Two of Oklahoma’s top state officials are at an impasse over how to settle a class action lawsuit that accused the state of not providing timely mental health services to people awaiting services in county jail.

The suit was filed in 2023 on behalf of four plaintiffs who were held in county jails for months awaiting court-ordered mental health services known as competency restoration treatment.

A proposed consent decree from Attorney General Gentner Drummond and the plaintiff’s legal team includes calls for more staff and training and are aimed at reducing the wait times for appropriate health care.

It also set aside $4.1 million in the state budget for the Oklahoma Department of Mental Health and Substance Abuse Services to address many of the complaints.

The proposal, however, faced immediate pushback from the governor, who along with a top health department official, said he “did not and will never agree to have Oklahomans foot the bill for a bad legal settlement.”

A hearing for preliminary approval of the consent decree is scheduled for Aug. 15. Depending on the results of that formal step, the proposal would then go before a state review board.

“We have to ask why the AG is forcing a settlement that will result in an immediate win for the plaintiffs’ attorneys at the expense of the Oklahoma taxpayers,” Gov. Kevin Stitt added.

The standstill comes as the Department of Justice continues its own investigation into the state, and Oklahoma City and its police department on their responses to mental health crises. The agency is examining whether these institutions lack community-based mental health services that lead to unnecessary hospitalizations and police involvement.

The federal lawsuit alleges that people in Oklahoma’s jails awaiting a competency restoration evaluation are waiting months if not years in some cases — accusations that Gentner called “indefensible.”

Colleen McCarty, an attorney with Oklahoma Appleseed Center for Law and Justice, a plaintiff in the federal lawsuit, said the plan consulted well-known experts in mental health to help monitor and consult on how to rebuild Oklahoma’s systems for addressing mental health evaluations.

“It was a huge win for the state of Oklahoma,” McCarty said of the settlement proposal. “And it’s so disappointing that we can’t just move forward with what everyone agreed on.”

Mental illness and Oklahoma’s judicial system

Before someone charged with a crime can go to trial or enter a plea, the court must confirm they are mentally fit.

In Oklahoma, this means the person must understand the charges and assist their defense. If a defense attorney, judge, or prosecutor doubts the defendant’s competency, they can request an evaluation. Usually, those found incompetent have a traumatic brain injury, developmental disability, or serious mental illness. If declared incompetent, their criminal proceedings are suspended.

The lawsuit claimed that the Oklahoma Department of Mental Health and Substance Abuse Services, which runs the state’s largest inpatient behavioral health facility, has violated the plaintiffs’ Fourteenth Amendment rights and the Americans with Disabilities Act by not giving them timely and proper mental health treatment.

Paul DeMuro, lead counsel for the plaintiffs, described defendants with mental illnesses as some of the most vulnerable and powerless, adding that when kept in county jails waiting for necessary care, these people are trapped in legal limbo. They cannot go to trial or work out a plea deal while waiting in jail for “restoration.”

DeMuro said the Oklahoma Department of Mental Health and Substance Abuse Services is effectively punishing these defendants for their mental illness by failing to provide the care to restore their competency.

“Jails are, by their nature, punitive places,” DeMuro said in a statement. “They are neither designed nor equipped to provide restoration treatment for people with mental illness.”

Ideally, people would be able to receive treatment for their mental health before reaching jail or prison, said Zack Stoycoff, an executive director of Healthy Minds Policy Initiative, a Tulsa-based nonprofit that advocates for mental health investments. But provider shortages affect more than 90 percent of all Oklahomans, he added.

Oklahoma ranks as the third worst state in the country for the percentage of residents who live in a mental health provider shortage area, according to the U.S. Health Resources and Services Administration.

“A jail is no place to receive mental health treatment,” Stoycoff said. “In an ideal world we would be treating people in the community, in their homes and in their lives, living healthy and productive lives of recovery. In an ideal world they would not have been in a position where systems would not have failed for so long and so systematically that a crime would occur.”

A recent report by The Frontier and The Marshall Project found that Oklahoma jails using Turn Key Health Clinics, a medical care provider for correctional facilities, saw at least 50 people die in the past decade. Many questions of the company’s practices were raised, including whether operators were providing an appropriate level of care to people with mental illness behind bars.

Across the country, the number of people waiting for a competency restoration evaluation in jails has continued to rise. Based on available national data, an estimated 36,000 people in the early 1970s required competency evaluations after being charged with a crime. By 2020, that number rose to an estimated 94,000.

The number of Oklahomans seeking the evaluations has also skyrocketed in the past 40 years. This leaves the Oklahoma Forensic Center, the state’s lone facility for evaluations and housing for people awaiting criminal trial with a backlog of cases, according to the Oklahoma Appleseed Center for Law and Justice, a Tulsa-based nonprofit that advocates for criminal justice. More than 900 people in Oklahoma jails across the state received evaluation in 2020, according to state data. That number has continued to rise in the years since.

McCarty of Appleseed said more than 400 people are currently awaiting evaluation, the largest the waitlist has ever been.

The pandemic also caused huge numbers of people to fall out of their mental health routines and stop going to their doctors and therapists, McCarty added, saying those same people might be prosecuted for a crime and in jail now trying to find help.

“People have lost their resources,” she said. “These are people who are pre-trial, they are all presumed innocent and a lot of time they are waiting longer than their sentence would’ve even allowed if they were to take a plea deal.”

What would the proposed settlement do?

Attorney General Gentner Drummond has proposed a five-year consent decree to settle the lawsuit and reform the competency restoration services.

The proposed settlement sets a strict 21-day maximum wait time for detainees to receive competency restoration services. Other key components include:

• Reevaluate defendants waiting to receive court-ordered treatment. A qualified forensic examiner would perform this evaluation.
• Increase the number of inpatient beds dedicated to competency restoration treatment.
• Develop a continuing education program for Oklahoma Forensic Center staff involved in treatment.
• Develop a screening program that expedites the evaluation and placement of defendants into the appropriate care.
• Develop a plan for additional training and staff at the department.

If they sign off, all parties have 90 days to come up with a detailed plan to start implementing changes. This would mean big state expenditures on mental health services, hefty fines for Oklahoma Department of Mental Health and Substance Abuse Services if they fail to meet deadlines, and a cap on plaintiff’s legal fees and court costs at about $742,500.

Drummond argues this is the best way forward.

“If this lawsuit proceeds, there is no doubt the state would be facing significant litigation risk that could cost taxpayers dearly,” he said in a statement. The proposed settlement will “fix a broken system that has been a travesty of justice,” the attorney general added.

Gov. Stitt, along with ODMHSAS commissioner Allie Friesen, said the proposal is not in the state’s best interest — not for taxpayers nor the defendants the department serves.

Friesen, who was appointed by Stitt in January to lead the department, believes she should be given more time to analyze and develop plans to improve competency restoration services in Oklahoma, which she believes is necessary. The class action lawsuit was filed before Friesen became the department’s lead.

“We need more than a week. We need at least nine months to understand what we’re dealing with,” she said in a statement. She also expressed frustration with attorneys being involved in clinical decisions, arguing that this should be left to medical professionals.

But Stitt and Friesen worry about wasting taxpayer money and have pointed out ongoing efforts as progress is being made, such as the construction currently underway to add 80 beds at a facility in Vinita, a town of more than 5,000 people about an hour northeast of Tulsa.

What’s next

McCarty and Appleseed are still hoping Stitt and Drummond can come to terms on a solution. She said the proposed solution was done with care and with the help of mental health experts across the country.

The proposal will have to be passed by a joint resolution while the state Legislature is in session. If the Legislature is not in session, the proposal could be heard by the state Contingency Review Board, made up of appointees from Stitt, the Senate pro tem Greg Treat and the House speaker Charles McCall.

They would all need to sign off for the proposal to move forward.

McCarty said if the proposal is not agreed to, litigation continues, and more people will wait.