Sentenced to the Max Without Benefit of a Trial


From the time of the philosopher-physician Maimonides, individuals with mental impairments were known to be unable to participate meaningfully in judicial proceedings. Thus, for at least a millennium, it has been the expectation in civilized societies that individuals accused of crimes must be competent in order to plead, go to trial, and be sentenced.

Competency to stand trial consists of a set of skills and behaviors that are assessed by a court, and if necessary, by mental health experts. Most scholars look to Dusky v. US as setting the base standard for trial fitness.

In this blog, I will assume a basic knowledge of competency. But if more information is needed, there are many useful resources readily available from reputable psychiatric, psychological and legal sources.

Each state sets its own standard.

In Maryland, where I work, “'Incompetent to stand trial' means not able:

(1) To understand the nature or object of the proceeding; or

(2) To assist in one's defense.” [MD Code-Annotated, Criminal Procedure §3-101(f)]

Upon a finding of incompetency to stand trial (ICST or IST), if a defendant is dangerous to himself or to the person or property of others due to mental illness, he may then be committed to a state mental hospital for treatment until he becomes competent, or he is rendered not dangerous—or it is determined that “there is not a substantial likelihood that [he] will become competent to stand trial in the foreseeable future.” [MD Code-Annotated, Criminal Procedure §3-106(b)]

My focus in this blog will be on the last of these three occurrences: findings of unrestorability.

Commenting on the issue, George F. Parker wrote: “From 1972 until 2010, the policy of the Indiana Division of Mental Health and Addiction was not to discharge an ICST defendant unless he was restored to competence or the charges were dropped. As a consequence, Indiana state hospitals always sought the renewal of the civil commitment of incompetent defendants, and it was always granted by the courts.”

“In effect,” Dr. Parker continued in The Quandary of Unrestorability, “unless a defendant was restored to competence, the discharge decision rested with the prosecutor; curiously, [incompetent] defendants often had their charges dropped after a length of stay that was close to the time the defendant would have served if found guilty on the underlying charges.” [emphasis added].

In Jackson v. Indiana, the US Supreme Court held in 1972 that continuing a commitment as IST beyond the point at which it has been determined that a defendant will not become competent is unconstitutional.

According to the Jackson ruling, “a[n incompetent] defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future…. Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed“[emphasis added].

Thus, the Maryland statute says, “the court shall dismiss the charge against a defendant found incompetent to stand trial…:

(1) When charged with a capital offense, after the expiration of 10 years;

(2) When charged with a felony or crime of violence…, after the lesser of the expiration of 5 years or the maximum sentence for the most serious offense charged; or

(3) When charged with an offense not covered under paragraph (1) or (2)…, after the lesser of the expiration of 3 years or the maximum sentence…” [MD Code-Annotated, Criminal Procedure §3-107(a)].

Notably, these time frames are far longer than those recommended in the recent monograph “Mental Competency, Best Practices Model,” published by the National Judicial College. Time frames vary among states, from mandated dismissal upon findings of incompetency for misdemeanors (New York) to one-half, two-thirds, or the maximum sentence (numerous states).

In Maryland, cases must be dismissed after statutorily defined time frames loosely connected to the maximum sentence that could be imposed upon conviction.

In addition, Maryland draws no legislative connection between these limits and findings of unrestorability.

Thus: what should happen when a defendant is found unrestorable before the maximum timeframe is reached? While the time frames in Maryland's statute, as well as those suggested by the National Judicial College, contemplate illnesses that may be treatable, in a number of cases, it is clear from the outset that the defendant will never become competent to stand trial.

Here are a few vignettes from my recent practice:

Mr. A is a 55-year-old man charged with second degree assault for hitting his roommate at the nursing home. Diagnosed with dementia secondary to Huntington's disease, he is determined to be IST and unlikely to become competent at any point in the future.

Although Huntington's disease is not a “mental illness” but rather is a progressive neurologic disorder with dementia as a predictable feature, the court nonetheless committed him to a psychiatric hospital as there was no readily available alternative. Second degree assault carries a 10 year maximum sentence in Maryland.

Ms. B is a 65-year-old woman charged with trespassing, failure to obey an order, and resisting arrest for an incident occurring in a subway station. She was diagnosed with dementia and alcohol dependence, and the judge committed her after a finding of IST.

After several months of abstinence in the hospital, it is apparent that her mental state is seriously impaired by persistent dementia and that she will not recover adequate cognitive function to be taken to trial. The most serious charge is resisting arrest, with a maximum sentence of 3 years.

Mr. C is a 40-year-old deaf man with a history of mental illness and cognitive delay secondary to his hearing impairment and limited education. Charged with trespassing, a 90-day charge, he is evaluated a week after arrest and considered to be IST and unrestorable due to linguistic impairments related to his deafness.

Despite these findings, the court committed him to the hospital as IST.

In each of these cases, the prosecutor indicated his intention to hold the case open as long as the statute permits (3 years for the first two cases, and 90 days for the third), despite the evaluators' opinions that these defendants would never become competent. As described in Prof. Parker's article, cited above, the discretion is left, unchecked, in the hands of the prosecutor.

When asked about the reason for the decision not to move for dismissal of the charges, Maryland prosecutors invariably cite the statute's permissive language, allowing them to keep these cases open up to the statutory limits.

In none of these cases did the court or defense attorney question the prosecutorial decision, despite the continued commitment as IST being clearly at odds with Jackson. Defense attorneys frequently view the commitment to a hospital as IST as a “win,” because the defendant is no longer in jail, and hence they fail to continue to advocate for their client's obvious liberty interests.

In these cases, it is evident that the continued IST commitment bears no “reasonable relation to the purpose for which the individual [was] committed.” [cf. Jackson v. Indiana]

While Maryland's statute permits these cases to be kept open up to the stated limits, it does not require that these cases be kept open that long. The most logical reading of Jackson suggests that the commitment must be terminated the moment it is determined that the defendant is unlikely to ever become competent.

Continuing such commitments beyond that point can only be seen as preventive detention or as punishment. These commitments clearly are not about the pursuit of justice in a criminal trial.

What these cases amount to is the imposition of a maximum sentence (albeit to a hospital, not a jail or prison) with no trial, no finding of guilt, and no meaningful defense—based solely on the prosecutor's discretion regarding dismissal.

Maybe it's me, but this seems flagrantly unconstitutional.

Erik Roskes, a regular blogger for The Crime Report, is a forensic psychiatrist and serves on the teaching faculty in the Psychiatry Department at the University of Maryland School of Medicine. The opinions expressed are those of the author only, and do not represent those of any of Dr. Roskes' employers or consultees, including the Maryland Department of Health and Mental Hygiene. He welcomes readers' comments. Dr. Roskes' website is

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