Challenges to Reforming the Competence to Stand Trial and Competence Restoration System

CST is firmly rooted in Western law and tradition. In 1960, the U.S. Supreme Court first addressed the standard for CST in Dusky v. United States (12). Today, after the issue of competence is raised, forensic evaluators examine defendants generally in light of the standards set forth by Dusky. In 1972, in Jackson v. Indiana, the Supreme Court held that a defendant committed solely for CR “cannot be held more than the reasonable period of time necessary that he will attain that capacity in the foreseeable future” (13). As a consequence, some states have statutory requirements that limit the length of time that a defendant found IST can be committed for restoration, which may or may not apply to people charged with serious offenses, especially murder (6, 14). A 2012 study concluded, however, that most states have not modified their statutes to comply with the principles and procedures outlined in Jackson, perhaps because of the lack of specific guidance from the Supreme Court (15).

In addition to the key U.S. Supreme Court case determinations, state statutes addressing competence processes have structural commonalities, highlighting the critical role that CST plays in criminal processes. State statutes generally include the following six frames of reference: days allotted for initial competence evaluations, inpatient confinement periods for examination, timeline for initial CR period, processes for the involuntary administration of medication, location of restoration services, and statutory maximum restoration commitment time frames. State statutes and case law might further define the contours of these details and their alignment with cases such as Dusky and Jackson (12, 13).

In more recent years, another wave of legal issues pertaining to the competence system has emerged as class action lawsuits have been initiated by plaintiffs over states’ failure to comply with their own CR processes and time frames (16–22). Taken together, the case law and statutes emphasize the importance of CST in criminal jurisprudence, but recent litigation points to systemic fixes that are needed.

Many justice professionals recognize the need for improvement in the competence process. In 2012, the National Judicial College convened experts to create a mental competency best practices model and concluded that approximately 60,000 competence evaluations are ordered every year, with only 20% of defendants found to be IST (23). They advised that “not only is the competence evaluation process costly to the jurisdiction, but it may lengthen the time a defendant is involved in the criminal justice system” (23). Their recommendations included standards for hearings, what evaluations and reports should include, competence treatment plans, CR, court and system-wide practices, establishing a competence court or docket, and training and education and addressed the need for cross-systems collaboration (23).

There is no evidence, however, that this best practices model was widely disseminated or adopted. The American Bar Association’s “Criminal Justice Standards on Mental Health” (24) attempted to further delineate proper process and offered suggestions that could affect the system, including language that addresses competence to proceed (part IV, standards 7-4.1–7-4.16). These standards include considerations related to raising the issue of competence, orders for evaluations, clinical reports, hearings, right to treatment and to refuse treatment, periodic review of competence, unrestorability, and disposition issues.

Competence waitlists for evaluation or restoration are an area of heightened concern among disability rights attorneys, psychiatrists, jail administrators, and mental health administrators and are the subject of litigation, as noted earlier. A report by the Treatment Advocacy Center identified at least 14 states that were or are involved in litigation over waitlists for hospital beds for criminal defendants (2). Factors that contribute to the waitlists are complex and multisystemic and depend on state law, courtroom personnel, treatment resources, and common practice within jurisdictions, among other factors. This issue is unique in that the criminal justice system, namely judges but prosecutors and defense attorneys as well, figuratively holds the keys to both the “front and back doors” of the forensic psychiatric hospitals in most states (8).

In a typical competence process, a judge orders a CST evaluation and whether the evaluation is conducted in a hospital or elsewhere, without determining bed availability, level of care required, or security needed. Next, a judge determines, typically based on a clinical opinion, whether a defendant is IST and whether the defendant can be released or transferred to another treatment setting or to jail (25). Judges also ultimately decide whether and to where a defendant found to be IST will be committed (public hospital, community provider, or private hospital) for CST restoration, generally after being presented with recommendations from the defense or prosecution. These decision points all reflect the court’s legal control over the front door of the competence system, including the treatment settings. Judges might suggest that problems with access to mental health services leave few options after a defendant with behavioral health needs appears in court (26) or that clinical system staff should help them identify these alternatives. Still, Fitch (8) reported that in 74% of states, a judge, not a clinician, has the authority to order release of a defendant found to be IST, illustrating the legal system’s control of the back door to the competence system.

As reported by the National Association of State Mental Health Program Directors (5, 8), some judges were transparent that they use the tools available to them to ensure that an individual found IST will receive treatment while in jail. This plan might be well intended on the part of a judge who is seeking a solution for a defendant who might have obvious clinical needs. However, having stakeholders with different goals, vantage points, and levels of authority can cause disjunction in the defendant’s processing through the system; a host of political, legal, and clinical complexities; and further bottlenecks in forensic hospitals, giving rise to waitlists for services ranging from evaluation to beds. As such, it is important to examine waitlists for services ranging from competence evaluations to inpatient beds for restoration.

A CST evaluation waitlist is composed of defendants whose criminal proceedings were suspended by a judge because one party raised the question of competence before proceeding in the criminal matter. Although there has been an increase in states that allow for CST evaluations to be conducted in the community, especially if a defendant has been released on bond, most are conducted in jail (8, 11). The next waitlist the defendant is placed on depends on the outcome of his or her evaluation. If found competent to stand trial or restored to competence, a defendant waits for criminal proceedings to commence. If found to be IST, the individual is put on the waitlist for CR services in a suitable setting. Many defendants are on each of these waitlists in the course of just one case in which CST is raised. The longer each of the waitlists are, the longer a defendant’s liberty is curtailed and treatment is delayed, just because the issue of CST was raised.

Finally, the nonrestorable waitlist includes individuals who were ordered for a CST evaluation, found to be IST, and eventually found by clinicians to have unrestorable CST. At this point, criminal proceedings may be dismissed, either fully or with the option to bring them forward at a later date if the defendant’s condition changes. Civil commitment or an alternative disposition is then often pursued. Overall, individuals in the competence system risk spending longer in an institution than they would have versus through civil commitment, despite clinical findings that their condition would not warrant as lengthy a hospitalization (27). These lengthy detainments on one or more waitlists may conflict with Olmstead v. L.C. provisions and Americans with Disabilities Act regulations for people with disabilities, including individuals with mental illness (28).

Variability in waitlist lengths aside, Zapf and Roesch (29) reported that approximately 75% of defendants had their CST restored and were returned to court within 6 months with restoration taking place in state and public hospitals, although there has been a slight increase in the utilization of outpatient sites for restoration (5). Individual studies examined time periods to restoration, but no studies have examined time to restoration in comparison with treatment as usual, and thus research on this issue is lacking.

A key challenge for the mental health and criminal justice systems to effectively address the widespread problems in the competence process is the lack of empirical data to drive policy and standards. There is a need for such system-based, multistate empirical data to provide evidence-based guidance on improving the CST legal and clinical systems, recognizing that it is a challenge to coordinate local, state, and national data. Current practice often results in a disruption in continuity of care for individuals ordered for competence evaluation and restoration who are moving between systems (46), but it is unknown for whom and for how long these interruptions in treatment last. Although well-meaning attorneys and judges likely flag competence for the right legal reasons, raising the issue of CST has profound implications for individuals and the criminal justice and mental health systems, including both forensic and civil patients.

CST restoration services often do not yield the access to long-term supports being sought, because individuals who are restored are shifted back into the criminal case process as pretrial defendants. It is not the role of the CST-CR system to be the primary route to mental health access for individuals with mental illness in the justice system. Also, as noted previously, raising the issue of CST for defendants may not yield access to the right level of psychiatric care that they need, and can risk placement in a higher level of security, even for those whose underlying offense would otherwise carry little or no risk of incarceration.

The number of CST inpatient commitments needs to be reduced through community-based diversion, community-based restoration, and fewer nonviolent defendants being flagged for CST evaluations in the first place. For example, a recent report from Colorado found that the number of court-ordered restorations increased from 87 in 2001 to 900 in 2017 (41). When there was an automatic inpatient commitment for competence evaluation and restoration, no attention was paid to whether the individual needed that level of care. Moreover, when defendants were detained in jail awaiting competence evaluation or restoration, they often would not otherwise need that high risk level of criminal custody.

This finding illustrates that little effort is expended to assess for criminal risk or consideration of bail and bond release when ordering competence treatment. Consequently, many psychiatric inpatient beds are filled by defendants who may or may not need that level of care or level of security, adding to the bed shortage and the cost of forensic services. When the beds are full, defendants usually wait in jail, and, similar to state hospitals, the jail beds might not be needed either to enhance public safety nor to guarantee a defendant will appear in court. Bail reform that includes all pretrial defendants, including those for whom the issue of CST is raised, could alleviate some of the pressures on the forensic and civil mental health systems as well as the local jails by diverting individuals who pose no substantial risk to the community and who could receive appropriate services in the community.

Increased awareness is needed among judges, defense attorneys, prosecutors, administrators, policy makers, and treatment providers about how each step in the competence process runs the risk of more deeply embedding an individual with serious mental illness or intellectual and developmental disabilities into the criminal justice system. Further training may be needed to help the workforce in these systems understand and meet the clinical and legal needs of this population. In most states, decisions to move a defendant in or out of the competence process are judicial judgments, even if informed by clinicians. Consequently, although judges are in a role to adjudicate a single issue before them, an examination of the entire system with assistance from and awareness of other legal officials is warranted. This systemic examination is beginning to more broadly occur among legal stakeholders (47). A companion piece to this review articulates the potential for a systematic examination of diversion and alternative pathways for defendants found to be IST (25).