A consent decree overhauling the treatment of mentally ill incarcerated people in Oklahoma’s county jails was denounced by Gov. Kevin Stitt on Monday, hours after state Attorney General Gentner Drummond and plaintiffs’ attorney Paul DeMuro proclaimed it a major victory for both taxpayers and the mentally ill.
“This is a big deal,” DeMuro said shortly after the consent decree was filed in Tulsa federal court.
The consent decree requires the state to reform a system that causes people who have been deemed incompetent to remain in prison for months, or even a year, while they await court-ordered treatment.
Evidence shows that in many cases, people who are adjudicated incompetent remain in prison awaiting treatment to restore their competency for longer than the sentence for the original offense.
But Stitt’s opposition poses a significant obstacle to any agreement: under state law, such an order must be passed by a concurrent act of the Legislature (which does not require the governor’s signature) or, if the Legislature is not in session, by the consent of the governor and a four-person emergency response review committee, including a member of the governor’s appointee, the commissioner of the Department of Management and Enterprise Services.
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“I have not and will never agree to making Oklahomans pay the cost of an unfair legal settlement,” Stitt said. “We must ask why the Attorney General is trying to force a settlement that will result in an instant win for plaintiffs’ attorneys at the expense of Oklahoma taxpayers.”
But Drummond and DeMuro said the consent decree fits into the governor’s 2023 veto message, which calls for a “critical review of the methods and structures used to restore competency for criminal defendants who may suffer from mental illness.”
Governor Stitt countered in a press release that the use of the veto message “means the Governor approves the plan.”
Drummond’s statement referred to the veto message and said, “I look forward to Governor Stitt and legislative leaders supporting this plan.”
Stitt and Drummond have clashed frequently since Drummond took over as attorney general in January 2023, replacing Stitt’s personal pick, John O’Connor.
Drummond is widely seen as a possible successor to Stitt, as is House Speaker Charles McCaul (R-Atoka), Stitt’s legislative ally.
In this particular case, Stitt seems intent on helping Drummond defend a case that Drummond argues the state cannot win.
“Attorney General Drummond is tasked with negotiating the best deal on behalf of the agency for all four million Oklahomans,” the governor’s press release said. “Instead, he has proposed a settlement agreement that would burden the agency and Oklahoma taxpayers with an uncapped settlement agreement.”
Stitt said he wants to give Allie Friesen, the new director of the Department of Mental Health and Substance Abuse Services, the opportunity to address those issues.
Drummond said Oklahoma would likely lose if the lawsuit goes forward.
“This consent decree will avoid the costs and risks of protracted litigation and save taxpayers tens of millions of dollars,” Drummond said.
He also said it was the right thing to do for those involved.
“This proposal will ensure that victims and their families do not have to endure endless delays while waiting for their cases to be resolved in the courts,” Drummond said in a press release. “This plan will strengthen our justice system and fix a process riddled with problems.”
The act requires states to submit implementation plans within 90 days and reduce wait times for treatment to 21 days or less within 14 months, and also provides for penalties for failure to meet the deadlines.
Implementation will be overseen by three expert consultants, one selected by the state, one selected by the plaintiffs, and two other consultants.
The three are Neil Gowen-Smith, a clinical psychologist at the University of Denver; John Petrilla, an attorney and consultant at the Texas-based Meadows Institute for Mental Health Policy Research; and Dr. Darren Risch, a clinical psychiatrist at the University of Colorado Anschutz Medical Campus.
The settlement stems from a federal lawsuit filed in Tulsa in March 2023 on behalf of four people incarcerated in county jails around the state and their “confidants,” or deputies. The suit is being called the Briggs lawsuit because the first name listed is Leslie Briggs, a Tulsa attorney and close friend of two of the plaintiffs.
The lawsuit was filed after lawyers and groups, including the Oklahoma Appleseed Law and Justice Center in Tulsa, grew frustrated with the state’s response. In their petition, the plaintiffs argued that the Oklahoma Department of Mental Health and Substance Abuse Services is violating federal and state constitutional rights and the federal Americans with Disabilities Act.
It’s unclear how much it will cost to implement the consent decree. Stitt has said it could cost more than $100 million, but other estimates put the initial costs in the first year of the five-year settlement at less than $10 million.
The agreement includes an immediate payment of $303,000 in plaintiffs’ attorneys’ fees (just over $300 per hour) and annual fees and future payments of $75,000 or $350 per hour, whichever is less.
By comparison, the state has set aside $10 million a year in recent years to fight the federal government.
If the state declines to settle and the plaintiffs prevail, the state will be responsible for any attorneys’ fees the court deems appropriate.
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