Mental Health Law in Oregon:
A Guide for Consumers and Families
Guilty Except for Insanity (GEI)
And Psychiatric Security Review Board (PSRB)
Jurisdiction Under Oregon State Law
Some persons are involuntarily hospitalized because they have been found guilty except for insanity (GEI) in a criminal proceeding in state court and are placed under the jurisdiction of the Psychiatric Security Review Board (PSRB).
WHAT GEI MEANS AND HOW A PERSON IS FOUND GEI
A person who is charged with a crime may be found GEI if, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of the law. in other words, the person has to have been affected by a mental illness such that the person did not know that what he or she was doing was wrong when the crime was committed or could not control his or her actions. ORS 161.295.
GEI is sometimes called the "insanity" defense. The insanity defense has been known by different names in Oregon, including NGI (not guilty by reason of insanity) and NRD (not responsible due to mental disease or defect).
GEI includes persons with mental illnesses and persons with mental retardation if the defect or disorder prevents them from knowing what they are doing or being able to control their actions. GEI does not cover antisocial behavior or personality disorders. ORS 161.295(2).
A person who is charged with a crime can hire a lawyer or have one appointed if unable to pay for one. The lawyer should discuss the advantages and disadvantages of using a GEI defense. If the GEI defense is used, the defendant's lawyer and the district attorney can agree that GEI should be used and the person can enter a plea of GEI. In other words, instead of pleading guilty or not guilty, the person pleads GEI and does not have a trial. If the district attorney does not agree, the person can have a trial and try to convince the jury that he or she was "insane" at the time of the crime. Usually, the defense attorney has experts such as psychiatrists and psychologists examine the individual to see if the GEI defense will work. The state has a right to have an examination done by its own experts.
A person found GEI, either by plea or by a jury, of a misdemeanor involving physical injury or any felony will be placed under the jurisdiction of the PSRB for care and treatment if the judge finds by a preponderance of the evidence that the person is affected by a mental disease or defect and presents a substantial danger to others. Preponderance of the evidence means that it is more likely than not. A person found GEI will be placed under the jurisdiction for a period of time equal to the maximum sentence he or she could have received. This means, for example, that a person who is found GEI of Robbery I will be placed under the jurisdiction of the PSRB for 20 years because that is the maximum sentence for Robbery 1. ORS 161-327(l).
THE PSRB AND HOW IT WORKS
The PSRB was created by the Oregon legislature in 1977 to supervise persons who successfully use the insanity defense. The PSRB has five members including a psychiatrist, a psychologist, a member with a parole or probation background, an attorney with criminal trial experience and a member of the public. PSRB supervision lasts from the day a person is placed under PSRB jurisdiction until the person is discharged or the maximum sentence ends.
A person who is found GEI will usually go to Oregon State Hospital (OSH) in Salem. The person will be in the forensics program at OSH. The forensics program has high and medium security wards and some less restrictive housing for persons close to release.
Some persons under PSRB jurisdiction stay in the hospital longer than they would have been in prison if they had been found guilty. For example, a person found GEI of Theft I would be placed under the jurisdiction of the PSRB for five years because five years is the maximum sentence for Theft 1. The person might not stay in the hospital for the full five years, but legally could be held that long. If the person were found guilty, the person probably would be placed on probation with up to 60 days in jail.
After a person goes to OSH, the PSRB must hold a hearing within 90 days to decide if the person should stay in the hospital. After the initial hearing, a person can apply for discharge or conditional release no more than once every six months. The PSRB must hold a hearing within 60 days of the application, except for the first request which does not have to be sooner than 90 days after the initial hearing. ORS 161-341(5), (6), (7). The hospital superintendent also can ask the PSRB to conditionally release or discharge a person. In this case, the PSRB must hold a hearing within 60 days of receiving the application. The PSRB must hold a hearing for each person under its supervision at least every two years, even if no one asks for a hearing.
A person has the right to have an attorney to represent him or her in most PSRB matters. If a person cannot afford an attorney, one will be appointed. ORS 161-346(6)(d); ORS 161-346(11).
A person can be conditionally released from the hospital if the PSRB approves a community release plan. A person on conditional release is still under PSRB supervision while in the community and can be returned to the hospital ("revoked") for breaking any conditions of the release or if the person's mental illness cannot be controlled in the community. PSRB conditions for release often include some or all of the following:
Early discharge from PSRB jurisdiction may be granted for either of the following reasons:
A person cannot be held under PSRB supervision any longer than the maximum sentence he or she might have received if convicted of the crime for which the person was found GEI. A person will be automatically discharged from the PSRB at the end of that period. At the end of the PSRB term the hospital may believe the person should stay in the hospital. Then, the hospital staff can try to have the person civilly committed.