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Solutions for backlogs and better outcomes in behavioral and mental health competency evaluations

November 17, 2021

by Alyssa Nekritz

The U.S. Supreme Court in Dusky v. U.S. (1960) articulated that a defendant must have the competency to stand trial (CST); they must be able to consult with their lawyer and understand the charges against them. Competency evaluations for defendants are commonplace in certain states and localities. Many trial courts have insufficient infrastructure to support mental and behavioral health cases. The National Judicial Task Force noticed the need and appointed a judicial task force to brainstorm potential solutions to support mental health court cases. The task formulated ten recommendations:

  1. Create Diversionary Infrastructure from the Criminal Justice System In some states, there is no emergency support system in place for serious mental illness cases. The national 988 legislation passed in 2020 will provide access in July 2022 to a national suicide and behavioral health crisis intervention hotline. Research suggests this will reduce arrest rates, especially when mental health teams and police simultaneously intervene. Other methods of diversion include voluntary treatment, Psychiatric Advance Directives, Assisted Outpatient Treatment, and involuntary civil commitment. The Task Force created a Psychiatric Care Continuum and a Crisis Care Continuum which provides examples of potentially available options.
  2. Improve Restoration Protocols Courts with more active oversight on the restoration process are "more likely to produce energetic restoration efforts and a more timely, effective, and constitutionally complaint process.” Approaches to restoration include medication, individualized treatment, and legal education. States with one option or passive oversight see higher restoration times.
  3. Develop Alternative Evaluation Methods to Reduce Inefficiencies Competency evaluations are required to occur in environments that “provide adequate comfort, safety, and privacy to ensure test validity” according to the American Psychological Association. Time constraints and inefficiencies are common, especially in states that require multiple evaluations per defendant. Evaluation methods have been improved with technology motivated by the pandemic. Colorado courts have liaisons who help defendants better connect with community resources when necessary. Arizona sets qualifications, training, and payments to codify the evaluation process.

About 64 percent of people in local jails suffer from mental illness according to SJI’s 2020 Improving the Justice System Response to Mental Illness. Continuing to criminalize and arrest individuals with serious mental illnesses causes harmful effects on individuals, families, and society overall. Curbing this public health crisis through improved focus on mental health will improve public safety and outcomes for individuals living with mental illnesses. There are many other pertinent recommendations by the Task Force .

The Task Force also provides educational tools for judges and court personnel on issues related to behavioral health.

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