The state is paying millions of dollars a year in sanctions because it’s unable to evaluate the mental health competency of jailed defendants in a timely manner.

Soon, some of those languishing lengthy periods behind bars might need to be released and charges against them dismissed.

On June26, the state Supreme Court heard oral arguments in the case of a Pierce County man who was found incompetent to stand trial and spent 76 days in jail waiting to be admitted to Western State Hospital in Lakewood for court-ordered treatment.

The man, Anthony Gene Hand, eventually received services, stood trial and was convicted on charges including drug possession and escape from an alternative confinement program. His lawyer argued the prolonged wait for evaluation and treatment violated his constitutional right to liberty and due process and asked justices to dismiss the original charges.

What happened to Hand after his September 2014 arrest isn’t uncommon. Washington’s mental health system is overwhelmed. It’s really bad in the criminal justice system where for several years the number of court orders for evaluation and restoration services for defendants like Hand has exceeded what the state is able to handle at Western and its other psychiatric hospital near Spokane. It’s actually worsened in recent months.

A lawsuit launched in Snohomish County led to an April 2015 federal court decision that the Department of Social and Health Services was taking too long to provide those services. In the case known as Trueblood the state is under court orders to provide competency evaluations within 14 days and mental health services intended to restore competency within seven days.

As extended waits persist, trial courts are imposing sanctions on the state Department of Social and Health Services aimed at spurring action by the agency.

“This case is not unique. It is not isolated. But it is representative of a pervasive and ongoing systemic problem,” Marie Trombley, Hand’s attorney, told the court.

Trombley asked the court to dismiss the charges and give lower courts the ability to release defendants and dismiss charges if court-ordered treatment is not provided within timelines set out in state law and by the federal court.

Jason Ruyf, a Pierce County deputy prosecutor, argued there were no judicial or procedural errors which violated Hand’s due process. He cautioned that if the Supreme Court created a path for trial courts to let out some defendants awaiting evaluations, violent offenders could get released as a consequence.

Serial killers like Ted Bundy “are undoubtedly going to raise some kind of mental health claim,” he said.

And such a move by the court isn’t going to make DSHS work faster, he contended.

“Dismissing prosecutions would not in my opinion give Western State any more incentive to do its job well because its mandate is not our mandate,” he said.

But Supreme Court Justice Mary Yu voiced support for the court doing something to try to remedy the situation.

“I find myself attracted to the argument because there seems to be no other recourse. Nothing seems to have worked,” Yu said to Ruyf. “I am really troubled by it so what are you offering as an alternative other than don’t worry about it and forget the due process?”

Yu said there needed to be “some bright lines” for trial courts. She suggested lower courts be allowed to dismiss charges without prejudice if a person has spent a certain period of time locked up and waiting. This would leave the door open for prosecutors to refile the charges.

Ruyf argued against a threshold of a specific number of days and for giving lower courts discretion to consider the merits of each case.

“It could be a serial killer or it could be someone who is homeless who fails to appear,” Yu responded. “It really could be the whole range. There just can’t be an open-ended detention.”