Competence to Stand Trial: Restoration Services

by

Cassidy S. White, Lauren E. Kois, Daniel Murrie

• LAST REVIEWED: 25 September 2023
• LAST MODIFIED: 25 September 2023
• DOI: 10.1093/obo/9780199828340-0321

Introduction

The US Supreme Court has ruled that the Constitution requires criminal defendants be competent to stand trial, that is, be able to meaningfully understand legal proceedings and the charges against them, and be able to assist counsel. So, when mental illness or cognitive deficits render a defendant incompetent, the defendant is usually court ordered to competence-restoration services. Historically, such services were available only in psychiatric hospitals, where defendants received medication and other typical inpatient treatment, perhaps supplemented with some education on legal proceedings. A few studies have examined these services, or examined special strategies for certain barriers to competence (e.g., cognitive deficits), but rigorous research has been sparse, historically. Indeed, although restoration services are commonplace, they have been poorly studied and the field has little data, or well-established best practices, guiding competence restoration services. In recent decades, the demand for competence restoration services has increased dramatically; courts have ordered far more defendants to competence evaluations and then into restoration services. However, inpatient psychiatric hospitals do not have the capacity to promptly admit and treat these defendants with serious mental illness, creating a public health challenge labeled, “the competency crisis.” In this challenging era, state systems have begun to explore alternative sites and strategies to address restoration. Increasingly, certain defendants are released from jail and ordered to outpatient restoration services in their community, while others receive services in jail-based restoration. Authorities emphasize the need for a restoration continuum of care, recognizing that many defendants can successfully complete treatment in these alternative sites, while a minority will still require the traditional model of inpatient restoration in a psychiatric hospital. Finally, authorities are recognizing that many defendants—those facing minor charges that are primarily attributable to their psychiatric symptoms—can be diverted from the competency system entirely through strategic diversion programs.

General Overviews

The US Supreme Court’s 1960 decision in Dusky v. United States set the standard for competence, requiring that criminal defendants understand legal proceedings, and the charges against them, in a rational and factual manner, and be able to assist counsel. Their subsequent 1972 decision in Jackson v. Indiana set limits on restoration efforts, when they ruled that incompetent defendants cannot be committed for more than a “reasonable period of time necessary” to determine whether defendants found incompetent can be restored to competence. Finally, Sell v. US 2003 established when defendants can be medicated over their objection, for the purpose of restoration. The broad legal framework, and the practice guidelines, surrounding competence evaluation and restoration is summarized in Murrie and Zelle 2015. Despite the field’s research and practice guidance around competence evaluation, scholars, in works such as Zapf and Roesch 2011, have noted that competence restoration services are not well researched or well developed. Pirelli and Zapf 2020, an attempted meta-analysis, revealed that most (81 percent overall) defendants found incompetent are restored to competence, but revealed little detail about the programs that lead to restoration. Indeed, Gowensmith 2019 warns that inadequate knowledge and services around competence restoration, amid drastically increasing demand for those services (consider data from Torrey, et al. 2010), has created a “competency crisis” that will require new approaches to restoration. Heilbrun, et al. 2019 notes the same contemporary challenges to restoration services and proposes two decision trees for guiding competence restoration policy and practice. Similarly, Danzer, et al. 2019 discusses competence restoration efforts in inpatient, jail, and community settings, describing the types of defendants who may be appropriate for each.

• Danzer, G. S., E. Wheeler, A. A. Alexander, and T. D. Wasser. 2019. Competency restoration for adult defendants in different treatment environments. Journal of the American Academy of Psychiatry and the Law 47.1: 1–19.

  DOI: 10.29158/JAAPL.003819-19

  The authors reviewed advantages and disadvantages of conducting competence restoration in inpatient, jail, and community settings. They describe defendant characteristics that may be more appropriate to manage in one setting versus another. For example, inpatient restoration might best be utilized for defendants with violent charges, psychotic disorders, medication nonadherence, and marked cognitive impairment.

• Dusky v. United States, 362 U.S. 402 (1960).

  Dusky v. United States is a landmark US Supreme Court ruling that set the minimum federal standard for competence to stand trial. The court ruled that to uphold defendants’ rights to due process, defendants must demonstrate sufficient ability to consult with counsel and demonstrate rational and factual understanding of the proceedings against them.

• Gowensmith, W. N. 2019. Resolution or resignation: The role of forensic mental health professionals amidst the competency services crisis. Psychology, Public Policy, and Law 25.1: 1–14.

  DOI: 10.1037/law0000190

  Comprehensive review of the possible antecedents, consequences, and solutions of the competence crisis. Antecedents include inadequate and limited community behavioral health services and judges’ and attorneys’ increased understanding of competence-related issues. Consequences include long waits for services, harm to defendants, and financial costs. Proposed solutions include the use of competence screens and triage systems, improving the competence service workforce, and implementing outpatient restoration and diversion programs.

• Heilbrun, K., C. Giallella, H. J. Wright, et al. 2019. Treatment for restoration of competence to stand trial: Critical analysis and policy recommendations. Psychology, Public Policy, and Law 25.4: 266–283.

  DOI: 10.1037/law0000210

  The authors propose two decision trees for guiding competence restoration policy and practice. A system-level tree focuses on the current waitlist for defendants awaiting restoration services to determine if the system could be approaching an overload. The second decision tree focuses on defendant factors that can guide competence restoration at the individual level.

• Jackson v. Indiana, 406 U.S. 715 (1972).

  In this landmark case, the US Supreme Court ruled that incompetent defendants cannot be committed for more than a “reasonable period of time necessary” to determine whether the defendant can be restored to competence. If the defendant is found unrestorable, civil commitment procedures should take place.

• Murrie, D. C., and H. Zelle. 2015. Criminal competencies. In The APA handbook of forensic psychology. Edited by B. Cutler and P. Zapf, 115–158. Washington, DC: American Psychological Association.

  The authors provide a comprehensive review of psychological theory and principles of criminal competencies. One section reviews common competence restoration practices and procedures.

• Pirelli, G., and P. A. Zapf. 2020. An attempted meta-analysis of the competency restoration research: Important findings for future directions. Journal of Forensic Psychology Research and Practice 20.2: 134–162.

  DOI: 10.1080/24732850.2020.1714398

  This meta-analysis aimed to examine and synthesize competence restoration data, but demonstrated that current restoration literature was not sufficient for completing a meta-analysis. Findings indicated an 81 percent restorability base rate and mean length of restoration ranging from 147 to 175 days. This paper underscored that researchers rarely specify or even report a study’s restoration procedures.

• Sell v. United States, 539 U.S. 166 (2003).

  This landmark US Supreme Court case determined the conditions in which an incompetent, psychotic defendant may be medicated over objection. Necessary conditions are that the treatment is medically appropriate, its side effects will not impact trial fairness, less intrusive interventions have been attempted but were found to be unfruitful, and the government has significant interest in pursuing the defendant’s case.

• Torrey, E. F., A. D. Kennard, D. Eslinger, R. Lamb, and J. Pavle. 2010. More mentally ill persons are in jails and prisons than hospitals: A survey of the states. Arlington, VA: Treatment Advocacy Center.

  This report highlights the availability, or lack thereof of inpatient beds available in the United States despite the growing number of competence evaluations. Within the last fifty to seventy-five years, the number of inpatient beds available decreased significantly from around 500,000 to fewer than 40,000, leaving far less capacity for inpatient restoration.

• Zapf, P. A., and R. Roesch. 2011. Future directions in the restoration of competency to stand trial. Current Directions in Psychological Science 20.1: 43–47.

  DOI: 10.1177/0963721410396798

  This is a key paper that paved the way for outlining future directions of restoration services. It encouraged the field to shift focus from competence evaluation to competence restoration. The authors proposed restorability and competence-focused interventions as areas warranting further study.