One way that people with mental illness get stuck in the criminal legal system is being jailed – for weeks, months and sometimes years – awaiting a hearing to determine whether they are mentally competent to stand trial for an alleged criminal act. Most often, those acts are misdemeanors like trespassing, vandalism, fraud or possession of a controlled substance – and they are often a result of the person’s illness.

The core idea of competency evaluations and hearings is that it’s unfair to put a person on trial who isn’t able to meaningfully assist in their own defense. People found not competent are supposed to get treatment to address their mental illness and restore their competency.

But the truth is that many of them are languishing in jail.

For decades, researchers have estimated that somewhere between 60,000 and 94,000 people are going through this process each year. But now a new study estimates the actual number is far higher than that – closer to 140,000.

“This is happening everywhere,” said Lauren Kois, a clinical and forensic psychologist at the University of Virginia’s Institute of Law, Psychiatry and Public Policy. “It’s worse in some places, but this issue is in every single state, every single jurisdiction. No one really knows how much it happens, how many people are even referred.”

Those being held can face a revolving door of crises because of a lack of funding and space at facilities, and a dire shortage of health and mental health workers in jails and hospitals. Those who are found incompetent often have nowhere to go to receive treatment and restore their competency. And even those ultimately found competent have often waited weeks for an evaluation. 

In 2023, Texas had nearly 2,500 people on a waitlist for a spot in the state hospital.The average wait was 699 days for a maximum security bed and 227 for a non-maximum security bed, according to KXAN, an Austin, Texas, TV station that has been monitoring the issue for years.

Until recently, the problem got little attention. Then legal advocates started taking states to court. Currently at least 16 cases are pending across the country against states that include Alabama, California, Colorado, Florida, Mississippi, Texas and Utah. In some cases, judges have imposed millions of dollars in fines to pressure states to address the “competency crisis.” 

In July 2023, a federal judge fined the Washington Department of Social and Health Services $100 million for failing to provide adequate and timely mental health services to individuals with serious mental illness in its jails. 

Under a settlement agreement, defendants needing evaluations would receive them within 14 days of arrest and, if necessary, start restoration services within seven days of the evaluation. Washington failed to meet those timelines, leaving people waiting in jail for an average of 130 days before they could be admitted into a facility for inpatient services, according to the Seattle Times.

“Systems are being very reactive to this issue, rather than proactive,” said Kois, whose research focuses on developing dignified, fair and just treatment for people with serious mental illness in the criminal legal system. 

This is happening everywhere…in every single state, every single jurisdiction.

Lauren KOIS, UNIVERSITY OF VIRGINIA

In July, Oklahoma settled a federal lawsuit after failing to provide timely competency restoration treatment for jail inmates. The agreement imposes deadlines for the Department of Mental Health and Substance Abuse Services to reduce the waiting period for defendants who require competency restoration treatment, to increase the number of beds for competency restoration and to have a screening program to expedite evaluations, according to the Oklahoma Voice.

If the deadlines for reduced wait times aren’t met, the agency faces escalating fines. How many mentally ill people awaiting competency evaluations are languishing in jails is anybody’s guess.

Since 2019, Kois and her team of researchers at the University of Virginia have been searching for an answer to that very question. Using public information requests, they solicited competency evaluation orders from all 50 states, the District of Columbia and the Federal Bureau of Prisons. Though only 18 states provided useful data, the researchers were able to come up with their estimate that at least 140,000 evaluations are ordered across the nation each year – more than 380 people each day. 

“That’s wild that we don’t have a handle on how much this is happening,” she said. “How can we staff adequately to make sure people are getting their due process by getting their evaluation quick and getting treatment? You can’t staff. You can’t have enough beds. You can’t have enough placement, if we don’t even know this first step.”

MindSite News sat down with Kois via Zoom to highlight five of the most important takeaways from the study. The interview has been condensed and edited for clarity.

Josh McGhee: What got you interested in competency evaluations?

Lauren Kois: I trained in New York. Rikers Island has a couple different tiers of mental health treatment for folks that are really [acutely ill] and many of them are incompetent. The men go to Bellevue and the women go to Elmhurst Hospital in Queens. There are fewer women in the criminal legal system than men, but that’s where I got my first forensic inpatient experience. And everyone was there for competency treatment so it really sparked my interest.

What’s important to understand about your findings?

Some states aren’t even tracking this. Think of all the different data that agencies collect: People are getting lost in this system. Their due process, according to the Americans with Disabilities Act, is violated. Plus, you should care about them. It’s just this data point that isn’t considered by a lot of courts.

Some states have gotten better about this since we first started collecting the data, but it is very striking how folks don’t know what’s going on with this.

Where did the original estimation of 60,000 evaluations per year come from?

That 60,000 number came from scholars at the University of Virginia, where I’m at now and that number is highly influential. It’s been cited at least 300 times. That was the first time a number was quantified. The researchers who calculated this just looked at felonies. We know misdemeanors are on the rise and will trigger the most evaluations, and they’re more likely to be incompetent. 

The competency crisis wasn’t happening when they gave this estimate in the early 2000s, so they did what other folks had done: ‘There’s this many felonies and this many people charged with felonies are likely to have serious mental illness.’ They made a wise estimate, but it was still an estimate. They were very clear that this is a felony calculation, but people started not including that part and some of the nuance got lost.  

That number is so ingrained in everybody’s head. I’ve cited it in every paper I’ve done before this. It became a game of telephone. 

What are the differences between those facing felonies and misdemeanors?

By far, most people who need these evaluations are going to have a schizophrenic spectrum disorder like bipolar disorder with psychotic features, or, to a lesser extent, major depressive disorder with psychotic features.

The people with misdemeanors are typically more acute, symptomatic and more likely to be found incompetent.  Misdemeanors like criminal trespassing, one of the most common, are really quality of life offenses that are the result of some of the symptoms of serious mental illness. [Those people] are often sicker, and for them to get caught up in these wait lists just doesn’t make any sense.

A lot of things exacerbate mental health. It’s easier to get arrested for a misdemeanor repeatedly, if you’re someone that’s unhoused. If you don’t have food stability. If you don’t have financial stability. Being arrested and incarcerated is another social determinant of mental health. It’s cyclical and feeds each other.

The same people are getting arrested more and more, and they’re sometimes referred to as high utilizers, which is not the best term. Because I’m sure that people would not like to be high utilizers of that service or system.

Why is it taking these exorbitant fines to get places to comply? What’s taking so long?

The data we have show that more and more people are getting referred and the base rates of incompetence are also rising. So that’s a proxy for mental illness. It suggests that people with serious mental illness are getting more symptomatic. They may be getting arrested more and more, and that’s a whole other public health issue. 

People that head departments of mental health were freaking out about this before legislators were freaking out about it and realizing that they were going to have to pay a lot of fines. If a department of mental health could have all the money they want, that would be great, but the legislature decides how much money they get. Maybe the legislatures should be the ones on  the hot seat.