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The national picture on wait times for restoration

Susan McMahon is a professor at Arizona State University law school. She writes about biases in the law, with a particular focus on individuals with mental health conditions in the criminal justice system. 

Q. We’re reporting on inmates who lack capacity who wait as much as a year for restoration. Is that unconstitutional? 

Susan McMahon
Susan McMahon

A. Short answer: Yes.

Longer, more nuanced answer: The Supreme Court said in Jackson v. Indiana that a state violates the due process clause if it detains an incompetent defendant indefinitely; it can only hold someone for a “reasonable period of time” while it determines if the defendant’s competence can be restored. But the Court didn’t define “reasonable,” and lower courts ever since have debated when a waiting period crosses the line into due-process-violating territory.

That said, no court has found that a waiting period of a year or more qualifies as reasonable. One federal court imposed a seven-day limit. Other courts have suggested twenty-one days as the outer boundary of reasonable.

Unless there’s some kind of extenuating circumstance justifying such a lengthy detention, a year or more likely violates any court’s definition of a reasonable time frame. Yet waits of a year or more are not at all unheard of.

Q. What has happened in states where the court has ruled long waits are unconstitutional?

A. Courts have tried to enforce these decisions, but there’s only so much they can do. They can fine states for not complying with court orders — and many have, to the tune of millions of dollars. But it’s the legislature’s or the governor’s job to fund more beds or open new outpatient treatment programs, and the political branches have generally been unwilling to commit the resources needed to tackle the problem.

There are exceptions to this general rule, and states have recently been more proactive in implementing measures to reduce wait times. Just a few examples: Washington passed legislation authorizing an outpatient competency restoration program. It also funded additional inpatient beds following a series of lawsuits finding its wait times unconstitutional. In 2021, California passed a law requiring judges to consider placing defendants accused of misdemeanors and found incompetent to stand trial into diversion programs rather than waiting for space to open in a treatment facility. And many states, including my home state of Arizona, have created task forces to study the problem and recommend some pathways forward.

Q. We’ve been focusing on the problem of wait times in North Carolina. How widespread is the problem?

A. It’s everywhere. Wait times for restoration services are the norm, not the exception, and the problem became worse during the pandemic. Backlogs grew when transfers between jails and inpatient facilities stopped in 2020, and staffing issues in the years since have made it difficult to hire enough people to increase restoration capacity. At the same time, referrals for evaluations and restoration, which dropped when jail rates dropped during the most acute phases of the pandemic, have skyrocketed in the years since.

Washington, for example, has made a substantial effort to increase its capacity, adding ninety forensic beds and authorizing an outpatient competency restoration program. Yet as of February 2023, only about five percent of defendants were being admitted for inpatient restoration services within seven days, as required in that jurisdiction, and average wait times were between 89 and 118 days, depending on the inpatient facility.

This story is part of a collaboration with FRONTLINE, the PBS series, through its Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.