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Thursday, March 19, 2009

ESB 5519: A new approach for evaluating competency to stand trial

The criminal justice system carries with it a certain fascination, due in no small part to television. But within the system, dealing with mental illness carries a certain discomfort, due in equal parts to television and to low awareness.

And within the topic of mental health law, the issue of competency to stand trial is largely overlooked.

There is little doubt that most people understand constitutional due process rights such as the right to be represented by an attorney in criminal matters. Thanks to court decisions, the system has built-in safeguards to ensure that every accused person has the assistance of counsel. But for some who face criminal charges, mental illness interferes with their right to counsel.

About forty years ago, the U.S. Supreme Court held in the case of Dusky v. United States that a person may not be brought to trial if he/she suffers from a mental disease or defect that renders him/her unable to understand the nature of the criminal proceedings or unable to reasonably assist his/her attorney with the trial.

There are two points that sometimes cause confusion even for judges, prosecutors and defense attorneys. First, competency to stand trial is not the same as being found not guilty by reason of insanity. (Insanity is a defense raised at trial; lack of competency precludes the trial from taking place.)

Second, a person is not competent to stand trial only if the mental illness or defect is what causes the inability to assist counsel.

In other words, lack of competency to stand trial is really a form of denial of the right to counsel, except that neither the government nor the defendant has done anything to deny that right.

The Legislature enacted a sweeping revision of the competency laws in 1997. Twelve years have passed since then, and with those twelve years have come many external changes. Judges, prosecutors and defense attorneys have become aware of competency issues, and gained expertise in the area. The federal and state appellate courts have rendered opinions not contemplated back in 1997. And public services available to the indigent mentally ill have declined dramatically.

All of these changes have combined to create major gaps in the competency statutes. Those gaps have, in turn, created serious bed space issues for the two state psychiatric hospitals — Eastern State Hospital and Western State Hospital.

They have also created serious capacity issues for local facilities who treat the mentally ill on a civil basis.

Engrossed Substitute Senate Bill 5519 contains the first major revision of the competency to stand trial laws since 1997.

It is one of the more important bills on the table this year.

It passed in the Senate on March 12th, and was first referred to the Judiciary Committee, but was eventually sent to the Committee on Human Services (chaired by Representative Mary Lou Dickerson, D-36th District) instead.

If enacted, ESB 5519 would remove many of the inefficiencies in current law.

According the Fiscal Note accompanying the bill, those inefficiencies cost the state, counties and cities upward of $1.6 million per year. And those numbers may be on the conservative side, since they assume that the rate at which mentally ill defendants are referred for competency evaluations will remain steady; the statistical pattern suggests that those referrals will increase by at least 6.5%.

By reducing inefficiencies within the competency process, ESB 5519 will also decrease the amount of unnecessary time a mentally ill person spends in jail waiting for the competency process to reach its conclusion.

At the recent hearing on ESB 5519, there were some who expressed opposition to the bill. But they were in the minority, and the bill passed the Senate with forty four "yea" votes, one abstention, and two excused.

ESB 5519 is important on three levels. First, it brings competency laws in line with the changes that have occurred since 1997. Second, it will save money for state and local governments. And third, it is the right thing to do.

ESB 5519 is the culmination of more than eighteen months of hard work by a group of stakeholders called together by the State Department of Social and Health Services (DSHS). The first version of the bill, last year's SB 6611, did not make it out of committee in 2008, primarily because there were too many details to work out and not enough time in last year’s “short session”.

This year’s long session provided enough time to refine the bill, which must still be approve by the House of Representatives.

The House Committee on Human Services is holding a hearing on ESB 5519 this Monday, March 23rd, at 1:30 PM. If you're interested in the bill, feel free to submit written comments of support to committee members.

I'll report back next week on how the hearing went.

Disclaimer: I have a particular interest in ESB 5519. I was fortunate enough in my professional capacity to be a member of the DSHS-formed work group, and the subcommittee that created an early draft of last year’s SB 6611, which became this year’s ESB 5519. In my professional life, I am a supervising prosecutor for the Seattle City Attorney’s Office, specializing in mental health law.

I am also an adjunct professor of law at Seattle University School of Law, where I teach a course in Law, Policy & Mental Health.

I have authored this post as a private citizen, not in my professional capacity. Nothing in this post represents the viewpoint of the Seattle City Attorney’s Office, the City of Seattle, or any agency or department of the City of Seattle, or of Seattle University School of Law.


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