Detention Without Trial

Society has yet to fully anticipate the massive transfer of power that will accompany mandatory insurance provisions in the Patient Protection and Affordable Care Act (ACA). With income from premiums comes clout. With clout comes the ability to shape public policy.

We live in an era that accepts (in my mind, unconstitutional) Federal policy which permits detention without trial. I am troubled at the prospect that this practice will mushroom for those whose mental challenges inhibit self-advocacy. After being asked to investigate racial injustice in Portland Police use of force, the DoJ countered with a remedy that uncorks a new, police-to-hospital-bed pipeline. I’m concerned by a lack of judicial oversight as vulnerable populations get flushed away.

Instead of putting say, paramedics, in charge of delivering services to those perceived to be in mental health crisis, the currently proposed Agreement puts culprits of unconstitutional conduct – Portland Police – in charge of mental health needs assessment and getting those in need into care. The Agreement has permitted our mayor to walk away from funding a program specifically designed (following the police homicide of Aaron Campbell) to work with police and local hospitals and triage individuals to clinically-appropriate care. The Mayor’s scaled-back plans for drop-in centers are more amenable to police, and fall far short of opportunities the mentally challenged had prior to the DoJ investigation. UPDATE: In a February, 2014 Federal Hearing, the DoJ & City of Portland declared drop-in centers ‘merely aspirational’ in the Agreement. They are not expected to be implemented.

Case in point.

Cindi Fisher, of M.O.M.S. points out that – as all health care costs for all parties are covered under the Act – there will be enormous incentive to fill beds. She cites benefits to hospitals on the order of $580 per bed per day. Medications will form another profit center.

At Fisher’s instigation, I wrote US Sen. Patty Murray today. My companion in the struggle for civil rights advocates the case of Dominique Jamerson. You won’t find his name in online news accounts. Jamerson has become an insignificant cog in a hugely whirling enterprise newly lubricated. He was racially profiled and taken into custody as a suspect in a stabbing in Vancouver Seattle, Washington. DNA results would exonerate him, if brought before a judge, yet Jamerson languishes in Western State Hospital. The same mental health challenges that prevented this 23 year-old from avoiding malicious police intent prevent him from participating in his own defense. Fisher introduces a new word to my vocabulary: she say’s Jamerson has been ‘flipped.’

“Flipped means, first he is refused his day in court, because he is “declared” incompetent to stand trial by his own attorney; this means you are denied the right to go to trial for your alleged crime. You go to the hospital and have to earn basic human rights for up to 6 months, behind locked doors, while you recite your alleged crime and the sentencing for it.”

Here is the text of my letter:

Senator Murray ~

As the Affordable Care Act rolls out, I hope you will consider that we enter a new era in law. The case of Dominique Jamerson requires your attention. While the nation has had many safeguards, to prevent detention without trial, these have historically applied to the criminal justice system. We must now observe how the rights of vulnerable populations – such as those experiencing mental challenges – also accrue the same protections when in medically indicated incarceration.

I join Cindi Fisher and M.O.M.S., in calling for your assistance in assuring civil rights protections are afforded to all who find themselves in Jamerson’s position. We must be vigilant for racial disparities as to who gets incarcerated … particularly as it becomes almost unimaginably profitable for care providers to detain them. ALL those who cannot advocate for themselves must have representation on par with what the nation grants indigent defendants facing trial. The nation’s bias toward freedom requires an extension of such representation in cases of detention by health care providers.

Please do what you can to see that evidence exonerating Jamerson gets presented to a court. Work with your relationships to initiate hearings to assess Western State Hospital’s ‘Competency Restoration Policy’ for deficiencies.

Best regards,
Roger David Hardesty

We must work together to make effective the initiating clause in Obamacare: Patient Protection. Does legal representation end, when a public defender flips his client? As we enter this new era, will we expect over-burdened public defenders to have the training and capacity to assist those in hospital custody? Is this the best subset of legal professionals to now secure our civil rights rights in new arenas of detention? What kind of fusion should those in need seek, between health care advocates and legal counsel?

M.O.M.S. presents to The New Jim Crow group in Portland.