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(p. 127) Forensic Mental Health Services and Competence to Stand Trial 

(p. 127) Forensic Mental Health Services and Competence to Stand Trial
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(p. 127) Forensic Mental Health Services and Competence to Stand Trial
Author(s):

Ronald Roesch

DOI:
10.1093/med-psych/9780190688707.003.0008
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Subscriber: null; date: 16 November 2018

My career as an academic in forensic psychology did not begin on the path of most academics. A sequence of events in my adolescence and early twenties shaped much of the research in my career on issues like competency to stand trial and jail mental health. When I was 17, I dropped out of high school and lived on my own. Those of you who know the risk assessment literature will recognize that as risk factor #1. In 1967, when I was 19, a friend and I broke into a golf course shop and stole golf clubs. Because they were worth thousands of dollars, we were charged with burglary and grand theft, both felonies. I spent a couple of weeks in jail before getting out on bail. I eventually pleaded guilty to one of the charges, but during the many months between arrest and sentencing (thankfully the justice system then, as now, moved slowly!), I got a job, obtained a GED, and also enrolled in courses at a community college. Judge William Gooding, to whom I am forever grateful, commented favorably on this and sentenced me to two years of probation with the (p. 128) added condition that if I successfully completed probation he would have my record expunged. Here was an example of diversion before diversion was common, including expungement of my record when I completed probation.

My friend did not fare as well because he had a prior record and got a prison sentence. For those who are counting, you can check off risk factor #2—hanging around with delinquent or criminal friends. Despite these risk factors, I do not think I would have been assessed as a high-risk offender if the risk instruments we have today were available then. I did not have a prior delinquency history and was not a violent offender. Indeed, as it turns out, I now know that I would be classified by Terrie Moffitt as an adolescent-limited rather than a life-course-persistent offender (Moffitt & Caspi, 2001).

Judge Gooding’s diversion decision set me on a career path in psychology and law in which I have tried to create similar opportunities for others, by helping to start a formal pretrial diversion program, ensuring that mentally ill people in our jails and prisons are afforded treatment rather than punishment, and seeking to improve forensic mental health evaluation services, especially related to competency to stand trial.

Arizona State Hospital and the Deinstitutionalization Movement

I decided to major in psychology due in large part to a positive experience I had in my first psychology course taught by Dr. Roger Strachan. After two years at a community college I transferred to Arizona State University (ASU). At the same time, my probation officer alerted me to an opening for a full-time job at the Arizona State Hospital (ASH). ASH opened as the Insane Asylum of Arizona during the late-19th-century era when mental hospitals were being created throughout the country, led by reformers such as Dorothea Dix, as a humane alternative to housing persons with mental illness in jails. Regrettably, the hospitals created a class of chronic mental patients who would spend decades in the hospital.

(p. 129) The position required two years of college with the expectation that those hired would continue with their education while working full time. It was one of a new class of positions for mental health workers who would eventually replace the psychiatric aides who had long been the frontline workers. The hospital planned to discharge current patients into the community and reduce the length of hospitalization of new patients. This was during the early days of the deinstitutionalization movement, fueled by a growing knowledge of the negative effects of psychiatric hospitalization (e.g., Ken Kesey’s One Flew Over the Cuckoo’s Nest, 1962; David Rosenhan’s On Being Sane in Insane Places, 1973), as well as new psychopharmacological ways to stabilize patients, thus freeing them from confinement to allow for their care through community mental health services. Large numbers of chronic patients were being discharged while at the same time reducing admission rates or, if admitted, reducing length of stay.

As 1 of 10 mental health workers, each assigned to 10 patients in an adult treatment unit, my job was to work with families and community mental health centers to get my patients back into the community. In reality, many patients no longer had any family or ties to the community, so that the main options often were to discharge them to halfway houses or other community lodges. I approached the job with a sense of excitement, that I would be helping people return to community life.

While this turned out to be a positive experience for some patients, there were many others who did not want to leave the hospital. One patient approved for discharge to a halfway house had been at ASH for decades and had worked on the hospital grounds for many years on a garbage truck. When he was on the ward, he rarely talked to anyone, preferring to keep to himself in the evening, often sitting on the floor against a wall. One day a nurse informed me that the man had not come to the nursing station for his medications. I approached him and asked him to do so. He said nothing, got up, grabbed the lid of a cigarette canister and attempted to hit me over the head with it. I managed to restrain him, and the nurse gave him his medication by injection. This patient never talked about why he attacked me. I checked his record, and he had no history of (p. 130) aggression, but I learned that he was scheduled to be discharged to a halfway house the following week.

I am convinced that the man acted out because he did not want to leave the hospital. He may have been experiencing what our field was just beginning to realize: that deinstitutionalization was simply sending patients into communities that were ill-prepared and underfunded to provide quality mental health and other services to the large number of discharged patients (Roesch & Golding, 1985). Many patients languished in hastily created halfway houses run by individuals with little or no training. Indeed, it is likely that for many their quality of life was not as good as it was in the hospital. During the deinstitutionalization era, sociologists later affirmed a pattern of patient resistance to discharge from hospitals on which they had come to rely as a way of life (Braginsky, Braginsky, & Ring, 1982).

After working at ASH for two years, I was asked to be an instructor in the education department at ASU that provided preservice and in-service training for mental health workers like myself. I am grateful to Dr. Ron Holler, the director of that department, who selected me and provided mentorship as I finished my bachelor’s degree at ASU. During that time I was elected president of the newly formed Arizona Society of Mental Health Technology, a professional group representing mental health workers, and I was the founding editor of a professional journal, the Journal of Mental Health Technology. I must have enjoyed the experience as I later became editor of two psychology and law journals—Law and Human Behavior and Psychology, Public Policy, & Law. Unfortunately, that first journal only survived for a few years, but I found the experience helpful when my Simon Fraser University colleague Stephen Hart and I later started the International Journal of Forensic Mental Health, which is now in its sixteenth year.

Graduate School and Jail/Diversion Reform

At ASH I had an opportunity to organize a conference for mental health workers, allowing funding to invite speakers from out of state. I had read an (p. 131) article by a professor at the University of Illinois (UI), Julian Rappaport, who wrote about his research on paraprofessionals working in mental hospitals. I invited him to come to this conference in Arizona and that began a lifelong friendship. I had nearly finished my bachelor’s degree, and he invited me to consider applying to UI in the clinical and community graduate psychology program. I was admitted in the fall of 1972 and in my first semester took a clinical research methods course from Stephen Golding. This began a relationship that led to later collaboration on the competency research that became a career focus for both of us. Edward Seidman, a community psychologist who had just joined the UI faculty, was my dissertation supervisor, and he and Julian eventually became my lifelong friends.

There were no psychology and law graduate programs in the United States when I started graduate school (the University of Nebraska would start the first one in 1974), but I had a clear interest in that direction. I took courses in political science, sociology, and the law school to broaden my training in legal and policy issues, and I looked for projects that reflected my interest in applying psychology to the legal system.

Before I got involved in my dissertation research, I initiated two projects that grew directly out of my arrest and jail experience: bail release and diversion. I recalled that five years ago, when I had been released on bail, many of the inmates I met in jail had been there for lengthy periods because they were not able to raise the bail funds. And Judge Gooding had used his own “diversion logic” to keep me out of prison and give me a chance in the community.

I got interested in alternatives to a cash bail system through a pilot study, by two UI senior graduate students that was done at the Champaign County jail, to identify alternatives to the cash bail system (Nietzel & Dade, 1973). They created a measure of the strength of a defendant’s ties to the community. A cut-off score to make a recommendation to the court for release on recognizance, which meant a cash bail was not needed for release, resulted in an increase in release on recognizance.

At that time I was doing a practicum with a local African-American community agency called the Kenneth Kuumba Shackleford Community Institute, named after a youth who was shot and killed in a police encounter. (p. 132) The Nietzel and Dade (1973) study led the community group and me to approach the Champaign County court to ask if they wanted to restart the bail project. The court agreed, and we relied on undergraduate volunteers and members of the community group to interview the defendants, rate them on another bail eligibility measure that had been developed by the Vera Institute, and then make recommendations to the court when bail was being set. Many individuals were subsequently released without having to post a cash bail.

My development of a pretrial diversion project, still as a graduate student, was during a time when there were few formal diversion programs and none in Champaign County. They arose primarily in the 1970s and 1980s, and the first formal diversion program in Arizona did not begin until 1978. Judge Gooding had provided me a first-hand appreciation of the benefits of diversion, and I wanted to create a more formal program. Coincidently, the Champaign County prosecutor was also interested in diversion, and I was among a group of 20 citizens he invited to develop guidelines for the program. I served as vice-chair of the Citizen’s Committee that was formed. We wrote a proposal for federal funds and obtained support that provided staffing and services for three years.

I had hoped to evaluate the effectiveness of diversion and to use that as my dissertation research, having reviewed the field and found that many diversion programs had been created but few had been evaluated. But that was not to be. The randomly assigned control group that I recommended (eligible for diversion but processed as usual through the legal system) was rejected by the project’s evaluation subcommittee on the grounds that it would be unethical to deny these valuable services. My counterargument that we did not know whether the program was beneficial, and that a design of the type the subcommittee recommended was needed to determine whether it was effective, was to no avail. After spending nearly a year on this project, I was left with no prospects for a dissertation. But all was not lost. I wrote about my diversion experience1 and, in retrospect, losing (p. 133) the diversion topic may have been fortuitous. It required me to look for another dissertation idea, which was the competency research I began as a graduate student and continued to do throughout my career.

Forensic Mental Health Systems and Competency to Stand Trial

One of my jobs during graduate school was with the National Clearinghouse for Criminal Justice Planning and Architecture. This was a UI program federally funded and mandated to review proposals from state and local prisons and jails that had requested federal funds for expanding existing facilities or building new ones. While most requests were from prisons or jails, an unusual request came in from a forensic unit located within a state hospital. I was asked to consult with them, and this project eventually formed the basis of my dissertation. The forensic unit conducted evaluations of criminal defendants referred for questions of competency to stand trial or the insanity defense and also housed those found incompetent or not guilty by reason of insanity.

To put this in historical context, in the 1970s virtually all forensic evaluations took place in hospitals, and there were no standards for evaluating competence. As we would learn in our research, most evaluators equated incompetency with a diagnosis of psychosis. A psychiatrist, A. Louis McGarry, had just completed the first major study of competency evaluations and published the first competency assessment tool, the Competency Assessment Instrument (McGarry & Curran, 1973), but it was not widely used.

Digging into this project, my graduate training in community psychology led me to think about the potential for community-based alternatives to traditional models of forensic assessment and treatment. That sort of thinking had also influenced our discovery that bail reform would reduce the need to build new jails (Roesch, 1976). The National Clearinghouse for Criminal Justice Planning and Architecture hired Steve Golding as a consultant to work on this project. We devised a series of studies that (p. 134) examined the forensic evaluation procedures currently being used, as well as the feasibility of a brief competence screening method as an alternative to automatically sending defendants to inpatient settings for evaluation. We found two things of importance.

First, defendants found incompetent were typically diagnosed with a psychosis or intellectual impairment, while competent defendants rarely had either diagnosis. This reflected a prevailing view of evaluators at the time that psychosis/mental retardation meant incompetency. Steve and I challenged that association, arguing that individuals with a diagnosis of psychosis or mental retardation could be competent to stand trial. We suggested that paramount consideration be given to how the defendant’s behavior and symptoms affect the demands of her legal case. As we described it in our book (Roesch & Golding, 1980), severe psychopathology was only a threshold issue; incompetency rested on whether that condition resulted in actual deficits in competency-related abilities, given the specific circumstances of this defendant. This came to be known as a functional definition of competency. Others were arriving at this view roughly at the same time (McGarry & Curran, 1973), and at least by the late 1980s, this was becoming the best-practices perspective (e.g., Grisso, 1986). Later research showed that this view took hold to the extent that forensic evaluators rarely made this conceptual “diagnostic” error by the 1980s and 1990s (Heilbrun & Collins, 1995; Nicholson & Norwood, 2000).

Another key finding of our examination of the hospital evaluation process was that the majority of the defendants were found to be competent. The evaluations took an average of 43 days, and many were provided medications while hospitalized. We wondered why so many referred defendants were found competent, so we decided to contact the attorneys who had requested competency evaluations of their clients. Many admitted that they did not have a serious concern about their client’s competence but nevertheless realized that they did have some mental health issues that needed attention. Rather than watch their clients deteriorate in jail, they motioned the court to remand them for competency evaluations.

The competency project was my first awareness of the impact of deinstitutionalization in terms of the manner in which those with mental (p. 135) health problems moved back and forth between jails and forensic hospital units. Many of these defendants had been prior patients at Dorothea Dix Hospital who, as part of deinstitutionalization, had been released only to be arrested and returned to the hospital, but this time to the forensic facility. The irony was startling to me. The forensic hospital was situated on the grounds of a mental hospital named after Dorothea Dix, the 1800s reformer who worked tirelessly to get individuals out of jails and provide them with more humane treatment in mental hospitals. Now it seemed we had come full circle.

While it was true that mental hospitals did provide better care than the jails, the hospitals soon became overcrowded and kept patients for years, turning them into chronic mental patients, as I had found in my experience at ASH. Deinstitutionalization shifted the patients back to the community, but many ended up homeless and community mental health services were seriously underfunded (Roesch & Golding, 1985). Many would get arrested, often for minor crimes, and the jails, of course, did not have the services to meet their needs. Attorneys began to see a referral for a competency evaluation as the only means to get them out of jail and into a setting where treatment would be available.

Better Ways to Manage Competency to Stand Trial Evaluations

Observation during our study of inpatient forensic evaluations then led us to consider alternative assessment methods. North Carolina transported defendants from across the state to the central forensic hospital, and it seemed to us that the travel time and costs, and the average of 43 days for the evaluation itself, was a long time for assessing competence. To explore options, we trained eight members of a county mental health association to conduct interviews of 30 defendants, using one of the few competence-specific instruments available at the time, the Competency Assessment Instrument (McGarry & Curran, 1973), supplemented by some additional questions focusing on understanding of legal issues. The interviews lasted (p. 136) about 30 to 60 minutes, and we completed them within a day of a defendant’s admission to the hospital.

We compared these decisions to those made by the regular competency evaluations done by its examiners, which required about six weeks and included interviews by psychiatrists, psychological testing, ward observations, and other background information collected by the forensic unit. Of course, these defendants spent most of the time simply sitting on the ward and were not seen by any staff. Overall, there was agreement on 27 of the 30 cases (25 agreements on competency and 2 on incompetency). So it seemed that the lengthy evaluation period did not add appreciably to the decision-making process for nearly all the cases. We suggested that the state should shift the focus of their competency evaluations to the community where short-term evaluations could be conducted, relying on the forensic hospital only for those cases in which incompetency seemed to be a real concern and for the short-term treatment of incompetent defendants and insanity defense cases.

One of the disturbing findings of my dissertation research was that there were many defendants found incompetent who were then held for extended periods of time under the indefinite treatment commitment statutes. We found a wide range of commitment lengths for competency restoration, with an average of about two years although many were held for 10 years or more. Interestingly, the U.S. Supreme Court had spoken to this issue a few years earlier, but I would not become aware of it until several years later when I was working on my dissertation. The case, Jackson v. Indiana (1972), addressed the constitutionality of automatic and indefinite commitment solely on the basis of a finding of incompetency. Justice Harry Blackmun wrote for the majority:

A person charged by a State with a criminal offense who is committed solely on his incapacity to proceed with trial cannot be held more than a reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. (Jackson v. Indiana, 1972, p. 738)

(p. 137) Steve and I were interested in how the states interpreted Jackson’s “reasonable period of time” and found enormous variability (Roesch & Golding, 1980). In 1979, six years after the Jackson decision, 19 states still allowed automatic indefinite commitments. Some states mandated release after six months, other states set 18 months as the limit, and still other states tied treatment length with the sentence that would have been given if the incompetent defendant had been convicted. Troubled by this, Steve and I wondered why Justice Blackman was not more specific in defining the length of time an incompetent defendant could be held. So we decided to call him and ask him about it. We worked at a federal agency at the time, with access to the federal directory of direct phone numbers. We dialed his number and were surprised when we actually got through to him. We introduced ourselves and we asked him what he meant by “reasonable period.” He replied, “Well, you boys must not be lawyers.” He then proceeded to give us a lesson on how Supreme Court decisions are made; we learned, of course, that this would be defined by each state, but ultimately a case could be brought to the Supreme Court challenging a state statute. Steve and I had the privilege of talking to Justice Blackman more than 10 years later at a reception in 1990 for the Distinguished Contribution to Psychology and Law award he received from the American Psychology–Law Society. We told him about our phone call, and he said he remembered it; the three of us had a good laugh about our legal naïveté.

Ed Seidman suggested I submit my dissertation to two award competitions sponsored by divisions of the American Psychological Association. One was a dissertation award sponsored by the Society for the Psychological Study of Social Issues, and the other was an award open to any research project sponsored by the Consulting Psychology division. I was fortunate to win both awards. The University of Illinois Press learned of the awards and asked if I would be interested in writing a book based on my dissertation. This book would be the first to focus solely on the topic of competency (Roesch & Golding, 1980). Steve and I were honored that the American Bar Association recognized the book with a Certificate of Merit award.

(p. 138) Steve and I continued our interest in developing competency assessment instruments. Thanks to Saleem Shah and a grant from the National Institute of Mental Health, we developed the Interdisciplinary Fitness Interview (Golding, Roesch, & Schreiber, 1984), a structured interview and rating scale designed to take into account both legal and mental health issues through the use of a joint interview by a mental health professional and a legal professional.

I took a faculty position at Simon Fraser University in Canada upon completing my PhD studies in 1977. There I collaborated with Christopher Webster and Derek Eaves to create an instrument for assessing fitness to stand trial. The Fitness Interview Test was designed to provide a brief screening assessment of competence to stand trial according to Canadian criteria (Roesch, Webster, & Eaves, 1984), later revised to be used in the United States as well (Roesch, Zapf, & Eaves, 2006).

Forensic Mental Health Services and Assessments in the 21st Century

The areas of research that fascinated me early in my career have come a long way since the 1970s. Jails are recognizing the increased number of detainees with mental health issues and are implementing procedures for assessment and treatment (Nicholls, Roesch, Olley, Ogloff, & Hemphill, 2005). Diversion from legal processing has had a resurgence of attention during the past 20 years, so that now the formal processing of offenders has been reduced greatly in most states (Bilchik, 1999; Center for Health and Justice, 2013). Advances have been especially great regarding diversion of juveniles from legal processing (Models for Change Juvenile Diversion Workgroup, 2011) and with regard to the development of mental health courts (Wiener & Brank, 2013). Much research still needs to be done, however, to demonstrate how best to manage diversion systems to maximize their value.

Enormous progress has been made since the days when Steve and I recommended greater use of community alternatives to assess competency (p. 139) to stand trial and treat incompetent defendants. Beginning in the 1980s (Melton, Weithorn, & Slobogin, 1985), the use of community-based evaluations of competency has become more common (Grisso, Cocozza, Steadman, Greer, & Fisher, 1996; Melton, Petrila, Poythress, & Slobogin, 2007). The move away from the use of central institutions is also seen in the increased use of outpatient approaches for the treatment of incompetent defendants (Gowensmith, Frost, Speelman, & Therson, 2016). U.S. Supreme Court cases have shaped the way that the construct of competency is defined and incompetent defendants are treated (e.g., Godinez v. Moran, 1993; Indiana v. Edwards, 2008, Sell v. United States, 2003; United States v. Duhon, 2000).

Major progress has been made since the days when we were developing the first forensic assessment instruments. Such tools have increased both in number and in their reliability and validity for our assessments on a range of civil and criminal issues (Roesch & Zapf, 2013), and a series of books have provided forensic practitioners with best practices in forensic assessments (Heilbrun, Grisso, & Goldstein, 2009). Specific to competency to stand trial, a wide range of well-validated tools are now available (as reviewed in Grisso, 2003), as well as best-practices guides for evaluations of competence to stand trial (e.g., Zapf & Roesch, 2009; Zapf, Roesch, & Pirelli, 2013). Near the end of the 20th century, the law began applying competency to stand trial to juvenile proceedings, producing research and practice guides to employ developmentally relevant concepts and methods for their evaluation (Grisso, 2005; Kruh & Grisso, 2009; Viljoen & Roesch, 2005).

Despite these positive advances, the number of competency evaluations has increased dramatically over the past four decades. This likely reflects the fact that we have yet to provide the range of community services that would minimize the incarceration of individuals with mental health concerns. And despite the Jackson decision, many incompetent defendants continue to be held longer than is likely necessary due to the overcrowding of forensic and state hospitals (Gowensmith et al., 2016). Given that we now have a number of excellent assessment guides available, the field can now turn greater attention to treatment issues, both in (p. 140) terms of competence restoration (Zapf & Roesch, 2011) and community-based follow-up to minimize the cycle of arrests and hospitalizations of those offenders who have co-occurring disorders.

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                                                          Notes:

                                                          1. I wrote about this experience in an article and subsequent comments in an exchange with the director of the Champaign County diversion program (Gottheil, 1979; Roesch, 1978, 1979).