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Defense attorneys have concerns regarding their client’s competency in about 8% to 15% of felony prosecutions. That is where psychiatrists come in.
SPECIAL REPORT: FORENSIC PSYCHIATRY, PART II
The United States legal system has long recognized that criminal defendants must be competent to stand trial (CST) prior to proceeding with the legal process to allow for fairness for the accused and protect the integrity of the justice system. Trying a defendant who is unable to assist in their own defense would call into question the dignity of the proceedings and render the adversarial process unfair. Psychiatrists and psychologists assist courts by evaluating defendants’ CST and, when necessary, providing treatment to restore competency in defendants initially found to be incompetent to stand trial (IST). The term competence restoration (CR) is used to describe the treatment and education process used to transform the defendants classified as IST to CST (Table 1).1
CST, therefore, is a legal decision made by a judge that determines if a criminal defendant is able to proceed with the legal process. It is also called adjudicative competence or fitness to proceed. It is the most commonly conducted criminal forensic evaluation in the United States. There has been a surge in CST evaluation requests in recent years, with current estimates of 160,000 or more evaluation requests annually.2,3 This increase may be due to the criminalization of mental illness, substance abuse, and intellectual disability, all of which often stem from the lack of adequate access to civil treatment in the community. Thus, the gap in traditional treatment services in the community results in the overuse of the CST-CR system.4 Public mental health care systems are in crisis, and increasingly they must devote dollars to those facing criminal charges for costly forensic evaluations and lengthy state hospitalization stays.5
The minimum legal standard for competency to stand trial was set by the US Supreme Court in Dusky v United States.6 In 1960, the court determined that “it is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present 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.’”
Defense attorneys have concerns regarding their client’s competency in about 8% to 15% of felony prosecutions, and it is estimated that about 20% to 30% of evaluated defendants are found incompetent to stand trial.1 If a judge determines a defendant is CST, the legal case proceeds. If the judge determines a defendant is IST, the CR process begins, typically in the form of both treatment of the defendant’s mental illness and competency education (Figure).
A CST evaluation is first and foremost a clinical evaluation. As with all psychiatric evaluations, a CST evaluation includes a review of medical records in addition to a thorough clinical interview. Police reports, medical records from jail, prior competency evaluations, and information shared by the lawyer are some of the data that are an integral part of the competency evaluation although they are not included in typical psychiatric evaluations.
In addition to assessing the defendant’s psychiatric, medical, and social histories, the defendant’s competence as it relates to trial-related tasks is evaluated. This includes assessing an understanding of the charges and their potential consequences, an understanding of the trial process, knowledge about the various participants in a trial, and whether the defendant has the ability to help in their own defense and make decisions about their case.7,8
CST is a present tense evaluation, meaning it is an evaluation that determines the current mental state of the defendant, conducted after the alleged criminal incident has occurred. In contrast, a criminal responsibility evaluation determines the mental state of the defendant at certain point in the past, specifically at the time of the alleged criminal incident. Additionally, CST trial is moment specific. Therefore, a defendant could be initially recommended as CST and later, as the case progresses, may become IST. In fact, the issue of competency can be raised at any point in the court process.
“John,” a 35-year-old man with a history of schizoaffective disorder, is arrested; he has been treatment nonadherent for several months. Once detained, he is restarted on treatment. By the time the evaluators saw him in jail, John was no longer thought-disordered because his condition had improved with treatment. He, therefore, had an understanding of his charges and potential consequences. However, given his history of mental illness and his bizarre behavior at the time of the arrest, a CST evaluation was ordered.
John was recommended as CST, which was accepted by the court. However, as months passed, the defendant started having difficulty sleeping and became increasingly paranoid. He ultimately stopped taking his medicines. When his defense attorney tried to meet with him, John began muttering under his breath that the lawyer was conspiring with the judge and the police.
In the above scenario, the defendant was disorganized during the time of arrest, but by the time the CST evaluation was ordered, he was back on medications and was overall functioning well. Therefore, he was first recommended as CST. However, once he stopped taking his medications in jail, he became psychotic, refused to work collaboratively with his attorney, and believed the legal system was conspiring against him. At that point, if a second evaluation were ordered, he would likely be found IST and remanded for CR services.
There are multiple competency assessment instruments that supplement clinical evaluations (Table 2). While these formalized checklists and structured interviews can assist evaluators with competency assessments, they do not replace a thorough clinical evaluation. Some examples include the Competency Assessment Instrument (CAI), the Georgia Court Competence Test (GCCT), and the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR).8
To illustrate how critical the clinical evaluation is in CST evaluations, and that a clinical evaluation cannot be replaced by a competency assessment instrument, consider the following case.
“Jodi,” a 25-year-old law student with a long history of treatment nonadherence, once again stops her medications because they made her thinking “too slow.” She becomes increasingly paranoid. On a particularly bad day, Jodi calls the police for backup, as she believes that people are walking around downtown with bombs in backpacks. The police arrive as she is being arrested—she was trying to take a backpack from a passerby, believing a bomb to be inside.
Since she refuses medication, the treatment team requests the court to medicate despite objection. During the hearing in mental health court to determine treatment, Jodi, being a law student, starts to question the psychiatrist. She is well versed in the requirements that are needed for involuntary medication, and she insists on cross examining the psychiatrist, despite the judge advising her to defer to her attorney.
In such a case, a law student who is knowledgeable about the legal system would do well on scoring instruments. However, in undergoing a thorough CST evaluation, the evaluator would realize that the defendant is paranoid and likely unable to assist in her own defense despite having a strong factual base of knowledge. Therefore, while the law student has a factual understanding of the case (such as case travel, various pleas, etc), the law student’s ability to apply the information to her own case would be impaired, as she does not have a rational understanding of the situation. She is viewing the situation through a psychotic process. This defendant would also be recommended as IST, despite her in-depth knowledge of the law, as she was unable to comport her behavior appropriately in the civil mental health court. By extrapolation, if the criminal court judge ordered a CST evaluation, she would likely be recommended to the court as IST because she was unable to work with her attorney in civil court due to mental illness symptoms.
Although there are no diagnoses that equal IST, psychosis and intellectual disability are the 2 most common clinical reasons that defendants are found incompetent to stand trial. Nonetheless, a defendant with schizophrenia can be competent and, similarly, a defendant with intellectual disability can be competent. Consider the following case example.
“Tony” is a 25-year-old man who has been in and out of the legal system since he was a teenager. He was not a high school graduate; he dropped out in the middle of tenth grade as he no longer wanted to go to school. He successfully worked with his attorney on several other misdemeanors, both in family court as a juvenile and in the criminal court system as an adult. He has never served time, as he always managed to get probation.
Tony violates a no contact order, and because of his history of intellectual disability, his competency to stand trial is questioned. After an evaluation, including a clinical evaluation and the CAST-MR, it is clear that he has an understanding of the charges and their potential consequences. Plus, as a result of years of experience in the court system, Tony also has a good handle on the trial process. He tells you that he is interested in accepting a deal, because it will allow him to avoid going to jail. Tony further explains he would prefer to admit to some form of guilt to be quickly paroled so that he can see his newborn child.
This case illustrates that an intellectual disability does not automatically equate with incompetence. Prior experience in the legal system would be an important factor in this case. The defendant had repeated exposure to the system, giving him a lot of practical experience. As such, it is likely that he would be competent to stand trial, even though he has an intellectual disability.
Currently, public mental health services are inundated with court referrals for CST evaluations. When defendants are IST, the CST-CR system often cannot keep up with demand. This has resulted in wait lists for competency-related services for jail detainees. States have been sued for being unable to admit IST defendants for CR services in a timely fashion. Better collaboration between the criminal justice and clinical care systems could improve services for persons with serious mental illness in the legal system.4,9,10
Dr Wall is a clinical psychiatrist, treating patients in the Providence, Rhode Island area. He is also a clinical professor at Brown University and provides expert witness consultations for medical-legal purposes. Dr Lee is clinical assistant professor of psychiatry at Brown University, and is the assistant program director of the Forensic Psychiatry Fellowship and assistant director of the forensic service at Slater Hospital, Rhode Island’s only state hospital.
1. Noffsinger SG, Resnick PJ. Criminal Competencies. In: Rosner R and CL Scott, eds. Principles and Practice of Forensic Psychiatry, 3rd ed. Taylor & Francis; 2017.
2. Poythress NG, Bonnie RJ, Hoge SK, et al. Client abilities to assist counsel and make decisions in criminal cases: findings from three studies. Law Hum Behav. 1994;18:437-452.
3. Department of Justice, FBI. Uniform Crime Report: Crime in the United States, 2018. Fall 2019. Accessed September 1, 2020. https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018
4. Callahan L, Pinals DA. Challenges to Reforming the Competence to Stand Trial and Competence Restoration System. Psychiatr Serv. 2020;71(7):691-697.
5. Gowensmith WN. Resolution or resignation: the role of forensic mental health professionals amidst the competency services crisis. Psychol Public Policy Law. 2019; 25:1-14.
6. Dusky v United States. 362 US 402; 1960.
7. Poythress N, Bonnie R, Monahan J, Otto R. Adjudicative Competence: The MacArthur Studies. Kluwer Academic/ Plenum Studies; 2002.
8. Wall BW, Ash P, Keram E, Pinals DA, Thompson CH. AAPL practice resource for the forensic psychiatric evaluation of competence to stand trial. J Am Acad Psychiatry Law. 2018;46(3):373.
9. Gowensmith WN, Frost LE, Speelman DW, et al. Lookin’ for beds in all the wrong places: outpatient competence restoration as a promising approach to modern challenges. Psychol Public Policy Law. 2016;22:293-305.
10. Fuller DA, Sinclair E, Lamb Human Resources, et al. Emptying the “New Asylums”: A Beds Capacity Model to Reduce Mental illness Behind Bars. Treatment Advocacy Center; 2017.❒