Introduction

Forensic populations in the United States are increasing, driven largely by a rise in individuals determined to be incompetent to stand trial (IST).¹ According to the California Department of State Hospitals’ 2017 Annual Report, the most common type of commitment (22% of all commitments) was defendants adjudicated IST.² While just five years ago, 343 mentally ill inmates were awaiting placement for competency restoration services, as of 2018, that number has increased to a staggering 819.³ As defined by the Dusky v. United States (1960)⁴ standard, a competent defendant must have the capacity to understand the legal proceedings, which includes an understanding of the various participants in the justice process. Defendants must also be able to function within the legal system by consulting with their attorneys. Competency restoration is the process used when an individual charged with a crime is found by a court to be IST. Incompetency to stand trial is generally the result of an active mental illness and/or intellectual disability. A criminal defendant must be restored to competency before the legal process can proceed. State mental hospitals have historically served as the primary source of competency restoration treatment for defendants.

An estimated 60,000 competency evaluations are performed across the United States each year with at least one-fifth of these defendants being adjudicated incompetent.⁵ This volume of incompetent defendants occupies a substantial portion of state hospital beds, contributing to an increase in forensic admissions to state hospitals, which increased from 7.6% in 1983 to 36% in 2012.⁶ In a 2017 report from the National Association of State Mental Health Program Directors, a 76% increase in forensic patients in state hospitals occurred between 1999 and 2014.^{1 (p. 8)}

In California, state hospitals maintain about 6,200 beds, and more than 90% of these beds are occupied by individuals from the criminal justice system. Just a few decades ago, under 50% of patients in state hospitals had come from the criminal justice system. Despite California’s recent addition of 700 beds dedicated to competency restoration, still more than 20% of beds occupied by forensic patients are filled with defendants found IST.^{2 (p. 3)}

Defendants in need of competency restoration services are often held in jail, awaiting admission to a state hospital. The resulting waitlists, which range from days to months, have led to states being held in contempt of court for violating limits placed on how long incompetent defendants can be held in jail. For example, the United States District Court of Washington case of Trueblood, et al. v. Washington State Department of Health and Human Services et al.⁷ (2015) found that it is a violation of due process for defendants adjudicated incompetent to be held in jail for longer than seven days awaiting competency restoration services. In California, a recent Superior Court order in the case of Stiavetti, et al. v. Ahlin, et al.⁸ (2016) imposed a 28-day limit to the time a defendant can await competency restoration services, and this trend in litigation can be seen throughout the United States as jails are filling with patients awaiting state hospital admissions.⁹ As such, alternatives to state hospitalization for IST patients have been developed, including community-based restoration programs, and jail-based competency (JBCT) restoration programs. JBCT programs provide restoration services in county jails, rather than in psychiatric hospitals. If JBCT treatment is successful, a defendant may bypass a stay at the state hospital, resulting in an expedited resolution of the legal proceedings.