Trial Competency Restoration; The Thief of Justice?

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1 Trial Competency Restoration; The Thief of Justice? Shannon Bader, Ph.D., ABPP Chief Forensic Examiner MHM Services, Inc. Department of Corrections, Medical and Forensic Services

2 Goals for Today Brief primer of trial competency Provide some New Hampshire competency restoration figures Discuss the real outcome of these competency restoration cases Examine examples of best practices for competency restoration services

3 Trial Competency 101 Dusky v. United States (1960)-established the minimum standard for competency to proceed with prosecution, whether the defendant 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 Bottom line: is the person capable of participating in their own trial

4 Trial Competency 101 The person has to be able to; Understand his/her charges Know the role of the judge, defense attorney Appreciate the evidence against him/her Weigh the advantages and disadvantages of legal decisions Collaborate with his/her attorney

5 Trial Competency 101 Pre-trial One of our unassailable rights Usually incompetent due to intellectual deficits, severe psychiatric illness, or cognitive disorders Competency in the news Competency to stand trial is different from insanity

6 The Office of the Forensic Examiner A defense attorney, prosecutor or judge raises concerns about competency The OFE is court ordered to evaluate the person and provide a written opinion about competency to the court These psychological evaluations are specialized assessments by psychologists or psychiatrists who have received additional training in answering psychological questions for the courts The report must answer the following questions, Is the defendant competent to stand trial? If yes, defendant proceed to his/her case. If no, can he/she improve within one year time?

7 Competency Decisions Competent To Stand Trial? Yes No Can the person get better in 12 months? Proceed with trial. No. Not Restorable Yes. Restorable A restorable defendant is re-evaluated by the OFE in one years time to assess whether he/she is now ready to proceed with the case.

8 Restoration If the evaluator says that the defendant is restorable, this means that there is a significant likelihood that the person could be ready to go to court if they have the appropriate psychiatric treatment. In New Hampshire, if a person is found to be incompetent to stand trial and restorable, he/she has 12 months to improve If the person does not improve in that time, the charges are dropped

9 OFE Restoration Figures July, October total competency evaluations completed by the OFE Of these, 50 were restoration evaluations 22 (44%) people were restored to competency 28 (56%) people were not restored to competency Of the 50 restoration evaluations, 29 involved felony charges 13 (45%) people were restored to competency

10 OFE Restoration Figures In NH, 44% of incompetent but restorable defendants are being restored Nationwide, the research shows that 75-90% of incompetent but restorable defendants are being restored (Zapf & Roesch, 2011) Competence restoration is typically achieved within six months of restoration efforts Defendants that could be ready for court are not getting restored in NH

11 Why does this matter? If the person is found not restorable, the charges are dropped 56% of the people who could get well enough to complete their court cases are not actually finishing the criminal justice process Is NH s lack of competency restoration a barrier to justice?

12 Why does this matter? Victims of the alleged crimes No day in court The community as a whole Against the peace and dignity of the State The defendants themselves Innocent and proven guilty

13 Current NH restoration process A judge orders a restoration plan that often includes taking medication and following bail conditions (such as no drugs or alcohol) The defendant is left to secure appropriate treatment on his/her own If it is determined that the person is not following the restoration plan, the only recourse is jail The defendants who do well within this current system are already accessing social services, have family support, or are under probation or pre-trial services supervision

14 What now? How can NH improve? The most common form of treatment for restoration is psychotropic medication administration and adherence Among defendants willing to take medication, they typically have access to medication through the community mental health center Unfortunately, some MHC s have lengthy wait lists and defendants are required to wait for initial appointments It may be worth considering an accelerated appointment system for court involved individuals Medication alone is often insufficient to restore competency

15 What now? How can NH improve? But there are other best practices for competency restoration besides medication that are lacking statewide 1. Restoration Treatment Programs 2. Assigned Case Managers 3. Frequent Status Updates to the Court 4. An Inpatient Option for Restoration From The National Judicial College

16 What now? How can NH improve? 1. Restoration Treatment Programs At this time, there are no formal restoration treatmentproviders in NH. Treatment has ranged from structured group sessions focused on legal problem-solving and educational videos to more individualized treatment focused on specific competency deficits. 2. Assigned Case Managers A forensically trained case manager to assist the defendant in accessing needed services, track the progress of the defendant and provide status updates to the court.

17 What now? How can NH improve? 3. Frequent Status Updates to the Court Court updates from a consistent source that can monitor the effectiveness of the original restoration plan. 4. An Inpatient Option for Restoration Competency restoration should occur in the least-restrictive setting possible. However, there is no forensically-focused inpatient settings in NH unless the person is deemed dangerous. Best practices argue a need for a forensic setting for thorough evaluation when pathology (or malingering) is unclear and when the individual lacks capacity to consent to medication necessary for restoration.

18 What now? How can NH improve? What about defendants who do not want to take psychiatric medication? There is no current mechanism to encourage defendants who do not want to take medication, they remain incompetent Sell v. United States (2003), antipsychotic drugs can be administered against a defendant s wishes for the purpose of restoring competency but only in rare, limited circumstances This remains an open, hotly debated topic nationwide

19 Questions? These small changes could result in greater justice for crime victims, mentally-ill defendants and society as a whole. By using our existing mental health infrastructure, New Hampshire could greatly improve competency restoration services and increase the restoration rates to the national rates.