Volume 107

Reforming Competence Restoration Statutes: An Outpatient Model

by Susan McMahon

Defendants found incompetent to stand trial are often committed to an inpatient mental health facility to restore their competence, even if out-patient care may be the better treatment option. This inpatient-default model has two serious negative effects: (1) defendants found incompetent spend far longer confined before trial than their similarly situated competent counterparts, and (2) because of long wait periods for hospital beds, defendants found incompetent spend large chunks of their time con-fined in a jail cell, which is possibly the worst place for a person with a mental health condition to be housed.

This Article is the first to examine how the language of competence restoration statutes defaults to inpatient treatment, even when the statute appears to allow for outpatient care. Some statutes man-date inpatient care. Others impose additional, irrelevant hurdles to the release of defendants found incompetent, or give courts unbridled discretion to place defendants in inpatient care, or both. When paired with widespread false presumptions about individuals living with mental illness, the implicit—or sometimes explicit—inpatient default found in most competence restoration statutes leads courts to over-commit defendants to state mental health facilities.

This Article proposes amendments to the statutory language that will require judges to place defendants in outpatient care, unless specific criteria justify inpatient treatment. Such a change would accomplish two goals. First, it would eliminate the needless disparity in pretrial confinement between defendants found incompetent and those found competent. Although the rates of pretrial confinement will almost certainly remain higher among defendants found incompetent, that confinement would be based on criteria related to the defendant’s treatment need, not biased concerns about the defendant’s perceived dangerousness. Second, an outpatient-default model would relieve pressure on inpatient facilities, opening up space for those who truly need inpatient treatment to restore competence. When the competence restoration backlog is alleviated, defendants who need inpatient care will be transferred to hospitals immediately, rather than waiting for months in a jail cell until a bed opens up.

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