Six months ago, Oregon State Hospital agreed to begin early release of patients, all mentally ill criminal defendants, in an effort to reduce its lengthening waitlist and address decades-old litigation brought by disability rights advocates.
Now, facing intense blowback from judges, prosecutors and county officials, the hospital is delaying implementation of the new policy for a few of its most dangerous patients.
In a March 1 cover story, WW highlighted one of the consequences of the policy: People accused of the most violent crimes, including murder, could be expelled years early despite being still too mentally ill to stand trial—and county prosecutors and health officials do not know what to do with them. There are not enough residential treatment beds available to meet the needs of the overflowing hospital.
In a motion filed yesterday in the 2002 lawsuit, lawyers at the Oregon Attorney General’s Office said the Oregon Health Authority had come to a new compromise with plaintiffs, which include Disability Rights Oregon and Portland’s largest public defense nonprofit, Metropolitan Public Defenders.
The hospital will continue to hold five patients charged with Measure 11 crimes, which include violent crimes and sex offenses, for an additional two months. It did not name the patients in the court filing.
“The basis for this request is to allow additional time for the counties and OSH to continue working together to arrange safe and appropriate placements following discharge,” reads the motion.
Judge Michael Mosman granted it this afternoon.
One of the patients is Toby Epling, WW has learned from the Washington County District Attorney’s Office.
Epling, of Hillsboro, was accused of murdering his wife in 2021. He was scheduled to be discharged from Oregon State Hospital on Monday.
It is not clear if Epling is currently mentally capable of standing trial. A psychologist at Oregon State Hospital refused to make a determination either way, providing a “no opinion” report, according to Epling’s attorney. A judge was scheduled to make a determination at a hearing in October.
This creates a conundrum. If Epling is sent back to Washington County, as the hospital had said it intended to do next week, he would sit in a jail cell until the October hearing and potentially decompensate.
Both Epling’s attorney, Seth White, and Washington County prosecutor Bracken McKey agree that jail was not appropriate for Epling, who needs ongoing mental health treatment. They have both suggested that Epling should continue to be held at Oregon State Hospital.
Until this latest motion, Metropolitan Public Defenders was in a bind. White is an MPD employee. The firm was arguing in federal court that OSH should reduce release time frames across the board. But when it came to one of their client’s cases in Washington County, the public defenders argued the opposite.
That conflict is resolved, for now. The new motion delays Epling’s release until May 15.
“This really demonstrates the flaw in the one-size-fits-all approach that Disability Rights Oregon and Metropolitan Public Defenders have requested with this lawsuit,” McKey tells WW. “It’s not in everybody’s best interest to be discharged early from the hospital.”