Fixing the Competence Restoration Process

By Kathryn LaFortune, J.D., Ph.D., Licensed Attorney and Health Service Psychologist in Oklahoma, Tulsa County Public Defender-Mental Health Services and Adjunct Professor at The University of Tulsa

When a defense counsel, prosecutor, or judge has reason to question whether a defendant can rationally assist in their own defense, the court may order a competency evaluation, the most common forensic referral. The judge uses the report of a psychologist or psychiatrist to determine whether the trial may proceed.

Over the past decade, both the frequency of referrals and the rates of findings of incompetency have skyrocketed across the United States. As described in the article “Standing Tall: A New Stage for Incompetency Cases,” in the June 2022 Monitor, the reasons for this surge are complex and thought to be the result of the shuttering of long-term civil mental health beds and the ensuing cascade of events, including insufficient community treatment services to address the increase in demand. Jails have evolved as the de facto mental health hospitals for pretrial detainees.

Many jurisdictions have confined pretrial detainees in jails on sometimes years-long waiting lists for restoration. For example, in Oklahoma, hundreds of pretrial detainees charged with misdemeanors and felonies are on a waiting list for inpatient restoration at the only forensic hospital. Those who were arrested for low-level, often nonviolent crimes are more likely homeless, acutely ill, and psychotic. Unfortunately, many of these clients wait in jails longer than the maximum time they would have served if they had pleaded guilty or had been convicted at trial. Clients awaiting inpatient restoration continue to deteriorate or, sadly, have died before a treatment bed becomes available. The U.S. Supreme Court in the case of Jackson v. Indiana (406 U.S. 715) (1972) made it crystal clear that pretrial detainees should never have to spend a lifetime in a mental health facility for restoration of competency. It follows that the Court would be similarly troubled by the lack of available beds for the appropriate treatment of incompetent defendants who must languish in jails across this country.

Although outpatient restoration is authorized by Oklahoma statutes as an available alternative for some defendants, authentic outpatient programming and infrastructure do not currently exist in the state to support its use. Recently, officials began to discuss the logistics of outpatient restoration in some Oklahoma jails, but many are not convinced that jail programs are appropriate to the needs of qualified individuals in the least restrictive setting as contemplated by Supreme Court decisions in Youngberg v. Romeo in 1982 and Olmstead v. L. C. in 1999.

The Oklahoma Appleseed Center for Law and Justice, a state affiliate of the national Appleseed Network for justice and advocacy, has formed a working group to study the current system in Oklahoma, citing failures in public safety, human rights, disability rights, and constitutional protections. Judges, legislators, defense attorneys, mental health professionals, forensic psychologists, mental health advocates, juvenile justice experts, and affected family members of detainees who are awaiting transport for competency restoration have come together to produce a report to spread awareness to the public called Fractured: Oklahoma’s System of Trial Competency Restoration Leaves Hundreds Languishing in County Jails.

The report recommends that policymakers increase the number of mental health beds in line with the population; address the shortage of mental health providers; improve mental health referrals for services; increase access to diversion programs for people who aren’t likely to go to prison; implement community outpatient restoration services; and provide more mental health training for court personnel and law enforcement. The report also recommends reducing restoration time limits to one year and that people found incompetent be ordered and transported to inpatient treatment within seven days.

Many jurisdictions have now pursued litigation to address the competency crisis when agencies remain indifferent or ignore the problems. More than 30 years ago, my colleague Robert Nicholson and I noted legal professionals’ criticisms of the competency process in Oklahoma, evident even then (Journal of Psychiatry and Law, Vol. 23, No. 2, 1995). Emerging opportunities exist for forensic psychologists to guide systemic changes to ensure a just process. Forensic psychologists should adhere to ethical principles of beneficence and nonmaleficence in championing reforms in the wake of inhumane waiting lists for necessary treatment (Gowensmith, W. N., Psychology, Public Policy, and Law, Vol. 25, No. 1, 2019).

Edited by Ashley M. Votruba, J.D., Ph.D., SPSSI Blog Editor, Assistant Professor, University of Nebraska-Lincoln