The quandary of unrestorability.

Forensic psychiatrists have long been interested in the topic of incompetence to stand trial (ICST), but research in this area did not really begin until the early 1970s, when McGarry operationalized the Dusky decision, and the U.S. Supreme Court handed down its decision in Jackson v. Indiana. Since then, the difficulties associated with identifying ICST defendants and restoring them to competence have produced a small, intermittent stream of research articles. Initially, most of the publications tried to identify which characteristics of a defendant might predict a finding of ICST, but more recently, the focus has shifted to identifying which factors might predict the outcome of restoration to competence (RTC). Research on the outcome of attempted restoration has generally found that 80 to 90 percent of ICST defendants are restored to competence within six months of treatment. The remaining 10 to 20 percent, though, pose a more difficult problem, not only because prosecutors are loath to drop the charges against a defendant, but also because unrestored defendants can consume a disproportionate amount of state mental health resources, particularly if they are state hospital patients. As a low-base-rate phenomenon, unsuccessful restoration is difficult to predict in any given ICST defendant. Nonetheless, I believe it is time for our field to study more carefully the area of prediction of unsuccessful restoration, for two reasons: first, psychiatrists and psychologists are called on by statute in all but seven states to predict the probability of RTC of individual defendants, either at the initial evaluation or after referral for RTC; second, as a result, we must develop an evidence base that will allow us, as evaluating and treating clinicians, to make reasonably accurate predictions about who will not be restored for the lawyers, judges, and state mental health authorities who are involved in these cases. As is well known to forensic psychiatrists, the Jackson decision held that, “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” The Court, however, left it to the states to determine what to do with a defendant who was not restored to competence at the end of a “reasonable” effort at restoration. A logical place to start in considering an approach to the problem of unrestorable defendants is to review the current state of affairs in this rather specialized part of criminal and mental health law, particularly since previous commentators have concluded that the response of the states to the Jackson decision was less than overwhelming. For example, in 2003, Miller concluded that more than half the states had no effective limit on the duration of RTC. A review of the state statutes on the evaluation, restoration, and disposition of defendants found incompetent to stand trial is rather illuminating (Tables 1, 2). Based on my reading of these statutes, four states have no statutory limit on the length of time a defendant can be held for restoration to competence: Delaware, Maine, Mississippi, and Montana. Vermont has no statutory limit on the time for RTC but requires that the defendant meet civil commitment criteria. Another five states provide for a limited initial period for restoration but have no statutory limit on the length of time an incompetent defendant can be held after that period has elapsed: Hawaii (felonies only), Missouri, Nebraska, Wisconsin, and Wyoming. Finally, nine states approach the matter slightly differently, though with similar effect, as they allow for an initial period of restoration, but then by statute allow indefinite hospitalization afterward, as Dr. Parker is Associate Professor of Clinical Psychiatry and Director of Forensic Psychiatry, Department of Psychiatry, Indiana University School of Medicine, Indianapolis, IN. Address correspondence to: George F. Parker, MD, Department of Psychiatry, Indiana University School of Medicine, 1111 West Tenth Street, Indianapolis, IN 46204. E-mail: [email protected].