COVID’s Impact on Competency Restoration

Written by: Alondra Alamillo

What does it mean to be competent to stand trial?

In the U.S., competency to stand trial (CTS) is a fair requirement that all individuals going through the criminal justice system must meet in order to be deemed capable of navigating criminal proceedings and participating in their defense. However this was not always the case, as it was until the 1960 Dusky v. United States Supreme Court ruling that the right to a competency evaluation was finally asserted. Although it varies by jurisdiction, this precedent led to a generally agreed upon definition of competency across the states: that the defendant must not only understand their charges, but also be able to consult with their attorney (Roesch et al., n.d.). To accurately fulfill this requirement, both the prosecutor and the defense can submit a request to the court asking for a mental health evaluation of the defendants’ competency to be completed on behalf of the court. This evaluation referral occurs after the individual has already been arrested and thus is awaiting trial. The judge then uses the forensic evaluator’s evaluation to come to a legal determination of the next steps for the defendant.

If the defendant is found to be competent, then they may proceed with criminal adjudication. However, if the defendant is found to be incompetent, then the defendant must receive competency restoration services until they’ve improved enough to be considered competent to move forward with their proceedings (Murrie et al., 2023). These restoration services for those found incompetent to stand trial (IST), though court ordered, do aim to deliver psychiatric treatment to individuals with mental illness just enough so they may proceed fairly within the criminal justice system. 

How is Pleading Insanity Different?

It is important to note that CTS should not be confused with a relevant but different legal term, Not Guilty by Reason of Insanity (NGRI). At times when seen in the media, these two can be misunderstood as synonyms since both evaluate the defendant’s mental state. However, CTS and NGRI differ in four significant ways: the manner in which each is introduced in court, who introduces it, who decides if it is a valid claim, and the evaluation process (RCW, 2024). 

When a CTS issue is raised, it may be introduced by either the prosecutor or defense as it is crucial that the defendant is competent during their criminal proceedings to ensure fairness. On the other hand, only the defense may introduce pleas of NGRI since they are proposing that the defendant cannot be found guilty if, at the time of the crime, they were legally “insane”. Assessing if the defendant was incapable of having the intention of committing the crime, and thus is not guilty, is much more difficult to determine compared to evaluating the defendants’ present competency. This means that mental illness alone is not enough to prove NGRI, since “insanity” must negate guilt (RCW, 2024). Additionally, competency status, although evaluated by a forensic mental health evaluator, is determined by the judge in the end. When presenting an insanity plea under NGRI, the jury decides instead based on the evaluator’s opinion. Finally, compared to individuals found to be IST being placed in court-ordered restoration as a result, individuals found to be NGRI are essentially serving their sentence in a psychiatric hospital.

Court-Ordered Restoration

Individuals found to be incompetent to stand trial (IST) must be placed in competency restoration treatment before returning to court. As the number of people referred for a competency evaluation is increasing, not only has the demand for evaluators increased, but so has the demand for spaces that deliver treatment. The demand for evaluations and restoration can create enormous setbacks in the system and cause further harm to individuals who are IST the longer they have to wait. According to Kois et al. (2024) study, the current number of annual evaluations conducted in only 18 out of the 50 states is about 140,000 compared to 60,000 evaluations in the 2000s. Though there is a significant gap in the amount of states that collect information about their competency evaluations, this does demonstrate tremendous growth. Much of this earlier growth can be attributed to deinstitutionalization, which was the transition from mass hospitalization to more community focused care (Kois et al., 2024). When it comes to restoration treatment, it is extremely crucial that the defendant is moved as quickly as possible from a detained setting to a treatment setting. However, due to how high the demand is, this is not realistic, especially given the first come first serve basis system by which treatment is delivered after someone is deemed unfit to stand trial. 

Overall, not much attention has been placed in evaluating how states are managing the competency crisis in comparison to other states. However, the study Murrie et al. 2023 conducted examining Colorado’s current attempt to deliver defendants with the most illness with more immediate help rather than those who are less acutely ill has been a recorded system. Again, due to the oversaturation and demand with impatient services, there has been a more recent push towards outpatient or even jail-based programs. 

COVID’s Impact on Evaluations

Video conferencing (VC) as a tool for evaluating competency is another strategy explored particularly in Colorado by looking at the role it had during COVID-19. According to Torres et al. (2021), with making the necessary switch from in-person evaluations to virtual ones, some of the biggest concerns included understanding how VC impacted defendants, especially when it came to confidentiality and privacy. As opposed to regular evaluations, defendants now possibly ran the risk of unauthorized people joining into a private Zoom room and this raised significant ethical concerns regarding the responsibility the government and mental health professionals have in ensuring confidentiality (Torres et al., 2021). Furthermore, for defendants in custody awaiting an evaluation, resources that could be used to actually conduct VC’s were very limited. Many scheduling challenges arose as limited private rooms were available for defendants to meet with their health care providers once assigned treatment as well. 

With data on competence already being scarce and the gap in literature, more studies are needed to fully understand COVID’s impact on restoration and evaluations across the nation. Studies analyzing alternative treatment options other than inpatient services do acknowledge the impact that the pandemic had on the already long waitlists with reducing the capacity these treatment centers had to offer to begin with (Murrie et al., 2023). More research exploring how evaluators are currently working toward providing more outpatient treatment options in their recommendations could play a role in helping reduce these waiting times as well. More resources allocated toward restoration services are needed to help reduce the harm of this crisis.

References 

Clker-Free-Vector-Images. (2014, August 3). Download Hammer, Auction, Authority. Royalty-Free Vector Graphic. Pixabay. https://pixabay.com/vectors/hammer-auction-authority-attorney-311342/

Murrie, D. C., Gowensmith, W. N., Kois, L. E., & Packer, I. K. (2023). Evaluations of competence to stand trial are evolving amid a national “competency crisis.” Behavioral Sciences & the Law, 41(5), 310–325. https://doi.org/10.1002/bsl.2620

RCW 10.77.060: Plea of not guilty due to insanity—Doubt as to competency—Evaluation—Bail—Report—Competency to stand trial status check. (n.d.). https://app.leg.wa.gov/rcw/default.aspx?cite=10.77.060

Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. L. (n.d.). DEFINING AND ASSESSING COMPETENCY TO STAND TRIAL. https://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/Defining_and_Assessing_Competency_to_Stand_Trial.pdf

Torres, L., Gliser, C. P., Formon, D. L., Hashimoto, N., & Gray, B. T. (2021). Forensic assessment in the time of COVID-19: The Colorado experience in developing videoconferencing for evaluating adjudicative competency. Psychology, Public Policy, and Law, 27(4), 522–536. https://doi.org/10.1037/law0000320