Beginning in the 1960s, a steady decline in the number of inpatient psychiatric beds has occurred across the United States, primarily as a result of stricter civil commitment criteria and a societal movement toward deinstitutionalization. Concomitant with this decrease in psychiatric beds has been a steady increase in the number of mentally ill individuals who are arrested and processed through the criminal justice system as defendants. One consequence of this has been an explosion in the number of defendants who are referred for evaluations of their present mental state – adjudicative competence – and who are subsequently found incompetent and ordered to complete a period of competency restoration. This explosion has resulted in forensic mental health systems that are overwhelmed by the demand for services and that are unable to meet the needs of these defendants in a timely manner. Defendants with mental health concerns are spending an inordinate amount of time incarcerated while waiting for their competency-related services, resulting in what we refer to as criminalization of individuals with mental illness. In many states, lawsuits have been brought by defendants who have had their liberties restricted as a result of lengthy confinements in jail awaiting forensic services. The stress on statewide forensic systems has become so widespread that we have nearly reached the level of a national crisis. Many states and national organizations are currently attempting to study these issues and develop creative strategies for relieving this near-national overburdening of forensic mental health systems.
The purpose of this article is to review the current state of the research on competence to stand trial and to highlight those issues that might be relevant to the issue of criminalization of individuals with mental illness in the United States. Although there is a large and growing literature on issues relevant to adjudicative competence – including its evaluation, the characteristics of competent and incompetent defendants, and restoration services – here, we attempt to focus on those issues that are specifically relevant to the broader issue of criminalization of individuals with mental illness. Space limitations do not permit a comprehensive review, but rather, we present an overview of the competency research as it pertains to criminalization with a focus on recent history and current trends. The interested reader is referred to the other articles in this special issue for more data and detail on related issues, and to other sources.1–4
We begin with a brief overview of the competency doctrine and the general procedures used across the United States and then we review the empirical literature on competency to stand trial. We highlight research in three areas – system considerations, evaluation considerations, and treatment considerations – relevant to a complete understanding of the current forensic mental health crisis and for discovering new ways to move forward.