Expanding Jail-Based Competency Restoration Takes Us Farther Off Course

In 2016, an estimated 90,000 US jail inmates nationwide were “pretrial defendants with serious mental illness who had been found incompetent to stand trial (IST).” In fact, in almost every state, jails hold more people with mental health conditions than state hospitals do. By remaining slow to understand mental health, by chronically underfunding community mental health facilities, and by discriminating against people who show signs of mental illness, most communities in the US have created a system in which many people who need mental health services don’t receive them. When a crisis occurs, loved ones can usually only think to dial 911, which invariably brings the police to the door. The police place people under arrest and take them to jail, where health goes from bad to worse.

It is well-established in federal and state law, that criminal defendants must be competent before a criminal case against them may proceed.  Competency to proceed is a central element of a defendant’s right to a fair and speedy trial under the 6th and 14th Amendments to the U.S. Constitution.  In Drope v. Missouri, the U.S. Supreme Court stated, “It has been long accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”  As a consequence, when either party, or the court, has reason to believe that a defendant lacks the capacity to understand the proceedings against him or her or to assist meaningfully in his or her defense, the court must suspend further criminal proceedings until the defendant’s competency to stand trial has been determined.  If the defendant is found competent to stand trial, criminal proceedings may resume.  If a defendant is found incompetent to stand trial, the court may order that the defendant receive such services or treatment as is necessary to restore him or her to competency.

The practice of competency restoration has contributed substantially to the logjam in the judicial process, and to the size and cost of our jail populations. State psychiatric hospitals do not have enough capacity to keep up with the judicial demand for restorations. People who need health care are held in jails for lengthy periods of time, awaiting access to those hospitals for restoration, even when they have been arrested for low level offenses and they pose no risk to public safety.

Because the demand for access to the state mental hospital for pretrial competency restorations greatly exceeds the hospital space available for these purposes, Colorado, where Equitas is based, and a number of other states have begun to experiment with programs to restore mentally ill defendants to competency while they are in jail.

Even when undertaken in an appropriate therapeutic environment, competency restoration is not about providing health care that is focused on the wellbeing of the patient. Instead, competency restoration primarily serves the purposes of the judicial system and, according to Frankie Berger of the Treatment Advocacy Center, often includes the forced administration of medication without the other necessary supports and therapies typically provided in a hospital setting. Being held in distinctly non-therapeutic jail cells causes an already ill inmate’s mental health condition to deteriorate further, and they run an elevated risk of being victimized or committing suicide.

Rather than investing in the expansion of ethically questionable jail-based competency restorations, communities should stay focused on fighting discrimination and expanding access to quality mental health care, including compassionate and compulsory outpatient treatment in some patients whose insight into their health needs is limited by their condition (anosognosia).

We should reduce the number of people with mental illness in jail by diverting them toward treatment before arrest, or at least before a prosecutor files charges. An estimated 1 in 5 defendants awaiting competency restoration in jails are there for low-level misdemeanors or even more petty offenses (such as creating a public nuisance, or stealing a soft drink). These people pose little or no threat to public safety. What they need is health care, which should be provided in the community, not the punishment and isolation for which jails are designed and staffed.

When law enforcement and prosecutors fail to perceive the primacy of health needs and proceed to file low-level charges, judges should be encouraged to dismiss those charges in favor of diverting people whose mental health needs are great toward health care. One way of incentivizing judges to divert low-level offenders toward community-based health care would be to make judicial districts accountable for the cost of the competency restoration process.

The daily rate for inpatient forensic services in Colorado is $686, which amounts to $62,000 for a 90-day stay. Spending $62,000 on a 90-day competency restoration process, for an unwell person who has been charged with a minor transgression of the law is scandalous, especially when taxpayers already support Medicaid to cover the cost of care provided in the community. If judges and judicial districts were accountable for this kind of spending, we might see rapid reductions in the number of mentally ill people being held in jails.

As for those cases in which more serious charges must be faced by someone who is ill, states should invest in expanding the availability of community-based or outpatient restoration for those who pose little risk to public safety, and in expanding the number of psychiatric beds available in state hospitals when higher risk demands inpatient restoration.

Jails are not health care facilities. Not for heart disease, not for cancer, and not for mental health. The consequence of our national confusion about this is that we are not steering toward health or justice, or sound fiscal policy. Expanding capacity for jail-based competency restoration only takes us farther off course.

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