Katherine Warburton , Barbara E. McDermott , Anthony Gale , and Stephen M. Stahl
Recent information indicates that the number of forensic patients in state hospitals has been increasing, largely driven by an increase in patients referred as incompetent to stand trial (IST).1,2 The surge in referrals for the evaluation and restoration of patients found IST is taxing state hospital systems, as well as the jails that must care for these patients when state hospitals are unable to accommodate the increased referrals.3,4 Many state mental health authorities are facing litigation pressure to admit IST patients more quickly, raising concerns about overcrowding and reinstitutionalization. Little is known about these national trends of increasing IST populations, and even less is known about what is driving them. This survey was intended to broaden the understanding of IST population trends on a national level.
In 1960, the United States Supreme Court articulated the standard for competence to stand trial, requiring that individuals facing criminal prosecution possess the ability to rationally consult with their attorney and possess a rational and factual understanding of the legal proceedings.5 Research after this landmark ruling has shown that the majority of defendants deemed IST are suffering from a psychotic disorder.6–10
During the same time period, the United States instituted what has been termed “one of the most well-meaning but poorly planned social changes ever carried out in the United States”:11 the closing of long-term psychiatric hospitals. Since that time, numerous scholars have forecasted that these closures would ultimately lead to the seriously mentally ill receiving services in the criminal justice system.12,13 Recent reports suggest these predictions were accurate: many individuals with serious mental disorders are now receiving mental health treatment via the criminal justice system, not in the community as originally intended.11,12,14 A poignant example of this is the commonly cited statistic that Cook County, Los Angeles County, and New York City jails are the largest mental health treatment facilities in the United States.15 This is supported by recent research that documents that an individual with a serious mental disorder is three times more likely to receive psychiatric treatment in the criminal justice system than the mental health system.11
More recent data suggest that individuals receiving mental health treatment via forensic hospital systems have been increasing nationally. A 2014 survey of officials responsible for forensic services revealed that 90% of responding states experienced an increased demand for these beds.1 In 78% of respondents, the increased demand resulted in waitlists to admit patients. Half reported a threat or finding of contempt of court for inability to admit patients in a timely manner. Although this 2014 survey confirmed anecdotal reports and indirect data about increasing forensic admissions, it did not specifically address increases in IST patients within the larger forensic population. Recently, national data have emerged confirming that the number of forensic patients in state hospitals from 1999 to 2016 has increased by 76%, and IST patients are largely responsible for this trend.2
Numerous reports have shown that states are struggling to manage the ever-increasing numbers of referrals for competency evaluations and subsequent commitments for restoration. For example, the state of Washington experienced an 82% increase in referrals for competency evaluations between the years 2000 and 2011, and faced litigation because of the increased demand.16 In Colorado, requests for competency evaluations increased 524% from 2000 to 2017; corresponding requests for restoration increased 931% in the same time frame.17 In California, defendants judicially determined to be IST have been increasing at an alarming rate. In Los Angeles alone, the County Health Services Agency reported a 350% increase from 2010 to 2015 in IST cases referred by the criminal courts.18,19
The decades-long trend of increasing forensic hospitalization and/or incarceration of individuals with serious mental illness has been well studied, and while often attributed to the unintended impacts of deinstitutionalization,14,20,21 the more recent surge in referrals has not been fully explained. There are many potential explanations for the observed increases such as decreasing access to treatment for mental illness and substance use in the community11,20,22 and decreasing access to inpatient psychiatric beds.11,23 Others have postulated that the increased popularity of specialty courts, such as mental health and drug courts, contributes to an increase in competence referrals for defendants who are unable to comply with the guidelines ordered by these courts due to their serious mental illness.24 Finally, the Director of Community Health and Integrated Programs at the Los Angeles County Department of Health Services suggested that multiple issues have led to increased competency referrals such as increasing awareness of mental illness in the criminal justice system and the complex relationship between homelessness, methamphetamine use, and psychotic symptoms.18
Beyond hypotheses, there is little in the way of consensus or data about the proximal causes of the new IST crisis. Without fully understanding the potential reasons for this increase, the criminalization of individuals with serious mental illness will continue. Although multiple suggestions have been discussed for improving the competency evaluation and restoration system (see for example, Gowensmith’s review19), the fact remains that in order to address this problem and craft a solution, the underlying cause or causes must be clarified and identified. This survey was designed to achieve two goals. First, we sought to confirm anecdotal reports of recent nationwide increases in competency evaluations and commitments. Second, and more importantly, this survey was designed to gather opinions as to the potential causes of the increases and to ascertain if there were commonalties between jurisdictions. Effective interventions to reverse the criminalization of mental illness depend on a full understanding of the forces that drive this trend.