serious offenses, when people who have not found their way into the criminal system can be very limited in their access to mental health care.

9.4.5 Post-Conviction Commitments

A final variety of criminal-system commitment that deserves a mention here are post-conviction commitments. These are also commitments that are based on criminal conduct, unlike the civil commitments discussed earlier in the chapter.

In a post-conviction commitment, a person has been charged with and convicted of a criminal offense. They were not excused based on insanity, and if they had competence issues, those were resolved. The person has also served their time in prison. The person has completed their criminal case in all respects.

Now, after the person has completed their criminal sentence, they become subject to an involuntary commitment based on their continuing dangerous status. In practice, this type of commitment is directed at convicted sex offenders who continue to pose a threat to the public upon their release from prison.

Oregon does not have a statute for this type of post-conviction commitment, but many other states do, including our neighbor state of Washington. In Washington, sex offenders who complete their criminal sentences, but are deemed by evaluators to be a continuing threat, can be civilly committed based on that threat. These offenders are committed to a secure facility, called a Special Commitment Center, on Washington’s McNeil Island, which is dedicated to this purpose (figure 9.6).

Figure 9.6 Look inside island sex offender facility [king5.com video] is a short news clip with information and a tour of the McNeil Island Special Commitment Center. The Center houses 200 sex offenders who have already served their prison time and are now committed for treatment. Some may never leave the facility. As you watch the clip, consider the issues at stake, including both community safety and constitutional concerns about freedom and punishments.

There are benefits and concerns associated with committing a person under these circumstances, where the person has already served time based on the criminal offense. Constitutional challenges have called this type of commitment fundamentally unfair, or a form of double jeopardy, that is, punishing a person twice for the same offense. However, the United States Supreme Court has upheld this practice. This type of commitment is not intended as punishment (which would be illegal) but rather it serves the purpose of treating and managing the mental disorder (specifically a sexual disorder such as pedophilia) which drove the person’s underlying offenses. Note that this type of mental disorder, specifically associated with a tendency to commit criminal offenses, cannot – as discussed in Chapter 6 – form the basis of an insanity defense.

Understandably, victims (or concerned observers) may feel that the confinement of this group of people is well worth any potential challenges to fairness, when an increase in community safety is achieved. The stigma against sex offenders is intense and many people have little interest in protecting the civil rights of this particular group. It’s important to note, though, that these laws are not applied in an entirely fair manner. Like many laws in our criminal justice system, the impact on people of color is excessive, and other marginalized groups may be more vulnerable to lengthy commitments than members of more privileged groups. According to one researcher considering the application of post-conviction commitments of sex offenders, “Black sex offenders were twice as likely as white sex offenders to be civilly committed. In addition, men with male victims were two to three times more likely to be civilly committed than men with only female victims” (The Williams Institute, 2020).