People found incompetent to stand trial (IST) range from those who commit minor, nonviolent offenses such as loitering or trespassing to individuals who commit serious crimes such as assault and murder. While it’s difficult to put exact numbers on IST cases at either extreme, research suggests that IST cases involving minor infractions are on the rise. In a statewide sample of 1,126 Virginia defendants referred for competency evaluations, for example, defendants who faced only misdemeanor charges were much more likely than those facing felony charges to be found IST (44% versus 31.2%), according to research by University of Virginia forensic psychologist Daniel Murrie, PhD, and colleagues (Psychology, Public Policy, and Law, Vol. 28, No. 1, 2022).
Despite the vast differences in the severity of these cases, however, at this point most people deemed IST must undergo competency restoration to learn enough about the system to understand their charges and communicate with their attorneys accordingly. But there is wide variability in where people go to get restored and for how long, depending on resources, how savvy local court systems are, and other factors. In some of the more progressive examples, Florida and New York have developed systems where only IST patients with felony charges are admitted to state hospitals for competency restoration and those with minor charges are sent to community restoration programs that also include mental health services. California has gone even further by no longer admitting any IST individuals to state hospitals, including those with felony charges, instead sending them to county-based diversion programs. However, states with fewer resources sometimes use jails as places to restore competency due to long wait lists for state hospitals and a lack of community options. Still other states lack competency restoration services entirely.
Besides a lack of good community alternatives, the often inappropriate placement of IST individuals is also related to the fact that judges aren’t sufficiently educated on this issue and mental health evaluators aren’t included in the decision of where to send people, said Lisa Callahan, PhD, a senior research associate at Policy Research Associates, a behavioral health research and technical assistance company, who has expertise in these cases.
“Anecdotally, I hear a lot from district attorneys and judges that they would support diversion to the community if they knew where the person would be sent and who would be supervising and treating them,” she said. To this end, a number of states are launching efforts to educate judges on risk and needs assessment for these individuals, including developing standardized orders that provide information to guide judges’ decision-making processes.
Many advocates, including Callahan, also believe that the best long-term solution to the IST problem is to eliminate competency requirements for those with minor offenses altogether and route them into community care instead. Other wish list items include providing IST individuals with immediate connection to housing and treatment, standardizing state clinical and judicial orders and communications so that people are sent to care based on need and not on the whims of a given locale, and mandating organized data collection and analysis to provide real-time information to improve the system.
