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.
A Longitudinal Description of Incompetent to Stand Trial Admissions to a State Hospital
Barbara E. McDermott, Katherine Warburton, and Chloe Auletta-Young
According to the US Supreme Court, all individuals charged with a crime must be competent to stand trial (CST). As defined in Dusky v. US,1 competency requires that defendants have the ability to consult with their attorney with a reasonable degree of rationality and possess a rational as well as factual understanding of the legal proceedings. The precise number of CST evaluations conducted each year is unknown. The oft-reported figure of 60,000 provided by Bonnie and Grisso2 is an estimate based on the number of felony indictments coupled with the estimated percentage of referrals for competency evaluations made by the courts in the 1990s. Later work has suggested a much higher number.3 Using a similar method, Vitacco and colleagues examined surveys indicating the frequency with which the issue of competency is raised by defense attorneys4 and arrest rates at the time of publishing. They deduced that a conservative estimate of the quantity of evaluations could be 700,000 annually.3
Consistent with Vitacco’s estimates, reports suggest that the number of referrals for competency evaluations and subsequent restoration services are increasing nationally. The state of Washington experienced an 82% increase in referrals for competency evaluations between the years 2000 and 2011.5 In Colorado, requests for competency evaluations increased 524% from 2000 to 2017; corresponding requests for restoration increased 931% in the same time frame.6 Los Angeles County experienced an increase of 273% in competency referrals for misdemeanant offenders from 2010 to 2015.7,8 In Michigan, the number of evaluations rose from 3,000 in 2010 to 4,500 in 2016.9 In Metro Detroit alone, the number of evaluations ordered increased 20% from 2012 to 2016.10 In California, referrals to the Department of State Hospital (DSH) system for competency restoration almost doubled from fiscal year 2013/2014 to 2015/2016.11
As the number of referrals and evaluations increase, so does the corresponding number of defendants determined to be incompetent. Research consistently suggests that between 25% and 30% of defendants referred for CST evaluations are adjudicated incompetent.8,12 McDermott and colleagues estimated that this would translate to a range of 15,000–30,000 defendants found incompetent every year, with substantially more if the figures of evaluation referrals from Vitacco et al. are accurate.3,13 In many jurisdictions, competency restoration occurs on an inpatient basis in state psychiatric hospitals8 and evidence suggests that patients admitted as incompetent to stand trial (IST) comprise the largest proportion of forensic patients in hospitals throughout the nation.14,15 According to recent reports, over 50% of the total patients in the California DSH were IST as of February 2016.16
There are many potential explanations for these observed increases, such as decreasing access to treatment for both mental illness and substance use in the community17–19 and decreasing availability of inpatient psychiatric beds.17 For example, Los Angeles has experienced a 30% decrease in the number of inpatient psychiatric beds from 1995 to 2010.7 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 stipulated by these courts because of their serious mental illness.20 Some have suggested a more complex series of events as an explanation for the increasing numbers of IST commitments. The Director of Community Health and Integrated Programs at the Los Angeles County Department of Health Services was cited as believing that his city’s rise in competency referrals is due to the combination of homelessness, increasing awareness of mental illness in the criminal justice system, and increasing methamphetamine use.21
An alternative explanation for the increase in IST referrals is the frequency of malingering of psychiatric or cognitive symptoms among defendants coupled with the relative infrequency of court-appointed evaluators to systematically assessing feigning.13 Rates of malingering on competency evaluations have been estimated to be as high as 21%.22 In a study reviewing 464 competency reports, only 194 (41.8%) of evaluators considered the legitimacy of the reported symptoms and of those, only 69 (14.9%) employed a structured assessment of feigning.23 It follows that if referrals for evaluations are increasing, but evaluators are not assessing for possible malingering, there could be an increase in patients erroneously ruled incompetent.
Regardless of the source, it is clear that referrals for both competency evaluations and restoration services are increasing nationally. Although alternatives to inpatient psychiatric treatment for restoration recently have been suggested or implemented,8 with no adequate explanation for the observed increases that might suggest a reasonable solution, this trend is likely to continue.
In studies of IST populations, there is a distinction between individuals referred for competency evaluations versus individuals on whom competency decisions have been made after evaluation. Although not specifically designed to understand the reasons for rises in IST referrals, both for evaluation and restoration, sociodemographic data, such as age, gender, and race, are frequently gathered to better understand the IST population. For example, research has shown that defendants found IST tend to be older than competent defendants.12,24–27 However, among an all-female sample studied by Kois and colleagues, age was not a significant characteristic in predicting competency,28 suggesting that women may have unique characteristics in the criminal justice system. Study samples of patients referred for competency restoration indicate that most are male.24,26,27 However, although men are more frequently evaluated for competency, not surprising given the higher numbers of men arrested, studies have found that males and females are equally likely to be ruled incompetent in the US.12
In terms of race and ethnicity, research has shown that the over-representation of people of color in the criminal justice system may be mirrored in the forensic psychiatric system for competency restoration.29 Research has shown that African Americans are more often referred for competency evaluations.24,26,28,29 This discrepancy continues even after the competency decision is made. Pirelli and colleagues demonstrated that, in 22 studies that presented ethnicity data, minority defendants were 1.5 times more likely to be found incompetent than white defendants.12 One contributing factor could be the higher likelihood of a diagnosis of a psychotic or mood disorder among African Americans and Hispanics respectively.30,31
In regards to symptomatology, defendants found incompetent are more likely to be diagnosed with a psychotic disorder or evidence symptoms of psychosis than competent defendants or those not referred for an evaluation.12,24,26,32,33 Cognitive disabilities also are closely related to incompetency.16,27,34 Diagnoses, therefore, can confound other variables associated with incompetency. Among the elderly community, the correlation between an older age and decreased competency to stand trial could be explained by a greater prevalence of cognitive disorders.25,35 Defendants with personality disorders and/or substance use disorder diagnoses are less likely to be found IST.24,26,32 Viljoen and Zapf32 found that defendants referred for competency evaluations were less likely to have a primary substance abuse disorder and less likely to meet the criteria for antisocial personality disorder compared to those not referred, a result consistent with other research.24,26
Other well-studied variables among the IST population are restorability and length of stay, both related to the nature of the mental disorder. A patient’s diagnosis, or how symptomatic the patient is, can determine if they are successfully restored and how long that process takes.33 Research has shown that cognitive disability and psychotic symptomology are not just associated with findings of incompetency, but also with restorability and a prolonged length of stay.36–39 Using records from 351 inpatient pre-trial defendants who underwent competence restoration at a state psychiatric hospital from 1995 through 1999, patients with prolonged psychotic disorders and irremediable cognitive disorders were less likely to be restored.36 Similarly, Morris and DeYoung39 found that among 455 male defendants admitted to a forensic treatment center for competency restoration, psychotic disorders and cognitive disability predicted unsuccessful restoration within three months of treatment. They also demonstrated that diagnoses of personality disorders and substance use might represent a higher likelihood of competence, as they were predictive of successful restoration. Anderson and Hewitt40 found that both higher intelligence and being African American was predictive of restoration. Others have found no major difference in populations of patients who have been restored versus those who have not.41
Criminogenic factors also have been studied with respect to competency to stand trial, although research suggests this is closely intertwined with other variables, such as diagnosis. Previous work has demonstrated that violent crimes are more often associated with competency, while nonviolent offenses are associated with incompetency.24,26,42,43 In contrast, Cochrane and colleagues found that violent charges were associated with high rates of incompetency findings.34 However, when the authors controlled for diagnosis, the significance of the relationship disappeared. Kois and colleagues initially found that although nonfelony charges were more likely associated with incompetency, active psychotic symptoms were more predictive.28 Similarly, Viljoen and Zapf reported no difference in charging offense between defendants referred for an evaluation and those not referred for an evaluation.32 In contrast, Pirelli and colleagues, when evaluating rulings of competency, found that among the studies that discussed current criminal charges, defendants with a violent charge were more likely to be found competent.12
Regardless of the characteristics of the defendants found IST, the increasing numbers of these types of admissions is real and the impact has been detrimental. Patients in need of treatment can wait in jail for weeks for admission to a hospital.8 Moreover, over-crowded forensic psychiatric institutions can risk staff safety and patient wellbeing. To better understand this growing population and to inform hospital administration, the University of California Davis, in partnership with the Department of State Hospitals’ (DSH) facility in Napa (DSH-Napa) implemented a triage screening procedure for individuals admitted for restoration to competence. This study utilizes archival clinical data from these screenings for IST patients admitted from 2009 to 2016. In addition to describing the sociodemographic, psychiatric, and criminal variables and the inter-relationship between these factors, we examined changes over time to assess if any demographic or clinical factors were related to the observed increase in these types of commitments.