Editor’s note: Details for this story were gleaned from documents, court records and meetings open to the public. The Oregonian/OregonLive is using only the woman’s initials, TB, because she could not be located for comment.
The sixth time the 38-year-old homeless woman skipped her TriMet fare, a police officer followed her and demanded four times that she stop.
But she kept walking.
For that, she paid a huge price: 183 days in custody, in the Washington County jail and the Oregon State Hospital, even though a psychologist at the beleaguered institution later said she showed no signs of mental illness. That span was six times longer than the 30-day maximum sentence allowed at the time for skipping a fare.
Taxpayers also paid a significant sum: around $74,000 for her lengthy detention, enough to buy 29,600 bus tickets. And that doesn’t include the cost of the woman’s court-appointed lawyer or one-day trial.
TB’s months-long ordeal — spelled out in Washington County Circuit Court records and a 2021 ruling from the Oregon Court of Appeals — reveals chronic failures in the Oregon justice system, including what to do with defendants who can’t or won’t aid their attorneys in their defense.
It also highlights the outsized harm to people of color and the homeless who disproportionately face TriMet citations and interfering with a peace officer charges, a misdemeanor that Oregon lawmakers reformed last year but that officers can still subjectively apply.
Last year, Oregon county jails sent 870 people to the state hospital for psychiatric evaluation because lawyers and judges thought they were too mentally ill to stand trial.
The hospital has struggled to make room for those patients, prompting a federal judge in August to impose strict limits on how long patients can stay. The decision outraged district attorneys from Clackamas, Marion and Washington counties, who objected to releasing people accused or convicted of violent crimes before they’ve been fully rehabilitated.
TB’s saga — which started Nov. 1, 2017, the day she rode a MAX train to Beaverton and kept walking — is not over. TriMet stopped pursuing fare evasion criminally in 2018. But in the past four years, TriMet has fined her at least $12,250 for not buying tickets more than 70 times, including as recently as Sept. 22. Roberta Altstadt, a TriMet spokesperson, acknowledged that TriMet is unlikely to recover the money.
TB, who is Black, never defended herself in court. She did not attend her initial trial or her 2021 appeal. But Oregon Court of Appeals Judge Bronson James decried what happened to her. “From her arrest, to her trip to the state hospital, her six months in jail, and her trial in absentia,” he wrote in May 2021, “The law was ever present; justice, in my view, not so much.”
‘SHE NEVER RESISTED’
Public records offer an incomplete picture of TB, who doesn’t appear to have a permanent home and couldn’t be contacted for this story. Letters sent to her Portland addresses listed in court records weren’t answered. Her former attorneys don’t know how to find her.
Her mother, who declined to be interviewed at length, said she grew up in San Diego, but that she hasn’t spoken to her daughter in years.
In an interview with the state hospital psychologist, TB gave contradictory info, saying she grew up in Oregon. At the time of her arrest, she said she lived with her sister, but didn’t say where. She said she finished high school, which she called “pretty easy for me,” and worked various jobs, including at McDonald’s and at a department store, but not since 2007. “I don’t do drugs,” she added. “Never had a drink.”
Between 1999 and 2016, San Diego area court records show she had dozens of misdemeanor charges and was arrested twice for assault, but was never charged. Her name doesn’t appear in Oregon court records until November 2016. Between then and her arrest in 2017, she was charged with various misdemeanors about 30 times, generally related to fare violations or trespassing.
On Nov. 1, 2017, she was riding the MAX train to the Beaverton Transit Center when, according to court documents, an inspector asked to see her fare. She didn’t respond, and when the train reached the station, TB got out and walked away. The fare inspector alerted two nearby Portland transit police officers, Kelly Jenson and Christina Hansen-Tuma, who ordered her to stop four times and show her fare.
TB ignored them and calmly kept walking. Jenson and Hansen-Tuma fell in behind her. “We each grabbed one of her arms, which stopped her forward motion,” Jenson later testified in court. “She never resisted arrest.”
Once in the officers’ SUV, TB kicked Hansen-Tuma in the thigh, leaving a dusty footprint on the officer’s uniform but no bruise, according to court testimony. Hansen-Tuma was not injured, she later said.
During the entire encounter, TB spoke only two words: her name.
That pattern continued in Washington County Jail, where she refused repeatedly to speak with her court-appointed attorney, Francis Gieringer, court records show. So Gieringer, who declined an interview with The Oregonian/OregonLive, requested on Nov. 27, 2017 that she be evaluated for mental illness at the Oregon State Hospital.
If a judge agrees, requests such as Gieringer’s become “aid and assist” orders, and they determine whether a person facing charges is well enough to aid in their own defense, a right under the U.S. Constitution. If not, they stay at the hospital for treatment. Then they go to trial once well enough, or their charges are dropped.
The woman spent at least six weeks at the hospital, according to court documents. The hospital wouldn’t specify exactly how long, citing patient confidentiality.
According to court documents, on Jan. 8, 2018, psychologist Kaley Raskin interviewed TB and said she understood the legal proceedings against her and showed no symptoms of mental illness. But TB also told Raskin she didn’t have a lawyer, suggesting Gieringer may have been right to be concerned.
With no apparent need for treatment, the woman returned to jail.
“Hope I don’t see you again,” Raskin recalled her saying wryly.
AID AND ASSIST CASES
Over the past six months, an average of 77 people in Oregon have waited in jail every day for a bed in the state hospital.
Under a 2000 federal court order, the hospital is supposed to admit aid-and-assist patients within seven days so they don’t languish in cells without appropriate mental health treatment.
That’s to avoid what happened April 17, when 22-year-old Bryce Bybee died in the Washington County Jail after refusing food — 10 days after a judge ordered the robbery defendant be admitted to the state hospital for care.
State hospital data show that over the past decade, the number of aid-and-assist patients has grown dramatically. In 2012, the number stood at 366, jumping to 870 patients in 2021.
And the average length of stay at the hospital has increased, from 108.7 days in 2012 to 155.7 in 2021. So far this year, the average has been even longer — 164.9 days.
Not surprisingly, the most populous counties send the most people to the state hospital for evaluation, but Multnomah and Washington counties do so at roughly the same rate. In 2020, Washington County’s rate stood at about 1.5 people sent to the state hospital for every 10,000 residents, compared to about 1.3 holds per 10,000 residents in Multnomah County.
KC Lewis, the managing attorney of Disability Rights Oregon’s mental health rights project, said the process of classifying a criminal defendant as mentally ill is problematic, because it’s often initiated by people without clinical or mental health expertise.
“This person ‘seems’ mentally ill, and that’s enough to put them away where they don’t have access to community care,” Lewis said. “Then you get them in front of a clinician who says they aren’t mentally ill.”
Many times, low-level cases could be addressed before they ever enter the criminal justice system, said Brian Decker, a former public defender who ran unsuccessfully in 2022 to unseat Washington County’s district attorney.
“The problem is defaulting to the idea that filing criminal charges is going to somehow help the problem in every case, when there’s many cases where it doesn’t,” said Decker, who now works for the Oregon Justice Resource Project, an organization that promotes criminal justice reform and provides legal representation for underserved communities.
Washington County District Attorney Kevin Barton, who first won election in 2018 after TB’s trial, said based on his review of the case file, the decision to charge the case seemed appropriate given laws that were in effect in 2017.
Barton pointed to TB’s history of arrests, noting that she had criminal charges in California, Washington and Oregon over nearly two decades, including both property and violent crimes.
But Barton said he didn’t believe TB should have remained in custody.
He noted that he had no involvement in the case, and neither the prosecutor, Greg Brown, nor his supervisor at the time, still work in the DA’s office.
“The significant aspect of this case that I believe could have been — and today I believe would have been — handled differently relates to the incarceration of the defendant,” Barton wrote in an email to The Oregonian/OregonLive that outlined several mental health and diversion programs available today.
TRIMET POLICY CHANGES
TB’s experience might have unfolded differently if she had gotten on the MAX train one year later.
TriMet officially decriminalized fare evasion in 2018, barring police from arresting riders whose only violation was not paying.
The agency came under intense scrutiny for its practices, in part because of a fare evasion sting where transit police arrested then-David Douglas school board member Ana del Rocío after she forgot her annual TriMet pass. Del Rocío told The Oregonian/OregonLive that when looking her up in the system, transit police spelled her name wrong. They also demanded her identification and legal name, after she gave them the name she has always gone by. She was charged with giving false information to an officer. A judge ruled that the arrest was unconstitutional.
Between 2014 and 2018, TriMet commissioned two Portland State University studies that examined the agency’s fare enforcement practices. According to TriMet, both studies found no clear evidence of systemic racial bias.
But reports from The Oregonian/OregonLive and the Portland Tribune in 2016 found that Black riders were still the most likely to be banned from the transit system for nonpayment of fare, or face serious charges for transit violations.
People still receive fines, which range from $75 to $175, for skipping payment. Their cases are now handled by TriMet for the first 90 days, and sent to the courts for collection only after that. Fare evaders can also do community service to reduce their fines.
And in 2022, the agency announced it would prohibit police from checking passengers’ fares on buses and trains, leaving that to TriMet inspectors.
TriMet continues to fine TB, however, and she was excluded from riding TriMet for 90 days as recently as last December after records allege she threatened a fare inspector who woke her up by tapping her while she was sleeping on the train.
Altstadt, the TriMet spokesperson, said it’s not clear exactly how much money TB owes for the more than 70 times since 2018 she’s been ticketed for not paying her fare. Some of the cases have gone to the court system, where a judge may change or waive the amount, she said.
She said the agency now excludes people only for behavioral issues, not because of fare evasion alone.
Altstadt said TriMet doesn’t have a program to keep track of chronic fare offenders, or an easy way to look up how many times someone has evaded fares.
She admitted that people who repeatedly don’t pay their fares likely can’t pay them back. But Altstadt said TriMet’s job is not to provide social services.
“I don’t think there’s an easy answer of saying, ‘OK, we just don’t cite them,’” Altstadt said. “When it comes to individuals who are experiencing homelessness and they are using the system as a shelter, that’s where we want to try to get them off the transit system, because this is not a shelter with amenities or help that they need.”
Altstadt said a person with mental illness shouldn’t necessarily be exempt from fare enforcement.
She said charging a repeat offender who has mental illness could potentially lead that person to seek social services, but that’s not TriMet’s role.
“We’re trying to provide transit service.”
But transit advocacy groups, such as OPAL Environmental Justice Oregon and Bus Riders Unite, said it’s not that simple.
“Everyone still has to get where they need to go, and for a lot of people, this is the only option,” said Maia Vásconez-Taylor, a community organizer with Bus Riders Unite.
OPAL and Bus Riders Unite have advocated for fareless public transit, and have faced concerns from others that it would lead to an unsafe environment for riders.
But Vásconez-Taylor said everyone deserves to feel safe — not just those who can afford the fare.
She said social service organizations can play a key role in helping with that by sending advocates to ride the bus who can provide water and hygiene supplies directly to those in need and helping people get to shelters, detox centers and hospitals.
“That creates safety for everyone on transit,” she said.
‘PASSIVE’ RESISTANCE
TB waited four more months in jail after her evaluation for her one-day trial. Her attorney told the court he tried to meet with her 13 times to discuss her options, but she refused each time.
On April 27, 2018, Gieringer requested a second aid-and-assist order for his client, but a judge denied it. Six days later — 183 days after her arrest — her trial began.
The six-person jury found TB guilty of fare evasion and harassment, which was for kicking the officer. They also convicted her of interfering with a peace officer, for walking away when the transit officers told her to stop. All are misdemeanors.
Three years later, public defender Anne Munsey appealed her conviction for interfering with a peace officer, arguing that calmly walking away constituted “passive” resistance that was exempt from the charge.
In May 2021, the Oregon Court of Appeals rejected that argument, but not before holding up TB’s case as an example of wider injustice. In his written opinion, James, the appeals court judge, made a broad critique of the “interfering with a peace officer” charge and its loose definition in state law.
James wrote that the statute gave no definition of “refusal” to obey a police officer’s order, nor did it specify that a person doing so was creating a public safety risk. He said the charge of interfering with a peace officer was largely up to the interpretation of the police officer making the arrest.
It amounted to an “attitude crime,” he wrote, punishable by up to a year in jail.
“The result is that, for all practical purposes, a defendant can remain incarcerated awaiting trial not for the crime for which they were stopped, but for the officer’s subjective interpretation to how they reacted to being stopped,” he added.
One week later, Tina Kotek, then speaker of the Oregon House, went before Senate colleagues and urged them to support House Bill 3164, to narrow the definition of interfering with a peace officer. The change, which passed the lower chamber in April, would require that a person so charged “knowingly” prevented or attempted to prevent an officer from performing their duties.
The 2020 racial justice protests in Portland were a driving force for the change. More than 20% of participants arrested that summer faced a sole charge of interfering with a peace officer, according to data from the Multnomah County District Attorney’s office.
But Kotek also named TB in her testimony, calling her case an “absolute failure of the system.”
Kotek is now running for governor as a Democrat. Her Republican opponent, Christine Drazan, voted for the change as House minority leader, and unaffiliated candidate Betsy Johnson opposed it as a state senator.
Records from the state Criminal Justice Commission show that cases of interfering with a peace officer have fallen, dropping from 1,976 in 2017, the year TB was arrested, to 1,315 cases in 2021, after the law was changed mid-year.
Kelly Simon, the legal director for Oregon’s American Civil Liberties Union chapter, noted Oregon is in a public safety crisis, currently facing a massive shortage of public defenders.
That means there should be more scrutiny on whether cases like this even need to be charged, she said.
“Are all of these charges necessary right now? Are they going to cost taxpayers more than they were harmed by a $2.50 fare?” she said. “This story is the exact type of travesty that should bring us all to the table to have a conversation about how to build a better system that truly centers human beings and the public interest. I don’t think the public was served by this aggressive prosecution.”
‘WE’RE DONE’
TB’s May 3, 2018 trial lasted all day, but Washington County Circuit Judge Andrew Erwin, who presided, dispatched her punishment in just two minutes — the swiftest act of any in her ordeal.
He’d made up his mind already, he told Gieringer and prosecutor Greg Brown at the end of the trial.
Brown raised a final request to put TB on probation.
“This was never about custody time once the defendant spent, certainly, more than the maximum on the ‘C’ misdemeanors in jail,” Brown said. “What this was about was trying to get her on some form of supervision.”
Erwin interrupted, saying he wouldn’t do that considering how much time she’d already spent in jail, and considering how people with similar situations have been treated.
Brown then requested formal probation for TB, and Erwin again said no. “I’m not inclined to see that as being helpful in any way, shape or form given the entirety of the circumstances,” Erwin said.
She would get out immediately.
With two words, TB’s encounter with police started, and with two words in court it ended.
“We’re done,” the judge said.
