Featured Article
Article Title
A Comprehensive Update and Evaluation of State and Federal Statutes on Competency to Stand Trial: Dusky, Jackson, Sell, and Olmstead Considerations
Authors
Brandon F. McCormick - Department of Psychology, Center for Youth Development and Intervention, The University of Alabama
Kaleigh Nance - Department of Psychology, University of Alabama
Karen Salekin - Department of Psychology, University of Alabama
Abstract
Competency to stand trial (CST) has become one of the most significant mental health issues facing the criminal justice system. What has been dubbed the “competency crisis” has been attributed to the ever-increasing referrals, rising costs, and limited availability for inpatient restoration. Concerns regarding criminal competencies have reached the highest branch of the judiciary, and each time, the Court opined that decisions rest with the state. With the goal of evaluating similarities and differences among state laws and procedures, state statutes were reviewed to identify the criteria being used to evaluate CST, the length of time deemed “reasonable” to restore competence, the legality of forcible medication for the sole purpose of restoring competence, and approved locations of restoration. With regard to criteria, the vast majority of states legislate the use of Dusky, some with supplementary capabilities, with treatment locations being highly restrictive to expansive. Reasonable time to restoration was less homogenous with time periods ranging from 30 days to the maximum length of sentence for the charge; several states take a hybrid approach combining time period with the maximum sentence based on the seriousness of the charge. Lastly, it was found that very few states have adopted the Sell criteria, though the use of forcible medication is permissible. Given the profound impact that all of these decisions have on an individual’s civil liberties, it is time for states to review their laws and evaluate the impact of these decisions on individuals not yet convicted of a crime.
Keywords
competency to stand trial, Dusky, Jackson, Sell, Olmstead; Restoration, Competency, Evaluation, Individualization, Reporting
Summary of Research
“In courts across the country, it is accepted that an individual accused of a crime must be mentally fit to proceed [Individualization]. If a defendant is considered incompetent, moving forward with a trial, even if a “desirable” result were to be obtained, goes against an individual’s right to due process. Landmark Supreme Court cases (Dusky, Jackson, Sell, and Olmstead) have all established legal protection for individuals whose competence to stand trial has been questioned… It has been 63 years since Dusky and while the number of defendants referred for evaluation remains unknown, it is clear that there has been a dramatic increase in court referrals and evaluations over the course of time…
Part of the high cost of inpatient commitment for competence restoration is the length of time that the defendant is detained as IST; an issue that came before the SCOTUS in 1972 (Jackson v. Indiana). In Jackson, the question before the Court was not how long a person could be held for treatment when there was a good probability that they would be restored to competence; it was how to proceed when a defendant would most certainly be unable to ever meet the Dusky criteria, which includes a factual and rational understanding of legal proceedings and the ability to consult with an attorney” (p. 237- 238).
“The Olmstead decision has been cited in cases regarding restrictive environments within institutions, treatment quality, the right to refuse treatment, rights to community aftercare, the transfer of prisoners to mental hospitals, and individuals found not guilty by reason of insanity requesting release; therefore, this decision has widely impacted those institutionalized for competency restoration… Increases in forensic commitments for IST defendants have resulted in waitlists in jails for restoration services that are lengthy and sometimes longer than the time a person would have served had they been convicted, which is even more common when an individual has been charged with a misdemeanor offense” (p. 240).
“Jail-based competency restoration programs are considered an alternate form of outpatient restoration. These programs have different methods of administration with some providing long-term restoration groups in a dedicated jail based restoration unit, and others providing supplemental services such as education on the legal system and medication management within the general population. One of the most commonly reported values of these programs in the cost savings in comparison to inpatient treatment… The purpose of the current survey is to provide data regarding the interpretation of competency-related SCOTUS decisions, including Dusky, Sell, Jackson, and Olmstead, on a state-by-state basis” (p. 241).
“We collected data regarding the longest period a defendant may wait prior to being given the opportunity to demonstrate their competency. While individual jurisdictions or facilities may evaluate individual patients prior to the statutory limit, what is documented here is the maximum time permissible as per statute. A total of 23 states have a maximum re-evaluation period of 3 months or less, with the shortest being 30 days. The modal length of time for re-evaluation is 3 months. For 14 jurisdictions (including the Federal system), the maximum time to re-evaluation ranged from approximately 3 to 6 months. The shortest of these is Colorado (3 months and a day). The modal period for these 14 jurisdictions is 6 months. There are two states that specify a maximum time to re-evaluation between 6 months and 1 year (i.e., Arkansas at 10 months and New Hampshire at 1 year)” (p. 253).
“Our survey, we believe, was the first to survey each jurisdiction’s statutory provisions for the dismissal of charges. As with the other elements, we found diversity in how each jurisdiction handles charges for nonrestorable defendants. A minority of jurisdictions (24) require that charges be dismissed in all circumstances, and only three of these do so with prejudice [according to Reporting]. A total of 20 jurisdictions leave the decision to the court’s discretion or only allow charges to be dismissed under certain conditions—generally for nonfelony or nonviolent charges. As with the previous two elements, this appears overly punitive, as defendants could continue to have charges on record despite never being convicted of an offense” (p. 255).
Translating Research into Practice
“Future research should focus on the relative impacts that detailed versus sparse competency definitions have on the consistency of determinations in these states…
Future research should determine the effects these varying periods have on defendants’ average length of commitment” (p. 255).
Other Interesting Tidbits for Researchers and Clinicians
“As noted in Kapoor (2011), it is estimated that jail-based restoration programs yield between 50% and 80% cost savings depending on a number of factors related to the administration of the program, costs per defendant per day, and other variables specific to the location. Murrie et al. (2023) identified cost savings as an advantage of these programs, as well as the timely initiation of treatment, high rates of restoration, and increased inpatient beds that can be used for civil commitment…
In addition to the above-noted benefits, jailbased programs may prevent defendants from experiencing significant worsening of mental health symptoms including the possibility of suicide” (p. 241).
“Only eight jurisdictions have statutorily adopted the Sell criteria or criteria similar to Sell, permitting the involuntary administration of medication for the sole purpose of restoring competency. In all of these states, the criteria are virtually identical to those in the Sell decision” (p. 254).
Additional Resources/Programs
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