A Typology of Defendants Found Incompetent

A Typology of Defendants Found Incompetent

Forensic evaluators and judges should recognize the decreased probability of restoration among older adults with neurocognitive disorders to ensure that alternative dispositions are considered when appropriate. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.


Featured Article| Law and Human Behavior | 2020, Vol. 44, No. 6, 449-460

Development and Validation of a Typology of Criminal Defendants Admitted for Inpatient Competency Restoration: A Latent Class Analysis


Aaron J. Kivisto, University of Indianapolis
Megan L. Porter Staats, University of Indianapolis
Robert Connell, Montana VA Healthcare System


Objective: To develop a typology of criminal defendants found incompetent to stand trial using data-driven classification techniques and validate it against forensically relevant outcomes. Hypotheses: We hypothesized that discrete groups of defendants determined to be incompetent exist that can be identified in the structure of observed clinical, demographic, and criminological data. We also expected that class membership would be differentially associated with competency restoration. Method: We coded hospital records for 492 consecutive male criminal defendants committed to a secure hospital for competency restoration between 2013 and 2017 (mean [M] age = 38.7 years, standard deviation [SD] = 14.2; 61.0% White, 34.2% Black, 2.6% Hispanic, 2.2% “Other”). Clinical, demographic, and criminological data were analyzed using latent class analysis. Validation analyses modeled competency resto- ration outcomes as a function of class membership. Results: An 8-class solution best fit the data and included 3 discrete classes of patients with psychotic disorders (Class 2, n = 74; Class 3, n = 78; Class 6, n = 68), as well as classes characterized by intellectual limitations without comorbid psychosis (Class 4, n = 54), comorbid psychosis and intellectual limitations (Class 1, n = 41), mood disorders (Class 5, n = 80), older adults with neurocognitive disorders (Class 8, n = 59), and chronic instability (Class 7, n = 38). The restoration rate in the overall sample was 87.8%, and Classes 1–7 showed restoration rates similar to the overall sample, ranging from 82.9% to 100%. The restoration rate of Class 8 was 66.1%, and this was the only class to show significantly lower odds (odds ratio [OR] = 0.181, 95% confidence interval [CI: 0.093, 0.353], p < .001) and hazards (hazard ratio [HR] = 0.511, 95% CI [0.361, 0.724], p < .001) of restoration. Conclusion: Older adults with neurocognitive disorders admitted for competency restoration are at increased risk of failed restoration.


competency restoration, Jackson v. Indiana, forensic typology, predicting restoration

Summary of the Research

“Criminal defendants who are unable to understand and appreciate the basic contours of their legal case or to assist counsel in their defense are afforded constitutional protections that guide legal decision making throughout the competency process. These protections begin with the proper identification of defendants who are incompetent to stand trial and culminate with adjudicative limits on states’ responses to defendants determined to be incompetent to proceed. Although these protections were established approximately half a century ago, considerable variability exists in the degree to which legislatures and courts have implemented these related statutory protections, depending on where defendants are in the incompetency identification and restoration process (p. 449-450).”

In Jackson v. Indiana (1972), “[t]he Supreme Court ruled that individuals can only be held in treatment long enough to restore their competency and only if they can be restored in a reasonable amount of time. In cases where individuals are deemed unlikely to be restored within a reasonable amount of time, they must be released or go through the process of civil commitment” (p. 450).

“Jackson also presented unique challenges for forensic evaluators in requiring that criminal defendants found incompetent ‘cannot be held more than the reasonable period of time necessary to determine if there is a substantial probability that he will attain that capacity in the foreseeable future.’ Thus, beyond evaluating defendants’ present capacities, courts also look to evaluators to inform considerations of incompetent defendants’ future likelihood and estimated timeline of restoration. Guideline 2.05 of the Specialty Guidelines for Forensic Psychology (SGFP) states, ‘Forensic practitioners seek to provide opinions and testimony that are sufficiently based upon adequate scientific foundation, and reliable and valid principles and methods that have been applied appropriately to the facts of the case.’ In order to provide evidence-based predictions consistent with SGFP guidelines, evaluators therefore require a statistical foundation that offers guidance regarding typical restoration rates among defendants deemed incompetent as well as evidence-based indicators associated with decreased probabilities of restoration success. The current evidence provides evaluators with a variety of demographic, criminal, and psychiatric variables predictive of a decreased likelihood of restoration, re- viewed herein, with some research suggesting that psychiatric variables perform better than demographic or criminal data. However, relatively little research exists to guide evaluators’ understanding of how these identified risk factors tend to co-occur and the restoration outcomes associated with these combinations. The identification of subtypes of defendants found incompetent and the restoration rates and timelines observed among these groups would provide evaluators tasked with predicting restoration success with an empirical foundation to support their testimony” (p. 450).

“Although a substantial majority of defendants found incompetent will be restored, the accurate identification of those with a decreased probability of restoration is necessary for ensuring that the intent of Jackson V. Indiana (1972) is realized. This study built on the extant restoration literature, which has shown a range of clinical, demographic, and criminological factors to be associated with the probability of restoration success, and is the first to use these diverse indicators to develop a typology of criminal defendants deemed incompetent using data-driven classification techniques. Supporting past efforts to identify classes of patients admitted for competency restoration, which have identified patients with psychosis, chronic instability, ID, and cognitive impairment as particularly relevant subgroups within this population, the present study identified eight discrete classes. The results of [Latent Class Analysis] LCAs provide empirical support for the presence of these clinically distinct groups within a large sample of patients admitted for restoration. Expanding on prior research, models further identified a discrete class of patients with comorbid psychotic conditions and [intellectual disability/borderline intellectual functioning] ID/BIF, as well as a class characterized by mood disorders. Additionally, among patients with psychosis without comorbid ID/BIF, sufficient heterogeneity was found such that three distinct classes of patients with psychosis were identified in the data” (p. 457).

“Although further research is needed, the present study represents the first attempt to develop a typology of criminal defendants admitted for inpatient competency restoration using data-driven techniques that provides utility in identifying the minority of incompetent defendants at significantly increased risk of failed competency restoration. Among the classes of patients with psychotic or mood disorders, ID/BIF, or some combination of these diagnoses, who comprised a substantial majority of patients in the present study, restoration rates ranged from 82.9% to 100%. As a distinct class, older adults with cognitive disorders were shown to be at a significantly increased risk of failed restoration, with 66.1% restored at any point and only 62.7%. within the 180 days permitted under Indiana’s statutory interpretation of a reasonable period of time under Jackson v. Indiana (1972). Courts should recognize the increased likelihood that alternative dispositions might be required under Jackson for older adults with cognitive disorders” (p. 458-459).

“Given the heterogeneity across states’ statutory interpretations of what constitutes a ‘reasonable’ amount of time for restoration, the applicability of findings such as these might be relatively jurisdiction specific, as well as contingent on the current criminal charges. The results of the present study showed that in addition to the decreased cumulative odds of restoration over the study period for Class 8 [older adults with neurocognitive disorders], class membership in this group was also associated with a significantly lower rate of restoration. Although Group 8’s restoration rates diverged from the remaining groups at around 90 days, when initial competency evaluations were conducted, progress after 180 days was very minimal for the duration of patients’ first year of admission. These results show that continued incompetence after 180 days is suggestive of a substantial probability that patients will not be restored within one year. Although what constitutes a reasonable timeline for restoration is a legal determination, which in Indiana is operationalized as 180 days but differs across states, these results provide evaluators with an empirical foundation for testimony to inform courts’ decisions” (p. 457).

Translating Research into Practice

“Competency restoration programs typically treat mental disorders underlying incompetence as well as specific deficits in competency-related abilities. Although some aspects of competency restoration treatment will be applicable to patients across the different classes identified in the present study, the nature of the specific psycholegal deficits underlying patients’ incompetence is expected to differ across groups and to therefore require some tailored interventions that more specifically address their relatively unique needs. Using Martell’s (1992) two-pronged model of incompetence, which suggests that psycholegal deficits tend to be based either on interpersonal/behavioral or cognitive deficits, it is likely that that the classes characterized by psychotic and mood disorders in the present study would exhibit interpersonal/behavioral deficits, whereas those with IDs or neurocognitive disorders are expected to show particular psycholegal deficits related to understanding and reasoning with information regarding their legal proceedings. As a result, the role of the primary methods of treatment for competency restoration described by Heilbrun et al. (2019), which include medication, psychoeducation, individualized treatment, treatments specific to those with developmental disabilities, and cognitive remediation, would be expected to differ across the classes” (p. 457-458).

“The differential availability and effectiveness of pharmacological interventions for the psychiatric disorders characteristic of each group identified in this study might help explain the differential restoration rates observed across groups. For example, the high restoration rates observed in the present study for classes of patients with psychotic and mood disorders are likely supported by the efficacy of current antipsychotic and mood-stabilizing medications. By contrast, pharmacological interventions targeting cognitive symptoms of neurocognitive disorders are limited to medications that stabilize or slow the decline in cognitive functioning, rather than restoring cognitive functioning, which contributes to the unique challenges of restoration in this class of patients. Nonpharmacological treatments targeting this population have received support as improving cognition, showing effect sizes at least as large as pharmacological interventions. In a meta-analysis of 26 randomized controlled trials of cognitive remediation for individuals with schizophrenia, cognitive remediation was associated with significant improvements in cognitive performance, symptoms, and psycho-social functioning, with the largest effects observed in the domain of cognitive performance. Applying these interventions to patients admitted for inpatient competency restoration, a small randomized trial showed that cognitive remediation significantly improved patients’ reasoning abilities as assessed by the MacArthur Competency Assessment Tool–Criminal Adjudication. However, this intervention showed little effect in the domains of understanding and appreciation. Given the unique challenges of restoring competence among older adults with cognitive disorders, further research is warranted to further investigate nonpharmacological interventions as a component of competency restoration programming” (p. 458).

Other Interesting Tidbits for Researchers and Clinicians

“[F]urther research is needed to better understand the specific psycholegal capacities and deficits across the classes of defendants found incompetent identified in the present study. Although these findings can inform considerations regarding broad differences in competency outcomes across different types of defendants deemed incompetent, the binary outcome (e.g., competent or incompetent) obscures clinically relevant differences across groups in the specific types of competency deficits exhibited, and it is likely that the deficits observed among older adults with neurocognitive disorders are distinct from those of patients in other classes. Further understanding of these differences is important for developing individualized treatment plans for different types of patients receiving restoration services. Further, because psychotropic medication is one of the primary modalities of competency restoration, the absence of data on medication compliance in the present study is a limitation. Finally, the generalizability of the present findings to states with substantially different statutory timelines for restoration warrants consideration. Because Indiana law affords 180 days for restoration treatment prior to initiating regular commitment proceedings, the present data are limited in their ability to capture ongoing resto- ration progress beyond approximately 1 year” (p. 458).

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