March 2013 Bar Bulletin
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March 2013 Bar Bulletin

Incompetent and in Jail: The Human Costs of a Broken System

By Abbey Perkins and Cindy Arends Elsberry


One of the pressing issues in the King County criminal courts for well over a year has been the issue of delays in competency proceedings. Particularly troubling are the lengthy delays for mentally ill defendants who are in custody and must wait weeks, sometimes months - often while held in isolation - for the competency process to run its course.

Recent tragedies have put a spotlight on mental illness and questions about how the criminal justice system deals with mentally ill defendants. While the vast majority of persons with mental illness are more likely to be victims of crime than perpetrators, we have become too reliant on the criminal justice system to deal with mental illness without regard to the human costs of this model.

The competency process is seen as a way to get mentally ill defendants into the civil commitment and outpatient treatment realms, but it is a leaking funnel pouring into a broken bottle. We need to rethink our approaches to mental illness and recognize that the criminal justice system should be the last resort rather than the first stopgap measure for individuals to access services.

Jails as Mental Health Institutions

Our criminal justice system is full of people suffering from mental illness, developmental disabilities, traumatic brain injuries, and co-occurring mental health and chemical dependency problems. Basic protections have been put in place to assure that the government affords due process to individuals whose mental health or cognitive abilities are impaired.

RCW 10.77.050 requires that no mentally incompetent person be tried, convicted or sentenced. Competency requires the ability to assist in one's own defense and to understand the nature of the proceedings. If there are any doubts about a defendant's competency, an evaluation must be ordered and the proceedings are stayed until competency is determined.

Competency usually is determined in jail by doctors from one of the State's two mental commitment facilities. In general, the evaluations take two to three weeks, but can stretch longer if a defendant requests an attorney to be present or if special services, such as an interpreter or a developmental disability professional, need to be provided.

If a defendant is deemed incompetent, RCW 10.77.084 outlines procedures for competency "restoration." When "restoration" is ordered in King County, most defendants are sent to Western State Hospital for mental health treatment. On misdemeanors, the restoration period can be up to 29 days. For felonies, restoration can be ordered initially for 45 or 90 days, followed by a subsequent 90 days, and then, in some cases, an additional 180 days.

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