It is a well-established principle of U.S. law that criminal proceedings may not be held against a defendant who is not competent to participate in them. Although the vast majority of defendants who are adjudicated incompetent to stand trial (IST) will subsequently regain sufficient capacities to be adjudicated competent to stand trial (CST), there is a subgroup of defendants who do not show sufficient improvement in clinical functioning and functional-legal capacities to regain CST. The present article focuses on individuals who are unrestorably IST. We critically analyze the available scientific evidence on defendants who are unrestorably IST. The great majority of this research is focused on restoration to CST and thus has limited applicability to predicting unrestorability. Nonetheless, as a review of relevant U.S. state statutes demonstrates, evaluators are often asked to make such predictions when addressing CST. Statutes also reflect a wide range of allowable durations prior to a legal decision on the question of IST unrestorability. Three important implications for law, research, policy and practice can be drawn: (a) the empirical literature presently provides very minimal research guidance for the accurate prediction of IST unrestorability; (b) such research guidance could be substantially improved by modifications in the design and application of relevant studies; and (c) improved legal decision-making and greater recognition of defendants' liberty interests could result from observing and documenting the results of restoration interventions over a period of 12 to 18 months, as described in the Revised Criminal Justice Standards on Mental Health (American Bar Association, 2016), rather than using the longer periods set forth in 30 U.S. state statutes and the federal jurisdiction.

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