Psychiatrists, Judges Work to Address Competency to Stand Trial Process

In 2017, a 26-year-old man was arrested for allegedly stealing a hamburger and fries. He spent 55 days in jail, partially because he was awaiting a spot for competency restoration at a state hospital.

One father described how his son was stuck in a cycle of being evaluated, declared incompetent, and eventually returned to the county jail. “Just continually, court date set, declared incompetent, see a counselor or doctor, go back to court, he’s still incompetent, and just repeatedly over and over, over a period of three years,” the father reportedly said.

These stories are included in the report “Just and Well: Rethinking How States Approach Competency to Stand Trial.” Written by dozens of experts, including psychiatrists, judges, and advocates, the report details how states’ competency to stand trial systems have been overwhelmed, misunderstood, and misused as an alternative to real treatment for people with mental illness. Based on the advice of the experts involved, the report also includes 10 strategies that states can explore to improve their competency processes.

The report’s development was prompted by Michael Champion, M.D., Judge Steven Leifman, J.D., Sarah Vinson, M.D., and Justice Kathryn Zenoff, J.D., the co-chairs of the Judges and Psychiatrists Leadership Initiative (JPLI), a partnership between the APA Foundation and the Council of State Governments (CSG) Justice Center. In addition to the CSG Justice Center and the APA Foundation, the report was prepared in partnership with the National Association of State Mental Health Program Directors (NASMHPD), the National Center for State Courts, and the National Conference of State Legislatures.

Under the U.S. Constitution, no criminal case can be adjudicated unless the defendant is considered competent to stand trial, meaning that the person can consult with an attorney and must clearly understand the charges against him or her. Typically, the judge or another party in a case can raise a concern about a person’s ability to participate and understand the court’s proceedings, according to the report. Then, the person is evaluated and, if needed, services are provided to restore his or her competency.

Over the years, the number of people being evaluated and receiving competency restoration services has grown dramatically, straining the system and causing people to wait for available services for weeks or months in some cases. From 1999 to 2014, there was a 72% increase in the number of people receiving competency restoration services in state hospitals, according to NASMHPD. In 2019, there were an estimated 91,000 competency evaluations, and about half of those evaluations were for people charged with misdemeanors, according to a paper presented at the annual meeting of the American Psychology-Law Society in March 2020 and cited in the report.

Competency laws were created to protect individuals’ rights, and that is extremely important, explained Debra Pinals, M.D., a member of the Just and Well advisory committee, chair of the APA Council on Psychiatry and Law, and a professor of psychiatry at the University of Michigan. But, unfortunately, the way the competency system is used often creates more problems for people with mental illness. Along with Lisa Callahan, Ph.D., Pinals wrote two articles for Psychiatric Services last year about the competency to stand trial process.

“Assessing and addressing competency to stand trial is not equivalent to a person receiving the behavioral health treatment needed to support recovery and stability in the community,” said Champion, medical director of the Hawaii Department of Health’s Adult Mental Health Division, a member of APA’s Council on Psychiatry and Law, and an associate clinical professor of psychiatry at the University of Hawaii. Too often, individuals cycle in and out of the competency system without achieving stabilization for their symptoms and condition. In many cases, the charges are very minor: Someone may have taken a sandwich or trespassed in a park after hours.

“They may spend more time receiving competency restoration services in a hospital or waiting in jail for an available bed than they would have spent in jail if they had been convicted of their charges in the first place,” he said.

The cycle also puts immense pressure on state hospitals systems, he explained. “In some states, the majority of individuals who are in the state hospital system are there for forensic-related services, including competency assessment or restoration, which places a limit on the available services for people who are not involved in the criminal justice system,” he said.

“Competency restoration should be targeted toward those people who are considered most dangerous and for whom we need the criminal justice system to do its job,” said Leifman, associate administrative judge in the 11th Judicial Circuit Court of Florida and chair of the Florida Supreme Court’s Steering Committee on Problem Solving Courts.

Yet judges may turn to the competency system because they have no alternative when someone who needs treatment enters the courtroom. “Judges know if they release the person right back to the streets, things are going to get worse,” Leifman said. “While competency is not a treatment system, it may provide a little bit of an intervention and at least get the person off the street.”

The report is significant, explained Champion, Leifman, and Pinals, because it is part of a greater, nationwide effort to improve the competency to stand trial system. They are members of a task force created in early 2020 by the Conference of Chief Justices and the Conference of State Court Administrators, which is aimed at assisting state courts in their efforts to more effectively respond to the needs of court-involved individuals with serious mental illness. Champion said it is encouraging to see so many national organizations and experts focused on this very complicated issue and coming to similar solutions.

“Our systems of care in the communities and hospitals, whether state or private, are challenged,” Champion said. “Around the country, we need to focus on preventing criminal justice involvement in the first place.” ■

“Just and Well: Rethinking How States Approach Competency to Stand Trial” is posted here.

“Challenges to Reforming the Competence to Stand Trial and Competence Restoration System” is posted here.

“Evaluation and Restoration of Competence to Stand Trial: Intercepting the Forensic System Using the Sequential Intercept Model” is posted here.

“Rethinking Competency to Stand Trial: A Complicated Road to Mental Health Treatment” is posted here.