The Mental Competency Process
On December 24, 2009, 24-year old Victor Carrero ran into two people on the corner of Central and Jefferson Avenues in Brooklyn. He proceeded to knock one of them to the ground, stabbing them in their head and shoulder before running away. Al Jazeera America reported that Carrero was later charged with attempted assault in the first degree, with his bail set at $10,000.
Pre-Trial
Within the news report, Carrero's sister stated that he had been diagnosed with schizophrenia at 16 years old. It was an indication of Carrero's mental fitness up to December 24th, corroborated by the results of a psychological evaluation ordered by a judge from the Brooklyn Supreme Court to examine his mental competency for trial. He was found unfit for trial and committed to the Kirby Forensic Psychiatric Center for treatment in June 2010. Upon his successful treatment, Carrero was returned to Rikers Island in October to await trial. During this second waiting period, his lawyer once again reported to court that Carrero's condition had “decompensated.” He completed a second psychological evaluation that found him unfit for trial. In June 2011, more than a year after his arrest, Carrero was once again committed to Kirby for competency treatment.
Carrero's pre-trial process is not particularly unique; there are criminal cases across the United States where people are unable to prove their mental competency for trial and must receive treatment to be ‘restored.' What makes some of these cases –including Carrero's– unjust is the detention of people for months on end in penal facilities due to the inability to achieve or maintain mental competency. The defendant remains unable to participate in trial, suspending the case –and a person's life– for months without an answer.
The Perpetuation of Mental Health Problems In Incarceration
During a pretrial process, the competency hearing is one of the most direct overlaps between mental health and criminal justice.
The Prison Policy Initiative reports that in 2023, about 22,000 residents of the total prison population are involuntarily committed, with some states allowing people to be placed into actual jails and prisons in order to receive mental health treatment. In many areas, there are both outdated treatment laws stipulating that a person must become violent for there to be mandated intervention coupled with underfunded Medicaid programs and mental health systems. These outdated treatment laws foster an environment of delayed intervention where people in need of services can only receive help through the criminal justice system.
Criminalization of Mental Illness in Prisons and Jails
The Prison Policy Initiative shows that the US prison system faces overcrowding, frequent violence, and the liberal use of solitary confinement. Being incarcerated is linked to the development of mood disorders, with many people continuing to suffer mental effects even after their sentence is over. By creating a system where people suffering mental illnesses have higher chances of being criminalized and people leaving incarceration have higher chances of suffering mental illnesses, prisons are neither solving nor reducing this crisis.
Status Quo
The landmark Supreme Court case Dusky v. United States sets the bottom line that “the conviction of a defendant while mentally incompetent violates due process.” If there is any doubt surrounding a defendant's competency that prevents them from understanding the court proceedings and participating in their own defense, a competency hearing can be ordered by the district attorney, the defense attorney, or the court. Since the hearing itself is considered a civil proceeding, a defense attorney would simply have to produce a significant amount of evidence indicating that a person doesn't understand the trial proceedings. If a person is found incompetent, they are expected to be committed to a treatment facility or to receive treatment on an outpatient basis until evaluated as competent and the proceedings can continue.
The problem arises when there isn't enough space in an area's treatment facilities, and a person cannot afford treatment on an outpatient basis. Compared to the mid-20th century when state hospitals provided more than half a million beds for individuals with severe mental illnesses, the Treatment Advocacy Center reports that the US has since seen a shrinkage of 97% of this resource. Continued closures and mergers have occured under the logic that psychiatric patients should be able to seek treatment from community facilities. When these community facilities don't materialize, people can't receive help until they are considered an endangerment to their community.
Currently, there is not a government agency or an external organization that monitors the US population awaiting competency evaluation or transfers to state hospitals, much less those waiting beyond the legal time limits. This leaves much of the work to third parties, local agencies, and law enforcement. Simultaneously, it limits the scope of many existing studies to one or two states.
The radio station WITF-FM and a collaboration between Spotlight PA and the Pittsburgh Institute for Nonprofit Journalism have led investigations into pre-trial competency proceedings in Pennsylvania. Since the state competency system is a ‘patchwork' of local and state agencies, defense attorneys across the state reported that they routinely avoid competency proceedings to prevent the long-term incarceration's of people with minor criminal charges.
Without a standardized method of documenting competency assessments and hearings in the public records, these documents will often not indicate the period of time spent in jail or whether a person has been diagnosed. In some counties like Allegheny, records will not even describe the reasons for excessively long wait periods. Once within the county jails, correctional staff would frequently use force against threats of self harm and against people appearing to suffer from a mental health condition due to failure to follow instructions. After the ACLU of Pennsylvania filed a class action lawsuit in 2015 on behalf of people awaiting hospital treatment within county jails, Pennsylvania's wait times had begun to improve up to 2020. After the pandemic, these numbers once again extended to more than 6 months.
In a special case, a strong relationship between the Defender Association of Philadelphia, the courts, and the state hospital meant that the Defender Association could drop charges and avoid the competency evaluation – a cooperative process which is difficult to replicate elsewhere in the state.
Bradley Bridge, an attorney from the Defender Association, states to Spotlight PA that the redirection of people away from the criminal system “only succeeds based on the goodwill of all participants,” adding that “It takes an empathy that is oftentimes absent in other [forums].”
This pattern of uncoordinated competency systems continues in Frontline's investigation of North Carolina. County jails don't have psychiatrists on-site and offer inadequate treatment through avenues such as telemedicine. Many inmates wait longer than 300 days before receiving a hospital bed, with a cycle of restoration and mental deterioration considered “relatively common” within the state hospitals.
In every case, the problem is recognized but bureaucratic guidelines have not yet been overcome.
The Case of New York State
Compared to other states, New York has a competency system that is not quite as backlogged. In a report by the Treatment Advocacy Center, NY was one out of six states reported to have no bed waits due to the diversion of civil beds “for forensic purposes.” Compared to states where bail is required for inmates to even consider completing competency restoration treatment on an outpatient basis, there is more flexibility in accommodating a person's circumstances in NY. Still, some of NY's existing bed spaces cannot be counted due to the inability to staff them. This follows the general trend of decreasing beds per capita.
While states such as Pennsylvania have experienced repeated lapses in their competency system, the system in NY which delayed Victor Carrero's trial in 2009 has been reformed. Before 2018, NY's municipal public healthcare system, NYC Health + Hospitals, had a decentralized model in the operation of their four court clinics through the Kings County and Bellevue clinics. In February 2018, the Correctional Health Services (CHS) division reorganized the model into a network of Forensic Psychiatric Evaluation Court Clinics (FPECCs). A centralized administration and electronic reporting systems enabled the work done by FPECCs to be more closely aligned to the correctional systems.
Improvements included a pilot program in Queens in partnership with the Queens court system, the District Attorney's office, the NY Department of Corrections, and public attorney organizations created specifically to accelerate the examination process for court-ordered competency evaluations.I think this piece is running long, and here's just one example of how you can make cuts. Instead of listing the organizations involved with this pilot program, why not just say ‘a pilot program in Queens created specifically…' That eliminates 20 words, which might not seem like a lot, but think of it in terms of editing a film – a few seconds snipped here, a few there, and all of a sudden you have a viable running time, without ruining the final product. The same holds for an article like this. A report by the NYC Mayor's Office for Criminal Justice (MOCJ) for this pilot program details how the consolidation of court clinics and the hiring of an additional attorney, social worker, and administrative assistant for the pilot helped streamline the examination process and meet process goals: the “completion of 730 examinations to be accomplished within 7 business days for misdemeanor cases and 14 business days for felony cases from date of judicial order for individuals in correctional custody.”
It remains important to understand how key components of felony and misdemeanor cases in NY create opportunities for diverting people away from incarceration. This process begins with arraignment and ends with the disposition.
Process maps for felony and misdemeanor cases in New York
(NYC Mayor's Office of Criminal Justice p.22-23)
Arraignment
The arraignment is a person's first time before a judge following police contact. They are told what they are being charged with as well as their rights. A person's case is assigned to an attorney who can help their client to either enter a plea and thus settle their case, or to fight their charges and be given a next court date for a hearing. The district attorney can ask the judge to release a person until the next court date, for supervised release in the community, to set bail, or for the person to be remanded.
The first opportunity to facilitate a successful pre-trial process starts at the first court appearance. In NY, the organization Center for Alternative Sentencing and Employment Services (CASES) offers services and community based supervision for individuals awaiting trial. Cara Salvatore, an assistant team leader on CASES' court-based team, describes in an interview the process of receiving support from CASES and other community-based programs. The district attorney, defense attorney, and/or the judge may instigate a client's referral to a pretrial supervised release program when the judge believes that a person doesn't meet the conditions to justify bail and does not have the confidence that a person can follow the conditions for “release on one's own recognizance” and appear at future court dates.
Community offices for supervised release provide routine check-ins and ensure compliance with court dates without resorting to Rikers Island. CASES uses a ‘matrix' to recommend how supervision should be facilitated based on factors including release recommendations and the alleged penal charges on their current case. When defendants are mandated to certain programs and assessments, all the paperwork is recorded, creating a wealth of formal documentation.
Referrals are based upon the person's case, history, and self-identified needs/goals. Following a court-based intake interview and mandate to supervised release, a person would then participate in an extended intake interview when they visit their assigned community office. The community case manager will ask questions which might lead to indications of problems with living circumstances and mental health conditions while also creating space for conversations regarding how a person understands their needs and the steps they could take to meet those needs. By both maintaining a partnership with the defense counsel and working to understand a person's background and needs, CASES is able to support their clients with the circumstances they choose to share and potentially incorporate needs and concerns into the final judgment of the case.
The Competency Exam
The MOCJ report makes an important note that “in consideration of the broader goal of reducing the population of in-jail detainees, scheduling and completion of examinations for misdemeanor cases were more likely to be resolved before felony cases.”
This order of priorities means that the time between a judicial order for competency examination and the court return date is shorter for misdemeanor cases compared to felony cases. From the onset, misdemeanor cases can be guaranteed a shorter turnaround for examinations. In addition, broader policy changes to criminal procedure law have limited any monetary bail or remand to certain qualifying offenses such as violent felonies. These sweeping changes by the state have made supervised release a generally preferred option to bail.
In an interview with Angela Wang, an arraignment social worker from the Neighborhood Defender Service of Harlem, they describe how this general preference of release over bail reflects the desire by defense counsel to avoid recommending the 730 exam for people whenever possible.
In New York, the competency exam in criminal court takes the form of the CPL 730 exam. Under CPL Article 730, judges must order a mental health evaluation if a person is deemed “incapacitated” and unable to understand the contents of their proceedings. A defendant who is unfit for a misdemeanor case will be moved to a state civil psychiatric facility under the NYC Office of Mental Health (OMH) for further treatment, and will have their charges automatically dismissed if they cannot be restored to fitness. A defendant who is unfit for a felony case is committed to a forensic psychiatric facility under the OMH and can be committed for up to a year. If the defendant has been indicted, they can't be kept for more than two-thirds of the maximum sentence for their top indicted charge.
Wang emphasizes that a 730 creates a degree of restrictiveness that is undesirable, especially if a person might have to be incarcerated until they can undertake the exam. A judge will consider a person's support system and other perceived indicators for risk of flight when deciding whether to set bail. If bail is set and a person is incarcerated, a person might then receive an “in-730” order which means that the 730 exam is carried out in a prison setting. According to Wang, 95-98% of the times when 730 exams are conducted are after a person has been incarcerated. Despite how common this situation is, it's necessary to recognize that the resultant pretrial incarceration can expose the individual to further potential hardship such as assault by correctional staff and bad living conditions within the facilities.
In some rare cases, a person might be able to receive an “out-730” order where they might have a mental evaluation done under supervised release or general release into the community. In all cases where the 730 exam is even considered, Wang notes that a risk she has to consider is if a judge might be more inclined to place a person in jail by stating that a person is “730-able” on record. Instead, a better strategy is to first request for a client's release by addressing a client's mental illness, whether they have some form of support, and if there is some form of support that they can be connected to. If release happens, usually in the form of a connection to treatment, an “out-730” might be asked for.
By reserving the 730 exam for severe situations, there is more room left to consider other options where a person is not required to be incarcerated to receive testing and treatment. One example is the MHL 9.43, a legal statute which refers a person for assessment through civil management. If a person is unwell and at risk of harm to themselves or others, the sheriff's office can bring them directly to a comprehensive psychiatric emergency program (CPEP); a hospital facility for emergency psychiatric admissions. The defendant must be assessed and either held for treatment or released within 72-hours.
Once again, the advocacy process boils down towards recognizing what a person believes is best for themself and attempting to understand their reasoning. Wang points to cases where a person actively voices their preference to go to jail or to fight a bail request as well as cases where they refuse treatment. While an attorney is responsible for the legal procedure and outcome of a person's case, Wang believes this is ultimately a different perspective than a social worker's, who must contend with the question: “How do you resolve a case and engage a client's needs and what the client feels is best??”
The New York State System
While the goal of diverting people away from incarceration is clearly displayed as a priority in the design of the NYS competency system itself, it remains equally important to view New York as a developing system. The City of New York currently holds an official policy for the closing of Rikers Island in favor of a smaller network of jails. This is in the hopes of reducing the city's overall incarcerated population.
Case processing times may not be delayed due to the number of hospital beds, but the processes in place for competency examination can benefit from more community support. Even in cases where people are diverted to CPEP, Wang notes that these emergency facilities are often underfunded and understaffed, meaning people who can benefit from treatment might be discharged to meet the demands for more severe cases. While there are programs for substance use and mental illness, there are not inpatient mental health treatment programs designed for emergency needs. This means that while CPEP can be helpful for the patients they can serve, there is a significant number of people who are preemptively discharged only to be hospitalized again.
The topic of mental competency cannot be discussed separately from personhood and free-will. New York's competency system offers one example within a picture of how the competency system works in the US. Whether the discussion surrounds incarceration or hospitalization, mental illness is not a proper reason for overlooking a person's treatment or lack there-of.
