The puzzling rise of defendants too sick to stand trial in WA

A strange puzzle piece sits between the worlds of mental health care and the criminal legal system.

For the last decade, nearly every county in Washington has sent a rapidly growing number of people in jail to undergo a competency evaluation – that is, there’s a question as to whether that person can legally stand trial, often due to mental illness, substance use or an intellectual or developmental disability.

Those evaluations are necessary to move a criminal case forward. People deemed incompetent are given treatment, though it’s limited – usually medication and basic legal education to help them understand the court proceedings. If their condition improves, their cases proceed.

What’s perplexing is why so many more people need these evaluations – and why many are seemingly so impaired or sick they fail the low bar of competency.

The increase in evaluation referrals has led to severe backlogs at Washington jails while defendants can’t get a bed at a state psychiatric facility. Meanwhile, justice stalls and victims wait. People with mental illnesses languish for months, not getting the necessary treatment and in some cases spending more time in jail than if they had been found guilty and sentenced to serve time.

According to data from the Washington Department of Social and Health Services, competency evaluation referrals across the state doubled between 2013 and 2022 for felonies and misdemeanors. In some counties, like Whatcom, the number of people with felony charges being referred to competency services has quadrupled over the last 10 years, even as Whatcom’s population has only grown by about 11%. In King County, competency referrals for misdemeanor defendants have risen 108% over that same time, and in 2022 alone, 2,049 people were referred for an evaluation, most of them on nonfelony charges.

Washington isn’t the only state seeing this increase, and faced with a complicated mosaic of the fentanyl crisis, homelessness and mental illness, state officials and national experts wonder: What’s driving this uptick? Are people truly getting sicker – and if so, why?

Most importantly, what would it take to change this?

The theories

“When I got into the field, there wasn’t much of a field,” Ira Packer, a forensic and clinical psychologist in Massachusetts, said reflecting on the relatively short history of his discipline, which intersects law and the study of the mind and human behavior.

Packer, who spent the next four decades evaluating people, administering forensic programs and publishing research on best practices, noticed a startling trend.

“I did 11 years in a state hospital and I can assure you people are coming in much more acutely psychotic than they had been before,” said Packer, who now serves as a national consultant on these issues.

“It’s not just the number of individuals being referred for competency has gone way up. What’s a little surprising is the percentage of those people who are found incompetent is also going up.”

That’s happening across the country: The National Association of State Mental Health Program Directors first reported on rising numbers of competency referrals in 2014 and again in 2017, writing in the most recent paper, “Some states are experiencing such a dramatic increase … that their state hospitals are operating at, or close to, maximum capacity.”

The Seattle Times reached out to state officials and forensic experts to better understand what factors are leading to the uptick here in Washington.

“That really is a million-dollar question,” said Dr. Jennifer Piel, a forensic psychiatrist, professor and director of the Center for Mental Health, Policy, and the Law at UW Medicine.

To begin with, she said, “in Washington state, we know we have a higher prevalence (of mental illness) and lower access to treatment than many other states.”

According to national nonprofit Mental Health America’s 2022 report, the state ranks 44th for its prevalence of mental illness and substance use, a poor grade alongside states like Wyoming and Utah.

When it comes to treatment, Washington has improved in recent years, especially when it comes to adults, but it still only ranks 32nd among all states.

Dr. Thomas Kinlen, director of the DSHS Office of Forensic Mental Health Services, posits that the uptick might be partially related to a greater understanding of mental illness than in the past. Attorneys and judges increasingly are on the lookout for symptoms and therefore are referring more people to competency evaluation services.

Another factor could be related to increases or changes in drug use, Kinlen adds.

While research around substance use and competency specifically is limited, there’s a more established connection between drugs and mental illness generally.

Research on first-episode psychosis collected by the federal Substance Abuse and Mental Health Services Administration found several links between drug use and more severe mental health-related symptoms, more hospitalizations and a greater risk of relapse and homelessness. What’s unclear is if drug use leads to the onset of mental illness or how exactly the two affect each other.

Some substances, including meth, alcohol and high-potency marijuana, specifically have been associated with psychosis. Drug-induced psychosis – which includes symptoms like hallucinations and disordered thinking – is typically shorter-acting and goes away after a person metabolizes the drug.

Sometimes, however, effects can be more permanent and resemble severe mental illness – described as “settled insanity” in the legal world.

To make matters worse, repeat psychotic episodes can lead to cognitive damage as well as emotional trauma; restoring a person to competency often requires more work and takes longer.

Piel said these factors may play a role but she points to the elephant in the room.

“The No.1 answer is inadequate treatment services in the community,” she said. “That is unfortunately, a really large part.”

For decades, Washington and large parts of the country have not adequately funded mental health care, relying instead on a disjointed system of nonprofit and private facilities, law enforcement and jails to provide care for people with mental illness and addictions.

After losing significant federal funding in the 1980s, states and local municipalities have had to step up, but reimbursement rates for treatment have remained too low to keep some facilities afloat. Workers’ wages likewise haven’t kept up, causing staff to leave the industry.

The affordable housing crisis has made it harder for many people to have safe housing where they can stabilize and recover, and behavioral health facilities have also felt the strain of rising property and maintenance costs. According to an analysis by The Seattle Times, half of King County’s long-term residential mental health beds have been lost since the 1990s.

Altogether, this constellation of factors means some of the most vulnerable people in society are the ones left behind – and the competency restoration system is the net that, albeit imperfect, ultimately catches them.

Mental health and law

Another part of the competency puzzle piece is the legal system itself.

In 2018, Washington state officials announced a plan to “transform the state’s mental health care system,” using the state’s main psychiatric facilities to support people coming from jails. People who had been sent for involuntary commitment through the civil court system would be cared for in smaller, community-based facilities instead.

Those community facilities are still being built, however, and that has had the unintended consequence of pitting these two populations against each other: The bar for someone to be involuntarily committed in Washington remains high, requiring that they be an immediate threat to the safety of themself or others. But the bar for being referred for a competency evaluation – if you had been arrested and were in the criminal court system – was lower.

Around the same time, in an attempt to alleviate backlogs, Washington legislators said people with misdemeanors shouldn’t be a priority in being sent for restoration services – meaning people with lower-level charges often had their cases dismissed. But legislators also left the door open for local prosecutors to advocate for sending people to restoration services in specific misdemeanor cases, “if there is a compelling state interest.”

In the wake of that bill, prosecutors appear to have increasingly relied on that option. Some say that pushing someone toward competency restoration, as opposed to dismissing their case, is often the only way to get a person help while also balancing public safety needs, even as mental health professionals caution competency restoration is a far cry from holistic treatment.

According to data from DSHS, competency evaluations for people held on misdemeanor charges have steadily risen over the years. In 2013, 1,500 evaluation referrals were made across the state. In 2022, that more than doubled to 3,671 referrals.

A 2020 report from the Council of State Governments Justice Center, a national nonpartisan organization that leads criminal justice research and policy, also identified this pattern.

In Oregon, the report states, officials saw an increase in competency restoration demand and a decrease in civil commitments from 2009-18, “leading to speculation that the inability to access treatment … was one reason driving judges and attorneys to explore competency [restoration] as a way to get people needed care.”

Closer to home, Seattle City Attorney Ann Davison explains that her office still pushes for competency restoration for individuals with misdemeanor charges.

“Releasing somebody with no treatment back out into the streets … without any stabilization for them is not in their best interest long-term either,” she said. “Nor is it for the public overall.”

Prosecutors also can’t refer people to therapeutic alternatives like mental health or veterans courts unless the person is considered competent – otherwise, they can’t consent to the programs’ requirements.

Others, like Packer, ask what the point of restoring someone with misdemeanor charges really is: “Usually by the time they get restored [and] they get back to court, the amount of time they would serve is over already,” he said.

Addressing the crisis

Looking at the complicated picture of services for people in jail, Lauren Kois, a psychology professor at the University of Alabama, sees a system that could be better served with a continuum of care.

“There should be a spectrum of services,” she said. “Outpatient should be the default.”

Kois, who’s authored several articles on competency restoration and forensic mental health services, thinks more states need to move to a model that offers flexibility. If people are charged with lower-level crimes and pose a limited security risk, they can be served with competency services in the community, rather than detained in jail.

In cases where someone is not acutely sick but does pose a public safety threat, jail-based restoration might be a better option. People needing the highest level of care should be diverted to inpatient treatment at a state hospital.

When possible, forensic services should connect people to other supportive programs, whether that’s housing, substance use treatment or job training, Kois argues.

In Washington, officials have made small steps to ameliorate the pain points around restoration, most recently passing Senate Bill 5440 during the latest legislative session.

The bill creates a new position for clinical intervention specialists to stabilize defendants in jail who have mental illnesses and are awaiting trial. It also prohibits jail and juvenile detention facilities from discontinuing psychiatric medication and creates a pilot program to study how people with intellectual and developmental disabilities who end up in jail could be better served by other programs.

California, one of the states also facing a competency and restoration crisis, recently created a new model where state officials set a baseline for referrals. If counties refer more people from their region to state hospitals, they face a fine, but that fine goes into a shared pool that funds diversion programs.

“It’s essentially incentivizing counties to use diversion programs, rather than putting people into the competency system,” explains Kois.

According to the communications officials at the California Department of State Hospitals, most programs are too new to have results yet.

Washington officials and mental health experts are hopeful that the next few years will shed light on how to treat the crisis here, both with better treatments and better systems.

“Washington’s kind of the epicenter,” said Kois, referencing litigation that has forced state officials to deal with the issue.

“A lot of people are looking to Washington. ‘What are they doing? What else can be done?’ But there really is a larger issue, systemic issue. That’s something that not one department of mental health can fix alone.”