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It’s a struggle most states are dealing with and few have managed to solve: Where to place people who have been arrested or charged with a crime, who aren’t mentally fit for court?
Back in 1960, the U.S. Supreme Court found that anyone accused of a crime must understand the charges they face and be able to rationally assist in their own defense. Someone who does not meet that criteria is eligible for “competency restoration” treatment — usually medication and therapy to help them regain understanding. In the most severe cases, a court can issue a permanent finding of incompetence. Numerous states have long backlogs of criminal defendants waiting for “competency restoration” before they can be tried in court.
Each state does this in its own way, but most have one thing in common: Court-ordered mental health treatment beds remain scarce. There are waitlists in Oklahoma, Nevada, Florida, Pennsylvania, and numerous other states.
The result is that some of the sickest and most vulnerable defendants languish in jail cells, while waiting for a treatment space. A man in Missouri died in jail after waiting for more than six months for treatment. More than 100 people are currently waiting for treatment at Rikers Island in New York, according to a recent lawsuit.
In Texas, Sonja Burns just wants officials to stop putting people like her twin brother in jail. He has cycled in and out of incarceration, hospitalization and homelessness because he is living with a serious mental illness, traumatic brain injury, autism spectrum disorder and seizure disorder. She became an advocate — hounding state and local officials for accountability, data and better care options that meet a wider range of needs, but said she is frustrated by how little seems to change.
At one point, the wait list for competency restoration in Texas grew to more than 2,700 people. A state audit in Texas found at least 54 people died waiting for treatment between 2018 and 2023. On paper, the state appears to have made strides, decreasing the waitlist by a few hundred people, working to increase the number of “forensic” treatment beds — those reserved for treatment mandated by the criminal courts. In reality, there is still a shortage of treatment beds, Burns said.
“The nightmare across the country is the forensic waitlist,” she said.
In Oklahoma, a class-action lawsuit on behalf of those who suffered in jail without treatment was settled last year. Yet just as the state was about to be forced to implement fixes, the agency in charge of mental health services announced it had a budget gap of nearly $30 million — leaving advocates concerned about whether anything would change. The state legislature fired the head of the agency, and a new leader is trying to sort out the mess.
Paul DeMuro, a lawyer for the plaintiffs in Oklahoma, said the previous administration did worse than nothing following the settlement. “They claimed to have been developing a plan and programs and putting people in charge of things — and they weren't,” he said. “They did absolutely nothing.”
People with mental illness in Oklahoma jails continue to languish, while the state faces canceling hundreds of mental health care contracts.
In Nevada, some criminal cases this summer have been dropped because the competency restoration waitlist is so long. As of mid-August, 175 people remained on the waitlist, according to the Nevada Department of Health and Human Services. Daniel Vezmar, a spokesman for the agency’s division of public and behavioral health, said officials were working to free up treatment beds and divert people “with low-level charges to the civil mental health system and preserving the limited forensic beds for individuals with more serious charges.”
Florida has a law that mandates criminal defendants can’t be jailed for more than 15 days while waiting for a treatment bed. But while forensic commitments of people who have mental illness have surged 74% since 2020, reported Florida Politics, the number of treatment beds has remained at 3,000 in the same period, so there are now hundreds of people waiting much longer than the 15-day limit.
It’s one of many ways that people with mental and behavioral health issues wind up falling through the cracks of the criminal justice system. Last year, my colleague Christie Thompson reported on how often people having a mental health crisis sought medical help, but ended up in jail anyway.
Meanwhile, President Donald Trump issued an executive order in late July to allow involuntary commitment for the unhoused — which experts say could only make things worse for some overflowing state psychiatric hospitals.
The shift that is happening nationwide away from civil commitment treatment beds toward forensic treatment is a huge part of the problem, said Jerri Clark, a research and advocacy manager for the Treatment Advocacy Center. The nonprofit studies the criminalization of people with serious mental illnesses and advocates for increased use of civil commitment as treatment.
“Basically, it’s a systemic movement of resources away from preventing tragedy to requiring tragedy,” Clark said. “It’s the same population. It’s the same people. It’s just where are we going to serve them: Before they’ve been criminalized or after they’ve been criminalized?”
A nationwide shortage of public defenders also worsens wait times in jails, she said, and not all lawyers paid to represent indigent defendants are trained to recognize the signs of severe mental illness.
“They’re the ones who file the petition with the court to have an evaluation to begin with,” Clark said. If a defendant has a public defender who doesn’t have training in recognizing serious mental illness, “they may not realize the incompetence of their client.”
Clark said she hesitates to say whether any states are doing “better” than others, because there are problems everywhere. But in New York, every county has an assigned coordinator for assisted outpatient treatment — so families at least have someone to call when there is an issue. Similarly, Mississippi — which has a history of lengthy wait times — launched a statewide program last year with a forensic “navigator” to help keep people with mental illness out of jail and opened a new maximum security state hospital.
No system is perfect, but anything is better than using jails to house people with serious mental illnesses, she said.
“Punishment is never going to magically create insight for someone who is deeply unwell,” Clark said. “You cannot punish someone out of their delusional thinking.”
