A fair criminal trial is predicated on defendants having “a sufficient ability to rationally consult with [their] lawyer and a rational and factual understanding of the proceedings,” as established by Dusky v. United States (362 U.S. 402). In the 60 years since this ruling, issues related to adjudicative competence (more commonly known as competence to stand trial [CST]) have generated a national crisis to which states are responding through a variety of strategies. These strategies will be showcased over the coming months in Competence Corner, a new feature of this newsletter.
Overview
During a criminal trial, the defense counsel, prosecution, or court may raise concerns about CST when individuals exhibit signs or symptoms of conditions that can impair their ability to competently proceed. This may be due to serious mental illness, intellectual and developmental disabilities, or other conditions that can affect thinking and courtroom behavior.
In response to these concerns, the court typically orders a CST evaluation. The evaluation results in a determination that the individual is either competent to stand trial or not competent to stand trial (a state frequently referred to as incompetence to stand trial [IST]). Individuals with the latter designation whose competence is restorable (i.e., symptoms of their condition may decrease with treatment) are then ordered by the court to receive competence restoration (CR) services.
CR services involve treating underlying mental disorders (through assessment, medication when indicated, and psychosocial rehabilitation) and instructing recipients on legal concepts and details of the trial process. Such services may be provided in outpatient, hospital, or jail settings. In 1972, Jackson v. Indiana (406 U.S. 715) set limits on the length of time a defendant whose competence is deemed restorable can be held for CR. Later, Sell v. United States (539 U.S. 166) set conditions for forced medications to restore competence. Upon restoration of competence, individuals return to court for resolution of their case.
Challenges
The proportion of people with serious mental illness in contact with the criminal justice system is five times greater than in the general population. The need for CST evaluations is high: In the last 40 years, CST evaluations jumped 575 percent to approximately 130,000 per year. A definitive number is difficult to determine, but regardless of the estimate, the competence system is clearly overwhelmed, with more people being referred for evaluation and restoration than services available. Long waitlists result—for an evaluation, for an evaluation outcome, and for action on that outcome (see figure 1).
Figure 1 CST evaluation outcomes
“The challenges associated with CST and CR are numerous,” notes Lisa Callahan, PhD, senior research associate at Policy Research Associates and the GAINS Center. “They range from lack of standardization of clinical evaluations to scarce resources for mental health treatment, to inadequate data upon which to base policy and practice. But the particular challenge of excessively long waitlists prompted a hard look at the system. For someone who stole a cupcake to be detained in jail for a year waiting for CR services is unacceptable. This is an extreme example, but it actually happened.”
Forging Solutions
In 2018, the federal government prompted action with its completion of a report entitled Foundation Work for Exploring Incompetence to Stand Trial Evaluations and Competence Restoration for People with Serious Mental Illness/Serious Emotional Disturbance, which was updated in 2023 with current information on key trends, emerging issues, and innovations.
The original report served as the basis for the Competence to Stand Trial and Competence Restoration Learning Collaborative hosted by the GAINS Center from 2019 to 2022, which engaged teams from 14 jurisdictions in peer-to-peer learning with facilitation by nationally recognized subject-matter experts. As part of this work, the GAINS Center hosted a half-day virtual summit focused on CST/CR issues, which can be viewed on YouTube at “GAINS Summit: States Working on Competence to Stand Trial and Competence Restoration.”
In April 2023, the Competence to Stand Trial/Competence Restoration Policy Academy built on the learning collaborative work. A second policy academy, focusing on CR, occurred in June 2024. These policy academies allowed state teams to convene at an in-person meeting to connect with experts and learn about examples of best practices in improving the CST process. The state teams also created strategic action plans, requesting technical assistance to support the goals and objectives listed in their plans.
Shannon Bader, PhD, senior project associate, observes, “The nature of the technical assistance requests we’ve received over the last few years has shifted. In the beginning, jurisdictions focused on fine-tuning CST evaluations and increasing the number of inpatient hospital beds. Now, many are looking at intervening before individuals enter the criminal justice system. In the language of the Sequential Intercept Model, support should occur at the 0-1 intercepts, with mobile crisis outreach teams, emergency department diversion, and specialized police responses. Connecting people with mental health conditions to treatment, housing, and other community supports can prevent detention and court hearings—and the need for a CST evaluation—altogether.”
Sharing Success
As the Competence Corner series continues, it will describe a range of CR programs, as well as share accomplishments of and lessons learned by jurisdictions across the country that participated in the learning collaborative and policy academies.
For more information on the GAINS Center’s CR Learning Collaborative and policy academies, view Enhancing Mental Health and Competence Restoration with the GAINS Center (video length: 11:16).
For more information on CST, visit Policy Research Associates’ Competence to Stand Trial microsite.
For more information, contact GAINS Center staff.
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