Dispute over settlement proposal for mental health lawsuit points out incongruities (Capitol Update)

More unusual things have happened in state government, but not too often.

In Oklahoma (as in the rest of the country) criminal defendants are considered incompetent to stand trial if they are found by a court to be unable to appreciate the nature of the charges against them and/or are unable to consult with their lawyer and rationally assist in the preparation of their defense.

If the court finds that a defendant can attain competency within a reasonable time with treatment, the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) is obligated by statute to provide such treatment.

If the court finds the defendant may be dangerous, he or she will remain in custody pending restoration of competency to stand trial. ODMHSAS provides the treatment at the Oklahoma Forensic Center (OFC) in Vinita, which has limited bed capacity.

Last year, four individual pretrial detainees among many who had been declared incompetent to stand trial were incarcerated in Oklahoma county jails waiting for ODMHSAS to provide restoration treatment. On March 1, 2023, the four filed a federal class action lawsuit against the Commissioner of ODMHSAS, now Allie Friesen, and the Interim Executive Director of OFC, Debbie Moran, challenging the length of time they were forced to remain in jail waiting for treatment.

On June 17, 2024, Attorney General Gentner Drummond, as counsel for the defendants, together with the counsel for the pretrial detainees, filed a Joint Motion for Preliminary Approval of a Consent Decree.

In a surprise move, on the same day, Gov. Stitt and Commissioner Friesen issued a press release resisting the motion with Friesen saying the funds required to implement the consent decree would be put to better use investing in preventative mental health services and programs that would keep individuals from ever making it to the justice system. The governor blasted the proposal as a bad legal settlement.

There are two perplexing aspects to this situation. First, when Gov. Stitt’s MODERN criminal justice reform task force studied the reasons for lengthy pretrial confinement in Oklahoma jails, it discovered that “competency restoration emerged as a recent obstacle resulting in delays in court processing times.”

The task force found that “law enforcement officials and court professionals across the state expressed frustration with the long restoration wait times, while ODMHSAS works to implement a variety of solutions in the face of continued high rates of competency restoration orders.”

The MODERN task force’s recommendations include improving the competency restoration processes, including expanding behavioral health treatment options in jail, which is what the proposed consent decree seeks to do. The specifics of MODERN’s recommendations are sparse, so perhaps the governor’s opposition could be explained as his feeling the consent decree goes farther than necessary.

Somewhat more perplexing, perhaps, is the commissioner’s opposition. The Joint Motion for Preliminary Approval of a Consent Decree states that, “the Parties spent a year meeting with stakeholders, law enforcement officials and mental health professionals throughout the state, and touring jails, inspecting the OFC, and conferring with (ODMHSAS) personnel, to identify the challenges plaguing Oklahoma’s competency restoration system. This collaboration resulted in the Parties, in consultation with nationally recognized subject-matter experts, crafting ‘creative solutions’ to fix Oklahoma’s competency restoration system. The solutions are expressed in the comprehensive ‘Plan’ in the proposed Consent Decree. The Consent Decree is supported on all sides – by law enforcement, prosecutors, the defense bar, courts, and health care professionals.”

Since 2019, the commissioner has been appointed by and serves at the pleasure of the governor. Gov. Stitt is well positioned to delay the proposed settlement until the next regular legislative session. State statute provides the settlement must be approved by the legislature if it is in session or in the alternative, the Contingency Review Board.

The Contingency Review Board consists of the Governor, who is chair, the Speaker of the House and the Senate President Pro Tempore. To meet, the governor would have to call a meeting, which Gov. Stitt apparently will not do.

But the legislature and the governor only have a role in a settlement. If the case goes to trial, the hammer is in the hands of the federal court, and the state gets to pay the bill. Or there could be a different consent decree now or after another year or so of litigation. Class actions, once a class is determined, are usually resolved with a consent decree.

In the meantime, people with mental illness who may never be found guilty of a crime are in jail awaiting treatment, and those who should be found guilty, and their victims, await their day of judgment.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.