If we consider the case of our accused murderer, introduced in the beginning of this chapter, we know that the offense (the murder) is the first thing that happened in the story of that person’s criminal case. Only later, after the person is arrested, will the person’s mental state become an issue that impacts the court. The accused murderer will appear in court to be informed of the charges against them, and they will meet with their defense attorney. If the person has significant impairment at this point in time, then the question will arise: is this person mentally able, or competent, to engage in the criminal court process, where they are charged with the very serious crime of murder? Note that this concern is entirely separately from the question (which we will discuss later) of whether or not a mental disorder played any role at the time of the murder.

The issue of whether an accused person is mentally able to engage in the criminal court process is often referred to as competence to stand trial. Competence means that a person has the ability to understand what is happening and to participate in their own defense. Competence is also referred to as the ability to aid and assist, a term that focuses on the person’s ability to work with their defense attorney as a key element of competence. These terms are used interchangeably in practice.

6.2.1 Requirement of Competence

Competence, or ability to aid and assist, looks at the accused person’s mental state and abilities at the time they are engaging with their attorney or with the court – not at the time of the offending conduct. Mental state or impairment at the time of the offending conduct may be considered later, possibly in defense of the person’s actions. First, however, the person must be competent to work with their attorney and the court. If a person is not competent, the criminal proceedings against them must stop. The proceedings either stop completely, or they pause until the person is judged competent to move forward.

The requirement that a person be competent is an ongoing demand throughout the time a person is involved with the courts. Often, questions about competence arise early, when the person is first arrested, or as in the example of our murderer, when the person first confers with their attorney. A defense attorney who suspects their client may not be competent is ethically obliged to report this concern to the court. This act is often the first step in the competency procedures described in this chapter.

Sometimes, however, competence issues can become apparent later, even in the midst of a trial. Regardless, the accused person needs to be competent to participate throughout their court proceedings. Thus, it is never too late – and always required – for competence issues to be raised or considered.

6.2.2 Competence as a Constitutional Issue

Why is competence so important? And why does lack of competence demand that a criminal proceeding be immediately halted?

The protection of individual rights is central to our ideas of fairness in the criminal justice system. We presume a person is innocent, for example, until they have been proven guilty beyond a reasonable doubt. We ensure that a person knows the charges against them; we protect them against self-incrimination; and we provide them with an attorney. These rights are guaranteed by the U.S. Constitution and are intended to ensure that every single person in the criminal justice system has the same fair rules and procedures – including (and perhaps most especially) those vulnerable individuals who experience mental illness or disability. The idea of fairness based on guaranteed procedures is what is meant by due process. The specific rights mentioned here are guaranteed by  the Fifth and Sixth Amendments to the Constitution and applied to the states by the 14th Amendment.

When a person is not competent, or “fit” to proceed with trial, their Constitutional rights may not be protected, and the fairness of the proceeding is endangered. The conviction of a person who does not understand the charges against them, or cannot appreciate the gravity of their predicament as an accused person, or who cannot work with a defense attorney, thus violates the Constitution – specifically the Fifth Amendment’s guarantee of due process.

Though some criminal procedures can occasionally be bypassed or violated without significant consequence, the competence of the defendant is not one of those; it always matters whether a defendant is fit to proceed. In 1966, the Supreme Court considered a case where a man named Robinson had killed his wife. Robinson had been tried and convicted for the murder in the Illinois court system. Despite serious questions about Robinson’s mental stability, based on witness testimony as well as a lifetime of mental illness and violence, no hearing was held to determine Robinson’s competence during his criminal proceedings. The Supreme Court overturned Robinson’s conviction, saying specifically that competence had to be considered at the time the questions were raised – prior to proceeding with the case – even if the defendant was not asking for such a hearing. Pate v. Robinson, 383 U.S. 375 (1966). Based on Robinson, it is clear that competence is a Constitutional issue that cannot be bypassed – even by the accused person.

Though a court must avoid proceeding against a mentally incompetent person, there are also competing concerns. A court cannot take lightly the importance of moving forward with a case. The Sixth Amendment to the Constitution guarantees, for the sake of the accused, that a criminal trial must occur without unnecessary delay. This is often called the accused’s right to a “speedy” trial. While criminal trials in the United States are rarely “speedy” in our common understanding of that word, the system should not tolerate unnecessary delays.

6.2.3 Legal Standard for Competence

Competence to proceed as a defendant in a criminal case is a very particular requirement that is not necessarily the same as competence to do other things. As noted, a person who is charged with murder may have a diagnosis of a serious mental illness such as schizophrenia, but still be perfectly fit to proceed in court. In order for the parties in a case to question competence, and for the court to decide whether a person is competent, there must be a shared understanding of what that term means in this context. This shared understanding is called a legal standard – a guidance or definition that the courts follow, so every judge is not making up their own definition of what makes a defendant competent.

The United States Supreme Court provided guidance, or a legal standard, as to the meaning of competence in Dusky v. United States, 362 U.S. 402 (1960). In Dusky the Court ruled that it is not enough for a defendant simply to know where they are and what happened – what the Dusky court called “oriented to time and place” with “some recollection of events. ” Rather the accused person must have a more meaningful understanding of their situation. Specifically, the Dusky standard requires that the defendant should (1) be able to consult with their lawyer “with a reasonable degree of rational understanding,” and (2) have a “rational as well as factual understanding of the proceedings” against them.

There have been many legal discussions about the meaning and significance of the repeated word “rational” in the Dusky standard. A common-sense understanding is that the Court intended defendants to be the opposite of “irrational,” meaning that they have a clear and unconfused grip on the situation, with the ability to consider options and make reasoned decisions based on the facts (Felthous, 2011; Maroney, 2006). As an example, our murder defendant who is competent under Dusky would understand that they are charged with killing a person they met on the street, that they face life in prison for this act, and that the prosecution has witnesses who saw the killing. The defendant would also understand that they might receive a lighter sentence for admitting the crime in a plea bargain, but that they have the right to go to trial to contest the charges, and they would be able to weigh the pros and cons of alternative courses of action, in discussion with an attorney.

All state and federal criminal courts use a version of the Dusky standard to define competence. Though jurisdictions may use varying language, they must follow a standard that at a minimum complies with the Constitution as interpreted by Dusky. In Oregon, for example, competence is defined by statute that largely mirrors the Dusky language: a defendant is incompetent (“incapacitated”) for purposes of a criminal trial if, due to a mental disorder, the defendant cannot understand the proceedings, cannot “assist and cooperate with” their attorney, or cannot “participate in” their defense. ORS 161.360(2).

6.2.4 Assessing Competence

When an accused person is clearly psychotic and wholly unable to comprehend the reality of their situation, it may seem obvious that they are not competent to proceed with their case in court. This would seem the case, for example, if our murder defendant reported delusional beliefs, insisting that they were an undercover operative in a military action, rather than a defendant on trial. Nonetheless, a competency determination has enormous legal impact, with the power to halt a murder trial, and so it must be made with care, based on the evidence and the law.

The key piece of evidence in a competence determination is usually a court-ordered evaluation of the person. A typical competence evaluation is performed by a licensed mental health professional, generally a psychologist or psychiatrist. The evaluator considers the person’s mental capability, in light of the legal standard for competence in their jurisdiction, and then offers a professional opinion as to whether the person is legally competent.

A good competence evaluation would include a number of pieces of information that support the evaluator’s competency conclusion and allow a reviewing judge to use the evaluation as the basis for a legal decision:

• a mental status exam, looking at whether the person has basic orienting facts, such as who and where they are;
• a description of psychiatric symptoms the person is experiencing, such as hearing voices or having delusional beliefs;
• an assessment of the person’s understanding of the criminal proceedings, including their knowledge of the charges against them, possible outcomes in court, and perhaps the pros and cons of engaging in a plea agreement.

It is best practice for competence evaluations to explicitly address whether the evaluator believes that the person is making up or exaggerating symptoms for some benefit, known as malingering.

To think about how the competence evaluation process looks in practice, imagine an accused person who has bipolar disorder and is symptomatic in the midst of a manic episode (see discussion of bipolar disorder in Chapter 3). That person might meet the requirement of factually understanding the proceedings against her, but her racing thoughts, delusional beliefs, and overall uncontrolled emotions might prevent her from working effectively with her defense attorney. The person might be unable to stay on track to discuss the case, or be constantly trying to fire her attorney. She may be unable to sit quietly and patiently during a courtroom proceeding. In this case, the evaluator may state their opinion that the person is not competent to proceed and needs treatment to gain competence.

Each state’s practices vary in terms of their competence proceedings, and the federal system has its own separate set of rules. But competency procedures everywhere must – at a minimum – protect a defendant’s due process rights according to the federal Constitution. Ideally, they do so in a way that protects the safety of the public and the health of the defendant, while maintaining the integrity of the criminal justice system.

In Oregon, the law governing competence determinations is Oregon Revised Statute 161.370, and the process is formally called a “Determination of Fitness to Proceed.” The evaluation performed as part of the court’s determination is often informally called either an “aid and assist” evaluation or a “370 evaluation” based on the local law. Consideration of malingering is required by Oregon law. OAR 309–090–0025.

If the accused in Oregon “lacks fitness to proceed,” court proceedings are stopped, leaving the parties with several options and requirements for moving the case forward. ORS 161.370(2). Among the available options listed in the Oregon statute are:

• pausing to “restore” the accused person’s competence (discussed later in this chapter);
• completely dismissing the charges against the person; and/or
• beginning the process of hospitalizing the person for involuntary mental health treatment, or civil commitment, which is discussed in Chapter 9 of this text.

If the person is found competent to proceed, they will remain either in jail custody or in the community awaiting trial.

6.2.5 Restoration of Competence

You have learned earlier in this text that the presence of a mental disorder does not prevent a person from being arrested or charged with a crime, though diversion opportunities (discussed in Chapter 4)  may offer police or prosecutors an alternative to criminal proceedings in some cases. If a person is headed to criminal court however, lack of competence is a complete bar to continuing the case; an accused person cannot go forward to trial or any other resolution unless or until they are found competent to do so. The process of treating a person with the objective of making them competent, or able to aid and assist, is referred to as restoration of competence.

Restoration involves targeted treatment to take the accused person from an irrational or confused state to one of adequate understanding of the criminal process and their particular situation. Recalling the evaluation imagined in the previous section, where a mental health professional found the person lacked competence, restoration should strive to correct or help in the areas of deficit identified by the evaluator. Restoration is specifically meant to help a person meet the Dusky qualifications so that they can proceed to trial or other resolution of their case.

Restoration treatment is not focused on the overall mental health of the person, though it often requires psychiatrically stabilizing the person with medication and therapy. If psychiatric symptoms, such as voices, delusions, or mania are preventing a person from meeting the standard of competence, those symptoms need to be targeted in restoration treatment. If the person refuses medication that is necessary for restoration, medication treatment may be forced under some limited circumstances. Sell v. United States, 539 US 166 (2003).

Another piece of restoration treatment is the teaching of legal terms and concepts. For example, a person may be instructed about the role of their lawyer, what confidentiality means, what a judge and jury do, and other general information about the criminal justice system. In its fact sheet on the topic, the Oregon State Hospital describes restoration as potentially including other therapeutic services: occupational therapy to work on daily living skills (for example, cooking and managing personal finances), educational services, and medical and dental services (figure 6.1; Oregon Health Authority, 2019).

Restoration treatment takes place most often in state mental hospitals, such as the Oregon State Hospital, where it is generally referred to as treatment under a “370 order,” referring to Oregon’s competence statute discussed earlier in this chapter. In Oregon, as well as other jurisdictions, many people with serious mental disorders who are accused of crimes can get “stuck” – unable to resolve charges against them as they face a series of delays triggered by questions about their competence. For example, a person may wait in jail for potential resolution of their case, which becomes impossible due to competence questions; they then await transfer to a hospital for a competence evaluation, only to return to jail and then wait again for competence restoration if ordered. Commitment to the hospital for restoration of competence is discussed in Chapter 9 of this text, along with other types of civil commitments.

Figure 6.1 Sign marking the entrance to the Oregon State Hospital in Salem Oregon, where evaluation and treatment for restoration of competence occurs, as well as care for people found Guilty Except for Insanity (GEI) of felony-level offenses.

Restoration can occur outside of the hospital as well. In Oregon, as in most other states, the law provides for restoration in the community under the supervision of mental health providers, rather than in a hospital setting, if that can be done safely. ORS 161.370(2). Usually, either the competency evaluator or another designated evaluator will offer an opinion on whether the person needs to remain in the hospital, or whether treatment can occur in the community. Often, a person may be incompetent to proceed to trial, but can be safe in the community while receiving care.

A number of states, including Arizona and Colorado, have in recent years begun restoration programs within the jails themselves, avoiding transfers to a state mental hospital for restoration. Providing restoration services in jail is controversial, with proponents emphasizing the immediacy of treatment available, and opponents noting the lack of therapeutic environment, among other problems. Of significant concern is the potential for prolonging incarceration of a person merely based on their mental disorder (Ash et al., 2019).

As noted in the previous section of this chapter, restoration is only one of the options available to the parties where an accused person is not competent to proceed with their case. Other options (outright dismissal of charges or pursuit of civil commitment) would remove the case from the criminal courts more permanently, possibly to the detriment of the community and victims in more serious cases. Victims deserve resolution in cases where they have been harmed, and an important goal of the criminal justice system is not met if dangerous offenders are released into the community without proper supervision.

Dismissal of charges may be a good option in more minor cases, however. In the case of non-violent or lower-level charges, the lengthy process of evaluation, restoration, and resumption of court proceedings might take far longer than the person would ever have been jailed for an underlying charge of theft or trespass. Thus, insisting on continuing the low-level case – with all of the delays involved – arguably places an unfair burden on people with mental disorders. In these cases, dismissal can be a just resolution, especially if support can be offered to avoid reoffense.