NATIONAL EMERGING TRENDS IN �COMPETENCY TO STAND TRIAL

Neil Gowensmith, PhD and Daniel Murrie, PhD

Groundswell Services, Inc

CST EVALUATION RATES

• More evaluations ordered each year

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• Historical estimate of 60,000 per year (Bonnie & Grisso, 2000)

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• Current estimates of 130,000 (Kois et al., 2021)

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• Many states report record numbers of CST evaluations being ordered

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Colorado

Washington

CST OPINION RATES

• Higher proportions of defendants are now opined IST

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• Historically, rate of 27.5% (Pirelli, Gottdeiner, & Zapf, 2011)
• Meta-analysis of studies from 1967 – 2008 (n = 26,000+ defendants)

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• Currently, many jurisdictions report rates over 40%

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CHANGING RATES OF INCOMPETENCY?

CHANGING RATES OF INCOMPETENCY?

THE IMPACT OF MISDEMEANANTS?

• Misdemeanor IST rates:
• Colorado: 61.5%
• Houston, TX: 65.5%
• Minneapolis, MN: 52.8%
• Virginia: 44% (vs 31% among felonies)
• Case Rate: 55.8%

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• Misdemeanor sanity rates (Gardner, Murrie, Torres, 2021):
• Similar to IST, in that misdemeanants are 1.83 times more likely to be opined insane as those facing felony charges, largely accounted for by psychotic diagnoses

CASE RATE

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• Mobile app to track forensic evaluation data and rates

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FROM CASE RATE

Significant differences in CST / IST rates:

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Psychotic defendants have significantly higher IST rates (64.6%) than non-psychotic (30.4%)

Misdemeanants have significantly higher IST rates (55.8%) than felons (40.6%)

Non-violent defendants have significantly higher IST rates (49.1%) than violent ones (35.1%)

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A BAD COMBINATION

A BAD COMBINATION

SCOPE OF THE PROBLEM

INPATIENT COMPETENCY RESTORATION ORDERS

Colorado

Trend in Competency Evaluation Determinations

Washington State

DATA SOURCE: FES modules in Cache database(WSH), MILO database(ESH), Pierce County, and the Forensic Data System (FDS).

* Other includes orders still in process and orders where the determination is missing.

Felony

Other*

Cancelled

1,368

1,217

1,367

1,681

2,092

1,834

Misdemeanor

39%

37%

40%

42%

42%

1,740

1,983

2,455

3,030

3,289

Competent

Not Competent

31%

33%

38%

42%

43%

46%

3,318

42%

Other*

Cancelled

Competent

Not Competent

✔

33%

16%

43%

9%

DSHS | Facilities, Finance, and Analytics Administration | Research and Data Analysis Division ● JANUARY 2020

15

INCREASING DEMAND FOR RESTORATION

Largest proportion of forensic admissions to state hospitals

POTENTIAL PATHS FORWARD: �COMPONENTS OF AN EFFECTIVE COMPETENCY SYSTEM

CAVEATS

• No jurisdiction has a perfect or complete solution
• Inpatient psychiatric beds are necessary
• Inpatient beds must be a part of the solution, but can never be entire solution
• Both forensic and civil beds

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1. STATUTORY AUTHORITY AND LEGISLATION

Before, during, and after competency is raised and resolved

2. EMPHASIZE COMMUNITY SERVICES OVER INPATIENT BEDS

“A comprehensive approach requires providing both inpatient beds and community resources, while using thoughtful guidelines to determine whom requires which.”

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3. UTILIZE A TRIAGE APPROACH

• “Not all defendants require exactly the same treatment for restoration.”

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• Some defendants require inpatient psychiatric care; some don’t

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• Of those that do, some need to get in more quickly than others

TRIAGE > WAITLIST

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Traditional systems function more like the DMV

• “Please take a number” and receive restoration in the order you appear.

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An ideal competency services system functions like a hospital emergency room.

• The most acutely ill receive priority access to more intensive services.
• “Serve the sickest the quickest.”

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TRIAGE > WAITLIST

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Colorado triage system

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• Tier 1: meet (or very likely will soon meet) civil commitment criteria should be admitted within 7 days of IST adjudication

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• Tier 2: admitted within 28 days of IST adjudication

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• About 20-30% of defendants are categorized as Tier 1

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• Pre-pandemic: 98% of Tier 1s admitted < 7 days

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4. CREATE EASIER ACCESS TO INFORMATION

• Colorado Forensic Support Team

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• Monitor clinical status and progress to restoration of each ITP defendant

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• Most critical populations are those in jails
• Is current tier adequate?
• Does current clinical status match level of care?
• Are restoration goals being met?
• Should defendant be transitioned to different level of care / security?

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• OCRP participants also important

CREATE EASIER ACCESS TO INFORMATION

• Colorado Forensic Support Team Outcomes

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• 900 total number of clients
• 3000 contacts per month, 200 of which are face-to-face
• 15 per month are prioritized for higher level care (hospitalization)
• 20 per month are transitioned to community services
• 3000 bed days saved to date

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* all numbers approximate

5. PRIORITIZE OUTPATIENT RESTORATION

• Educate the Courts and make statutory changes so that outpatient restoration is prioritized as the default option, with inpatient restoration ordered only when necessary.

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• “We affirm the CDHS efforts to develop OCR, and encourage them to forge ahead in thoughtfully implementing wide-scale, high-quality OCR.”

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COLORADO’S OUTPATIENT COMPETENCY RESTORATION

• Colorado statewide service began in 2018

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• No waiting list, 600+ participants at any point in time

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• 40+ providers across Colorado
• CMHCs primary providers
• Network of local providers to fill gaps, specialty services

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• 75% positive outcomes

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RATES OF REFERRALS TO OCRP IN COLORADO

6. CONSIDER JAIL-BASED COMPETENCY RESTORATION

Hospital-like treatment

• Treatment occurs in a separate unit
• Modeled as a standalone hospital unit
• Adequate staffing ratios with interdisciplinary staff
• Broad range of restoration activities and modalities
• Hospital-consistent formularies
• Selective patient population

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Interim treatment

• Treatment occurs in general pop
• Modeled as an enhanced triage or interim mental health system
• Often utilizes existing jail mental health staff
• Limited range of activities – mostly medication and education
• Limited formularies
• Serves all patients waiting for transfer to another restoration setting

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COLORADO’S CONTINUUM OF COMPETENCY RESTORATION TREATMENT OPTIONS

PUTTING IT ALL TOGETHER

Urgent need

Less urgent need

Outpatient / �Community

Inpatient / Hospital

Immediate or urgent admission to hospital

Less urgent admission to hospital / reasonable

wait in jail

Community-based or

jail-based restoration

Private and local hospitals for short-term stays

TRIAGE: CLINICAL ELIGIBILITY & LEGAL SUITABILITY

POTENTIAL PATHS FORWARD: �EMERGING PRACTICES FROM SEVERAL JURISDICTIONS

SEQUENTIAL INTERCEPT MODEL

SEQUENTIAL INTERCEPT 1

• Strong assisted outpatient treatment (AOT) options
• Effective and accessible diversion placements (locked and unlocked)
• Police training

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• Example: Miami-Dade County, California

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• Statutory and policy requirements:
• More paternalistic AOT standards
• Broader civil commitment criteria

SEQUENTIAL INTERCEPT 2

• Increase options and expertise at initial hearings
• Provide mental health assessment, treatment, and consultation immediately after arrest

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• Example: Washington DC, Aurora CO

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• Statutory and policy requirements:
• Court-based clinics / clinicians
• Information sharing with police or court holding cells and relevant stakeholders
• Medications and formularies for holding cells
• Require evaluators to opine on triage, placement

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SEQUENTIAL INTERCEPT 3

• Increase flexibility for courts
• Expand outpatient restoration options (community and/or jail)

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• Example: Larimer County CO, Portland OR

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• Statutory and policy requirements:
• Create competency dockets and courts
• Make OCRP default location for restoration (e.g., CO, VA)
• Require enhanced jail-based restoration services
• Require equivalent formularies for jails and state hospitals
• Mandate CMHCs to serve ISTs
• Require counties to pay for evaluations and restoration

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SEQUENTIAL INTERCEPT 4

• Limit restoration to certain offenders
• Limit inpatient restoration to certain offenders
• Improve monitoring of IST defendants in restoration

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• Example: New York, Florida

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• Statutory and policy requirements:
• Restrict restoration to felony offenders
• Restrict inpatient restoration to acutely ill
• Create network of providers that monitor and report on ISTs in hospitals, jails, and community

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SEQUENTIAL INTERCEPT 5

• Enhance transition into community settings
• Enhance transition and stability after restoration

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• Example: Colorado

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• Statutory and policy requirements:
• Create staff dedicated to community transition planning
• Mandate that inpatient medication orders continue to home jail
• Prioritize monitoring and treatment after restoration
• Mandate CMHCs to serve forensic populations

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A HEALTHY COMPETENCY SYSTEM

• 1. Maintains robust diversion and civil capacity before, during, and after competency services to attend to the mental health needs of those who need mental health needs prioritized
• Prioritizes community services and civil capacity (both inpatient and outpatient)

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• 2. Ensures that competency services are provided only to those persons who truly need criminal justice accountability prioritized
• Ensures that those competency services are efficient and effective

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THANK YOU!

Neil Gowensmith

neil.Gowensmith@gmail.com

neil.Gowensmith@du.edu

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Daniel Murrie

Murrie@Virginia.edu

Groundswell Services, Inc