Restoring Common Sense to Competency Restoration By Jed Wolkenbreit, Counsel, NYS Conference of Local Mental Hygiene Directors
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s tragic stories of people with mental illness being harmed or killed during interactions with law enforcement continue to appear in New York and around the nation, it begs the question: “How could we better serve mentally disabled criminal defendants?” In the 1840’s New York began to institutionalize the mentally ill in state institutions at county expense. Counties often chose to retain these mentally ill people in the community by committing them to poorhouses or jails. Over time, the funding of state hospitals became solely a state responsibility, and these institutions became the main depository of the mentally ill until advances in pharmacology and the cost of institutional care started a movement to return mentally ill patients back into the community. Unfortunately, the lack of real discharge planning or a funding source led to major increases in homelessness and increased contact with the criminal justice system—a de facto return to the poorhouses (homeless shelters) and jails of the nineteenth century. This trend required the criminal justice system to face the issue of how to handle a mentally ill person who was incompetent to stand trial (IST). The US Supreme Court, in Dusky v. US, held that to be competent to stand trial, a defendant must have sufficient ability to rationally consult with his lawyer and a rational and factual understanding of the proceedings. IST defendants are therefore sent to a state institution to receive services that are intended to restore that defendant to competency and allow the trial to proceed. Restoration services may include some traditional treatment elements such as providing medications but mainly include classroom training as to how to act in court and how to answer questions asked by the judge to establish ability to stand trial. Mental health treatment leads to recovery, restoration leads to trial in a courtroom.
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NYSAC News | Summer 2022
The State Mental Hygiene Law has long provided that the cost of these services are chargeable to the county in which the court that issued the order for restoration is located. Until 2020 the State only passed on half of the cost of these services. In 2020, it began charging the full charge of approximately $1000 a day for restoration services. This change was a wakeup call for many counties who began receiving bills of hundreds of thousands or even millions of dollars. Also, despite the Supreme Court ruling in the case of Jackson v. Indiana that states may not indefinitely confine criminal defendants solely on the basis of incompetence to stand trial and that the commitment duration be limited based on the likelihood of restorability, we are still seeing defendants with low IQs, traumatic brain injury or terminal dementia spending 3, 5 or up to 10 years in “restoration.” Neither the psychiatric examiners nor the court ever consider whether there is any reasonable likelihood that the defendant can be restored. Furthermore, and most importantly, the determination of incompetency makes the defendant unable to legally plead to any charge which is a requisite for being diverted into a mental health court program which might actually help them reach recovery. To begin to address this issue, NYSAC and the NYS Conference of Local Mental Hygiene Directors have worked together to develop legislation to amend section 730 of the criminal procedure law to help make it more rational. This legislation, (A 8402-A) Gunther/ (S7461) Brouk, would make significant improvements to the current competency restoration process by creating a clear definition of restoration services, requiring improved progress reporting, creating new regulations, and allowing the Court rather than the DA to decide if a person can be sent for restoration services in the community rather than in a state facility, among several other provisions.
