Jackson-based restorability to competence to stand trial: Critical analysis and recommendations.

Abstract

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.

Appraising Jackson-based unrestorability to competence to stand trial: The demonstration model.

“…As may be seen in Table 2, there are a number of components. These are derived from the relevant law and science (Heilbrun et al, 2019(Heilbrun et al, , 2021Rosinia, 2012). They are also influenced by the theoretical model of legal competencies provided by Grisso (2003) and Morse (1978), with components that include clinical functioning, functional-legal capacities, and situational influences.…”

“…Statutes in different jurisdictions specify maximum durations for restoration that are strikingly different. The severity of charges affects this duration in the state laws that use “maximum sentence if convicted” to define this duration (See, e.g., Heilbrun et al, 2021; Rosinia, 2012; Slobogin et al, 2020). Available research has used designs and operationalized variables (e.g., duration of hospitalization) that are minimally relevant to the actual outcome of adjudicated unrestorability (see Table 1).…”

“…States have responded differently to Jackson . A “reasonable period” has been defined as briefly as 60 days and as long as the maximum period for which a defendant could be incarcerated if convicted of current charges (Heilbrun et al, 2021; Rosinia, 2012; Slobogin et al, 2020). 1 As of 2012, statutes in 14 states required evaluators to opine on restorability before the defendant has been adjudicated IST, effectively requiring a prediction of whether the individual will be restored to CST, and identifying those who will be unrestorable (Rosinia, 2012).…”

“…In a recent review, researchers (Heilbrun et al, 2021) reviewed the available scientific literature on criminal defendants who may be unrestorably IST. This literature generally supports the following factors as associated with unrestorability: intellectual disability (ID), lower global functioning, psychotic disorder accompanied by lengthy hospitalization, and poorer response to interventions such as psychotropic medication and psychoeducational rehabilitation (see Table 1).…”

“…While statutes in 15 states call for unrestorability to be identified even prior to adjudication (CRS §16-8.5-105; Rosinia, 2012), 2 effectively requiring a prediction with little data, a total of 30 states have statutes presenting a different consideration. Because 30 U.S. jurisdictions specify a maximum restoration period longer than 18 months, with some tied to the maximum period for which a defendant could be sentenced if convicted of present charges (Heilbrun et al, 2021), there may be less incentive for hospital staff to implement different approaches that might test the relative success of various strategies within a given timeframe-and effectively answer the question of whether all reasonable approaches have been tried.…”