Reports reveal an increase in the number of individuals with serious mental illness in jails, prisons and forensic hospitals. Despite the wide-ranging and devastating consequences of this 'criminalization' of mental illness, there remains a lack of information on the subject as well as on the provision of care for these patients. This important new book fills a gap in the literature by examining topics such as: the history and policy factors related to criminalization; original research on forensic populations; pharmacological and psychological treatment strategies; and principles and guidelines for diversion out of the criminal justice system.
Competence to Stand Trial and Criminalization: An Overview of the Research
Amanda Beltrani and Patricia A. Zapf
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.
The origins of the competency doctrine can be traced to the Babylonian Talmud and early Judeo-Christian texts along with English common law that emerged at some point prior to the fourteenth century.5 In English courts of this era, defendants commonly remained mute in lieu of making a plea, which impeded trial proceedings and required English courts to determine whether this muteness was a function of “malice” or “visitation of God.”5 “Mute by visitation of God” encompassed the “deaf and dumb” and expanded to include “lunatics.”6 This distinction provided an opportunity for those suffering from mental illness to avoid the same punishment as those who committed a crime with malicious intent. This was the beginning of the judicial system noting the special needs of the mentally ill in criminal justice proceedings.
Today, a defendant’s right to a fair trial is one of the core principles of modern law, which strives to provide all defendants with objective and dignified proceedings (of course, the importance of competence to stand trial in the law is primarily in common law nations and does not extend to many civil law nations). Competency to stand trial (adjudicative competence) is a doctrine of jurisprudence that allows for the postponement of criminal proceedings should a defendant be unable to participate in his or her defense on account of mental disorder or intellectual disability. All defendants are required to maintain a basic level of competence to proceed through the adjudication process; therefore, competency is relevant from arrest or initial detention through sentencing.7 Adjudicative competence is the most commonly referred forensic evaluation,8,9 with annual competency evaluation referrals increasing over time.10,11
The U.S. standard for trial competence was established in Dusky v. United States12 and all states currently use some variant of the Dusky standard, with the exact definition varying by jurisdiction. In Dusky, the Supreme Court held:
It is not enough for the district judge to find that “the defendant is oriented to time and place and has some recollection of events,” but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him. (p. 402)
Thus, the Dusky standard established two prongs for competency: (a) the sufficient present ability to assist counsel with a reasonable degree of rational understanding and (b) the ability to rationally and factually understand the proceedings against him. As the language in Dusky is ambiguous, the typical forensic evaluation is left largely unguided by legal statute, with the courts and legislatures giving mental health professionals a large share of the responsibility for defining and evaluating competency, although various states have made attempts to provide delineated statutes to guide the evaluation process. A vast empirical literature on competency evaluation prompted the publication of guidelines13,14 and best practices15 to improve competency evaluation procedures.
Modern competency laws vary from state to state; however, most jurisdictions follow similar procedures. There is a relatively low threshold for ordering a competency evaluation, with all parties to the proceedings responsible for raising the issue of a defendant’s competence whenever a bona fide doubt exists.16,17 A written competency evaluation report is typically required for any court-ordered evaluation, with the number of evaluation reports per defendant varying by jurisdiction and ranging between one and three. In most cases, the court readily accepts the opinion of the evaluator (or of the majority of evaluators when three evaluations are conducted, as is the case in Hawaii) and a hearing on the issue becomes unnecessary.18 In those instances where evaluators are in disagreement about a defendant’s competency status, a hearing on the issue is held.
Defendants adjudicated as competent proceed with their cases whereas those found incompetent are ordered to a period of restoration, typically at an inpatient facility but with an increasing number of outpatient restoration programs becoming available in various jurisdictions.19 Most jurisdictions have time limits for restoration orders and allow for the possibility of extending a restoration order when there is a substantial probability that the defendant will be restored in the foreseeable future. Most defendants (~75%) are restored to competence within a six-month period and returned to court.20 A smaller proportion take longer than six months but are ultimately restored within a year. And a very small proportion of defendants – primarily those with intellectual disabilities or treatment-resistant psychosis – will not be restored to competence.21 The current research on competency restoration is superficial, comparing competent and incompetent defendants and identifying characteristics of individuals involved in restoration procedures, not variables that examine incompetent defendants at various stages of restoration.20
We now turn to a review of the research on competence to stand trial and highlight issues relevant to the criminalization of individuals with mental illness in the United States.