Just and Well: Refining How States Approach Competency to Stand Trial iii
Just and Well:
Rethinking How States
Approach Competency
to Stand Trial
October 2020
iv Just and Well: Refining How States Approach Competency to Stand Trial
Hallie Fader-Towe Ethan Kelly
Program Director, Behavioral Health Senior Policy Analyst, Behavioral Health
The Council of State Governments (CSG) Justice Center prepared this report in partnership with the American Psychiatric
Association Foundation (APAF), the National Association of State Mental Health Program Directors (NASMHPD), the National
Center for State Courts (NCSC), and the National Conference of State Legislatures (NCSL) as a project of the Judges and
Psychiatrists Leadership Initiative (JPLI). The opinions and findings in this document are those of the authors and do not
necessarily represent the oicial position or policies of the members of The Council of State Governments.
Websites, examples, and resources referenced in this publication provided useful information at the time of this writing.
The authors do not, however, necessarily endorse the information or sources.
About the CSG Justice Center
The CSG Justice Center is a national nonprofit, nonpartisan organization that combines the power of a membership
association, representing state oicials in all three branches of government, with policy and research expertise to develop
strategies that increase public safety and strengthen communities. For more information about the CSG Justice Center, visit
www.CSGJusticeCenter.org.
About the APA Foundation
As the charitable arm of the American Psychiatric Association, APA Foundation programs focus on raising awareness
and overcoming barriers; investing in the future leaders of psychiatry; supporting research and training to improve mental
health care; and leading partnerships to address public challenges in mental health. All APA Foundation initiatives focus on
one goal: A mentally healthy nation for all. To learn more, visit apafdn.org.
About JPLI
JPLI is a partnership between the CSG Justice Center and the APA Foundation; it aims to stimulate, support, and enhance
eorts by judges and psychiatrists to improve judicial, community, and systemic responses to people with behavioral health
needs involved in the justice system.
About NASMHPD
Founded in 1959, NASMHPD represents the public mental health service delivery system in all 50 states, 4 territories, and
the District of Columbia. NASMHPD serves as the national representative and advocate for state mental health agencies
and their directors and supports eective stewardship of state mental health systems. NASMHPD informs its members on
current and emerging public policy issues, educates on research findings and best practices, provides consultation and
technical assistance, collaborates with key stakeholders, and facilitates state-to-state sharing. For more information,
see www.nasmhpd.org.
About NCSC
NCSC promotes the rule of law and improves the administration of justice in state courts and courts around the world.
Trusted Leadership. Proven Solutions. Better Courts. See www.ncsc.org for additional information.
About NCSL
NCSL is the bipartisan organization dedicated to serving the lawmakers and stas of the nation’s 50 states, its
commonwealths and territories. It provides research, technical assistance, and opportunities for policymakers to exchange
ideas on the most pressing state issues, and is an eective and respected advocate for the interests of the states in the
American federal system. Its objectives are: improve the quality and eectiveness of state legislatures; promote policy
innovation and communication among state legislatures; and ensure state legislatures a strong, cohesive voice in the
federal system. For more information, see www.ncsl.org.
The Council of State Governments Justice Center, New York, 10007
© 2020 by The Council of State Governments Justice Center
All rights reserved.
Cover and interior design by Michael Bierman.
Suggested Citation: Hallie Fader-Towe and Ethan Kelly, Just and Well: Rethinking How States Approach
Competency to Stand Trial (New York, NY: The Council of State Governments Justice Center, 2020).
Just and Well: Refining How States Approach Competency to Stand Trial v
Table of Contents
ACKNOWLEDGMENTS vi
COMPETENCY TO STAND TRIAL AT A GLANCE 1
INTRODUCTION 2
A National Tragedy 3
An Expensive Approach 5
Costs to Individual Health 6
Pressures on State Hospitals 6
RETHINKING COMPETENCY TO STAND TRIAL: THE VISION 8
RETHINKING COMPETENCY TO STAND TRIAL: THE STRATEGIES 10
Strategy 1: Convene diverse stakeholders to develop a shared understanding of the
current CST process. 10
Strategy 2: Examine system data and information to pinpoint areas for improvement. 11
Strategy 3: Provide training for professionals working at the intersection of criminal
justice and behavioral health. 13
Strategy 4: Create and fund a robust system of community-based care and supports
that is accessible for all before, during, and after criminal justice contact. 14
Strategy 5: Expand opportunities for diversion to treatment at all points in the criminal
justice system, including after competency has been raised. 15
Strategy 6: Limit the use of the CST process to cases that are inappropriate for dismissal
or diversion. 17
Strategy 7: Promote responsibility and accountability across systems. 18
Strategy 8: Improve eiciency at each step of the CST process. 19
Strategy 9: Conduct evaluations and restoration in the community, when possible. 20
Strategy 10: Provide high-quality and equitable evaluations and restoration services, and
ensure continuity of clinical care before, during, and after restoration and upon release. 21
A CALL TO ACTION 23
vi Just and Well: Refining How States Approach Competency to Stand Trial
Acknowledgments
The Judges and Psychiatrists Leadership Initiative (JPLI) is a partnership
between The Council of State Governments (CSG) Justice Center and the
American Psychiatric Association Foundation (APAF). This report would
not have been possible without the support of the JPLI co-chairs, whose
leadership prompted the development of the report, and the CSG Justice
Center’s Advisory Board. We are incredibly grateful.
Additionally, we extend our appreciation to the three organizational partners on this eort: The National
Association of State Mental Health Program Directors, the National Center for State Courts, and the National
Conference of State Legislatures, each of whose members play a critical role in the development and
implementation of competency to stand trial (CST) in the states. These organizations were integral in defining the
national problem addressed in the report and identifying viable, practical solutions.
Our partners helped us assemble a truly extraordinary group of advisors to inform the development of this report.
Some of these people participated in a meeting in October 2019 where the report was conceptualized, while
others shared their experiences and research and reviewed the emerging draft. They brought subject matter
expertise and experience with diverse aspects of CST from communities across the country. In addition to their
individual perspectives, these experts also brought knowledge from some of the critical national voices in this
policy area, including the American Bar Association’s Criminal Justice Section’s Committee on Mental Health, the
American Academy of Psychiatry and the Law, the National Alliance on Mental Illness, and the National District
Attorneys Association. Both the U.S. Department of Justice’s Bureau of Justice Assistance, and the Substance
Abuse and Mental Health Services Administration (SAMHSA) GAINS Center provided useful input on federal and
national trends. We also appreciate the leadership of the State Justice Institute and their support for the National
Center for State Courts in addressing this and other issues related to behavioral health in the courts.
This report would also not be possible without a team eort at the CSG Justice Center. Director Megan
Quattlebaum paved the way for our work in this area, and Dr. Ayesha Delany-Brumsey provided invaluable
guidance throughout the project. Sarah Wurzburg, Deirdra Assey, Allison Upton, Sheila Tillman, and Katie
Herman all provided valuable perspectives. Elizabeth Fleming was a critical editorial support during drafting, and
Darby Baham and Emily Morgan’s editorial skills helped clarify the vision and strategies in a complex policy area
while not losing sight of the individuals impacted by these policies. In addition to her tireless editorial support,
Darby also worked with Eunice Kwak to interview people with firsthand experience of the CST process. Their
eorts were integral in ensuring that these voices are represented throughout.
Lastly, we want to extend our heartfelt thanks to the people who have experienced the CST process and their
families who chose to tell us their stories. Your voices are important, not only for this report, but in any change
that is to come within CST processes across the country.
Just and Well: Refining How States Approach Competency to Stand Trial vii
Experts who
attended
the advisory
meeting:
Sue Abderholden
Executive Director,
National Alliance
on Mental Illness
(NAMI) Minnesota
Honorable Mary
Ellen Barbera
Chief Judge, Maryland
Court of Appeals
Susan Cooper Barron
New York resident
Lynn Beshear
Commissioner,
Alabama Department of
Mental Health
Dr. Lisa Callahan
Senior Research
Associate, Policy
Research Associates,
Inc./SAMHSA
GAINS Center
Dr. Michael Champion
Medical Director, Adult
Mental Health Division,
Behavioral Health
Administration,
Hawaii Department
of Health*
Emily Cooper
Legal Director, Disability
Rights Oregon
Honorable
Matthew D’Emic
Administrative Judge
for Criminal Matters,
2nd Judicial District
of New York
Dr. Je Feix
Director of Forensic
and Juvenile Court
Services, Tennessee
Department of Mental
Health and Substance
Abuse Services
Maria Fryer
Policy Advisor, Bureau
of Justice Assistance
Theresa Gavarone
State Senator, Ohio
Senate District 2
Dr. Courtney
Heard Harvey
Associate Commissioner,
Texas Health and Human
Services Commission
Oice of Mental Health
Coordination
Dr. Brian Hepburn
Executive Director,
National Association
of State Mental Health
Program Directors
Honorable
Steven Leifman
Associate Administrative
Judge, 11th Judicial
Circuit Court of Florida*
Virginia Murphrey
Chief Public Defender,
10th Judicial District
of Minnesota
Nancy Parr
Commonwealth’s
Attorney, City of
Chesapeake, Virginia
Dr. Debra A. Pinals
Clinical Professor
of Psychiatry and
Director, Program in
Psychiatry, Law and
Ethics, University of
Michigan and Medical
Director, Behavioral
Health and Forensic
Programs, Michigan
Department of Health
and Human Services
Richard Schwermer
Consultant, National
Center for State Courts
Christopher Seeley
Program Director,
School and Justice
Initiatives, American
Psychiatric Association
Foundation
Patricia Tobias
Principal Court
Management
Consultant, National
Center for State Courts
Barry Usher
State Representative,
Montana House of
Representatives
District 40
Dr. Sarah Y. Vinson
Child and Adolescent,
Adult, and Forensic
Psychiatrist, Lorio
Psych Group*
Honorable Nan Waller
Circuit Court
Judge, Multnomah
County, Oregon
Dr. Katherine
Warburton
Medical Director,
California Department
of State Hospitals
Mike Weissman
State Representative,
Colorado House
of Representatives
District 36
Amber Widgery
Program Principal,
National Conference of
State Legislatures
Robin Wosje
Senior Program
Manager, The Justice
Management Institute
Additional
national
advisors:
Honorable
James Bianco
Judge, Los Angeles
County, California,
Superior Court
David Covington
CEO and President,
RI International
Dr. Joel A. Dvoskin
Assistant Clinical
Professor of Psychiatry,
University of Arizona
College of Medicine
Honorable
Brian Grearson
Chief Superior Judge,
Vermont Judiciary
Honorable
Michael Hintze
Judge, Phoenix, Arizona,
Municipal Court
Dr. Lauren Kois
Assistant Professor,
Department of
Psychology, University
of Alabama
Jim LaRue
Program Specialist,
Texas Health and
Human Services
Commission Oice
of Mental Health
Coordination
Honorable
George M. Lipman
Former Associate Judge,
1st Judicial District
Court of Maryland
Joy D. Lyngar
Chief Academic
Oicer, National
Judicial College
Jessica Penn Shires
Human Services
Program Specialist,
Pennsylvania
Department of Human
Services, Oice
of Mental Health
and Substance
Abuse Services
Stacy Reinstein
Senior Court Policy
Analyst, Arizona
Supreme Court
Dr. Merrill Rotter
Associate Clinical
Professor of Psychiatry,
Albert Einstein College
of Medicine
Honorable
Jonathan Shamis
Judge, Lake County,
Colorado, 5th Judicial
District Circuit Court
Dr. Jennie M. Simpson,
Forensic Director, Texas
Health and Human
Services Commission
Honorable
Mark Stoner
Judge, Marion County,
Indiana, Superior Court
Honorable Sharon
M. Sullivan
Presiding Judge,
County Division, State
of Illinois Circuit Court
of Cook County
Chidinma Ume
Senior Advisor for West
Coast Initiatives, Center
for Court Innovation
Marie Williams
Commissioner,
Tennessee Department
of Mental Health
and Substance
Abuse Services
Dr. Patricia A. Zapf
Vice President,
Continuing and
Professional Studies,
Palo Alto University
Honorable
Kathryn Zenoff
Appellate Judge,
Second District of
Illinois*
*Co-Chairs of the Judges and Psychiatrists Leadership Initiative
Note: Title and agency ailiations reflect those at the time of project participation.
viii Just and Well: Refining How States Approach Competency to Stand Trial
“The most tragic aspect
of this crisis is that the
massive efforts to admit
and restore patients
are ultimately a waste
of expensive clinical
resources without
improving the trajectory
of a person’s life. After
returning to jail and
standing trial, they are
most likely worse off:
either released without
resources to the same
circumstances that
precipitated arrest or
incarcerated.”
DR. KATHERINE WARBURTON, MEDICAL
DIRECTOR, CALIFORNIA STATE HOSPITALS
Just and Well: Refining How States Approach Competency to Stand Trial 1
Competency to Stand Trial
At a Glance
Competency to stand trial (CST), also known as “fitness,” refers to the constitutional requirement that people
facing criminal charges must be able to assist in their own defense. A criminal case cannot be adjudicated
unless this requirement is met. The U.S. Supreme Court considers someone competent to stand trial if that
person is rationally able to consult with an attorney and holds a clear understanding of the charges against him
or her.
1
How does the CST process work?
The process varies depending on state law and availability of services and facilities. Generally, the judge or
either party in a criminal case may raise a concern about a person’s ability to understand and participate in
the court’s proceedings. Once this occurs, an evaluation of the person’s competency must be conducted,
and if needed, restoration services may be provided either in the community or at an inpatient competency
restoration facility. These restoration services are designed to prepare people to participate in a courtroom
process, generally focusing on symptom management or legal education. However, they are not the equivalent
to, nor should they be a substitute for, treatment of mental illnesses and substance use disorders (“behavioral
health” conditions). If a person’s competency is restored, their case may proceed.
Who enters the process?
People who enter the CST process often have complex needs, which may include behavioral health conditions,
cognitive and neurodevelopmental impairments, and an often-undiagnosed history of traumatic experiences.
These health needs are also usually exacerbated by a lack of social and financial supports. For example, a study of
CST patients in California’s Napa State Hospital’s Incompetent to Stand Trial program showed about 80 percent
had a psychotic condition, 15 percent had mood disorders, and just under 10 percent had a substance use
disorder as the primary diagnosis. Nearly half of these patients had also been homeless in the previous year, and
45 percent had 15 or more prior arrests.
2
Because many people who enter the competency process have serious mental illnesses, this report primarily
focuses on how to improve outcomes for those individuals. But it is important to remember that not everyone
who enters the CST process has behavioral health needs; nor should everyone with such needs be ordered
to undergo evaluation and restoration. As they consider reforms, communities may also find it helpful to
examine the needs of people with other primary conditions (e.g., organic brain disorders, intellectual and
developmental disabilities) who also become involved the CST process.
1. This standard was established by the U.S. Supreme Court in Dusky v. United States (1960). It describes the test for competency as whether a defendant has “suicient pres-
ent ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings
against him.” See Dusky v. United States, 362 U.S. 402 (1960).
2.
California Department of State Hospitals, “Incompetent to Stand Trial Diversion Program” (PowerPoint presentation, Program Implementation Partners Meeting, California,
September 26, 2018), https://www.dsh.ca.gov/Treatment/docs/IST_Diversion_Slides.pdf.
2 Just and Well: Refining How States Approach Competency to Stand Trial
“He had an evaluation each time after he was declared
incompetent, but there were always issues, [and] he would go
back to the county jail. He never came home . . . never sent to
the hospital for treatment. Just continually, court date set,
declared incompetent, see a counselor or doctor, go back to
court, he’s still incompetent, and just repeatedly over and
over, over a period of three years.”
ANONYMOUS, FATHER OF A MAN WHO EXPERIENCED THE COMPETENCY PROCESS FIRSTHAND
Introduction
Across the U.S., states and localities are reporting significant increases
in the number of people entering the process to have their competency
evaluated and restored in order to stand trial.
Increasing use of CST processes is leading to delays in getting people evaluated and restored, resulting in
significant costs to the people involved in the process and the general public. The overwhelmed system is
causing scarce state hospital beds to be used for evaluation and restoration, instead of providing inpatient
treatment to those who need it. And as hospitals and restoration facilities reach capacity, others are left to wait
in jail, sometimes indefinitely, for a restoration bed to become available. These delays often result in litigation
against the states.
Numerous states have undertaken eorts to rethink the CST process in light of these challenges,
3
and there
are rich academic
4
and professional discussions about the importance of reform.
5
But policymakers eager to
improve their own state systems largely lack guidance for how to do so.
3. Through funding from the Substance Abuse and Mental Health Services Administration, 11 states have participated in a pair of learning collaboratives on CST in an
approach that builds on earlier successes from a regional eort involving 6 states in the Midwest led by the Michigan Department of Health and Human Services. See
Lisa Callahan, email message to authors, July 15, 2020; Debra A. Pinals et. al, Multi-State Peer Learning Collaborative focused on Individuals found Incompetent to Stand
Trial: March 1, 2017-March 1, 2018, Report on Proceedings, Follow-up, and Findings (Saline, MI: Michigan Department of Health and Human Services, 2018).
4. See, for example, Amanda Beltrani and Patricia A. Zapf, “Competence to Stand Trial and Criminalization: An Overview of the Research,” CNS Spectrums 25 (2020):
161–172; and Lisa Callahan and Debra A. Pinals, “Challenges to Reforming the Competence to Stand Trial and Competence Restoration System,” Psychiatric Services 71,
no. 7 (2020): 691–697.
5. For example, NCSC has included competency to stand trial as a key policy area in its national project, Improving the Justice System Response to Mental Illness.
See Richard Schwermer, Competence to Stand Trial: Interim Report (Williamsburg, VA: NCSC, 2020), https://www.ncsc.org/__data/assets/pdf_file/0025/38680/
Competence_to_Stand_Trial_Interim_Final.pdf. NASMHPD has also developed numerous reports and resources on this topic. See “NASMHPD Publications,” NASMHPD,
accessed July 21, 2020, https://www.nasmhpd.org/nasmhppulisher.
Just and Well: Refining How States Approach Competency to Stand Trial 3
To help policymakers navigate these complexities, the CSG Justice Center and the APA Foundation convened
an advisory group of experts to agree upon strategies and best practices policymakers can use to improve
their CST processes—including strengthening connections to community-based treatment so that the process
can be avoided altogether when appropriate. This report provides examples that demonstrate how these
changes can be achieved in communities across the country. It also calls on local and state leaders to adopt
strategies that will improve current practices in their own communities—improving health, saving money,
protecting public safety, and making the legal process more just. This report reflects a consensus about the
problems states face, as well as a shared vision of how an ideal CST process would look.
A National Tragedy
The failings of the current approach to CST have gained increased national attention in recent years. A feature
in the fall 2019 issue of The Atlantic, for example, discussed current CST processes in several states and
highlighted the story of a 26-year-old who spent 55 days in jail, in part, because he was awaiting a spot for
restoration at the state hospital. His alleged crime was stealing a hamburger and fries.
6
Another article explored
a case in New York where a man was evaluated at least 31 times and spent more than 30 years cycling between
the jail and state hospitals without a trial.
7
Stories like these are striking, but not isolated.
8
Indeed, they are part of trends aecting states across the
country as the number of people being evaluated and going through restoration grow. NASMHPD surveyed its
members and reported an average 72-percent overall increase in the number of people receiving competency
restoration services in state hospitals from 1999 to 2014, with approximately half of all states responding.
9
And
recent research estimates that more than 91,000 competency evaluations were conducted in 2019; researchers
also estimate that about half of these evaluations were for people charged with misdemeanors.
10
As the news stories highlight, people are spending long periods of time in the CST process. Whether they are
waiting after a doubt of competency is raised, waiting to be declared competent for trial, waiting to be found
“unrestorable,” or waiting to see if their charges are dismissed, these delays cause hardship for individuals, their
families, and state and county budgets. Now, as some states place additional restrictions on movement and
admissions between jails and hospitals to contain the spread of COVID-19, these backlogs have grown in some
places.
11
This is particularly troubling because people with serious mental illnesses, who are often among those
referred for competency evaluations, are at increased risk to complications from COVID-19 due to chronic
medical conditions.
12
6. Paul Tullis, “When Mental Illness Becomes a Jail Sentence,” The Atlantic, December 6, 2019, accessed February 25, 2020, https://www.theatlantic.com/politics/
archive/2019/12/when-mental-illness-becomes-jail-sentence/603154/.
7. George Joseph and Simon Davis-Cohen, “Locked up for Three Decades Without a Trial: A New York City Man Has Been Shuled between Rikers Island and Mental
Hospitals for 32 Years,” The Appeal, June 21, 2018, accessed June 4, 2020, https://theappeal.org/locked-up-for-three-decades-without-a-trial/.
8. For example, in another case, a man was arrested for stealing snacks worth 5 dollars. While a judge found him “incompetent” to stand trial, he died in his
jail cell, 40 pounds lighter than he was at the time of his arrest, waiting to be transferred to a state mental health facility. See, Susan MacMahon, “Reforming
Competence Restoration Statutes: An Outpatient Model,” The Georgetown Law Review 107 (2019): 601–603. For more examples, see Elena Schwartz, “Restoring
Mental Competency: Who Really Benefits?” The Crime Report, August 8, 2018, accessed September 4, 2019, https://thecrimereport.org/2018/08/08/
restoring-mental-competency-who-really-benefits/.
9. Amanda Wik, Vera Hollen, and William Fisher, Forensic Patients in State Psychiatric Hospitals: 1999–2016 (Alexandria, VA: National Association of State Mental Health
Directors Research Institute, Inc., 2017), 40, https://www.nri-inc.org/our-work/nri-reports/forensic-patients-in-state-psychiatric-hospitals-1999-2016/.
10. Lauren E. Kois et al., “Updating the ‘Magic Number:’ Contemporary Competence to Proceed Metrics Reported by U.S. Judiciaries” (paper presented at the annual
meeting of the American Psychology-Law Society, March 6, 2020).
11. For example, see Sam Stites, “State Hospital Curtails Admissions as Concerns over COVID-19 Grow,” Portland Tribune, March 31, 2020, accessed May 6, 2020,
https://pamplinmedia.com/pt/9-news/460144-374371-state-hospital-curtails-admissions-as-concerns-over-covid-19-grow-pwoff.
12. “Mental Disorders and Medical Comorbidity,” Robert Wood Johnson Foundation, February 1, 2011, accessed July 27, 2020, https://www.rwjf.org/en/library/
research/2011/02/mental-disorders-and-medical-comorbidity.html; Benjamin G. Druss, “Addressing the COVID-19 Pandemic in Populations with Serious Mental Illness,”
Journal of the American Academy of Psychiatry and the Law (2020), doi:10.1001/jamapsychiatry.2020.0894.
4 Just and Well: Refining How States Approach Competency to Stand Trial
The available evidence also suggests that the impacts of CST’s challenges are not evenly distributed. When
people have their competency raised, data show that race and cultural dierences can impact the way
evaluations are conducted. In Massachusetts, a study found that a greater percentage of Hispanic and Black
men were sent for inpatient evaluation in a strict-security facility (compared to less secure settings) regardless of
diagnosis and the level of severity of the criminal charges,
13
with similar results reported in Florida.
14
Delays Found Unconstitutional
Delays in getting people evaluated and restored can lead to legal problems for states. While the law requires
that the CST process be conducted within a “reasonable period of time,”
15
at least a dozen states are involved
in litigation alleging that they have failed to meet this standard.
In one of the most well-known cases, Trueblood v. Washington State Department of Social and Health Services,
a federal court found that Washington’s CST process was taking too long, violating people’s constitutional right
to due process. In its 2015 ruling, the court spoke in stark terms of the human costs of those delays for people
who have mental illnesses, stating: “Our jails are not suitable places for the mentally ill to be warehoused while
they wait for services. Jails are not hospitals, they are not designed as therapeutic environments, and they are
not equipped to manage mental illness or keep those with mental illness from being victimized by the general
population of inmates. Punitive settings and isolation for twenty-three hours each day exacerbate mental illness
and increase the likelihood that the individual will never recover.” It ordered the state to provide competency
evaluations within 14 days, and restoration services within 7 days of the court ordering them.
Washington has worked—and struggled—to comply with the court’s order, and has thus far been required to
pay $85 million in fines for failing to reach full compliance.
16
The state is challenged by high demand and a lack
of adequate services and is still working to reach compliance through a range of policy and practice changes.
17
Included among these are changes that aim to reduce the number of people with mental illness who enter the
criminal justice system in the first place.
13. Debra Pinals et al., “Relationship between Race and Ethnicity and Forensic Clinical Triage Dispositions,” Psychiatric Services 55, no. 8 (2004): 873-878, https://
ps.psychiatryonline.org/doi/pdf/10.1176/appi.ps.55.8.873.
14. A report by the Treatment Advocacy Center notes a similar trend of higher hospitalization rates for African American clients in Florida. See Doris A. Fuller, Elizabeth
Sinclair, and John Snook, A Crisis in Search of Date: The Revolving Door of Serious Mental Illness in Super Utilization (Arlington, VA: Treatment Advocacy Center, 2017),
17, https://www.treatmentadvocacycenter.org/storage/documents/smi-super-utilizers.pdf.
15. The U.S. Supreme Court ruling stated, “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose
for which the individual is committed. We hold, consequently, that a person charged by a State with a criminal oense who is committed solely on account of his
incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future.” See Jackson v. Indiana 406 U.S. 715 (1972).
16. In Trueblood et al. v. Washington State Department of Social and Health Services, 101 F. Supp. 3d 1010 (W.D. Wash. 2015), the court found that Washington
State’s delays in evaluation and restoration of CST were unconstitutional. The state was also required to make fundamental changes to improve the availability of
community-based treatment and CST evaluation and restoration. See Mark Wilson, “Oregon Faces State and Federal Contempt Proceedings over Delayed Competency
Services for Mentally Ill Defendants—Again,” Prison Legal News, September 9, 2019, accessed June 11, 2020, https://www.prisonlegalnews.org/news/2019/sep/9/
oregon-faces-state-and-federal-contempt-proceedings-over-delayed-competency-services-mentally-ill-defendants-again/.
17. “Trueblood et al v. Washington State DSHS,” Washington State Department of Social and Health Services, accessed July 21, 2020, https://www.dshs.wa.gov/bha/
trueblood-et-al-v-washington-state-dshs.
Just and Well: Refining How States Approach Competency to Stand Trial 5
An Expensive Approach
Nationwide, states report the same thing: they are
spending a significant amount of money (particularly
from state mental health budgets) on CST, despite the
fact that restoration services are not the equivalent of
mental health treatment and do not ensure long-term
improved outcomes for people with mental health
needs.
For example, Florida’s three-branch task force,
formed in response to a lawsuit, found that the state
was spending 25 percent of its entire mental health
services budget—approximately $212 million dollars
annually—for 1,652 forensic beds in state mental
health treatment facilities serving approximately
4,000 individuals.
18
Eighty percent of the individuals
who were restored either had their charges dismissed,
received credit for the time they spent in the facility
and jail, or were put on probation. Under all 3
scenarios, however, they typically left the courthouse
without access to the mental health treatment many
of them needed.
19
Another example from Cook County, Illinois, showed how one man was arrested over 150 times and went through
the CST process 4 times. When looking at only his fourth CST process, jail costs plus costs associated with
competency evaluation and restoration totaled almost $150,000. This money was spent simply to position him to
face his misdemeanor charges, without addressing the chronic nature of his mental health condition or the other
factors driving his criminal justice involvement.
20
Too many communities have stories like these. The result is more taxpayer money spent without seeing positive
health outcomes and the CST process becoming a revolving door. The growth in this problem is real. Colorado
found that 500 CST referrals in FY2016–17 involved people who had previously received competency-related
services. What’s worse is that number had more than doubled over the previous 6 years.
21
This trend frustrates
law enforcement oicers, judges, and others who report seeing the same people struggling with the same
challenges and not being able to provide them with the help they need. People who go through the process,
especially those who do so multiple times, also have their natural support system and professional treatment
relationships disrupted.
18 Steve Leifman, associate administrative judge for the Eleventh Judicial Circuit Court of Florida (Presentation at the Florida House Judiciary Committee Workshop on
Mental Health and the Criminal Justice System, Tallahassee, FL, December 10, 2019).
19 Supreme Court of the State of Florida, Mental Health: Transforming Florida’s Mental Health System (Florida: Supreme Court of the State of Florida, 2007), https://
www.floridasupremecourt.org/content/download/243049/2143136/11-14-2007_Mental_Health_Report.pdf.
20 Judge Sharon Sullivan, “Cook County Fitness Diversion Pilot Project 2020” (PowerPoint presentation, Chicago Bar Association, Chicago, IL, November 12, 2019, and
MacArthur Foundation Safety and Justice Challenge Network Meeting, Houston, TX, October 3, 2019).
21 Colorado Department of Human Services, Department of Human Services Oice of Behavioral Health, Services for People with Disabilities, County Administration,
Oice of Self-Suiciency, Adult Assistance Programs, Oice of Early Childhood FY 2019-20 Joint Budget Committee Hearing Agenda (Denver: Colorado Department of
Human Services, 2018), 24.
“It has cost us more than $300,000 to
try to restore competency to a young
woman on my docket. And yet, when
her charges are dismissed, she will
have no housing and no community
supports or services. The community
and this young woman would have
been far better off if we diverted her
out of the criminal justice system at
the beginning and invested the money
spent on restoration on services and
housing that would support her for
the long run.”
HONORABLE NAN WALLER, CIRCUIT COURT
JUDGE, MULTNOMAH COUNTY, OREGON
6 Just and Well: Refining How States Approach Competency to Stand Trial
Costs to Individual Health
Some advisors suggested that increased orders for CST evaluations may, at least in part, be attributable to a
misunderstanding of the purpose of the CST process. A defense attorney, prosecutor, or judge may suggest
a competency evaluation, believing that raising doubt about someone’s competency is the best or only way
to get them needed mental health care. While this approach may be well-intentioned, forensic psychiatrists
clarified that this reflects a misunderstanding of the purpose of competency restoration services.
22
These
services are generally narrowly focused on stabilization, symptom management, and legal education and are
not the same as providing access to a fully developed treatment plan and services with the goal of long-term
recovery and a positive place in the community.
Instead of receiving needed behavioral health treatment while awaiting evaluation, restoration, or trial, many
people are left in jail, where treatment for their mental illnesses may be disrupted and their risk of symptom
recurrence is increased.
23
Jails are a profoundly destabilizing setting for people with behavioral health needs;
they are isolated, separated from community-based supports and treatment providers, and exposed to trauma.
Adding to the challenges, people’s medication regimens are often changed during incarceration due to
availability and cost, and other non-pharmaceutical mental health care is limited, if it is available at all.
24
Advisors also highlighted that even when a person makes it through this lengthy process and competency
restoration is achieved, the person is ultimately sent back to jail as their case is adjudicated, opening up a new
opportunity to decompensate and bring competency back into question. The result is that people can cycle
from jail to court to hospital and back with no long-term benefit to their health or to public safety.
Pressures on State Hospitals
The problems with the CST process extend beyond the people facing criminal cases. Some advisors stressed
that the misuse of the CST process is making the limited space within state hospitals even more scarce.
So-called “civil” beds, which are used by people who require inpatient behavioral health treatment, are
being converted into “forensic” beds, as states work to meet the constitutional mandate of providing timely
restoration services to those who require them. As a result, access to civil inpatient beds is limited, creating a
shortage of beds and a cascade of patients into inappropriate levels of care.
25
Delays, legal woes, hospital bed shortages, and long waits in jail add up to a CST process that is not delivering
positive outcomes for anyone involved. State and local oicials are looking for a dierent way.
22. The CSG Justice Center advisor meeting on competency to stand trial, October 28, 2019. See also “Restoration to competency so one may face criminal
charges is not the same as adequate and appropriate mental health treatment to manage illness, provide care, and improve a person’s condition. The goals are
fundamentally dierent: competency restoration serves the criminal justice system; treatment serves the individual who is ill.” Frankie Berger, “Competency
Restoration versus Psychiatric Treatment,” Treatment Advocacy Center, accessed June 24, 2020, https://www.treatmentadvocacycenter.org/fixing-the-system/
features-and-news/4126-the-distinction-between-competency-restoration-and-psychiatric-treatment.
23. It is also worth noting that research has indicated that pretrial detention, particularly for those at a low risk of pretrial failure, can increase the risk of pretrial
failure. This research is not focused on people with behavioral health needs but suggests another important consequence of pretrial detention. See Christopher T.
Lowenkamp, Marie VanNostrand, and Alexander Holsinger, The Hidden Costs of Pre-Trial Detention (Houston, TX: Laura and John Arnold Foundation, 2013), https://
craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF_Report_hidden-costs_FNL.pdf.
24. The U.S. Court of Appeals for the Ninth Circuit recognized that “we are also mindful of the undisputed harms that incapacitated criminal defendants suer when
they spend weeks or months in jail waiting for transfer to [Oregon State Hospital].” See Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (2003).
25. When patients, whether forensic or not, cannot access the appropriate level of care, their health suers. See Debra A. Pinals and Doris A. Fuller, Beyond Beds: The
Vital Role of a Full Continuum of Psychiatric Care (Alexandria, VA: National Association of State Mental Health Program Directors, 2017), https://www.nasmhpd.org/
sites/default/files/TAC.Paper_.1Beyond_Beds.pdf.
Just and Well: Refining How States Approach Competency to Stand Trial 7
The Relationship Between Competency and the
Civil System
Civil commitment
26
is a non-criminal legal process, distinct from CST, in which a person is required to
undergo involuntary mental health treatment. When court-ordered, involuntary treatment occurs in an
outpatient setting, it is sometimes referred to as Assisted Outpatient Treatment (AOT).
27
Some advisors raised the possibility that, in communities where it is more challenging to civilly
commit an individual, legal actors may come to overly rely on CST. Some policymakers have even
explored whether barriers to civil commitment are driving an increase in requests for competency
evaluations.
28
Between 2009 and 2018, for instance, Oregon saw its civil commitment numbers fall
while use of CST increased,
29
leading to speculation that the inability to access treatment through
civil commitment was one reason driving judges and attorneys to explore CST as a way to get people
needed care. This led some advisors to suggest increasing the use of civil commitment—particularly
AOT. However, this proposal prompted strong opinions among both proponents and detractors.
Proponents note that some studies indicate that when adequately funded and carefully implemented,
AOT can reduce system treatment costs
30
and improve participants’ quality of life.
31
They argue that
AOT provides an opportunity to help prevent episodes of deterioration and negative outcomes, such
as arrest or violence.
32
Opponents counter that the benefits do not outweigh the restrictions on
patients’ liberties.
33
Detractors specifically raise clinical and ethical concerns about AOT, including that
it may not always place people in the least restrictive setting that is clinically appropriate.
An additional layer to this discussion comes from New York State, where researchers have tried to
understand disproportionate rates of outpatient commitment for Black people relative to White
people. Their discussion concludes against “bias” by decision-makers, but also highlights the role
of structural factors—such as high use of the public mental health system by Black New Yorkers—in
these disproportionate outcomes.
34
Jurisdictions should discuss these issues and arrive at their own
judgments about whether AOT has a place in their continuum of care, and if it should be used as an
alternative to the CST process.
26. Civil commitment is defined as “involuntary outpatient commitment in a civil court procedure wherein a judge orders a person with severe mental illness to adhere to
an outpatient treatment plan designed to prevent relapse and dangerous deterioration. Persons appropriate for this intervention are those who need ongoing psychiatric
care owing to severe illness but who are unable or unwilling to engage in ongoing, voluntary, outpatient care.” See APA Assembly and Board of Trustees, Position Statement
on Involuntary Outpatient Commitment and Related Programs of Assisted Outpatient Treatment (Washington, DC: APA Operations Manual, 2015).
27. According to the Treatment Advocacy Center, “Assisted Outpatient Treatment (AOT) is the practice of providing community-based mental health treatment under civil
court commitment, as a means of: (1) motivating an adult with mental illness who struggles with voluntary treatment adherence to engage fully with their treatment plan;
and (2) focusing the attention of treatment providers on the need to work diligently to keep the person engaged in eective treatment.” See Treatment Advocacy Center,
Implementing Assisted Outpatient Treatment: Essential Elements, Building Blocks and Tips for Maximizing Results (Arlington, VA: Treatment Advocacy Center, 2019), https://
www.treatmentadvocacycenter.org/storage/documents/White_Paper_FINAL_1.pdf.
28. Milton L. Mack, Jr., Decriminalization of Mental Illness: Fixing a Broken System (Williamsburg, VA: Conference of State Court Administrators, 2017), https://cosca.ncsc.
org/__data/assets/pdf_file/0018/23643/2016-2017-decriminalization-of-mental-illness-fixing-a-broken-system.pdf; John Stewart, Alexis Lee Watts, and Kelly Lyn Mitchell,
Competency in Minnesota: A Practitioners’ Roundtable Report (Minneapolis, MN: Robina Institute of Criminal Law and Criminal Justice, 2016), https://robinainstitute.umn.
edu/publications/competency-minnesota-practitioners-roundtable-report.
29. Steve Allen, Cassondra Warney, and Andy Barbee, “Behavioral Health Justice Reinvestment in Oregon,” (PowerPoint Presentation, Steering Committee meeting,
October 31, 2019, https://csgjusticecenter.org/wp-content/uploads/2020/01/OR-Launch-Presentation.pdf.
30. Health Management Associates, State and Community Considerations for Demonstrating the Cost of AOT Services, Final Report (Washington, DC: Health Management
Associates, 2015), https://www.treatmentadvocacycenter.org/storage/documents/aot-cost-study.pdf.
31. Marvin Swartz et al., New York State Assisted Outpatient Treatment Program Evaluation (Durham, NC: Duke University School of Medicine, 2009), https://omh.ny.gov/
omhweb/resources/publications/aot_program_evaluation/.
32. Jerey Draine, “Conceptualizing Services Research on Outpatient Commitment,” Journal of Mental Health Administration 24 (1997): 306–15.
33. Tom Burns et al., “Community Treatment Orders for Patients with Psychosis (OCTET): A Randomised Controlled Trial,” The Lancet 381, no. 9878 (2013): 1627–1633,
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(13)60107-5/fulltext.
34. See Jerey Swanson et. al., “Racial Disparities in Involuntary Outpatient Commitment: Are They Real?,” Health Aairs 28, no. 3 (2009).
8 Just and Well: Refining How States Approach Competency to Stand Trial
“He got locked up June 11 or 12, 2018. He just got sent to the
hospital October 2019, so that’s how long he’s been dealing
with it. He probably went in front of the judge maybe twice . . .
[but] there has to be some kind of proper training, and it all
starts from the top . . . It’s not about getting a conviction; it’s
about helping these individuals.”
ANONYMOUS, MOTHER OF A MAN WHO EXPERIENCED THE CST PROCESS FIRSTHAND
Rethinking Competency to
Stand Trial: The Vision
In light of the challenges faced by state and local governments, the
national advisory group worked together and established a shared
vision of an ideal CST process that plays a discrete role in our behavioral
health and criminal justice systems—one that makes for more just
systems that also help individuals become well.
In this vision, the CST process would generally be reserved for cases where the criminal justice system had a
strong interest in restoring competency so that a person may proceed to face their charges. Advisors noted that
the justice system’s interest in adjudicating a case tends to rise as the charges become more serious. In other
situations, when the state interest in pursuing prosecution is lower, people would have their cases dismissed
and/or would enter a diversion program in lieu of typical CST processes. If they were in need of treatment, they
would be connected to care in a setting appropriate to their clinical level of need. In this vision, jurisdictions
would also focus on preventing criminal justice involvement in the first place through the establishment of
robust, community-based treatments and supports, with attention to structural factors—like access to housing
and transportation—that may impact access to care. These community-based eorts would also help to
reduce the number of people with mental illnesses entering into the criminal justice system and provide viable
alternatives to jail-booking for first responders.
For people whose cases appropriately proceed for competency evaluation and, where needed, restoration—or
for judges and prosecutors who elect to proceed with the CST process despite the availability of alternatives—the
streamlined CST process they encounter would place them in the least restrictive environment possible from a
Just and Well: Refining How States Approach Competency to Stand Trial 9
range of available settings. This process would also include centrally qualified evaluators and clear accountability
for systematic quality, eiciency, and equity. And evaluation and restoration would always be paired with a robust
treatment plan that follows the person through the process.
Realizing this vision will require strong collaboration and commitment across all three branches of state and
local government to implement solutions based on research and local data. Jurisdictions will need to prioritize
investments in community-based care; establish pre- and post-arrest diversion alternatives; limit the use of CST
to cases in which the state has a strong interest in adjudication; and assign clear accountability for quality, speed,
and equity throughout CST processes. In the pages that follow, this report outlines 10 specific, tested strategies
that jurisdictions can deploy as they pursue change. It includes examples from around the country that prove
positive change is possible.
Collaborative Leadership in Action: Texas
Responding to increasing demand for competency restoration services, Texas established several state-level
leadership groups to develop initiatives focused on improving the quality and availability of competency
restoration services provided in both inpatient and outpatient settings. These groups include the Judicial
Commission on Mental Health, Statewide Behavioral Health Coordinating Council, Joint Committee on Access
and Forensic Services, and the Texas Forensic Implementation Team. With leadership from all three branches of
government, they have been able to pursue legislative changes to the CST process and changes to relevant court
rules, improve coordination of care across dierent state agencies and regions of the state, and develop new
trainings and programmatic initiatives as well as educational materials about jail diversion for judicial oicials, jail
sta, local mental health authorities, people who may experience CST firsthand, and members of the public.
35
35. Jim LaRue, email message to authors, May 8, 2020.
10 Just and Well: Refining How States Approach Competency to Stand Trial
“We have a responsibility to work across systems to make
competency work for the purpose for which it was intended.
Otherwise, we fail in guaranteeing the constitutional rights in
our legal system and the people whose complex health needs
warrant seamless continuity of care.”
DR. DEBRA A. PINALS, MEDICAL DIRECTOR, BEHAVIORAL HEALTH AND FORENSIC PROGRAMS,
MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES
Rethinking Competency to
Stand Trial: The Strategies
Many of the strategies identified by the national advisors to improve CST
processes are built from approaches policymakers and practitioners are
already using in states across the country. These strategies should serve
as a model for jurisdictions that are preparing to confront the issue and
need guidance. Jurisdictions that pursue these strategies can do so in
the order that fits their unique circumstances.
Strategy 1: Convene diverse stakeholders to develop a
shared understanding of the current CST process.
In order to successfully address the challenges with the CST process, states will need to leverage the expertise,
authority, and resources of all three branches of state and local government, as well as associated community
partners. Typically, this will mean involving court leaders, state and local mental health administrators, and
legislators, as well as judges, attorneys, sheris/jail administrators, law enforcement, medical professionals,
and local treatment providers. States that have made improvements in their competency policies and practices
have also included the critical perspectives from people with firsthand experience of CST and their advocates.
A statewide eort also should include people from various regions throughout the state and reflect the racial,
cultural, gender, ethnic, and linguistic makeup of residents. Each stakeholder has perspectives that will help
Just and Well: Refining How States Approach Competency to Stand Trial 11
position the initiative for success, and many will also have resources that are needed to implement changes.
A joint partnership between state and local governments is vital to properly coordinating the varying
responsibilities within the CST process, which can span dierent components of both levels of government.
Once the stakeholders are gathered, they will need to establish a clear understanding of how individuals move
through a jurisdiction’s courts, jails, hospitals, and community-based programs for evaluation and restoration.
Because each state’s—and, sometimes, each judicial circuit’s—CST process is unique and potentially complex,
developing a common understanding can be achieved by bringing dierent stakeholders together to jointly
develop process flows or maps of individuals’ potential paths through the CST process. All key stakeholders
should be involved in creating this process flow, as each perspective provides additional information (like
varied terminology) that makes it possible to determine the decision points, policies, timelines, and other
practical considerations driving the volume and pace of CST cases in a state.
It is also essential for the stakeholders to bluntly discuss the costs associated with the current CST process and
understand who bears these expenses. Given that many states and counties share the price tag of evaluation
and restoration, attention must be paid to cost shifts that result from policy changes. Clear understanding of
these costs and the incentives they create can position policymakers to ensure that incentives are correctly
aligned with the policy goals.
Strategy 2: Examine system data and information to pinpoint
areas for improvement.
States can begin to understand the full scope of challenges facing their CST process by analyzing the data
they currently have. Relevant data are often being collected across various state and local agencies involved
in the CST process, but rarely are the data examined together to identify overall system trends and key
areas for improvement.
36
By working together, partners can set shared goals to address the challenges they
uncover, continue to collect data to track progress, and provide ongoing quality assurance for any policies
and practices implemented. Policymakers in Oregon, for example, paired their analysis of jail data with Oregon
State Hospital data, allowing them to identify people who had frequent contact with both systems and target
that population for a new grant program for counties, tribal nations, and regional consortiums.
37
As leaders coalesce around data analysis, key stakeholder input, and a better understanding of existing policies
and procedures, they should document their findings and prioritize changes to make immediately, while
also memorializing improvements that require more preparation and a longer timeline. Florida developed
an expansive report in 2007 that outlined the state’s problems at the intersection of mental health and
criminal justice and established recommendations for change. This led to the development of local and state
collaborations; the addition of training for all new judges on mental health and substance use; and the expansion
of the state Criminal Justice, Mental Health, Substance Abuse Reinvestment Grant, among other changes.
38
36. Additional data collection may be needed to answer some of these questions. As data collection procedures are developed, securing individual authorization to
share health information for operational improvement, as well as treatment, can facilitate these and future information exchanges.
37. The CSG Justice Center, Justice Reinvestment in Oregon Policy Framework (New York: the CSG Justice Center, 2020), https://csgjusticecenter.org/wp-content/
uploads/2020/04/JR-OR-Policy-Framework.pdf.
38. Supreme Court of the State of Florida, Mental Health: Transforming Florida’s Mental Health System (Tallahassee, FL: Supreme Court of the State of Florida, 2007),
https://www.floridasupremecourt.org/content/download/243049/2143136/11-14-2007_Mental_Health_Report.pdf; Steve Leifman, email to authors, July 24, 2020.
12 Just and Well: Refining How States Approach Competency to Stand Trial
Key Data to Inform CST Policy
Accurate, accessible data is critical for policymakers to make informed decisions about what is working well
and where changes are needed in the CST process. At a minimum, state policymakers should collect and
analyze the following data to identify areas for further inquiry, including local or regional variations worthy
of exploration. Better data collection can also lay the groundwork for more research, a priority noted by the
advisory group.
Individual demographics: Data from the courts and forensic systems can help determine the age, gender,
race, and ethnicity of the people cycling through the CST process. This can help identify potential inequities
in how CST is being used. Data on health insurance and housing status may also reveal opportunities to
implement strategies that could prevent criminal justice involvement. Current charges and prior criminal
justice involvement, including prior CST findings, can also help identify diversion opportunities and any need
for additional community-based treatment resources. Charges with high rates of referral for CST may be worth
additional inquiry to determine whether specific statutory language is driving arrests that lead to CST requests.
For instance, if people with mental illnesses are arrested and charged (and then referred for CST) at high
rates because of the way the crime is defined or because it is described as a felony, a statutory change could
prioritize connection to crisis services rather than arrest or make the same crime a misdemeanor instead of a
felony.
Duration of the process: There should be a reasonable relationship between the time a person is in the CST
process and the most likely length of incarceration they would face for the alleged oense (e.g., a person
should not spend 6 months being restored to competency when the maximum sentence for the alleged
oense is 30 days). In order to make this kind of determination, jurisdictions must first know and track the
amount of time their CST process takes. Some key timeframes to consider: time taken from arraignment to the
start of the competency process; from when competency is first raised through the evaluation; from evaluation
to restoration, including potential wait time for admission to an inpatient facility; and from restoration to the
resumption of case proceedings.
Outcomes: Measures like the percentage of cases referred for competency evaluations and the final
disposition of these cases can show policymakers the overall demand for CST and whether it contributes to
eective prosecution. High rates of “dismissal” or “time served” following restoration may indicate that CST
processes are being used in cases in which the state’s interest in adjudication is relatively low. Overall costs
from relevant systems (e.g., courts, jail, state hospital, community-based care) are another key measure to
ensure that resources across systems are being used wisely.
12 Just and Well: Refining How States Approach Competency to Stand Trial
Just and Well: Refining How States Approach Competency to Stand Trial 13
Strategy 3: Provide training for professionals working at the
intersection of criminal justice and behavioral health.
Criminal justice and behavioral health stakeholders need profession-specific training regarding CST. Attorneys
and judges who understand the dierence between the services to restore competency and those oered
in a diversion program will be less likely to view CST as a gateway to treatment. A number of profession-
specific standards and curricula exist nationally, such as the American Academy of Psychiatry and the Law’s
guidelines on evaluation for CST
39
and the American Bar Association’s criminal justice and mental health
standards.
40
States should consider how these and other appropriate professional standards and resources
41
are incorporated into state training requirements, as well as how compliance can be encouraged through
continuing education credits or even state professional practice standards. The Judges and Psychiatrists
Leadership Initiative has worked with teams of judges and pyschiatrists to provide training for judges on
addressing people with behavioral health needs in the criminal justice system.
42
Engagement with community-
based groups or people with firsthand experiences can also help stakeholders understand practical and
structural factors impacting how people with behavioral health needs access services, such as the availability
of transportation, costs, and wait times.
Cross-training (i.e., training that includes both criminal justice and behavioral health stakeholders) is also
critical for eective collaboration. This kind of training can help professionals in both systems better
understand how to make connections to community-based care, improve proceedings in a competency case,
achieve the best possible health outcome for the person, and ensure dispositions include appropriate care and
supports. Training and review of guiding documents on responding to people with mental health needs in the
criminal justice system also provide helpful touchstones for professionals working on improving care for those
whose competency has been raised. Examples include mental health training for court personnel and training
on court processes for mental health professionals; Collaborative Comprehensive Case Planning training;
43
and training on criminogenic risk and the Risk-Needs-Responsivity model.
44
39. Douglas Mossman et al., “AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial,” Journal of the American Academy of
Psychiatry and the Law 35, Suppl. 4 (2007): S3–S72, https://www.aapl.org/docs/pdf/Competence%20to%20Stand%20Trial.pdf.
40. American Bar Association, Criminal Justice Mental Health Standards (Chicago: American Bar Association, 2016), 7–9, https://www.americanbar.org/content/dam/
aba/publications/criminal_justice_standards/mental_health_standards_2016.authcheckdam.pdf.
41. Additional resources from national organizations are available as background for these topics, such as from the Bureau of Justice Assistance and the SAMHSA
GAINS Center at https://www/bja/gov and http://samhsa.gov/gains-center, respectively. NCSC also has resources specifically to help state courts. See “National
Judicial Task Force to Examine State Courts’ Response to Mental Illness,” NCSC, accessed July 22, 2020, https://www.ncsc.org/mentalhealth. And NCSL has developed
similar resources for legislatures at https://www.ncsl.org.
42. The Judges and Psychiatrists Leadership Initiative (JPLI) has worked with judicial educators in 23 states to deliver training for judges hearing criminal cases. They
also regularly host webinars covering relevant and pressing topics in criminal justice and behavioral health. For example, in 2019, JPLI held a webinar on ways to
improve cultural competency while working with people in the criminal justice system. JPLI, "Improving Cultural Competency: Working with People in the Criminal
Justice System Who Have Mental Illnesses" (webinar, the CSG Justice Center, New York, May 16, 2019), https://csgjusticecenter.org/wp-content/uploads/2019/12/Im-
proving-Cultural-Competency_Working-with-People-in-the-Criminal-Justice-System-Who-Have-Mental-Illnesses.pdf.
43. “Collaborative Comprehensive Case Plans,” the CSG Justice Center, accessed April 23, 2020, https://csgjusticecenter.org/publications/
collaborative-comprehensive-case-plans/.
44. D.A. Andrews, James Bonta, and Robert D. Hoge, “Classification for Eective Rehabilitation: Rediscovering Psychology,” Criminal Justice and Behavior 17, no. 1
(1990): 19–52. https://doi.org/10.1177/0093854890017001004.
14 Just and Well: Refining How States Approach Competency to Stand Trial
Strategy 4: Create and fund a robust system of community-
based care and supports that is accessible for all before, during,
and after criminal justice contact.
Robust community-based care and supports can help prevent criminal justice contact for people with
behavioral health conditions. Such programs also provide opportunities for diversion once a person is involved
in the criminal justice system. Because people with behavioral health needs are often those who become
involved in the CST process, providing services in the community can limit the number of people entering the
CST process in the first place.
The availability of community-based behavioral health care should also counter any perception that raising
competency is an appropriate or necessary strategy for getting a person the treatment they need. To build up
these services and supports, policymakers must take stock of what is currently available in their community,
understand the needs of that community, and be aware of their ability to redirect resources to bolster services
that are evidence based and most eective. Services that policymakers establish or enhance may include
mental health or substance use disorder treatment,
including crisis services;
45
educational and vocational
programs; and/or prosocial activities that support
recovery. Housing and transportation, as well as
access to technology that facilitates support from
care providers and loved ones, are also critical to
recovery. Investments in aordable, supportive
housing have also been shown to reduce criminal
justice involvement and overall justice and health
system costs,
46
particularly for people who have
frequent arrests, hospitalizations, and episodes of
homelessness.
47
Many communities are already facing a shortage of behavioral health professionals across a range of
disciplines, from psychiatrists to community health workers.
48
According to the most recent national data,
120 million Americans live in mental health Professional Shortage Areas.
49
Experts are anticipating expanded
need for mental health services as a result of the COVID-19 pandemic, increasing the urgency for accessible,
responsive care.
50
Meeting this need will require both short-term strategies and longer-term development
45. Substance Abuse and Mental Health Services Administration (SAMHSA), National Guidelines for Behavioral Health Crisis Care–A Best Practice Toolkit (Rockville, MD:
SAMHSA, 2020), https://www.samhsa.gov/sites/default/files/national-guidelines-for-behavioral-health-crisis-care-02242020.pdf.
46. A RAND Corporation essay recently summarized how supportive housing in Los Angles is reducing criminal justice involvement and saving health and housing
costs as part of that county’s eorts to divert people with mental illnesses from jail, including some who might otherwise be sent to the state hospital for competency
restoration. See Doug Irving, “Supportive Housing Can Help Keep People with Mental Illness Out of Jail,” The RAND Review, February 27, 2020, accessed May 11, 2020,
https://www.rand.org/blog/rand-review/2020/02/supportive-housing-can-help-keep-people-with-mental.html.
47. One initiative that focuses on supportive housing is the Frequent Users System Engagement (FUSE) model. For further information, see “FUSE,” Corporation for
Supportive Housing, accessed June 3, 2020, https://www.csh.org/fuse/.
48. The Health Resources & Services Administration conducts surveys and forecasts for the behavioral health workforce. See “Behavioral Health Workforce
Projections,” Health Resources & Services Administration, accessed June 2, 2020, https://bhw.hrsa.gov/health-workforce-analysis/research/projections/behavioral-
health-workforce-projections. Additional state-specific information on the mental health workforce can be found through the Kaiser Family Foundation, see
“Mental Health Care Health Professional Shortage Areas (HPSAs),” Kaiser Family Foundation, accessed June 2, 2020, https://www.k.org/other/state-indicator/
mental-health-care-health-professional-shortage-areas-hpsas/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.
49. “Shortage Areas,” Health Resources & Services Administration, accessed June 2, 2020, https://data.hrsa.gov/topics/health-workforce/shortage-areas.
50. Sandro Galea, Raina M. Merchant, and Nicole Lurie, “The Mental Health Consequences of COVID-19 and Physical Distancing: The Need for Prevention and Early
Intervention,” JAMA Internal Medicine 180, no. 6 (2020): 817–818, https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2764404.
“Where possible, focus
resources on prevention,
recovery, and reintegration
back into the community.”
DR. MICHAEL CHAMPION,
MEDICAL DIRECTOR,
ADULT MENTAL HEALTH DIVISION,
BEHAVIORAL HEALTH ADMINISTRATION,
STATE OF HAWAII DEPARTMENT OF HEALTH
Just and Well: Refining How States Approach Competency to Stand Trial 15
of a robust, adequately paid, and diverse behavioral health workforce to provide a wide range of services at
dierent levels of care.
51
Once an adequate behavioral health workforce is in place, communities will require training that equips them
to deliver care for people in the justice system that is trauma informed,
52
accessible, eective with all patients,
and inclusive of people with diverse racial, cultural, ethnic, linguistic, and socioeconomic backgrounds.
53
One
way to gain more of this understanding is continued engagement with people who have firsthand experiences
with CST and their advocates.
Strategy 5: Expand opportunities for diversion to treatment
at all points in the criminal justice system, including after
competency has been raised.
States and localities are able to address people’s underlying behavioral health needs outside of the criminal
justice system when diversion opportunities exist at each point within the system—particularly opportunities
that prioritize early intervention through non-mandated care and appropriate supports.
54
This, in turn, helps
to reduce people’s long-term contact with the criminal justice system
55
and can help reduce the strain on a
community’s CST process.
State leaders should review existing statutes, rules, and practices to understand current diversion
opportunities and identify additional policy opportunities for promoting diversion. About half of the states in
the U.S. have statutory provisions for diversion for people with mental health needs.
56
These can range from
broad policies encouraging diversion, such as in Texas,
57
to defined diversion program types.
58
An example
of this is the Bridges Program in Colorado, a legislative initiative that places behavioral health professionals in
each state judicial district to act as court liaisons and facilitate assessments and connections to needed care.
59
Additionally, in Michigan, the Mental Health Diversion Council convened by the governor seeded pilot diversion
programs throughout the state and facilitated training and ongoing evaluation of these eorts to inform local
and state diversion policies.
60
51. The Level of Care Utilization System for Psychiatric and Addiction Services (LOCUS) model is one example of a model for balancing quality care and wise use of
resources. See Wesley Sowers and Robert Benacci, LOCUS Training Manual: Level of Care Utilization System for Psychiatric and Addiction Services Adult Version 2000
(Erie, PA: Deerfield Behavioral Health, Inc., 2003), https://redecomposition.files.wordpress.com/2012/12/csplocustrainingmanual.pdf.
52. SAMHSA recommends 10 domains for organizations, agencies, and facilities to evaluate and incorporate trauma-informed principles into practice. See Substance
Abuse and Mental Health Services Administration Trauma and Justice Strategic Initiative, SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach
(Rockville, MD: SAMHSA, 2014), https://store.samhsa.gov/system/files/sma14-4884.pdf.
53. SAMHSA, A Treatment Improvement Protocol: Improving Cultural Competence TIP 59 (Rockville, MD: SAMHSA, 2014). Additional specifics can be found in “National
Standards for Culturally and Linguistically Appropriate Services (CLAS) in Health and Health Care,” U.S. Department of Health & Human Services, accessed June 3,
2020, https://thinkculturalhealth.hhs.gov/clas/standards.
54. The CSG Justice Center, Behavioral Health Diversion Interventions: Moving from Individual Programs to a Systems-Wide Strategy (New York: the CSG Justice Center,
2019), https://csgjusticecenter.org/publications/behavioral-health-diversion-interventions-moving-from-individual-programs-to-a-systems-wide-strate gy/.
55. Madeline M. Carter, Diversion 101: Using the “What Works” Research to Determine Who Should Be Considered for Diversion (Kensington, MD: Center for Eective
Public Policy, 2019), https://cepp.com/diversion-101-using-the-what-works-research-to-determine-who-should-be-considered-for-diversion/.
56. “Pretrial Diversion,” National Conference of State Legislatures, accessed June 4, 2020, https://www.ncsl.org/research/civil-and-criminal-justice/pretrial-
diversion.aspx.
57. Texas Code of Criminal Procedure section 16.23 requires that “each law enforcement agency shall make a good faith eort to divert a person suering a mental
health crisis or suering from the eects of substance abuse to a proper treatment center” within reason. Tex. Code Crim. Proc. § 16.23 (2017).
58. For example, Nevada explicitly authorizes a post-plea diversion opportunity for people convicted of nonviolent misdemeanors who have a mental illness. See NV
Rev Stat § 176A.250 (2017).
59. Colorado State Court Administrator’s Oice, “Connecting Colorado’s Criminal Justice and Mental Health Systems,” (PowerPoint presentation, Colorado
Commission on Criminal and Juvenile Justice meeting, June 14, 2019), https://cdpsdocs.state.co.us/ccjj/meetings/2019/2019-06-14_MHJTF_SB18-251_LiaisonBridges_
Turner_PPT.pdf.
60. State of Michigan Mental Health Diversion Council, Mental Health Diversion Council Progress Report (Lansing, MI: State of Michigan Mental Health Diversion
Council, 2018), https://www.michigan.gov/documents/mentalhealth/Diversion_Council_Progress_Report_Jan_2018_611673_7.pdf.
16 Just and Well: Refining How States Approach Competency to Stand Trial
At the local level, Sequential Intercept Mapping
61
and other process mapping approaches can help
identify existing diversion eorts, as well as additional opportunities for diversion.
62
Stakeholders from
crisis services, law enforcement, jail, courts, pretrial services, community supervision, homeless services,
community-based organizations, peer support programs, and housing and community-based treatment
providers, as well as people with firsthand experiences and their loved ones, can help illustrate how people
with behavioral health needs move through the criminal justice system and where opportunities for diversion
currently exist or could be developed. In Illinois, state oicials worked with leaders in Cook County to analyze
data and develop a range of new strategies for people with mental illnesses, including a misdemeanor
diversion program.
63
Change in Action: Miami-Dade, FL
For more than 20 years, Miami-Dade County, Florida, has engaged a cross-section of leaders to understand
their systems and identify strategies to reduce the number of people with mental illnesses in the criminal
justice system. Because of this ongoing commitment, they have developed training and protocols for police
responding to mental health calls, numerous post- arrest diversion programs, and robust relationships with
researchers to help understand the impact of changes. They also stopped initially ordering competency
evaluations for misdemeanor cases, and instead began diverting these individuals to treatment.
One particularly innovative way these leaders worked together was developing the Miami-Dade Forensic
Alternative Center Program, which diverts people charged with second- and third-degree felonies from the
state restoration facility to a local inpatient hospital that includes not only competency restoration services,
but also crisis stabilization, development of community living skills, assistance with community reentry
(including benefits enrollment), and community monitoring to ensure ongoing treatment following discharge.
A 2015 study found that people admitted to the program were discharged from inpatient forensic commitment
at an average of 73 days (33 percent) sooner than people who complete competency restoration services in
traditional forensic treatment facilities. Upon discharge, most people were enrolled in a post- arrest diversion
program where the court monitored their progress for at least 1 year and, in most cases, dismissed the charges
upon successful completion. During the year following community reentry, people admitted to the program
were half as likely to return to jail and spent an average of 41 fewer days in jail compared to people who
received services in state forensic treatment facilities. According to the study, the cost per admission to the
program was half that of admission to a state forensic facility.
64
Ideally, diversion will begin at a person’s first interaction with the criminal justice system. Jurisdictions are
increasingly developing law enforcement responses for people who have mental health needs, including
• Providing oicers with training on mental illness, crisis intervention, and de-escalation;
• Developing specialized teams of oicers who respond to calls involving mental illness;
61. “The Sequential Intercept Model,” Policy Research Associates, accessed July 21, 2020, https://www.prainc.com/sim/.
62. Stepping Up Initiative, In Focus: Conducting a Comprehensive Process Analysis (New York: Stepping Up Initiative, 2019), https://stepuptogether.org/wp-content/
uploads/JC_Stepping-Up-In-Focus_Conducting-a-Comprehensive-Process-Analysis.pdf.
63. Meeting with Presiding Judge Sharon Sullivan, Dr. Sharon Coleman, Dr. Lorrie Rickman Jones, and authors, July 8, 2020.
64. Sana Qureshi et al., Outcomes of the Miami-Dade County Forensic Alternative Center: A Diversion Program for Mentally Ill Oenders (Miami, FL: University of Miami
Miller School of Medicine, 2015).
Just and Well: Refining How States Approach Competency to Stand Trial 17
• Creating co-responder teams, which pair oicers with representatives from the behavioral health field; and
• Establishing mobile crisis units, which are generally staed by social workers, behavioral health
professionals, or peers.
While there are many iterations of each of these models and approaches, they all share a common goal: keep
people out of the criminal justice system wherever possible and connect them with needed treatment.
Overlaying existing CST processes on local system maps can help identify additional opportunities to divert
people to community-based care even once competency has been raised.
65
When standing up such programs,
policymakers should ensure that there is a clear mechanism to allow for dismissal of charges and appropriate
record clearance, potential transfer of the case to the civil system (if appropriate), and procedures for releasing
people from custody, including connections to community-based care. Los Angeles, for example, has
developed approaches to divert people facing misdemeanor and felony charges into community-based
care with provisions to drop charges upon completion of the diversion intervention.
66
Diversion statutes
and program materials should underscore the importance of providing treatment and supports that will be
accessible to diverse participants and support regular evaluation to identify any unequal outcomes based on
race, socioeconomic status, and sexual orientation.
Any plans for returning people to the community should also include appropriate notification to key individuals,
including the person’s family members or other loved ones and victims of crime. Prosecutors, with their
authority to dismiss charges and their connections with victims of crime, can be particularly helpful in ensuring
that these steps function well.
Strategy 6: Limit the use of the CST process to cases that are
inappropriate for dismissal or diversion.
The CST process should generally be used only when there is a compelling interest in ensuring that a person
is restored to competency so that a criminal case can proceed. Members of the national advisory group noted
that for many low-level cases, the CST process may take longer than the maximum potential incarceration for
the charged oense. Those scenarios appear to violate the U.S. Supreme Court’s ruling in Jackson v. Indiana,
which states that “due process requires that the nature and duration of commitment bear some reasonable
relation to the purpose for which the individual is committed.”
67
State policymakers can play an important role
in limiting CST to those cases in which the state has a strong interest in adjudication and that clear “o ramps”
are in place to divert people to needed community-based care. Of course, a person who chooses to reject an
opportunity to participate in a diversion program and proceed with adjudication of their case should always
have the right to do so and to proceed through the CST process as needed.
With their state’s statutory approach and these considerations in mind, jurisdictions may determine that, for
certain charges, the benefit of restoring a person’s competency to face that charge in court is not worth
the costs. This might be because the person committed a nonviolent oense and would be better served if
65. Debra A. Pinals and Lisa Callahan, “Evaluation and Restoration of Competence to Stand Trial: Intercepting the Forensic System Using the Sequential Intercept
Model,” Psychiatric Services 71, no. 4 (2020): 698–705, https://doi.org/10.1176/appi.ps.201900484.
66. Irving, “Supportive Housing.”
67. Jackson v. Indiana, 406 U.S. 715, 738 (1972).
18 Just and Well: Refining How States Approach Competency to Stand Trial
diverted to non-mandated treatment with a dismissal of charges, or because the time they might spend in jail
while awaiting an evaluation and potential restoration is significantly larger than the jail time they would face
if convicted of the crime. State task forces can provide helpful information to judges and attorneys through
continuing education about the state CST process, statewide outcome data for similar charges, and available
alternative case dispositions.
Strategy 7: Promote responsibility and accountability across
systems.
States should designate a specific person, a multi-disciplinary team, or an agency to be responsible for
ensuring that the CST process proceeds eiciently and eectively at each step. A designated person or
agency can closely track each case to ensure that needed steps are taken and linkages across systems happen,
whether in the form of paperwork or the physical transportation of people. This individual or agency is also
best equipped to track trends and problem-solve any challenges that arise.
Transitions across systems (e.g., from a court to a hospital) present particular risk for delay or confusion, so
policies should delineate the responsible party to ensure that cases do not get backlogged at key transition
points. Those include
• Getting an evaluation completed after CST is raised in court;
• Returning evaluation results to the court promptly after completion;
• Establishing the beginning of restoration services following an order for restoration;
• Returning a person to court and, potentially, jail after restoration, and making sure the jail can continue the
person’s medications; and
• Supporting a person’s return to the community (from the state hospital or jail).
A number of communities are using designated liaisons to follow each case through those very steps,
managing coordination across agencies to advance the case to the next phase of the process. Arizona is
establishing standardized descriptions and qualifications for “clinical liaisons,” who coordinate care,
68
and is
providing additional support in some communities in the form of “peer/forensic navigators”—often people who
have experienced the CST process firsthand and help defendants navigate their court cases and path toward
recovery.
69
County jails and state hospitals should also assign clear responsibility for transporting people between jail
and the location for their evaluation or restoration, as well as a timeframe for doing so, and support costs
accordingly. In Washington, jails must transport a person to the competency restoration site within one day
of an oer of admission and must provide their medical clearance to the state hospital admissions sta. The
state’s Department of Social and Health Services also asks jails to collaborate with hospital admissions sta in
screening people for placement to reduce the chances of prolonged delays in the process.
70
68. Committee on Mental Health and the Justice System, Developing Best Practices in Restoration to Competency Programs (Phoenix, Arizona: Committee on Mental
Health and the Justice System, 2020), https://www.azcourts.gov/Portals/74/MHJS/Resources/CompetencyRTCBPs2420.pdf?ver=2020-04-27-090342-170; State of
Arizona Supreme Court, COVID-19 Continuity of Court Operations during a Public Health Emergency Workgroup Best Practice Recommendations (Phoenix: State of
Arizona Supreme Court, 2020), https://www.azcourts.gov/Portals/216/Pandemic/050120CV19COOPRecommendations.pdf?ver=2020-05-06-150156-047.
69. Stacy Reinstein, email message to authors, March 3, 2020.
70. “Competency Restoration Facilities,” Washington State Department of Social and Health Services, accessed June 3, 2020, https://www.dshs.wa.gov/bha/
oice-service-integration/competency-restoration-facilities.
Just and Well: Refining How States Approach Competency to Stand Trial 19
Strategy 8: Improve eiciency at each step of the CST process.
For both CST evaluation and restoration, it is critical that people move through the process in a timely manner.
While the dierences in state systems make national standards challenging to define, some states and
stakeholders
71
have established specific timeframes within the CST process to help improve eiciency. States
that have statutory timeframes in place should work to understand and address any challenges they may have
in meeting these timeframes. To develop new timeframes, stakeholders involved in the various aspects of the
CST process should use the process flow developed above (in Strategy 1) to identify critical steps in the CST
process that would be amenable to time limits. Stakeholders should also keep in mind the need for timeframes
to fit the local structures and capacities, as well as encourage eiciency without creating perverse incentives.
72
Several communities have also streamlined the flow of CST information within their courts so that they can
centralize mental health expertise and reduce the time it takes to complete a CST process. Mechanisms such
as “competency dockets” with dedicated calendars allow judges, attorneys, and treatment professionals to
develop a deeper understanding of this area of law and related court processes. They also create opportunities
to build relationships with behavioral health partners and each other and can potentially improve their ability to
share information needed to make timely and appropriate decisions.
73
Dueling Evaluators
In some communities, defense attorneys and prosecutors spend a significant amount of time and money
hiring what are sometimes known as “dueling evaluators”— competing forensic evaluators representing the
prosecution and defense. The goal is usually to ensure the quality of the forensic evaluation. But not only does
this increase the costs of the case, it also often creates doubt for the court, leading to an order for an expensive
evaluation from the state hospital to break the tie. States can reduce this concern and improve eiciency by
developing standards for competency evaluators and ensuring qualification using these accepted standards of
practice. Evaluators in Michigan are trained through the Michigan Center for Forensic Psychiatry using a method
that combines didactics and supervised case work, as well as experience with mock trial testimony.
74
The
Maryland Department of Health’s Behavioral Health Administration also supervises a core group of evaluators
who are deployed locally as needed.
75
And in Tennessee, the Department of Mental Health and Substance
Abuse Services contracts with nine agencies across the state to cover all jurisdictions; each court has an
assigned outpatient forensic mental health evaluation provider.
76
71. For example, The National Judicial College provided recommended timeframes for aspects of the CST process. See National Judicial College,
Mental Competency—Best Practices Model (Reno, NV: National Judicial College, 2012).
72. While time limits may be helpful for guiding behavior, care should be taken to ensure that any time limits are meaningful locally and appropriately resourced.
Arbitrary time requirements do not always achieve the goal of getting people into the most appropriate services in a timely manner, and policymakers should be
mindful of this consequence, lest people follow the letter but not the intention of the law. For example, stakeholders in Minnesota reported that a requirement to
transfer people from jail to a competency restoration program within 48 hours resulted in some individuals being placed in inappropriate levels of care, simply
because the programs were more readily accessible. See Stewart, Watts, and Mitchell, Competency in Minnesota.
73. This approach has been tried in urban jurisdictions such as Los Angeles, CA, and Multnomah County, OR, as well as on a smaller scale in rural jurisdictions,
such as Dougherty County, GA.
74. Debra A. Pinals, email message to authors, July 15, 2020.
75. George Lipman, email message to authors, April 1, 2020.
76. The department’s Oice of Forensic and Juvenile Court Services also provides training, certification, and ongoing technical assistance to professionals designated
at each provider to conduct forensic mental health evaluations and associated services. See Tennessee Department of Mental Health and Substance Abuse Services,
Forensic and Juvenile Court Services Annual Report July 1, 2018–June 30, 2019 (FY 19) (Tennessee: Department of Mental Health and Substance Abuse Services, 2019),
https://www.tn.gov/content/dam/tn/mentalhealth/documents/TDMHSAS_Forensic_Report-FY19.pdf.
20 Just and Well: Refining How States Approach Competency to Stand Trial
Strategy 9: Conduct evaluations and restoration in the
community, when possible.
While detention may be required in certain cases, jurisdictions should consider conducting evaluations and
restoration in the community to keep people close to home and in the least restrictive environment possible.
Decisions about location should be made based on the clinical level of care needed. However, community-
based evaluation and restoration options are an important tool to help address competency in a setting
that is less expensive than a state hospital or inpatient forensic facility and likely closer to the individual,
even in remote areas. As of 2019, almost all states allow restoration services to occur in an outpatient
setting (sometimes called “community-based restoration”),
77
and most states have some form of outpatient
competency restoration in practice, whether as part of a state-led program or on an ad hoc basis.
78
Some
states, like Tennessee, use it as the primary approach for handling competency restoration. Others, like Texas,
are looking to expand this capacity because these programs show “promising outcomes in terms of high
restoration rates, low program failure rates, and substantial cost savings,” according to a national survey of
the practice.
79
They also have the benefit of taking people out of institutional settings and potentially starting
connections with community-based treatment providers and services.
States are also increasingly leveraging technology to overcome geographic challenges and facilitate
connections between behavioral health care providers and their patients, an option being used more
commonly in light of COVID-19 restrictions on in-person activities.
80
The pandemic has resulted in a sea
change in approaches, with many states adapting their forensic services to provide competency evaluations
remotely. Michigan, for instance, launched full “Video Conference Forensic Evaluation” services and has
conducted hundreds of video evaluations since the services began.
81
Testimony has also been permitted by
video and telephone across many jurisdictions.
77. Susan MacMahon, Reforming Competence Restoration Statutes: An Outpatient Model.
78. For a list of existing community-based competency restoration programs as of 2016, see W. Neil Gowensmith et al., “Lookin’ for Beds in All the Wrong Places:
Outpatient Competency Restoration as a Promising Approach to Modern Challenges,” Psychology, Public Policy, and Law 22, no. 3 (2016): 296–297. MacMahon also
includes a list of state statutes as of 2019 in her article. See Susan MacMahon, Reforming Competence Restoration Statutes: An Outpatient Model, 627.
79. W. Neil Gowensmith et al., “Lookin’ for Beds in All the Wrong Places: Outpatient Competency Restoration as a Promising Approach to Modern Challenges,” 293.
80. As courts closed during the coronavirus pandemic, NCSC developed an overview of telehealth resources and options for courts. See NCSC, Providing Court-
Connected Behavioral Health Services During the Pandemic: Remote Technology Solutions (Williamsburg, VA:NCSC, 2020), https://www.ncsc.org/__data/assets/
pdf_file/0014/42314/Behavioral-Health-Resources.pdf.
81. Debra A. Pinals, email message to authors, July 23, 2020.
Just and Well: Refining How States Approach Competency to Stand Trial 21
Jail-Based Restoration Services
A handful of states have explored jail-based competency restoration as a way to keep a defendant
in a consistent, secure setting throughout the CST process.
82
For example, Fulton County, Georgia,
developed a jail-based restoration program through a collaborative partnership between jail
administrators and Emory University School of Medicine, which aimed to create a therapeutic
environment, even in the jail setting. The county launched a 16-bed pilot program for jail-based
restoration in 2011 that reduced long wait times for those who needed hospitalization while costing
significantly less than hospital services.
83
However, jail-based restoration is controversial, as many
people do not believe a jail can ever achieve a therapeutic environment. Indeed, several states
prohibit jail-based restoration categorically.
84
Whether or not states determine that jail-based
restoration is part of their “continuum of services,”
85
policymakers should ensure any policies they
approve allow people to be served in the least restrictive setting possible based on their clinical
need.
86
Strategy 10: Provide high-quality and equitable evaluations
and restoration services, and ensure continuity of clinical care
before, during, and after restoration and upon release.
When it is determined that evaluation and restoration are the appropriate course, these services should be
available in a variety of settings and provided consistently with the highest professional standards, including
ensuring that services are performed in a manner appropriate for diverse subpopulations. It is also critical that
attention is paid to developing clinical care plans that go beyond restoration and toward recovery. Clinical
care plans need to be part of the CST process to ensure that whether a person is in jail, in a community-based
program, or a hospital or forensic facility, their clinical needs are also addressed.
Conducting universal mental health and substance use screening and assessments at the earliest point
possible in the criminal justice system to determine the person’s level of behavioral health needs is important
to ensure that appropriate clinical care plans are developed and implemented.
87
As with community-based
behavioral health supports, care plans also should be designed in a culturally competent manner for the
people they are intended to serve.
88
Recent research suggests they should also aim to be “structurally
82. “Alternatives to Inpatient Restoration Programs,” NRI Inc., accessed May 15, 2020, https://www.nri-inc.org/media/1500/jbcr_website-format_oct2018.pdf.
83. It’s important to note that Fulton County’s program includes the following sta members: a psychologist director, a social worker, a masters-level mental health
clinician, a part-time diversion specialist, and psychiatry fellows under the supervision of faculty forensic psychiatrists. Many jail-restoration programs across the
country do not have this level of mental health expertise on their sta. See Peter Ash et al., “A Jail-Based Competency Restoration Unit as a Component of a Continuum
of Restoration Services,” Journal of the American Academy of Psychiatry and the Law Online 48, no. 1 (2020), 43–51, http://jaapl.org/content/48/1/43.
84. For example, Maryland Code of Criminal Procedure explicitly excludes correctional or detention facilities, as well as units within these facilities, from the list of
designated health care facilities that can provide restoration services. Md. Code, Crim. Proc. § 3-106.
85. Peter Ash et al., “A Jail-Based Competency Restoration Unit as a Component of a Continuum of Restoration Services,” 43–51, 46.
86. For example, the American Bar Association standard states that “A defendant should be evaluated in jail only when the defendant is ineligible for release to the
community.” See American Bar Association, Criminal Justice Mental Health Standards.
87. “Collaborative Comprehensive Case Plans,” the CSG Justice Center, accessed April 23, 2020, https://csgjusticecenter.org/publications/
collaborative-comprehensive-case-plans/.
88. For example, the American Academy on Psychiatry and the Law has developed practice guidelines for forensic psychiatric evaluations that include the importance
of cultural competence. See Douglas Mossman et al., “AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial,” S30. Similarly,
22 Just and Well: Refining How States Approach Competency to Stand Trial
competent,”
89
meaning they should consider structural factors that may impact people’s ability to benefit from
services, such as geography or socioeconomic status.
While a limited, well-functioning CST process is vital, it is just as important to consider what happens once a
person’s competency has been restored and they return to jail, or the case ends, and the person returns to the
community. Quality treatment upon return to jail and linkage to quality treatment in the community is needed
to ensure continued stabilization while supporting next steps in the person’s recovery process. “Warm hand-
os” should be made to community-based treatments and supports upon reentry.
90
One way to ensure that people are connected to care upon release is by establishing methods for collaborative
case management to link people to services within and outside of the jail. Collaborative Comprehensive Case
Plans draw from information gathered in behavioral health, criminogenic risk, and psychosocial assessments.
They can help facilitate eorts to get people to the programs and services that meet their needs and bring
together the appropriate professionals and supports to assist them with reintegration and recovery.
91
An important component of successful case
planning involves identifying how people will pay
for available community services. States may also
need to determine whether their laws and policies
make it harder or easier for people to access some
form of medical insurance to pay for their continued
care upon release. This might involve reviewing
provisions for Medicaid and other federal and state
benefits in their state,
92
as well as the impact these
have on people getting medical and behavioral
health care when released from incarceration.
93
Leaders should also pursue strategies to streamline
continuity of care. For example, eorts to
standardize formularies (i.e., the lists of available, approved medications) used for medication purchases
across dierent treatment settings, including the jail, can help people stay on medications that have been
found to work. Putting appropriate processes in place to facilitate sharing health records for treatment
purposes can also save time and expense in developing clinical care plans.
the American Bar Association’s Criminal Justice Standards for Mental Health include consideration of “the possible impact of culture, race, ethnicity, and language
on mental health” in responding to people with mental health needs in the criminal justice system. See American Bar Association, Criminal Justice Mental Health
Standards (Chicago: American Bar Association, 2016), Standard 7-1.2(b)(iii).
89. “Structural competency” is a term in medical literature to describe the necessity of understanding the impact of social, economic, and political conditions
on individual health, including mental health. See Jonathan M. Metzl and Helena Hansen, “Structural Competency and Psychiatry,” JAMA Psychiatry 75, no. 2
(2018): 115–116.
90. As people with behavioral health needs reenter communities from incarceration, unmet basic or health needs impede their progress toward stability.
Some non-criminogenic needs, such as homelessness or severe mental illness, are also likely to interfere with a participant’s response to correctional rehabilitation
eorts and must be stabilized early before other interventions can proceed. See Dr Douglas B. Marlowe, The Most Carefully Studied, Yet Least Understood,
Terms in the Criminal Justice Lexicon: Risk, Need, and Responsivity (Alexandria, VA: National Association of Drug Court Professionals, 2018),
https://www.prainc.com/risk-need-responsitivity/.
91. “Collaborative Comprehensive Case Plans,” the CSG Justice Center.
92. The CSG Justice Center, Critical Connections: Getting People Leaving Prison and Jail the Mental Health Care and Substance Use Treatment They Need
(New York: the CSG Justice Center, 2017), https://csgjusticecenter.org/publications/critical-connections/.
93. Medicaid and CHIP Learning Collaboratives, “Medicaid Eligibility and Enrollment for Justice-Involved Populations” (PowerPoint presentation,
Coverage Learning Collaborative, Washington, DC, February 19, 2015).
“[The judge] felt I needed care,
and she was right. I did . . . They
developed these programs for us,
and we had therapy, and the food
was excellent, and we had some
recreation, some occupational
therapy . . . all of these things
were useful.”
ANONYMOUS, PERSON WITH A MENTAL ILLNESS
DESCRIBING HIS POSITIVE EXPERIENCE
RECEIVING CLINICAL CARE IN A STATE HOSPITAL
Just and Well: Refining How States Approach Competency to Stand Trial 23
“We can better serve some populations by connecting them
to appropriate treatment in the community, instead of filling
precious state hospital beds with people facing low-level
offenses undergoing competency restoration. We need to be
smarter about the process and better utilize our resources.”
THERESA GAVARONE, STATE SENATOR, OHIO
A Call to Action
Now is the moment to rethink our approach to CST. States are facing
significant budget pressures due to increased costs associated with
COVID-19. Experts are warning of a wave of increased need for mental
health services associated with the pandemic. And renewed calls for
criminal justice reform are echoing louder than ever in communities
across the country. Using strategies other states have pioneered,
jurisdictions can save taxpayer money and improve individual health
while ensuring public safety and a better justice system.
Taking action on this report’s strategies can have real impact. People who might previously have languished
in jail will be moved into more therapeutic settings. Families and friends will have the opportunity to be closer
to their loved ones. State and local budgets will be spared wasteful spending. And communities that have
historically been both underserved by mental health services and over-represented in the criminal justice
system are likely to benefit disproportionately from this change.
Advisory group members who were consulted during the drafting of this report agreed that, despite the
budgetary pressures brought on by the COVID-19 pandemic, it is vital to protect investments in mental
health, substance use treatment, and associated supportive services, such as aordable housing and case
management. Without community-based treatment and supports, people wind up in hospitals and jails, both
of which are more expensive and less likely to achieve optimal health and safety outcomes.
24 Just and Well: Refining How States Approach Competency to Stand Trial
Leadership and commitment from policymakers will be critical to overcoming ineiciencies and breakdowns
across the criminal justice and behavioral health systems. Policymakers should come together in their states
to identify opportunities to apply the principles and strategies articulated in this report and evaluate the best
practices identified to see what may work locally.
Some changes, such as increased use of telemedicine and reliance on community-based services, may
already be in place as temporary responses to decrease institutional populations in jails and state hospitals
due to COVID-19. States should review these approaches and determine if they are successful and can be
made permanent. Other changes, such as statutory changes allowing for community-based evaluation and
restoration or enhanced community-based treatments, may take more time and planning.
The organizational partners for this report stand committed to supporting states and localities in these eorts,
even during the tough times on the immediate horizon. Continued research into current and best practices in
this area also can elevate new successful approaches and help provide a clearer picture of how CST operates
across the country as the pandemic plays out.
Grounding state eorts in the vision of this report can help states and local practitioners thoughtfully
determine a strategy for reducing their CST referrals, improving eiciency within them, and ensuring
evaluations and restoration services are provided with equity and quality to protect people’s constitutional
right to assist in their own defense. By doing this, leaders across the country can work together to develop
solutions that improve outcomes for their state and local systems, as well as individual lives, and create just
and well CST processes.
ii Just and Well: Refining How States Approach Competency to Stand Trial
