Psycholegal Abilities and Restoration of Competence to Stand Trial

Criminal defendants adjudicated incompetent to stand trial are typically hospitalized for competence restoration in state institutions. Prolonged restoration hospitalizations involve civil rights concerns and increasing financial costs, and there remains interest in determining which individuals are likely to be successfully restored. We retrospectively reviewed hospital records of 455 male defendants admitted to a forensic treatment center for competence restoration in an effort to determine whether psychiatric diagnoses, demographic factors, or psycholegal abilities were predictive of successful or failed restoration. At varying stages of restoration efforts, psychotic disorder, mental retardation, and previous state hospitalization predicted unsuccessful restoration, while substance use and personality disorders were predictive of successful restoration. Psycholegal abilities were predictive of successful restoration and appeared to form a continuum, with basic behavior and outlook, factual legal understanding, and rational attorney assistance factors demonstrating progressively increased importance in successful restoration. Copyright © 2012 John Wiley & Sons, Ltd.     

The question of sanity restoration in jail

Severe mental illness, especially psychotic disorders that are worsening, acute or complicated, normally require intensive psychiatric care and treatment that is most appropriately provided in a mental hospital. For criminal defendants, transfer to a forensic security hospital has traditionally been the means of achieving hospital care for mentally disordered defendants who have been found incompetent to stand trial or not guilty by reason of insanity. In recent years, with the shortage of intermediate and long-term hospital beds in the United States, including forensic security hospital beds, jail-based competency restoration programs are being established, seemingly obviating hospital transfer. Potential advantages of and concerns about jail-based, as opposed to hospital-based, competency restoration programs are discussed in the literature. If defendants with severe mental illness traditionally treated in a forensic security hospital for competency restoration are now treated for competency restoration in jail, it is not inconceivable that insanity acquittees could one day be treated in jail for sanity restoration. With the premise that it is better to consider the potential consequences before this becomes a serious proposal and is implemented, this analysis examine the advantages and concerns that have been put forth for jail-based competence restoration programs as they may or may not apply to jail-based sanity restoration programs. Substantial commonality is recognized, but also some differences, as well as reason for skepticism of the purported virtues of either alternative to care and treatment in forensic security hospitals.     

Outcome of hospitalization for defendants found incompetent to stand trial

This study assessed the outcome of hospitalization for incompetent criminal defendants admitted to the forensic unit of a state hospital for treatment during a 4-year period. Findings suggested that the overwhelming majority of the defendants were restored to competency. The defendants also showed significant improvement in overall severity of psychopathology during hospitalization. Further, the duration of hospitalization for these defendants was relatively short. Although these results are promising with regard to treatment of incompetent defendants, predicting the outcome of hospitalization for these defendants was problematic. Prediction of competency restoration was precluded because persistent incompetence was so infrequent. Moreover, multiple regression analyses suggested limited predictive ability with regard to defendants' discharge level of functioning or length of hospitalization. These findings are consistent with the view that examiners should exercise caution in making recommendations to the courts concerning treatability of incompetent defendants.     

The role of competency to stand trial in mental health courts

Concerns have been raised in the literature about the competency to stand trial and competency to make treatment decisions of defendants referred to mental health courts. However, there is little information reported about the evaluation and prevalence of incompetence, characteristics of incompetent mental health court defendants, and disposition of mentally ill defendants too disturbed to be diverted from the criminal justice system through mental health courts. This study reports on the 85 potential mental health court defendants referred for trial competency evaluations during the first three years of operation of the Akron Ohio Mental Health Court. Of the 80 defendants who could be located for evaluation, 77.5% were found incompetent, and 53% of the incompetent defendants were not restored to competence even after an average of 49 days of treatment in a state psychiatric hospital. The implications of these findings in terms of the diversion potential of mental health courts for the severely mentally ill are discussed.     

Characteristics and outcomes of insanity acquittees in Oklahoma

The insanity defense is perhaps the most vigorously debated topic at the interface of the legal and mental health systems. This article addresses the need for empirical evidence by providing data on insanity acquittees and their later outcomes in Oklahoma, a jurisdiction not previously studied. Information was obtained on the demographic, legal, psychiatric, hospitalization, and post-hospitalization characteristics of all 61 defendants acquitted not guilty by reason of insanity (NGRI) and treated on the state forensic unit during a 5-year period. Insanity acquittees had few resources, significant psychopathology, and extensive involvement with the legal and mental health systems prior to the NGRI offense. Follow-up of three groups of discharged patients--those released at an initial court review, those who completed the NGRI treatment program, and those who absconded from the forensic unit--revealed that those who escaped from the unit had significantly more arrests and subsequent legal charges than regularly discharged patients.     

Hospitalization of criminal defendants for evaluation of competence to stand trial or for restoration of competence: clinical and legal issues

The clinical and legal literature abounds with articles dealing with competence to stand trial; while most agree that criminal defendants must be capable of defending themselves before the state can bring them to trial, a number of articles are quite critical of the procedures by which these concepts are operationalized, some even going so far as to suggest abolishing the requirement for competence altogether. One of the major problems leading to the criticisms is the unnecessary loss of liberty involved. Although the length of incarceration has decreased significantly since the 1970s, the majority of states still permit, or require, hospitalization for evaluation of competence, and even more so for treatment to restore competence.The author reviews case law and presents data from his survey of current state statutes and responses from state forensic mental health program directors, to demonstrate the rarity of outpatient treatment to restore competence. He argues that outpatient treatment for defendants who do not require hospitalization on clinical or public safety grounds should be available, on both clinical and legal grounds, and provides recommendations for establishing such programs in the community.     

Empirically based assessment of competence to stand trial: Instrument development and preliminary findings

An instrument was designed to assist mental health professionals in objectively assessing competence to stand trial. Items were empirically derived based on input from multidisciplinary teams of mental health professionals experienced in working with forensic patients in a state hospital. Procedures were adapted from Goldfried and D'Zurella's five-stage behavioral-analytic model for the assessment of social competence. The resulting 15-item audiotaped scale assessed both legal and social competence based on reported responding in jail, in interactions with lawyers, and in the courtroom. Interrater reliability on scoring of responses ranged from .68–.96. High correlations between social and legal competence (.56–.82) demonstrated the likelihood of overlap of these constructs and the importance of directly addressing both. A pilot intervention program was designed from the instrument and implemented with three forensic patients. Failure to demonstrate change in these subjects is briefly discussed, and recommendations for future efforts in this area are made.     

The New Orleans Forensic Aftercare Clinic: a seven year review of hospital discharged and jail diverted clients

This paper provides a review of the Forensic Aftercare Clinic Conditional Release Program (FAC), which has been operating since December, 1995, in New Orleans, LA. The FAC is a community based program that provides clinical, rehabilitative, and supervisory services to individuals who have been found not guilty by reason of insanity or unrestorably incompetent to proceed and who have been discharged from inpatient settings or diverted from jail settings and placed on conditional release by district court orders. 119 clients participated in FAC over a 7 year period. Forty-one (34.4%) had their conditional release revoked. Of the total population, 12 (10.1%) were re-arrested on at least one charge, 3 (2.4%) were arrested on felony charges, and 9 (7.6%) on misdemeanors. Only two of these charges were violent, resulting in no significant harm to victims. Twenty (16.8%) were hospitalized at least once due to relapse. Clients diverted from jail to community settings did not differ significantly on most variables from clients who were discharged from long-term hospitalization. Data related to public safety and client diversion demonstrate that clients, when appropriate, can be safely diverted to the community in lieu of hospitalization. The number of statewide clients who have been discharged from the forensic hospital into the community has increased steadily from 13 in 1995 to 29 in 2002, and statewide diversion clients have steadily increased from 0 in 1992 to 20 in 2002. The increase in statewide diversion clients and forensic discharges over this 7 year period indicates that stakeholders see the viability of the program as an alternative to as well as a step-down from long-term forensic hospitalization.     

Deaf murderers: clinical and forensic issues

Data are reported on 28 deaf individuals who were convicted, pled guilty, or have been charged and awaiting trial for murder. The unique forensic issues raised by these cases are discussed, and their clinical picture presented. A significant percentage of these deaf murderers and defendants had such severely limited communication skills in both English and American Sign Language that they lacked the linguistic ability to understand the charges against them and/or to participate in their own defense. As such, they were incompetent to stand trial, due not to mental illness or mental retardation, but to linguistic deficits. This form of incompetence poses a dilemma to the courts that remains unresolved. This same linguistic disability makes it impossible for some deaf suspects to be administered Miranda Warnings in a way comprehensible to them. This paper identifies the reasons for the communication problems many deaf persons face in court and offers remedial steps to help assure fair trials and police interrogations for deaf defendants. The roles and responsibilities of psychiatric and psychological experts in these cases are discussed. Data are provided on the etiology of the 28 individuals' hearing losses, psychiatric/psychological histories, IQs, communication characteristics, educational levels, and victim characteristics.     

Fixing forensic patients: Psychiatric recommendations for treatment in pretrial settings

This article is concerned with psychiatric recommendations for treatment at the Metropolitan Toronto Forensic Service (METFORS), a clinical assessment agency providing both 1-day and 30-day evaluations of criminal defendants in Toronto, Canada. Analysis of both psychiatric reports and quantitative research instruments demonstrated the saliency of treatment as a central forensic issue at METFORS. Among a sample of 592 defendants, 134 were considered in need of outpatient care. Persons recommended for hospitalization were most likely to exhibit histories of mental health rather than criminal justice contacts; to be arrested for nonviolent offenses; to manifest psychotic behavior while at METFORS; to be found unfit for bail, incompetent to stand trial, in need of further assessment and dangerous to self; and to experience higher rates of hospitalization, but lower levels of criminalization during the two years following their initial forensic assessment. Psychiatric reports at METFORS tended to merge recommendations for treatment and assessment; to suggest prison or probation as means for securing clinical treatment; and to provide little written support for judgments about the need for intervention. Along with competency and dangerousness, treatment is a key issue in forensic practice, and warrants further attention in the psycholegal literature.     

Mental health criminal defenses in persons with neuropsychiatric disorders

Persons with neuropsychiatric disorders present specific and unique challenges for forensic experts and defense attorneys in the criminal justice system. This article reviews two potential criminal defenses: legal insanity and the various legal standards or tests of criminal responsibility that are used in jurisdictions throughout the United States (i.e., the M’Naghten standard and the American Law Institute's Model Penal Code), and the partial legal defense of diminished capacity (lacking the mental state necessary to be found guilty of a specific intent crime). The process of evaluating criminal responsibility or diminished capacity is also presented with a specific emphasis on common issues that arise in evaluating defendants with Intellectual Developmental Disorder (Intellectual Disability), Parasomnias, Seizure Disorders, and Neurocognitive Disorders.     

Ethical dilemmas in forensic evaluations

Ethical issues emerging from forensic assessments are addressed from clinical and research perspectives. The relevance of agency, forensic identification, and attitudes toward defendants are explored within the framework of ethical practice. Finally, the ethical role of mental health professionals in the courtroom, the scope and basis of their testimony, and the rendering of conclusory opinions are discussed within a psycholegal context.     

Are release recommendations for NGRI acquittees informed by relevant data?

We conducted a retrospective review of factors involved in clinical recommendations for release of patients adjudicated not guilty by reason of insanity (NGRI). Medical records from 91 patients in a maximum security forensic hospital who participated in a formal hearing process to determine suitability for release were reviewed. The purpose of the study was twofold: (1) to examine the process involved in day to day clinical decision-making regarding release from a maximum security forensic hospital and (2) to determine what factors in a patient's clinical and legal history were related to recommendation decisions. Multivariate statistical methods revealed that among the clinical, demographic, and legal information available to clinicians at the time a formal release recommendation was made two factors emerged that were significantly related to release recommendations: PCL-R score and the age at which the patient committed his first criminal offense. Patients with high levels of psychopathy and those who engaged in criminal behavior at a younger age were less likely to be recommended for release from a maximum security forensic hospital.     

Itemmetric and scale analysis of a new computer-assisted competency assessment instrument (CADCOMP)

Male defendants (n = 99) who had been court ordered to a forensic treatment facility as incompetent to stand trial were tested using the Computer-Assisted Determination of Competency to Proceed (CADCOMP) instrument soon after admission (median days = 15). Shortly thereafter, competency was assessed by a forensic psychiatrist and by a majority decision of three mental health professionals who viewed a videotape of the forensic psychiatrist's interview. From the CADCOMP item pool, 18 scales were constructed on conceptual grounds. Internal consistency analyses revealed that most scales had reasonable item homogeneity and scale reliability. In addition, item and scale analyses, with few exceptions, followed predicted patterns of intercorrelation and association with competency as determined by both criteria. Scales and items measuring serious psychopathology, psycholegal ability, and criminal history demonstrated the strongest associations with competency. These findings suggest that additional research on CADCOMP is warranted. The instrument shows promise for use in forensic research and assessment.     

Bad or Mad? Personality disorders and legal responsibility-the German situation

Criminal offenders have a high rate of personality disorders (PDS), especially Antisocial Personality Disorders and psychopathy, but criminal acts are not necessarily the result of PD. Findings from psychiatric research suggest that the development of PD is influenced by genetic factors, that can result in deviant traits in temper, emotionality and cognitive style. There is general agreement that those peculiarities and vulnerabilities find their expression and structure only under a complex interplay of stimulating or impairing environmental influences. Do these genetic factors-or other factors-diminish a person's criminal responsibility? There is no difficulty in diagnosing PDs, but the challenging questions arise in forensic assessments of defendants for criminal responsibility who have a PD. This article discusses the German legal situation and special problems created by the term of "diminished" criminal responsibility. In contrast to the Anglo-American legal situation, the German criminal law obliges the court to order an indeterminate forensic - psychiatric confinement, in addition to punishment, if the offender had acted under diminished criminal responsibility and is now still considered to be dangerous. The convicted offender remains under the control of the criminal court during psychiatric hospitalization. The change from handling the personality disordered offender as a criminal to handling him as someone with a mental disorder creates a social option for extended state interventions, including indeterminate hospitalization.     

Competency to stand trial: Legal and clinical issues

A fundamental principle of criminal law is the right of defendants to a fair trial. Courts have long recognized that an essential component of this fairness doctrine is the ability, or competency, of defendants to participate in their defense. Mental health professionals have been extensively involved in assisting the courts in the evaluation of competency to stand trial. Three aspects of competency to stand trial in criminal cases are reviewed: the legal criteria defining competency to stand trial, the clinical assessment of competency, and the treatment of defendants found incompetent to stand trial.     

Patient Characteristics and Outcomes Related to Successful Outpatient Competency Restoration

Criminal defendants have a fundamental right to a fair and speedy trial. However, individuals found incompetent to stand trial are unable to move forward in the adjudication process and are often mired in protracted legal proceedings. If competency restoration is statutorily permissible and can be conducted in the outpatient setting, we propose that it should be considered based on burgeoning empirical data. We present data from an outpatient forensic clinic in which individuals are conditionally released to receive competency restoration in the community. Results indicated that three variables, including being single/never married, having comorbid intellectual disability and mental illness, and having one's conditional release revoked, were negatively related to successful restoration. The final model explained approximately one‐third of the variance in restorability and correctly classified 75% of cases. Results demonstrate that individuals can be safely released to the community and successfully restored to competency in the outpatient setting. Utilizing outpatient competency restoration would not only reduce strain on inpatient facilities, but would also reduce the cost of treatment. Copyright © 2017 John Wiley & Sons, Ltd.     

Diagnostic Differences and Demographic Predictors of Respondents Adjudicated Civilly Incompetent Versus Competent

The purpose of this study was to determine if diagnostic and demographic variables predict civil competency adjudications, a topic that has received scant research attention. Respondents (i.e., individuals alleged to be incompetent) were evaluated by a licensed psychologist to assist the court in civil competency and possible guardianship determination. Prior research using some of the same participants demonstrated select differences on activities of daily living between these groups (Quickel & Demakis, 2013 ), but the current set of analyses was not conducted. The current study included 107 competency evaluations in Mecklenburg County North Carolina and, at conclusion of the case, the public record of the adjudication was obtained. Based on prior legal theorizing in related criminal areas—focused on discrimination of individuals with mental illness—we predicted that cases involving respondents with psychiatric diagnoses would be likely to be overrepresented in those referred for evaluation as well as those subsequently adjudicated incompetent. A series of analyses indicated no statistical differences between competency groups (psychiatric/substance abuse, neurological, both psychiatric and neurological, and intellectually disabled). In a series of exploratory logistic regression analyses, we found that respondents who were single versus in a relationship and those not living at home versus living at home were significantly more likely to be adjudicated incompetent, even after controlling for difference in activities of daily living. There were no differences in incompetency adjudication by age, education, gender, race, or relationship status. Results are discussed in terms of implications for individuals with mental illness in incompetency hearings, as well as specific issues for psychologists evaluating a broad range of respondents. Copyright © 2015 John Wiley & Sons, Ltd.     

Can defendants with mental retardation successfully fake their performance on a test of competence to stand trial?

The purpose of this study was to determine whether criminal defendants with mental retardation can feign poor performance on a test of competence to stand trial. Four groups of adjudicated criminal defendants were given a test of competence to stand trial. In the experimental condition, defendants with mental retardation (MR) and mentally typical defendants (non-MR) were given instructions to fake their performance on the test. In the control, MR defendants and non-MR defendants took the test under standard conditions. The results indicated that both the MR and non-MR fakers scored significantly lower than the MR and non-MR controls. There was no significant difference in the scores of the MR and non-MR fakers. The results suggest that defendants with mental retardation may be able to successfully fake their performance in certain circumstances. Implications of these findings are discussed.     

Integrating the criminal justice system into mental health service delivery: the worcester diversion experience

The substantial number of persons with mental illness encountered in many sectors of the criminal justice system has spurred actors from various agencies within that system to take actions aimed at reducing the growth of this population. These actions have included the development of specialty police units, jail diversion programs, and other mechanisms for channeling persons with mental illness out of the criminal justice system and into mental health treatment. The courts, too, have become involved in this effort with the recent development of the "mental health court," the latest of the "specialty" or "problem solving courts." These courts have not been without their critics, however, nor are they the only feasible approach to court-based diversion. This paper identifies and explores a range of options for structuring the relationship between criminal courts and local mental health systems. Beginning with a discussion of the rationale motivating the development of mental health courts, two alternatives to this specialty court model are discussed. One involves judges dealing with defendants having mental illness and substance abuse on a case-by-case basis. The other takes advantages of linkages that may already exist between most courts and the mental health providers who conduct their forensic assessments, expanding the role of these providers to serve as boundary spanners between courts and the components of local mental health systems. Regardless of the model adopted, however, appropriate linkages must exist between the courts and relevant providers. A case study is provided that demonstrates how the status of a locale's linkages can be evaluated and how the information derived from such evaluation can be used to improve the linkages between police, courts, and health and human services agencies.