A provision in a proposed consent decree that would establish an outpatient pilot program to provide mental health competency restoration services for detainees held in county jails across Oklahoma would violate state law, a federal judge ruled late Friday.
As a result, U.S. District Court Judge Gregory Frizzell has given attorneys until Sept. 13 to submit an amended consent decree proposal to address his concerns about community-based restoration treatment pilot program provisions.
The lawsuit was filed in March 2023 on behalf of four detainees who waited months, some more than a year, inside jail for mental health evaluations. Filed in the U.S. District Court for Northern District of Oklahoma, it alleges violations of due-process rights for pre-trial defendants in state court who had been declared incompetent to stand trial and who were awaiting competency restoration treatment, which generally involves the administration and monitoring of anti-psychotic medication.
Frizzell issued his order (embedded below) one day after Gov. Kevin Stitt wrote a letter to him stating that “important details surrounding the negotiation and approval of the consent decree were not accurately presented to the court.”
Stitt wrote his letter to Frizzell after he and House Speaker Charles McCall (R-Atoka) met Wednesday as members of the Contingency Review Board to express their concerns about and opposition to the draft consent decree proposed to the court by Attorney General Gentner Drummond and attorneys for the plaintiffs. The CRB, made up of the governor, House speaker, president pro tempore of the Senate and the executive director of the Office of Management and Enterprise Services, can approve settlement agreements for the state when the Legislature is out of session.
Mental Health and Substance Abuse Services Commissioner Allile Friesen “made clear in the meeting that she never approved of the consent decree and repeatedly notified the attorney general that the department could not comply with the terms of the decree,” Stitt wrote. “In short, neither the commissioner’s — a named defendant in the lawsuit — nor individual (Contingency Review) Board members’ views have been represented or advocated before the court.”
On Friday, Frizzell wrote in his order that state law requires the Department of Mental Health and Substance Abuse Services take physical custody of a person requiring competency restoration services and does not permit outpatient restoration treatment.
“Therefore, the community-based restoration treatment pilot program provisions of the proposed consent decree violate Oklahoma law,” he wrote. “The consent decree must be consistent with governing law.”
Stitt, in a statement, praised Frizzell’s order.
“Not only was this proposed consent decree bad for Oklahoma taxpayers, it was fundamentally against the law,” Stitt said. “[ODMHSAS] must maintain its authority to provide care in alignment with state law and best practices, not instead being hamstrung by a sham consent decree that would turn power over to out-of-state consultants and cost taxpayers $100 million. I applaud the judge for refusing to sign a bad deal that clearly violated state law.”
The Oklahoma Attorney General’s Office, representing the state defendants in the lawsuit, Friesen and Debbie Moran, interim executive director of the Oklahoma Forensic Center in Vinita, originally filed a motion to dismiss the lawsuit. But with the AG’s Office eventually calling the litigation “indefensible,” Drummond’s focus has shifted to settlement with a consent decree that would describe certain pilot programs and require the state to develop a full plan to improve competency restoration processes and services within 90 days. The proposed consent decree would empower a trio of expert “consultants” to review the state’s progress and prescribe changes. The consultants would be paid $450 per hour for their work on the decree, which would last five years at a minimum.
The Forensic Center in Vinita is the only state facility fully equipped to provide secure inpatient competency restoration services. It also houses criminal defendants found not guilty by reason of insanity or mental illness until such a time that they are released from custody, a two-purpose mission that plaintiffs have said creates capacity problems that violate the rights of those needing treatment by keeping them in county jails.
The Attorney General’s Office was asked to comment on Frizzell’s order, but no response was available prior to the publication of this article.
Cost of pilot program concerns governor, House speaker
On June 17, Drummond and plaintiffs’ attorneys filed a joint motion for preliminary approval of the consent decree.
The proposal would require ODMHSAS to cease existing jail-based competency restoration programs around the state, but pilot programs for new jail-based programs would be created in Tulsa County and a county to be named later. As initially drafted, the draft decree also proposed community-based competency restoration pilot programs, a somewhat controversial concept that has gained traction nationally in recent years.
“Within 90 days after the court enters this consent decree, defendants, in consultation with class counsel and the consultants, shall develop and begin to implement a plan, to be approved by the consultants, for a pilot community-based restoration treatment program in Tulsa County, Oklahoma County, McIntosh County and Muskogee County,” the proposed decree states on Page 23.
Frizzell presided over a hearing with the parties Aug. 15 and asked the attorneys about Title 22, Section 1175.6a, a state statute dealing with “custody” of a pre-trial defendant found incompetent and in need of treatment. On Aug. 21, a second supplement to the joint motion for preliminary approval was filled by the parties, but it apparently did not alleviate the judge’s concerns.
“The parties suggest that the court should construe ‘custody’ to permit the Department to maintain legal custody, rather than physical custody, of the person requiring competency restoration treatment services,” Frizzell wrote in his Friday order. “However, the Oklahoma Court of Criminal Appeals has recognized that the term ‘custody,’ in criminal law, ‘generally denotes imprisonment.'”
Stitt, chairman of the Contingency Review Board, called a meeting of the board on Wednesday to review the proposal. Drummond criticized Stitt for calling the meeting, saying his action was “political theater” because the consent decree was still a proposal and not a final settlement offer for the board to consider.
During the meeting, Stitt and McCall said they were concerned that the proposed consent decree could last longer than the five-year pilot program outlined in the settlement offer, costing the state additional millions of dollars.
Friesen, appointed mental health commissioner in January, said “a conservative estimate” would put the cost at about $96 million over five years. She said improvements could be made without a consent decree, saying that multiple changes already have occurred at the department since she became director.
Stitt, in his letter to Frizzell, wrote that the CRB is concerned about the proposed consent decree because it “circumvents or rewrites Oklahoma law and because it exposes the state to significant and unpredictable financial liabilities, plausibly exceeding $100 million over a five-year timeframe.”
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“That figure, of course, doesn’t account for the distinct possibility that the plan would span beyond five years,” Stitt said. “Alarmingly, the astronomical figure would represent roughly 35 percent of the (Mental Health) Department’s state-appropriated budget in the first year and tens of millions in the years to follow, whereas the population at issue in the consent decree represents 0.1 percent of the individuals the department is obligated to serve.”
Frizzell wrote that, when a federal court fashions and implements a consent decree, it must take into consideration “the interests of state and local authorities in managing their own affairs, consistent with the demands of federal law.”
Lawyers on both sides suggested that the state law “is ambiguous and therefore should be construed to permit outpatient competency restoration treatment,” Frizzell wrote. But permitting community-based restoration treatment services “would impermissibly infringe on the interests of state and local authorities in managing their own affairs,” he said.
“Whether Oklahoma should permit outpatient competency restoration treatment services to persons charged with a crime, declared incompetent by a state-court judge, and incarcerated at a county jail or similar detention facility is best left to the judgment of the Legislature, not this court,” Frizzell wrote.
Read Judge Gregory Frizzell’s order
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