When Morgan learned that her son Tyler had been taken to the hospital after being accused of stealing someone else’s hamburger in a buffet line in January 2017, she had no idea that the incident would spark a 17-month-long entanglement with the local justice system.
The police officers who responded to calls about the buffet disturbance had found Tyler, who has a history of mental health issues and has been diagnosed with bipolar disorder with psychotic features, “acting strange and irrational,” and had called an ambulance to take him to a hospital. Though Tyler had gone voluntarily, he had struggled with an Emergency Medical Technician (EMT) on the ride over who he claimed had tried to give him a shot of antipsychotic medication.
He remained at the hospital emergency room less than 24 hours and was discharged early the next morning.
In March, Tyler received a felony summons for assaulting the EMT officer. He was ordered to appear in court but was never detained, “so he obviously was not a public safety risk,” Morgan said.
At some point late that summer, over eight months after the original incident, a request came that Tyler be evaluated for competency, and Morgan and Tyler (whose real names and geographical location have been withheld to protect their anonymity) heard the words “competency restoration” for the first time.
The Fifth Amendment right to due process has been interpreted to mean that in order for cases to progress, defendants must be competent to stand trial. That is, they must be capable of understanding the nature and the consequences of the charges brought against them and must be able to assist in their defenses.
As the number of mentally ill individuals enmeshed in the criminal justice system grows, more and more defendants are being found incompetent. (Note that competency is different from pleading innocent by reason of insanity, as the former refers to a defendant’s mental state at trial, while the latter refers to a defendant’s mental state when the crime was committed.)
In such cases, the court is required to “restore” the defendant to competency before the trial can proceed.
Competency concerns can be raised by any court actor, judge, prosecutor, or defense attorney, at any stage of a hearing. Though a state-appointed physician assesses the defendant and provides a recommendation, a judge makes the ultimate determination of whether someone is competent to stand trial or not.
Once a court orders that a defendant be evaluated for competency or that an incompetent person go through restoration, that individual typically remains in jail until those services are provided.
Competency is a legal term, not a medical one, and competency restoration is not the same as mental health treatment. Restoration’s primary goal is to coach defendants to get through a trial, teaching them about the roles of different court actors, the meaning of various charges, and the potential penalties they will face if convicted.
“Unless they’re from a foreign country, once they’re stable [defendants] can pretty much figure it out,” said Judge Steve Leifman, an associate administrative judge for the Eleventh Judicial Circuit Court of Florida and the creator of the Criminal Mental Health Project, a program that diverts people with mental illnesses who have committed low-level offenses from incarceration to community-based care.
Competency and Not-So-Speedy Trials
Though the Sixth Amendment guarantees defendants’ right to a speedy trial, that right often exists in name only in competency cases.
The speedy trial statute is meant to prevent the prosecution from engaging in careless or intentional delay that prejudices the defense. But because postponements due to competency issues are outside the prosecutor’s control, they do not count as speedy trial delays.
Mentally ill defendants, therefore, can sometimes languish indefinitely while they wait to be deemed competent.
In the past, competency was rarely an issue in courtrooms. For much of the 20th century, mentally ill people were isolated from society, siloed in the kinds of psychiatric institutions that inspired works such as One Flew Over the Cuckoo’s Nest and Shutter Island.
At their height, public psychiatric hospitals housed over 558,000 people, 0.3 percent of the nation’s population at the time. This proportion would translate to over 1.1 million individuals in today’s population, a far cry from the approximately 35,000 individuals with serious mental illness remaining in state hospitals, according to the Treatment Advocacy Center.
In the 1950s and 1960s, several abuse scandals and a movement that advocated treating individuals in their home communities set in motion a wave of de-institutionalization. Hospitals around the country rapidly emptied of patients and shuttered their doors.
But while many people lauded the closing of asylums and other psychiatric institutions, no real alternative sprang up to cater to the populations they had served.
Today, there are very few inpatient and long-term care beds available, even for those who could benefit from more intensive care. Mental health professionals put the ideal number of state hospital beds at about 50 per 100,000 people. In most of the states where data is available, there are roughly 10 to 12 beds per 100,000, Dominic Sisti, director of the Scattergood Program for Applied Ethics of Behavioral Health Care at the University of Pennsylvania, told NPR’s Jeremy Hobson.
“They’ve basically evaporated over the past 50 years in their capacity to take care of people on an inpatient basis for more than 72 hours,” Sisti said. “The community care movement has been successful in many contexts, but there is a population that still requires significant structured inpatient care. And this population doesn’t often get it.”
As hospitals closed without a concurrent investment in other forms of mental health treatment, mentally ill individuals began ending up on the streets and in trouble with the law.
“Many times, individuals who require intense psychiatric care find themselves homeless or in prison,” said Sisti.
“Much of our mental health care for individuals with serious mental illness has been shifted to correctional facilities.”
Released from Hospital Over Parent’s Objections
Tyler experienced for himself the lack of appropriate care available in the years leading up to his arrest. Morgan and her husband had Tyler involuntarily committed in 2010 and again in 2017 after he exhibited psychotic behavior and threatened to harm himself. Within days of his second commitment, hospital staff announced that his condition had stabilized and released him, despite Morgan’s pleas for longer treatment.
“He was physically shaking,” she said. “The drugs [Tyler had been medicated while hospitalized] were not agreeing with him.”
“I was frantic and got him in to a therapist, and the therapist on my request got him in to a psychiatrist right away, and he was hospitalized again within days.”
It was shortly after this third commitment that Tyler received the felony summons, which Morgan said “totally destabilized him.”
Approximately 20 percent of inmates in jails and 15 percent of inmates in state prisons have a serious mental illness, the Treatment Advocacy Center estimates. Based on the total number of inmates in this country, this means that there are roughly 356,000 inmates with serious mental illness in jails and state prisons nationwide.
Each of these inmates is held at an average annual cost of $33,274, according to the Vera Institute for Justice, if not more: the average cost of incarcerating a mentally ill individual is often much higher than the cost of housing a typical inmate.
Today, states collectively spend hundreds of millions on restoration for individuals that many experts say should never have been incarcerated in the first place. In Florida, for instance, the Tampa Bay Times found that the state government spends at least $50 million annually restoring the competency of defendants whose nonviolent crimes are so minor they never spend a day in prison.
Part of the issue is backlog. With the dearth of hospital beds, defendants who have been judged incompetent can wait months or even years for restoration, despite their being relatively few in number.
In 2014, the National Association of State Mental Health Program Directors (NASMHPD) conducted a survey on the forensic mental health services provided around the country.
Asked for an average daily census of inpatients who are incompetent to stand trial (IST), the 32 states that answered responded as followed: eight states reported a daily average of zero to 25 IST inpatients; seven states reported 26 to 75; nine states reported 76 to 150; three states reported 151 to 250; three states reported 251 to 400; and two states reported having a daily average of more than 1,000 IST inpatients.
To extrapolate to the whole country, this would mean that, on average, between 4,500 and 9,400 people are waiting for restoration at any one time.
NASMHPD also asked states to provide the average length of stay for defendants committed for being incompetent. Of the 30 states that responded, five said defendants wait an average of zero to 60 days; 13 states said 60 to 120; seven states said 120 to 180 days; three states said 180 to 360 days; and two states reported an average length of stay of over a year.
Every state surveyed reported that courts sometimes found defendants unrestorable to competency.
In 1972, the Supreme Court ruled in Jackson v. Indiana that defendants found unrestorable must be civilly committed or released, and that continued commitment for purposes of restoration would violate the Constitution.
Many states (69 percent, the survey found) do set a cap on length of stay, ranging from as little as 90 days in a few states to the maximum sentence specified by law for the most serious offense charged in others. But several studies suggest that courts in some places routinely ignore Jackson requirements and keep defendants hospitalized long after it is apparent that their prospects for restoration are dim.
Even when restoration is possible, certain states frequently flout their own legal parameters for how long incompetent defendants can be held. An investigation in December by the Denver Post found that people with mental illness who are accused of crimes in Colorado were waiting up to four times as long as legally permitted for evaluations and treatment because the system is so overwhelmed.
Similar reports have come out of California.
In 2015, the American Civil Liberties Union led a class action lawsuit charging that Washington State was taking too long to provide competency evaluations and restorations. In Trueblood v. DSHS, a federal court ordered the state to provide competency evaluations within 14 days of a court order, and competency restoration services within seven days of the evaluation.
In Tyler’s case, he was not originally held in jail, because the judge who ordered that he undergo competency restoration specified that restoration would be administered in his community. But although his state (Colorado) has a statutory requirement that counties provide outpatient competency restoration, Tyler’s hometown did not have such a program in place.
‘We Have a Delay Problem’
In February, 13 months after the original incident that brought him to court, the judge on Tyler’s case ordered him into custody and mandated that he be taken to the state hospital for competency restoration. The hospital, however, did not have any beds available. Instead, Tyler was placed on the restoration wait list and moved to a county jail.
Morgan described herself during that period as frantic.
“I called everybody,” she said. “I called the governor’s office, I called the state legislator, my representatives, my senator, the office of behavioral health, the state psychiatric hospitals, local providers, community mental health providers, I was in constant contact with the jail; no one would do anything other than say to me, ‘We have a delay problem.’
“I was appalled…they did nothing for him except hold him in a county jail. They were more than aware of the problem and simply failed to do anything for him.”
Finally, after 55 days on the waitlist, Tyler was placed in a jail-based competency restoration program that Morgan called “abominable.” Though she reached out to county officials multiple times, she was never able to get any information on what services or treatment Tyler was being provided, and he has been reticent to talk about his time there since.
After ten days in the restoration program, Tyler was told he was being referred for an early evaluation. The physician who evaluated him suggested that he was competent to stand trial.
“Coincidentally,” Morgan said, he had a status court hearing scheduled for later that week. The judge deemed Tyler competent, he pled to a misdemeanor, was placed on probation with a mental health component, and was released from custody on that day⸺more than 17 months after his initial arrest.
The delays in providing restoration would perhaps seem less egregious if ultimately defendants were given access to the services they need to get better. But in most places, restoration is a far cry from comprehensive mental health treatment.
“The court’s first response when somebody with a serious mental illness is arrested is not to treat them but to restore them, because that’s what all the rules and the law requires them to do,” Leifman said.
“Competency restoration is not treatment…it’s not about recovery, it’s not about getting well so that you can get out. It’s about restoring you so that you can be tried.”
This can mean anything from watching reruns of Law & Order to playing parts in scripted mock trials to becoming contestants in a courtroom version of Wheel of Fortune.
The Tampa Bay Times was able to obtain access to a state training video used in restoration in Florida that depicts “defendants” participating in a game show called “Trial and Error.” In the video, the contestant spins a wheel, which lands on first degree felony. She is asked what the maximum sentence is for a first-degree felony, and when she answers correctly, the host congratulates her: “You are now considered competent to return to court and face your charges. And we’ll see you next time right here on Trial and Error!”
Each time a patient watches the video, it costs roughly $8, the Times reports. Leifman and others think that money would be better spent on mental health treatment and social services.
“Most people who are ‘restored’ either have the charges dropped because the witnesses disappeared while they were in the hospital, they get credit for time served while they’re in there, which they’re entitled to, or they get probation,” Leifman said.
“Under all three scenarios, most people leave the courthouse without access to treatment.”
Because the mental illness that drove criminal behavior in the first place remains untreated, many defendants reoffend. Studies have found that individuals with serious mental illness tend to recidivate more quickly and at higher rates than similarly situated adults who are not mentally ill.
This means that the majority of people who go through competency restoration end up right back in jail.
Competency Restoration and the Mental Health Crisis
At the heart of the debate over competency restoration is the use of the criminal justice system to address a mental health problem. Competency restoration is not a solution to the mental health crisis, and often serves to exacerbate the issue further: because restoration is a right and health care is not, states often allocate money from the community health system to fund restoration programs.
“Ironically, you’re not entitled to treatment, but you are entitled to restoration if you’re charged with a crime,” said Leifman. “That’s the absurdity of our system.”
He added: “The states are making the problem worse by reducing community treatment by taking money away for the criminal mental health system and making it harder for more people to get services, and making it more likely that people get pushed into criminal justice.
“It’s created this terrible revolving-door problem, and the costs, both financial and human, are extraordinary.”
Morgan is still not sure what the costs have been for Tyler.
“He’s trying to do everything right,” she said. “But he’s so quiet. It’s too soon to tell.”
Since his release, Tyler has been seeing a therapist once a month per court order, as well as periodically checking in with his probation officer. He moved into a new apartment in the mountains near his family, signed up for exercise classes, and got a job with a local company where he works four days a week.
“Since he’s been out, I’ve tried to keep him focused on positive practical kind of stuff,” Morgan said.
“But he has been extraordinarily quiet. I think he has been traumatized. I don’t know yet. I really don’t know.”
Elena Schwartz is a TCR news intern. She welcomes comments from readers.