- Associated Press - Sunday, December 6, 2015

SEATTLE (AP) - The state of Washington plans to tell a federal appeals court that a judge’s order requiring competence evaluations for mentally ill defendants within seven days of a judge’s order is unreasonable and should be thrown out.

But lawyers representing those defendants say the federal judge’s ruling that said holding those defendants in jails for longer than a week violates their constitutional rights should be upheld.

Both sides are scheduled to argue their positions to a 9th U.S. Court of Appeals panel on Monday in Seattle.

Anita Khandelwal, one of the lawyers representing mentally ill defendants in the federal case against the Department of Social and Health Services, said they’re disappointed the state chose to appeal the April ruling.

“However, we look forward to the Ninth Circuit review so that individuals will finally be able to predict how long the state can keep them incarcerated in jail while waiting for a competency evaluation,” she said. “We want to ensure that individuals are not subjected to unjustified detention.”

The original federal lawsuit filed in 2014 was brought because many mentally ill defendants waited weeks or months in jails for a competency evaluation. If found incompetent to stand trial, they had to wait for months to be moved into a psychiatric hospital to receive treatment to have competency restored.

After a multi-day hearing, U.S. District Judge Marsha Pechman said the state was violating the constitutional rights of some of its most vulnerable citizens. She issued a permanent injunction requiring the state to provide mentally ill people with competency evaluations and treatment within seven days of a state judge’s order.

“Our jails are not suitable places for the mentally ill to be warehoused while they wait for services,” Pechman said in a written order. “Jails are not hospitals.”

She gave the state until January to resolve the competency crisis by hiring needed staff and providing hospital bed space.

The state appealed the portion of Pechman’s ruling that sets a seven-day deadline for competency evaluations. The state did not object to the deadline for competence restoration treatment.

Jane Beyer, an assistant secretary for the behavioral health agency, said that they appealed because they were concerned about false-positives in the evaluations. She said when the evaluations are done too quickly, more defendants are found to be incompetent than actually suffer from a mental illness.

During the 2015 legislative session, lawmakers passed a bill to establish a 14-day deadline for mental health evaluations of people charged in crimes.

In his opening brief, state Solicitor General Noah Purcell said no court in the country has imposed a seven-day deadline for competency evaluations of jailed criminal defendants. He argued that the issue is whether waiting longer than a week violates the Sixth Amendment protection against lengthy pretrial incarceration. The lawyers for the defendants have failed to prove that violation exists, Purcell said.

“Neither Washington’s statutory 14-day limit, nor 2014’s average wait time of 22 days is presumptively prejudicial,” Purcell said.

But the lawyers for the mentally ill say they are holding fast on the seven-day limit.

“We look forward to a time when the state stops litigating and starts fixing its system,” Khandelwal said.

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Follow Martha Bellisle at https://twitter.com/marthabellisle

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