Evaluation and Restoration of Competence to Stand Trial: Intercepting the Forensic System Using the Sequential Intercept Model

In 1960, the U.S. Supreme Court case Dusky v. United States (1) solidified the importance of evaluating competence to stand trial (CST) for criminal defendants. Highlighting the constitutional principles of the Sixth and Fourteenth Amendments, including the right to face one’s accusers and the right to due process, the case provided the basis for evolving standards within state and federal courts regarding how to proceed when defendants facing criminal charges appear to lack capacity to assist their lawyers in their defense (2). Subsequent cases emerged that made raising the issue of CST critical when there was any doubt in order to ensure the fairness, dignity, and accuracy of the trial process (2, 3).

At the same time as the competence issues were being brought to light, several policy changes likely increased the number of people with serious mental illness at risk for involvement in the criminal justice system. For example, the sharp rise in incarceration rates, the war on illegal substances, and the shifting hospital landscape and insufficient funding for community services have represented massive policy shifts in the United States that have created ripple effects throughout social systems and communities. A detailed analysis of each of these issues is beyond the scope of this paper, but a companion review (4) examines the complexities and challenges of the current “competence system” that has developed over the past several decades, especially as related to demands for CST services that exceed capacity.

This review aims to describe current forensic processes related to CST, outline problems with equating the current competence system with the treatment system, and provide an overview of the sequential intercept model (SIM) applied to the stages involved in CST evaluation and restoration. By exploring these areas, we sought to identify opportunities for interception and diversion (broadly defined as identifying alternative routes toward treatment) for appropriate cases that did not warrant extensive trial processes that necessitate a competent defendant. Such efforts have the potential to reduce the likelihood that individuals with serious mental illness, intellectual and developmental disabilities, and other serious conditions are subject to long waiting periods, often in jail, for forensic processes to occur, especially when there may be no serious charges and no interest in prosecuting the defendants at trial. Using the well-respected framework of the SIM, we provide recommendations to improve and broaden CST processes to include identifying opportunities for diversion, saving competence processes for defendants who are more likely to face trial proceedings.

Forensic Processes Involved in CST

The Dusky standard established that defendants need to have sufficient factual and rational understanding of the criminal proceedings they are facing and to be reasonably able to rationally assist their attorneys in their defense. Evolving standards of clinical and forensic assessments of defendants’ CST have complemented the demands on courts across the United States to carefully consider how to ensure that defendants meet the legal requirements of the Dusky standard (5, 6). Defendants found incompetent to stand trial (IST) are most often those with psychotic disorders or acute mood disorders, followed by those with intellectual and developmental disabilities (2, 7). Other populations include defendants with dementia and traumatic brain injury causing cognitive or behavioral impairments that impede their ability to participate meaningfully in pretrial proceedings (8). To help translate clinical findings into compliance with the Dusky standard and to help inform court decisions related to evaluations on a case-by-case basis (2), psychiatrists and psychologists helped educate courts and each other by advancing evaluation practices, developing assessment instruments (9–12), and refining expectations for more sophisticated forensic reports.

When a defendant is found IST, the criminal matter is paused until competence can be restored or the case reaches a legal conclusion. In 1972, just over a decade after the Dusky decision, the U.S. Supreme Court again ruled on the rights of defendants found IST, this time focusing on the disposition of these individuals in Jackson v. Indiana (13). Theon Jackson had a significant intellectual disability, was deaf and mute, and had been charged with stealing nine dollars’ worth of property. He was ordered to be detained in an Indiana facility for competence restoration until his competence was able to be restored. His attorney appealed this confinement, arguing that it amounted to an indefinite commitment given that Jackson’s CST was determined not to be restorable. The case was heard by the U.S. Supreme Court, which ruled on the basis of constitutional equal protection and due process rights that a defendant found incompetent cannot be confined for CST restoration for longer than is necessary to determine whether restoration is possible (13). After that period, if restoration is not possible, any further involuntary commitment must be justified on other grounds, such as civil commitment for mental illness.

Not all states adopted laws that match Jackson, but confining individuals for CST restoration and examining the probability of restorability became part of the national forensic practice across jurisdictions (7). The state hospital became the site most frequently used for restoration services (2, 14). Clinicians at state hospitals began to incorporate competence restoration into programming and treatment plans with the rationale that this activity was both medically appropriate to help equip identified individuals with additional skills so they would not be disadvantaged and was necessary as the basis for their confinement (15).

Now decades later, across the United States, many people have been placed on waitlists for admission into state hospitals for competence-related forensic services. Within state hospitals, beds are increasingly utilized for persons found IST who have been court ordered to receive restoration services (14), and the demand for forensic evaluations has been on the rise (16, 17). As states examine their data, they have found that defendants charged with misdemeanor crimes or low-level felonies, similar to Mr. Jackson, comprise an increasing proportion of the individuals within the “competence system” (14). Of further concern, because of the evolving standards requiring competence evaluation and restoration, more individuals (including those with severe symptoms of mental illness, intellectual or developmental disability, traumatic brain injury, substance use challenges, and other clinical factors) are confined in jails across the United States because of backlogs in accessing CST evaluations and restoration services (14, 16, 18). Although some communities are moving to develop restoration practices outside of state hospitals (19–21), the state hospital remains the default location for restoration services (16, 17, 22). A referral for a CST evaluation or an order for restoration in the current high-volume competence system can therefore become like quicksand for defendants who face waits in jail, fractured access to community services, and further delays in timely case resolution.

One of the complexities of the competency system is that cases originate in local criminal courts and are guided by local practice, but the resources available to evaluate, treat, and restore defendants are usually controlled by the state mental health authority. This arrangement leads to fragmentation of services and, to some extent, to a failure to adequately identify opportunities to improve the competence process. National attention to the challenges of the competence system is increasing. However, solutions will need to address local variables, such as the implementation practices in given jurisdictions, prosecutorial discretion on diversion, level and focus of CST training for court personnel, and availability of mental health services (including psychiatric medications) in different settings.

Problems With Equating the Competence System With a Traditional Treatment System

Although defendants have a right to a speedy trial, when a defendant is found IST, the constitutional rights at stake in trying an incompetent defendant compel courts to stop the trial process. Given the imperatives a restoration order brings to a criminal case, it is logical that the court considers restoration a door to treatment and a way to resolve the very symptoms that led to incompetence. Thus, when a court orders a defendant to restoration treatment, the court may be satisfied that the defendant has been delivered to the treatment system with all needed resources and legal issues addressed. This arrangement incentivizes decisions to order defendants to competence evaluations and traditional restoration services.

The competence system, however, involves an intricate web of clinical and legal decisions that can be difficult to disentangle (Figure 1). This web differentiates the competence system from traditional treatment services, and increased understanding of it can change the dynamics of some criminal justice approaches. For example, because most competence restoration occurs in locked state hospital units, prosecutors may be satisfied that an order for restoration appropriately addresses the defendant’s treatment needs and pretrial public safety issues. In that scenario, however, legal decisions might be delayed, such as when bail is not attended to as it would be for defendants found competent. Defense attorneys also want to ensure their clients’ trial-related rights are upheld, and a finding of incompetence may satisfy that obligation. Time spent in a locked psychiatric unit counts as time served on a criminal judgment should the defendant return to court and be sentenced to incarceration. This principle can make receiving a favorable disposition easier after the time spent in restoration has passed and can support the idea that the hospital was the right place for the person to receive treatment and spend time. In this way, both prosecutorial and defense strategies might be to pursue hospital-based restoration. In addition, well-meaning court personnel often simply want defendants with mental illness to receive treatment, and they may view restoration as the path to that care.

When an individual is arrested, community mental health service providers typically are no longer involved in his or her treatment. If service providers become aware that the individual in care has been arrested, they might assume that the requirements of the forensic competence process take priority and preclude other alternatives in meeting the client’s needs. In these situations, the defendant found incompetent is served outside of his or her usual treatment system and is ineligible for programs that might serve other defendants, including those established as part of jail diversion programs. Thus, when a defendant is found IST and ordered for restoration, external stakeholders, including community service providers, also generally believe that the defendant will receive the right treatment and that his or her clinical and legal best interests are being met.

Clinical approaches to defendants in the competence system, however, are not the same as in a traditional mental health treatment system. Treatment received to address competence has a different focus. Because of its ties to the court, restoration treatment aims to return the individual to court as a competent criminal defendant (2, 7, 23, 24). Various studies have examined data to help clinicians determine whether CST can be restored and to advise the court whether the individual has regained capacity to serve as a criminal defendant (25, 26). As the competence system has evolved, restoration programs have been rigorously redesigned to help defendants understand court process and work with their attorneys (5, 6), to the exclusion of other aspects of care that might be needed. The competence system’s differences with traditional mental health treatment have further widened because, as part of the “forensic system,” the competence system generally does not intersect with the traditional mental health treatment community or the acute hospital treatment service system. Defendants sent to state hospital forensic services “disappear” from the courts because people operating within the scope of their courtroom role think the forensic system will manage the defendants, provide beneficial treatment, and keep the community safe. They “disappear” from community mental health services because they are housed in the forensic system. Then, after they are considered “forensic patients,” defendants face disparate treatment and increased stigma (27–29). Restoration statutes often do not require consideration of a “least restrictive alternative” (30, 31), implying that all defendants fit into a one-size-fits-all approach that standardizes restoration location, treatment services, and length of program. As noted, some states have developed specialized restoration programs that can be offered in the community for defendants with intellectual and developmental disabilities (32), and some states are building community-based restoration programs for defendants with mental illness and other conditions (19, 20). These developments are promising but not yet routine; statutes typically do not require these alternatives and sometimes even prohibit them.

Because defendants in the competence system are routed through jails, courts, and forensic system services and spend time learning about lawyers, judges, and trial strategy, their treatment generally does not address a range of clinical and social needs, such as co-occurring substance use challenges, housing needs, occupational needs and supports, and other important related issues. In addition, before, during, and after restoration, defendants found IST may not be provided access to diversion programs that other defendants might have available. Instead, after competency has been restored, these defendants are returned to jail while awaiting competency case processing, trial, or sentencing. This arrangement leads to more negative outcomes (33). For individuals ordered to restoration treatment while facing minor charges (14, 33), restoration can abruptly end with dropped charges or a guilty adjudication and release, with no reentry or linkage services provided. Lack of coordinated reentry and treatment can heighten their risk for return into the forensic or criminal justice system. Although many defendants are released from confinement after their CST has been resolved, many other defendants are held in jail and do not receive continuous care, including needed psychiatric medications, which can lead to decompensation, troubling conditions of confinement, and, ultimately, to a return to court, where the issue of their competence might be raised again (33). Thus, their passage through the competence system can result in fractured and discontinuous care and does not yield treatment equivalent to the civil treatment system.

With growing demand for competency services, waitlists of defendants referred to the competence system have become the subject of litigation. These lawsuits frequently highlight the conditions of confinement or negative outcomes that have occurred while defendants in need of competence services are on waitlists, including tragic deaths occurring in correctional settings (18). These issues have drawn attention from civil rights attorneys across the United States and have led to numerous court settlements that mandate reducing wait times and improving timely access to evaluation and restoration services (16, 18, 34–36).

The processes of and challenges related to the forensic system are often unfamiliar to many stakeholders. However, it is increasingly recognized that the demands on the competence system hamper its ability to appropriately serve individuals ordered to CST restoration. Some have proposed that defendants with serious mental illness and intellectual and developmental disabilities should, for example, be entitled to reasonable accommodations and alterations of forensic processes under Title II of the Americans with Disabilities Act to better meet their needs in accordance with how mental health services generally should be designed (37). This proposal might involve avoiding IST judgments in the first place (37). The applicability of this approach, which is likely to be broad, has not yet been fully tested, perhaps given the constitutional rights involved in CST in the first place. Others have conducted comprehensive reviews of current restoration services and policy implications for the future (38) that help illuminate how the competence system differs from the traditional civil treatment system and offer a path forward.

Overview of the Sequential Intercept Model in the Competence to Stand Trial Context

The SIM is an additional area of promise to maximize access to appropriate treatment for individuals with behavioral health needs. We propose that defendants in the CST system should be eligible for diversion out of the criminal justice system into alternatives such as mental health courts, specialized probation, and competency dockets and other programs. The SIM (39) offers a guide for developing and linking such individuals to community-based alternatives to competency processes in particular cases so as to avoid the negative outcomes associated with the current system. We see this shift as a national imperative to improve outcomes among individuals with serious mental illness, intellectual and developmental disabilities, traumatic brain injuries, dementias, and other impairing conditions by properly and efficiently resolving their criminal cases and by providing appropriate and timely access to needed clinical treatment and supports.

Originally conceptualized by Munetz and Griffin (39), the SIM posits that people with mental illness, overrepresented in the criminal justice system, move through the system in predictable ways. At every step of their cases, from arrest to incarceration and reentry into the community, a series of factors and decisions move the individual either deeper into the justice system or into community-based supports. Munetz and Griffin (39) call for more-intentional decision making to reduce the penetration of individuals with mental illness in the justice system and to divert them into a robust community mental health continuum of care. By identifying the target population at each intercept point, systems can divert people with mental illness and other impairing conditions that affect cognition and behavior into treatment when that approach is reasonable considering both the criminal charges and public safety. The model originally included five intercept points but has since expanded to six (40) to include the crisis care continuum and other general community-based supports that can prevent individuals from interacting with the criminal justice system altogether or provide an early diversion option for police and other first responders.

Although defendants who are found IST arguably have the most serious mental health conditions, intellectual limitations, and other behavioral health issues in the criminal justice system, they are rarely considered for diversion, even in communities focused on SIM diversion efforts. As noted above, once the issue of CST is raised, individuals transition to a different system where it is believed that their needs will be met and their trial rights upheld. However, the emphasis on trial-related rights has diminished the emphasis on these individuals’ disability rights (41) and the Constitutional rights articulated in Jackson (13) to have the same access to the range of legal dispositions as others with similar conditions, who are afforded diversion opportunities. Below we highlight opportunities for diversion and alternatives to CST restoration (Figure 2).

Demystifying the Forensic Competence Process and Shifting Toward the SIM Framework

Intercepts 0 and 1

Intercepts 0 and 1 offer crisis services and other means of community support in order to manage issues that may come to the attention of law enforcement. Emergency rooms, 911 call centers, and other mental health crisis services can become a referral source for police. Therefore, at intercept 0, strategies to avoid arrest and criminal justice response for individuals at risk of entering the competence system could be enhanced by training staff about the SIM, training both community-based treatment providers and law enforcement on crisis de-escalation, and establishing policies and procedures for when behavior escalates across settings, including on inpatient psychiatric units. Other strategies include improving relationships and collaborations among 911 call centers, crisis professionals, and law enforcement; training staff; and establishing protocols that guide practitioners, such as emergency medical service providers, emergency room staff, and outpatient providers, about alternative treatment options and when to call police. Expanding the crisis continuum to include crisis stabilization units, crisis residential supports, and larger mobile crisis teams can also reduce involvement in the criminal justice system.

Intercepts 2 and 3

Intercepts 2 and 3 comprise first court appearances, jail stays, and specialty courts. Competence is often first raised at this stage, and diversion options are extensive. Strategies to enhance interception include: bail considerations to allow for release with supports, rapid access to brief clinical or forensic evaluations; screening to determine needed level of care; training forensic evaluators on community-based services that could be offered to identify alternatives to traditional inpatient restoration; building bridges between evaluators and local mental health services, including local psychiatric inpatient units that could admit individuals charged with lower-level offenses who need hospital-level care; agreements between community programs and courts regarding communication and linkage of criminal defendants with pretrial services; linkage to specialized services such as those for veterans or for persons with intellectual and developmental disabilities, neurocognitive conditions, and traumatic brain injuries; prosecutorial diversion programs; community restorative programs with victims of minor crimes; identification and linkage to trauma programs for victims in need (42); and pathways to mental health services for defendants in the least restrictive alternative available. Competence dockets and competency specialty courts are also emerging methods of tracking, pretrial, defendants found IST and linking them to support services (43).

Additional training for CST evaluators, defense attorney, and prosecutors can foster simultaneous pursuit of competence evaluation and restoration, when needed, and diversion strategies when appropriate. This might involve development of the means for evaluators to maximize access to treatment records, improved communication pathways with community mental health services (e.g., alerts that someone has been arrested to allow community mental health care providers to develop a community-based treatment plan), expansion of community-based restoration options, and efforts for community mental health providers working with defense counsel to present plans in court. Evaluators should also be trained on restorability predictions to be comfortable opining that someone’s CST is not restorable (e.g., a defendant with dementia). Judicial education is key to ensuring that orders for restoration treatment are not automatic and that diversion and other alternatives are considered, especially for lower-level offenses, in line with current American Bar Association standards on mental health (44).

Restoration treatment itself requires reexamination because data do not support that it improves overall outcomes for the individuals, minimizes a defendant’s risk of continually reentering the forensic system (29, 33, 38), or reduces a defendant’s time spent in an institution compared with the civil system (27). Although models of restoration have emerged within hospitals, communities, and even jails (20, 21, 29), any treatment within confined settings, especially when those settings might be unnecessary in the first place, requires careful examination, given that it may present other risks to defendants with serious behavioral health needs (29, 45). In all cases, intercepts 2 and 3 also involve considering whether individuals with mental illness confined to various settings, including jails, are receiving appropriate care to maximize and maintain their stability.

An intervention at intercept 2 or 3 can involve building bridges and supports to community-based services rather than focusing on legal education classes that teach criminal defendants the nuances of criminal legal issues. All too often, defendants must pass a “competence test” to move forward with their case. Although education about criminal court could benefit all defendants, providers should be trained that CST assessments are not cognitive exams or tests but are instead evaluations that examine functional capacities in light of the tasks required of the criminal defendant in their particular case. In no other circumstance does passing a test lead to freedom from confinement. As an intervention at these intercepts, a decreased emphasis on pass/fail assessments and increased emphasis on supports and services needed to maximize functioning across the life course have the potential to yield overall improvements for the individual and the community and could still help with competence issues when needed. Given the expenses associated with individuals with serious mental illness involved in the criminal justice system (46), identifying better strategies to reduce the size of this population could put public spending to better use. Other possible changes at intercepts 2 and 3 include reexamination of competence dockets, bond decisions, and pretrial conditions; specialized caseloads for pretrial probation (recognizing that probation could also be an option at intercept 5, as noted below); progress reports to courts; risk assessment; and severity of illness and level-of-care determinations. Defendants may also be eligible for civil commitments at this stage, although that may require that charges be dismissed or resolved.

Intercepts 4 and 5

Intercepts 4 and 5 span from jail stays to community release under correctional supervision. Because the cases of defendants found IST are still pretrial, all pretrial intercepts should apply. Some defendants will be found competent to stand trial, sentenced, and returned to the community under conditions of supervision; therefore, specialized probation would also be applicable at this intercept. Some defendants will be released on bond under pretrial conditions, and others will be released outright from jail upon case disposition. All too often, defendants in the competence system are not linked to community supports or reentry planning after being held in jail or state hospitals for restoration—a key lost opportunity (33). Stabilization and restoration can to lead to a return to jail to await trial, followed by decompensation related to changed environments and differing access to medications and mental health professionals. Strategies to offset these outcomes include expanding connections between community service providers, state hospitals, and jail health care staff (47) and establishing specialized case management and care coordination as boundary spanners to track and support clients across systems, whether from the jail or the state hospital. Other mechanisms can include providing consistent medications across systems. Shared formulary reviews among jails, state hospitals, and community mental health providers can help with continuity of care. After CST is restored, maintenance of restoration (which might also be applicable at intercepts 2 and 3) will be as important as the original restoration effort in order to prevent return to the CST system. Additionally, positive outcomes can emerge from programs that, at the time of case adjudication, link IST defendants to housing, substance use treatment, and programs that provide wraparound supports and help track individuals with mental illness for extended periods beyond the initial criminal case adjudication, as seen in other programs involving persons with mental illness in the justice system (48).

For defendants found permanently IST, whose competence is found to be unrestorable at any phase from an early court appearance, during jail detention, or upon ultimate return to the community, disposition to avoid further penetration into the justice system is important. The decision points in the SIM framework allow for intentional consideration of available options with a broader view of the individual’s needs. Lessons about dismissal of charges can be learned from the juvenile system or from other adult programs, which might allow for outright dismissal or some mechanism for rational oversight when warranted, such as when charges are more serious, clinical needs are high, or lack of such oversight poses public safety risks. Many state statutes have provisions for possible civil commitment for defendants found with unrestorable CST, and civil courts handling such matters might also be part of strategic intercept planning, incorporating least restrictive alternative type constructs. Ultimately, as noted in the original SIM, preventing re-arrest and appropriately managing crises at intercept 0 will further help to prevent return to the competence system.

Conclusions

Competence to stand trial in the U.S. legal system is an important concept that helps protect defendants who might have mental health conditions, intellectual disabilities, or cognitive and behavioral challenges that would make their prosecution unfair and unreasonable. Case law has emphasized the critical importance of identifying these individuals within the criminal justice system in order to ensure that people who are not competent to stand trial are not tried. Although robust effort has been put forth to protect their trial-related rights, the current trends regarding demand for services have shifted and left many of these individuals disadvantaged and unable to access the treatment and long-term supports they need. In a companion review on this topic (4), we describe the complexities of the related systemic issues and the need for more research in this area. Although new case law or other analysis may emerge that examines these issues in consideration of the Americans with Disabilities Act and related protections (49), strategies to alleviate the unintended negative consequences of the current CST system are needed. As mental health diversion programs expand in accordance with the SIM framework, individuals whose mental health challenges are so significant that they can neither move forward in criminal case processing nor be considered for alternatives warrant greater opportunities for diversion and routing to needed treatment services in the least restrictive settings possible. Sequential intercept mapping, using the SIM, is a demonstrated community strategic planning activity that provides a framework for states and communities to closely examine the gaps and opportunities for diverting individuals with mental illness from the justice system when appropriate. This review provides a new roadmap for communities to apply such approaches to CST processes. Through this effort, we hope that individuals in the criminal justice system with some of the most significant mental health challenges will be more readily routed, without compromising public safety, into the treatment and support services most suited to their needs.