A legal quagmire: the need for a public health approach to the competency crisis

Abstract

Competency to stand trial is a legal construct in the United States whereby an individual’s capacity to meaningfully and knowingly function in a legal proceeding, typically for those with mental or developmental disabilities or dementia, is questioned. The competency determination and restoration process often leads to unnecessary and excessive incarceration of those with disabilities without treatment for the underlying cause of competency concerns, often worsening health and leading to repeated incarceration. Yet, this crisis is rarely considered from a public health lens. Further, the number of individuals entangled in this legal process has risen dramatically in recent years, with 130,000 competency evaluations being conducted annually. We review what is known about this topic from legal studies, provide case studies of individuals failed by this process, and outline the responses that criminal legal systems and local and state governments have had to this crisis (e.g., increase in jails’ competency beds, diversion programs). We conclude that the competency process is a public health crisis which merits both study by public health researchers and a public health response.

Seven million people cycle through county jails annually in the United States[1], and on a given day, 450,000 people are held in local jails before being convicted. The population in jails pre-conviction disproportionately has a disability— an impairment limiting major life activities or bodily functions [2, 3]. Prior to their incarceration, individuals with disabilities often face severe stressors such as unemployment and homelessness, interface with other institutions (e.g., juvenile justice, psychiatric hospitals), and are often seen as a social danger, all of which increase their risk of both incarceration and poor health [4]. Further, carceral settings often worsen individuals’ symptoms through their high levels of stress, unpredictable environments, lack of access to mental and physical healthcare, and separation from families and communities [5, 6].

Due to all of these factors, incarceration is a well-documented structural determinant of health [6]. However, for the disproportionate share of incarcerated individuals with disabilities, there is a complex and opaque legal mechanism called the “competency to stand trial” process that likely further exacerbates the detrimental impact that incarceration has on health.

The competency process

Competency to stand trial, established by the Supreme Court in Dusky v. United States 362 U.S. 402 (1960), refers to an individual’s capacity to meaningfully and knowingly function in a legal proceeding [7, 8]. The standard for competency is that an individual has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him.“[7] This was refined by the US Supreme Court in Jackson v. Indiana 406 U.S. 715 (1972), which established that people accused of crimes can only be detained for the “reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competency to stand trial] in the foreseeable future.”[9] However, “reasonable” is not defined and some states have no specific time limit for individuals to await competency to stand trial assessment. Since its creation, the competency process has been most often updated through litigation.

The full competency process encompasses multiple phases. First, someone involved in the court system (e.g., judge, attorney) raises competency concerns. Second, individuals undergo a waiting period in the jail and complete a competency to stand trial evaluation in which a psychologist or psychiatrist reviews discovery information about a case, examines the individual’s ability to assess factual knowledge, and takes a brief family, employment, substance use disorder, and mental illness history. Of note, research has found that after long wait times, some competency to stand trial evaluations are of poor quality and evaluators were largely unable to accurately describe the nature of the disability at hand or explain how clinical factors (i.e., diagnoses or symptoms) impacted competency to stand trial abilities [10]. Third, if a defendant is found incompetent, they undergo an additional waiting period before undergoing competency restoration (most often in a jail setting, a state hospital, or an outpatient program). During restoration, individuals receive legal education, sometimes receive medication, and are re-assessed for their competency to stand trial at regular intervals. Fourth, if competency cannot be restored, individuals are either civilly committed or released to the community and their case is dismissed.

The competency crisis

The competency process was originally intended to establish fairness in law for individuals with disabilities by ensuring that they could adequately participate in their defense. However, this process often results in prolonged and repeated institutionalization, limits access to care, and worsens health. This is because the competency process is a legal solution to a medical issue, producing an issue existing at a medico-legal borderland [11]. This issue is only exacerbated by a continued lack of necessary community care settings for those with disabilities (e.g., mental health providers, secure nursing homes) that result in our country’s reliance on the carceral system. Further, due to a combination of a rapid growth in the number of competency referrals in recent years and chronic shortages of qualified evaluators and restoration beds – resulting in long wait times for evaluation and restoration – scholars and practitioners increasingly describe the competency process as a competency crisis.

Involvement in the competency process is not rare. In a given year, 130,000 competency evaluations are now conducted in the United States, and the proportion of those found incompetent to stand trial has increased from 27.5% in the early 2000’s to over 50% in 2018 [12]. This crisis has been growing, with a 58% increase in the proportion of beds at state hospitals occupied by those from the legal system from 2010 to 2016 [2]. The increase in demand for competency evaluations has led to backlogs in processing and increased wait times that individuals linger in jail. Most individuals are incarcerated for multiple months while waiting for a state bed [13]. Several lawsuits have been filed regarding the long periods of time that individuals who are deemed incompetent are subjected to when waiting for restoration processes. The American Civil Liberties Union (ACLU) of Kansas filed a class action suit against the Kansas Department of Aging and Disability Services which found that individuals were waiting as long as 13 months for evaluations and restoration processes. In Oklahoma, three individuals who were incarcerated at the Oklahoma Forensic Center (OFC) launched a suit against the Oklahoma Department of Mental Health and Substance Abuse Services and the executive director of the OFC. The OFC backlog was estimated to be between 120 and 200 people, potentially leading individuals incarcerated for a year before receiving restoration treatment.

The competency process is considered most often when an individual has a serious mental illness (e.g., schizophrenia) [14]. Yet, an increasing proportion of individuals undergoing this process are those with other disabilities such as neurodegenerative conditions (e.g., Alzheimer’s) and intellectual or developmental disabilities (e.g., autism) [15]. In fact, the number of arrests of people over 65 grew by nearly 30% between 2000 and 2020 [10].

The scope of individuals involved in the competency process thus delays legal and health justice. This waiting period in jail is particularly harmful, as individuals often experience worsening symptoms, which can contribute to excess mortality and worsening health. Further, jails often lack appropriate services for these individuals, as those with disabilities have complex needs that often require intensive and comprehensive treatment and support over extended periods of time [16]. Further, individuals with disabilities are often exposed to health-harming conditions (e.g., solitary confinement) in the absence of appropriate services, have heightened stress[5], are physically isolated from support systems[17], and funneled into a subpar healthcare system. Deaths – including suicides – also occur among those awaiting evaluation and restoration [12].

For those determined to be incompetent after an evaluation, competency restoration programs often do not treat the root health and care related causes of the incompetency determination. Instead, these programs focus on cultivating an understanding of the legal process among the individual being assessed given that competency is a legal rather than a medical process [18]. Historically, the competency process occurred within psychiatric hospitals, but with the deinstitutionalization movement, hospitals have struggled to keep pace with the demand of patients undergoing competency restoration as their bed capacity has diminished. Consequently, states have allowed individuals awaiting restoration to linger in jails or allowed the process to take place in jails – an environment known to be inadequate in addressing the needs of individuals with mental illness, dementia, and intellectual and developmental disabilities [5]. This can result in patients being integrated into the general population of a jail or a specialized restoration unit within the jail, the latter of which is far less common [19]. Subjecting individuals to poor conditions of confinement in a jail can further exacerbate the harms they experience while waiting to move through the competency process (e.g., stress, isolation). Further, for individuals with disabilities – particularly those that require residential care, experiencing incarceration can drastically decrease the likelihood of someone being eventually accepted into adequate care.

A case study in mental illness and the competency process

The vast majority of those deemed incompetent to stand trial suffer from severe mental illness. Experiences of the competency process for those with severe mental illness are cyclical and often have dire consequences, as the story of Markese Braxton demonstrates.

Markese Braxton was diagnosed with severe bipolar disorder and schizophrenia during adoelscence [20]. In 2016, at the age of 24, he was arrested and Markese became entangled with the criminal legal system for the first time. Due to his mental illnesses, his competency to stand trial was questioned. While his parents were hopeful that he would receive treatment, after one week at a psychiatric hospital, the doctors completed their assessment and recommended him competent to stand trial. His parents pleaded with the California Department of State Hospitals (DSH) to keep him in the hospital, but he was sent back to jail to stand trial. He was again found incompetent to stand trial and recommitted to the California DSH, but he was never transferred back to a state hospital. Instead, he spent months in jail awaiting transfer, until he was found dead in his cell at the Los Angeles County Jail in June of 2018 at 26 years old. His death was ruled as due to unknown causes, yet the autopsy reported that he had soft tissue damage on his hands, shoulder, back, and shins, and there was blood between his brain and skull which raises troubling questions about the role of trauma, restraint, or custodial conditions in his death. His parents are still looking for answers about what happened to their son and the ACLU of Northern California sued the California DHS.

Unfortunately, the story of Markese Braxton and his family is not rare. Markese’s story was part of an investigation by The ACLU, finding that at least 35 individuals in California died while incarcerated in jail for extended periods of time on the statewide waitlist for treatment over a five year time period [21]. In another case, Rene Snider experienced paranoia and delusions brought on by borderline personality disorder [20]. Following crimes that were related to the symptoms of her mental illness, she was detained after competency was raised when she was abruptly taken off of her psychiatric medications and died by suicide. As these cases show, the competency process is a legal quagmire that results in further incarceration instead of treatment, producing dire consequences for health and wellbeing.

A case study in dementia and the competency process

A growing number of individuals are caught in the competency determination process for reasons related to aging. In a case law review of court cases involving dementia and competency to stand trial, 45% were determined incompetent, higher than mental illness cases at around 30%[22]. Similarly, in a case law review of individuals over age 65 in which competency was raised, of those found incompetent to stand trial, over 90% had dementia [23]. Those deemed incompetent to stand trial with dementia are also rarely going through this process for the first time; one-third were facing their second and one-third were facing their third or more competency evaluations.

The Marshall Project highlights this crisis in the story of Jose Veguilla, a factory worker and father of five living in Lawrence, Massachusetts [24]. He lived on his own until 2018 when he fell and hit his head, sustaining a traumatic brain injury. Shortly after, he began having hallucinations and was placed in a nursing home. However, this facility took four months to provide him with Spanish language services and had numerous poor reviews. During this time, he fatally beat his roommate, and, in the courtroom, had no recollection of the events of that day. Once competency was raised, he was moved to a state psychiatric hospital where he was one of the oldest residents, was forcibly injected with medication, and threatened and assaulted by other patients. He often thought he was at school, back in Puerto Rico, or with his wife at home, who had died multiple years prior.

Despite the incredibly low likelihood of restoring competency for someone with dementia, the judge has not dismissed Jose’s charges. The court’s insistence to restore competency of someone with dementia is concerning, as such a process has little chance of success and is likely to cause further harm [25]. Every few months, the court convenes, the judge is told that Jose still has severe dementia, and that the trial cannot proceed. One hearing lasted less than 60 seconds. As Jose nears the end of his life, his children hope to place him in hospice, but this is not allowed, as Jose is currently under a civil commitment to remain in state custody in which his children are not allowed in his room, to share a meal, or to spend more than 45 min with him.

Responses to the competency crisis

Common approaches

As states grapple with the competency crisis, some are exploring ways to handle this growing population. The most common response is to grow capacity for competency restoration, simply increasing the number of beds in inpatient settings. Since 2016, states such as California, Hawaii, Illinois, Louisiana, Washington, and West Virginia have increased their number of staffed beds per 100,000 people by at least 10% [13]. However, this approach continues to ignore the root of the competency crisis - a lack of community-based services and support for those with disabilities. Similarly, states are pursuing alternatives to the inpatient competency restoration by instituting programs such as community outpatient restoration or jail-based restoration programs [12]. One survey found that 16 states have established at least one community competency restoration program [12]. However, evaluations of these outpatient settings have found longer times to achieve restoration and that these settings are generally only used for those with intellectual disabilities and thus are not available to the majority of the population [12].

Another avenue being implemented by states such as Hawaii, North Carolina, Ohio and Washington, is to reduce the need for competency restoration processes by reducing the time allowed for restoration programs for minor charges [18]. An evaluation of the five counties with the highest competency admissions rates in Oregon found that 40% of admissions within four counties were individuals charged with misdemeanors, highlighting that this population may comprise a substantial proportion of individuals waiting for restoration services [18]. States such as Florida and New York have taken this further by eliminating the competency restoration process for minor charges altogether [18]. While this will impact the number of individuals awaiting competency restoration services, releasing these individuals without providing linkage to treatment or social services can lead to these same individuals continuously appearing in hospitals or jails as their underlying health needs have still not been addressed.

Alternative solutions

More recently, some cities and states have begun diverting individuals with competency challenges away from the legal system entirely and providing them with wrap-around community services. Miami-Dade County houses The Eleventh Judicial Circuit Criminal Mental Health Project (CMHP) to divert individuals with serious mental illness and substance use disorders away from the criminal legal system and into community-based services. CMHP includes both pre- and post-booking diversion programs, which have resulted in cost savings, jail population reduction, and positive outcomes for diverted individuals [24]. In Colorado there was a 500% increase in hospital referrals for pretrial competency evaluations between 2004 and 2013 which led to the recent passing of Colorado House Bill 24–1355, which aims to reduce time spent on the competency waitlist [25]. The act creates the Bridges wraparound care program to increase the success of eligible individuals referred from the criminal legal system by connecting the individuals to necessary wraparound care coordination services, resulting in case dismissal, continuity of care, and increased social stability. These wraparound services include assistance finding housing, navigating health insurance, transportation to medical care.

Some recent solutions have also focused on sub-populations based on their medical needs, such as those with Alzheimer’s. In 2021, the company MissionCare opened a nursing facility in western Massachusetts aimed to safely house individuals with histories of aggressive behavior by providing care rather than mandating stays in jail or psychiatric hospitals [24]. For the aging population, it is important for diversion to include opportunities for individuals to be admitted to long-term nursing facilities with well-trained staff and appropriate security. While violence is not common among those with dementia, aggression can be a symptom of cognitive impairment if emotional, social, and physical needs are not met [24]. Such assaults, when they occur, are thus often preventable with adequate staffing of nursing homes and staff de-escalation training, alongside meaningful programming for people with memory loss. However, there have yet to be legal changes that divert individuals from the competency system to such nursing homes.

A public health approach

The competency process has largely been shaped by litigation and receives attention in the law literature. However, we argue that the competency determinant process is also an emerging public health crisis. The competency process exists at a medico-legal borderland, a contested space where medical and legal authority interact [11]. At its core, the competency process is a legal process and standard that imposes a medical issue onto the legal system; doing so has ballooned the competency system and has created a public health crisis by placing individuals with specific and often acute medical needs into a legal system ill-equipped to serve them.

It is thus critical that we take a public health perspective and approach to solving the competency process. A public health perspective involves but is not limited to the following. First, through conducting social epidemiologic studies, we can illuminate the true scale, process, and patterns of competency involvement. This would include creating retrospective cohorts of individuals involved in the competency process, linking data across systems that these individuals interact with (e.g., healthcare, criminal legal, housing), and exploring inequities in competency involvement and repeat involvement by race and socioeconomic status. Second, through foregrounding the expertise of those with lived experience in the competency system and their loved ones, we could prioritize approaches that those most closely involved in the system value. Third, through the frameworks of public health ethics and critical disability studies, we can better conceptualize how inadequate community health services and structural determinants of health (e.g., poverty, policing of individuals with disabilities due to their perception of being a social danger) can funnel certain groups disproportionately into the criminal legal system instead of community-based care. A public health approach informed by the social model of disability centers access, equity, and the structural determinants that shape both health and justice outcomes [26]. Fourth, a public health approach helps us move beyond a focus on individual “deficits” to systems-level failures, thus creating and prioritizing upstream interventions to avoid criminal legal involvement for those with disabilities in the first place. Miami-Dade County’s CMHP and Colorado’s Bridges program are examples of this that should be refined and expanded upon based on rigorous evaluations rooted in health equity (e.g., their success in securing long-term stable housing). Lastly, a public health approach would allow us to better tailor services for individuals based on their medical needs. For example, those with severe mental illness and those with Alzheimer’s have highly variable needs that the current competency system often homogenizes (e.g., the same competency evaluation is conducted). Through a focus on rigorous data collection and analysis, the prioritization of lived experience, emphasizing systems-level framing and solutions, and ensuring individuals’ health needs are met, a public health approach can ultimately move us towards long-term solutions.

The competency crisis is both the result of health issues and contributes to and exacerbates these health issues, making it a clear concern for public health practitioners, researchers, and advocates. There is an urgent need to more deeply understand the scope of the competency process and to work towards solving it. Framing the issue of competency as a public health issue would ultimately work towards meaningfully intervening prior to individuals’ criminal legal system involvement for those with disabilities. This framing highlights that competency to stand trial crisis is a systemic issue resulting from insufficient community-level care that requires a primary and structural solution. With a rapidly growing population of those with disabilities entangled in the competency determination process for lengthening periods, it is past time for public health scholars to begin addressing the competency crisis.

Authors’ contributions

KL and EM conceptualized; KL, EM, and ZC wrote main manuscript text; EM and KL revised.

Funding

There was no funding this this project.

Data availability

No datasets were generated or analysed during the current study.

Declarations

Ethics approval and consent to participate

Not applicable.

Competing interests

The authors declare no competing interests.