Nearly 40 years ago, the U.S. Supreme Court ruled that an individual’s due process rights are violated if the nature and duration of his or her pretrial commitment for incompetency to stand trial does not bear some reasonable relation to the purpose for which he or she is committed. Jackson v. Indiana, 406 U.S. 705, 738 (1972). Jackson was a “mentally defective deaf mute with a mental level of a pre-school child . . . [who could not] read, write, or otherwise communicate except through limited sign language.” Id. at 717. He was charged with two counts of robbery for allegedly stealing a woman’s purse and its contents, with a value of four dollars, and for allegedly stealing five dollars in another instance. Id. At the hearing to determine Jackson’s competency to stand trial, the evaluating physicians reported that Jackson’s mental condition precluded him from meeting the Dusky standard. 1Id. at 719. The physicians questioned whether Jackson would ever have the sufficient ability or intelligence to be adjudged competent to stand trial. Id. Regardless, the court ordered Jackson committed to the state’s department of health until such time as he was “sane.” Id. On review, the Supreme Court held that, regardless of the basis on which the State is exercising the power to detain or commit an individual—whether because an individual poses a potential danger to himself or herself, a potential danger to others, or is in need of care, treatment, or training—a “person charged by a State with a criminal offense who is committed solely on account of his [or her] incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he [or she] will attain that capacity in the foreseeable future.” Id. at 737-38. The Court further held that “[i]f it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” Id. Finally, the Supreme Court held that “even if it is determined that the defendant probably soon will be able to stand trial, his [or her] continued commitment must be justified by progress toward that goal.” Id.

Interestingly, the Court found it “remarkable” that the substantive constitutional limitations on the State’s’ power to detain individuals in these circumstances had not been more frequently litigated. Jackson at 737.

Eight years later, Congress passed the Civil Rights of Institutionalized Persons Act (“CRIPA”), found at 42 U.S.C. § 1997. CRIPA authorizes the U.S. Attorney General to investigate and bring civil actions for equitable relief against a State or political subdivision for patterns or practices at institutions that are owned, operated, managed, or provide services on behalf of the State or political subdivision, that deprive mentally ill, disabled, retarded, chronically ill, or handicapped individuals of their constitutional rights. 42 U.S.C. § 1997a-c. At the end of fiscal year 2009, the last report currently available, the Civil Rights Division of the Department of Justice was active in CRIPA matters and cases involving 33 states and Puerto Rico, Guam, the Virgin Islands, and Northern Mariana Islands.2

However, the authority of the Attorney General under CRIPA does not displace the right of individuals to bring private actions to enforce their rights. 42 U.S.C. § 1997j. In several states, including Oregon, Arkansas, Florida, and Louisiana, individuals have filed actions against the State and state institutions for deprivations of constitutional rights alleging, among other things, that they detained mentally incompetent defendants without treating them and determining whether there is a substantial probability the person will attain capacity, referring them for civil commitment, or releasing them—within the constitutionally mandated “reasonable period of time.”3

This Mental Competency—Best Practices Model was drafted to assist states—criminal justice systems working in conjunction with mental health systems—in devising practices that will serve these goals. The model includes practices and recommended timeframes for the initial competency hearing, competency evaluations, competency reports, hearings for the competency determination, competency courts or dockets, competency restoration, maintaining competency and preventing decompensation, education, and collaboration.