Opinion formation in evaluating the adjudicative competence and restorability of criminal defendants: a review of 8,000 evaluations

Forensic psychiatric issues in intellectual disability

Forensic psychiatrists and neuropsychiatrists are likely to encounter individuals with intellectual disability as they are over-represented in the judicial system. These individuals may have the full range of mental illnesses and comorbid conditions, including physical infirmity, sensory deficits, language impairment, and maladaptive behaviors. They are frequently disadvantaged in the judicial system due to lack of comprehension, lack of accommodations, and stigmatization. Decision making capacity may need to be assessed for health care, sexual autonomy, marriage, financial management, making a will, and need for guardianship. The usual approach to conducting an evaluation needs adaptation to fit the unique characteristics and circumstances of the individual with intellectual disability. The forensic consultant can assist attorneys, defendants, and victims in recommending accommodations and the expert witness can provide education to juries.

Intellectual deficits and restoration to competency to stand trial: An examination of IQ cut off scores

Intellectual functioning impacts defendants' competence to stand trial, though research on this population remains limited. This study replicated and advanced prior work, focusing on defendants' demographic, clinical, cognitive, and criminal justice variables and their association with length of hospitalization and restoration determinations. Participants were 74 male and female criminal defendants in a midwestern state who were adjudicated incompetent to stand trial, had a diagnosis related to intellectual deficits, and completed competency restoration. Most defendants (83.7%) were restored to competency. Demographic factors were unrelated to restoration outcomes; violence of alleged offense predicted shorter hospitalization. Receiver Operating Characteristic Curve analyses determined an IQ score cut-off of 63.5 for which participants were of greater likelihood to be determined restored, providing guidance on the likelihood of restoration for defendants with intellectual disability related diagnoses. Specifically, this score can be used with clinical data to inform competency determinations for defendants with cognitive deficits.

Evaluations of competence to stand trial are evolving amid a national "competency crisis"

Across the United States, court orders for competence to stand trial (CST) evaluations and competence restoration services have been increasing much more rapidly than states can provide these services, prompting what has been called a national "competency crisis." The challenge in providing timely competence restoration services has, in several jurisdictions, prompted a change in competence evaluations. Evaluators are more often required to address broader clinical issues-such as recommending placement or addressing the urgency of hospitalization-rather than addressing only CST. This marks an evolving practice in forensic evaluation, which moves evaluators beyond the very narrow forensic question of competence and into more traditionally clinical recommendations. We describe several state examples of changing practice in order to highlight the initial barriers, and potential benefits, to addressing additional clinical issues in competence evaluations, amid a national competence crisis.

Legal Admissibility of the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR)

The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) was developed to assess competence to stand trial in defendants with Intellectual Disability. Although it remains the only validated instrument for this population, previous research has suggested it is rarely used by forensic examiners, a finding our survey of legal cases confirms. Initial validation studies provided some support for the instrument's reliability and validity. However, in both these and subsequent studies, there were significant limitations with respect to the size and representativeness of study samples, and therefore the associated interpretation of scores, such that questions remain as to whether the tool adequately assesses competence to stand trial in this population. In this paper, we review the research on the CAST-MR, discuss the strengths and limitations of the instrument, and debate its legal admissibility.

Specificity and item endorsement rates of personality assessment inventory over-reporting scales across ethnic, gender, and diagnostic groups in a forensic inpatient sample

The accurate evaluation of response style, particularly with respect to overreporting, is imperative in forensic settings wherein an external incentive to feign exists. Given the high cost of false positive errors in this context, as well as the associated cost of false negative errors, evaluators need to ensure that overreporting methods are effective with the unique patient populations with whom they work. Complicating this issue is that forensic samples often differ in predictable ways from the normative samples upon which typical psychological assessment instruments were normed. The purpose of the present investigation was to evaluate the specificity of the overreporting indices on the Personality Assessment Inventory, one of the most commonly used personality inventories, in a forensic sample with no ostensible incentive to feign. Although item endorsement and configural elevations on the Negative Impression Management (NIM) scale and the Malingering Index (MAL) were associated with genuine psychopathology, results indicated that the overall specificity estimates across groups were generally adequate. Further, and consistent with prior research, Rogers Discriminant Function (RDF) performed poorly in this sample.

Cross-Sectional Study of Homeless High Service Utilizers in Los Angeles County Jails: Race, Marginalization and Opportunities for Diversion

Objective

To describe the demographic, legal, and clinical characteristics of a cross-section of incarcerated homeless individuals with the highest utilization of Los Angeles (LA) County public services in order to increase opportunities for focused jail diversion.

Methods

The "5% list" (N=5,905 in February 2018), LA County's list of homeless individuals with the highest 5% utilization of public services, was cross-matched with the total jail population to obtain a sample of 333 homeless high-utilizing individuals. This sample was compared with the overall jail population (N=17,121) from publicly available aggregate data by Chi-square testing.

Results

84% of the high-utilizing sample were male, 38% Black, 37% Hispanic, 21% White. 67% were prescribed psychiatric medication. Compared with the overall jail population, the sample was significantly older, with a greater proportion of Black and White persons, and a lesser proportion of Hispanic individuals relative to the overall jail population. A significantly greater proportion of high-utilizing individuals faced misdemeanor charges.

Conclusion

These data highlight the compounding effects of homelessness, race, and mental illness on carceral and social vulnerability. Findings suggest homeless high utilizers in jail with mental illness are likely to benefit from court-based diversion efforts aimed at housing and treatment.

A longitudinal description of incompetent to stand trial admissions to a state hospital

OBJECTIVE

Evidence is clear that the nation is experiencing an increasing number of incompetent to stand trial (IST) admissions to state hospitals. As a result, defendants in need of treatment can wait in jail for weeks for admission for restoration. This study was conducted to better understand this growing population and to inform hospital administration about the characteristics of IST admissions.

METHODS

The study was conducted at the Department of State Hospitals (DSH) facility in Napa (DSH-Napa), a 1200-bed primarily forensic inpatient psychiatric facility located in northern California. The records of patients found IST and admitted to DSH-Napa for restoration of competence between the dates of 1/1/2009 and 12/31/2016 were eligible for inclusion in the study.

RESULTS

There were a total of 3158 unduplicated IST admissions available during the specified time period. Our data indicate that the number of admissions with more than 15 prior arrests increased significantly, from 17.7% in 2009 to 46.4% in 2016. In contrast, the percent of patients reporting prior inpatient psychiatric hospitalization evidenced a consistent decrease over time from over 76% in 2009 to less than 50% in 2016.

CONCLUSION

Our data add to the body of literature on the potential causes of the nationwide increase in competency referrals. The literature is clear that jails and prisons are now the primary provider of the nation's mental health care. Our data suggest that another system has assumed this role: state hospitals and other providers charged with restoring individuals to competence.

Competence to stand trial and criminalization: an overview of the research

Beginning in the 1960s, a steady decline in the number of inpatient psychiatric beds has occurred across the United States, primarily as a result of stricter civil commitment criteria and a societal movement toward deinstitutionalization. Concomitant with this decrease in psychiatric beds has been a steady increase in the number of mentally ill individuals who are arrested and processed through the criminal justice system as defendants. One consequence of this has been an explosion in the number of defendants referred for evaluations of their present mental state-adjudicative competence-and subsequently found incompetent and ordered to complete a period of competency restoration. This has resulted in forensic mental health systems that are overwhelmed by the demand for services and that are unable to meet the needs of these defendants in a timely manner. In many states, lawsuits have been brought by defendants who have had their liberties restricted as a result of lengthy confinements in jail awaiting forensic services. The stress on state-wide forensic systems has become so widespread that this has reached the level of a near-national crisis. Many states and national organizations are currently attempting to study these issues and develop creative strategies for relieving this overburdening of forensic mental health systems nationwide. The purpose of this article is to review the current state of the research on competence to stand trial and to highlight those issues that might be relevant to the issue of criminalization of individuals with mental illness in the United States.

A survey of national trends in psychiatric patients found incompetent to stand trial: reasons for the reinstitutionalization of people with serious mental illness in the United States

OBJECTIVE

Recent information indicates that the number of forensic patients in state hospitals has been increasing, largely driven by an increase in patients referred to state hospitals as incompetent to stand trial (IST). This survey was intended to broaden the understanding of IST population trends on a national level.

METHODS

The authors developed a 30-question survey to gather specific information on IST commitments in each state and the District of Columbia. The survey was administered to all 50 states and the District of Columbia via email. Specific individuals identified as primary administrators responsible for the care and evaluation of IST admissions in each state were contacted.

RESULTS

A total of 50 out of the 51 jurisdictions contacted completed the survey. Fully 82% of states indicated that referrals for competency evaluation were increasing. Additionally, 78% of respondents thought referrals for competency restoration were increasing. When asked to rank factors that led to an increase, the highest ranked response was inadequate general mental health services in the community. Inadequate crisis services were the second ranked reason. Inadequate number of inpatient psychiatric beds in the community was the third highest, with inadequate assertive community treatment services ranking fourth.

CONCLUSIONS

Understanding the national trend and causes behind the recent surge in referrals for IST admissions will benefit states searching for ways to remedy this crisis. Our survey indicates most states are facing this issue, and that it is largely related to insufficient services in the community.

Competency to stand trial evaluations: A state-wide review of court-ordered reports

Competence to stand trial (CST) evaluations are a critical part of certain criminal proceedings, and competence-related evaluation and treatment are an increasing part of public mental health services. Whereas more research describes the defendants undergoing competence evaluations, less research has examined the actual reports detailing those competence evaluations. This study reviewed 3,644 court-ordered CST evaluation reports submitted by 126 evaluators in Virginia since Virginia initiated an oversight system allowing for comprehensive review. The base rate of incompetence opinions was 38.8%, but these rates varied significantly across evaluation type (initial versus post-restoration efforts) and evaluators (ranging from 9.1% to 76.8% incompetence rate). Results suggest generally strong compliance with state statutes guiding CST evaluations, but also highlight marked variability in forensic conclusions and reveal a few areas in which some reports fell short of statutory requirements and practice guidelines.

The use of test instruments in forensic report writing - Explorative research in Flanders

BACKGROUND

Forensic psychiatric reports have a profound impact on the life of a defendant, on society and on the mental health system. Good-quality reports are essential but are often criticized for their lack of thorough substantiation. The use of multiple methods to obtain information, test instruments (psychological and/or risk) and third-party information are recommended.

STUDY PURPOSE

To explore the use of test instruments and third-party information, as part of a multi-method approach, in forensic psychiatric evaluations. We examined 151 court-ordered expert reports in Flanders (Belgium).

RESULTS

A psychological test instrument was used in 61% of the cases, and a risk taxation instrument in 19% of the cases. Third-party information was used in 43% of the cases.

CONCLUSIONS

A multi-method approach is not common practice in forensic psychiatric evaluations. The use of validated test instruments and third-party information can be improved. The quality of forensic reports could be improved by the establishment of a forensic observation centre and the use of a standardized approach.

Patient Characteristics and Outcomes Related to Successful Outpatient Competency Restoration

Criminal defendants have a fundamental right to a fair and speedy trial. However, individuals found incompetent to stand trial are unable to move forward in the adjudication process and are often mired in protracted legal proceedings. If competency restoration is statutorily permissible and can be conducted in the outpatient setting, we propose that it should be considered based on burgeoning empirical data. We present data from an outpatient forensic clinic in which individuals are conditionally released to receive competency restoration in the community. Results indicated that three variables, including being single/never married, having comorbid intellectual disability and mental illness, and having one's conditional release revoked, were negatively related to successful restoration. The final model explained approximately one-third of the variance in restorability and correctly classified 75% of cases. Results demonstrate that individuals can be safely released to the community and successfully restored to competency in the outpatient setting. Utilizing outpatient competency restoration would not only reduce strain on inpatient facilities, but would also reduce the cost of treatment. Copyright © 2017 John Wiley & Sons, Ltd.

Fitness to stand trial evaluation challenges in the United States: Some comparisons with South Africa

Like the Republic of South Africa, the United States faces serious challenges regarding fitness to stand trial evaluations, including long waitlists for individuals awaiting such evaluations. Some similarities exist between the RSA and US evaluation systems, including an increasing number of referrals for fitness to stand trial evaluations, limited evaluator resources, and concerns about the significant restrictions on civil liberties for those awaiting evaluation. Recently, the United States has implemented several different solutions to address these issues. These have included broadening the eligibility requirements for fitness to stand trial evaluators, utilizing localized and short-term settings for fitness to stand trial evaluations, and a host of other ideas. This article examines these different solutions, discusses their relevance and potential effectiveness for the RSA evaluation system, and makes recommendations for consideration by policy makers and mental health professionals.

Feigned Adjudicative Incompetence

Psychological assessments are highly dependent on the forthrightness and sincere efforts of examinees. In particular, evaluations in forensic settings must consider whether feigning or other response styles are utilized to intentionally distort the clinical presentation. The current study examines the effectiveness of the Inventory of Legal Knowledge (ILK) at detecting feigned incompetency within a sample of jail detainees. As an ancillary goal, several scales of the Standardized Assessment of Miranda Abilities were included in the same within-subjects simulation design. Results of the total ILK score raised concerns regarding the mischaracterization of genuine offenders as “suggestive of feigning.” Pending cross-validation, however, a Revised ILK proved highly effective, using a floor effect detection strategy. Although intended for Miranda-specific abilities, several detection strategies on the Standardized Assessment of Miranda Abilities appeared to be very promising within a broadened context of feigned incompetency.

Competency to stand trial evaluations in a multicultural population: Associations between psychiatric, demographic, and legal factors

Data were examined from an archival sample of Competency to Stand Trial (CST) reports of 200 consecutive New York City pre-trial defendants evaluated over a five-month period. Approximately a fourth of defendants in the present study were immigrants; many required the assistance of interpreters. The examiners conducting the CST evaluation diagnosed approximately half of the defendants with a primary diagnosis of a psychotic disorder and deemed over half not competent. Examiners reached the same conclusion about competency in 96% of cases, about the presence of a psychotic disorder in 91% of cases, and affective disorder in 85% of cases. No significant differences between psychologists and psychiatrists were found for rates of competency/incompetency opinions. Compared to those deemed competent, defendants deemed not competent had significantly higher rates of prior psychiatric hospitalization and diagnosis of psychotic illness at the time of the CST evaluation but lower rates of reported substance abuse.

Quality of criminal responsibility reports submitted to the Hawaii judiciary

This paper is the third in a series of research reports on quality of forensic mental health evaluations submitted to the Hawaii judiciary. Previous studies examined quality of reports assessing competency to stand trial (CST) and post-acquittal conditional release, in felony defendants undergoing court-ordered examinations. Utilizing a 44-item quality coding instrument, this study examined quality of criminal responsibility reports in a sample of 150 forensic mental health evaluations conducted between 2006 and 2010 by court-appointed panels. Raters attained high levels of agreement in training and quality coding. Similar to the previous studies, overall quality of reports was mediocre, falling below the .80 quality criterion score for report elements, regardless of evaluator professional identification or employment status. Level of agreement between evaluators and judicial sanity determinations was "fair" using Cicchetti's (1994) standards for interpretation of intra-class correlations. Level of agreement was lower than previously published findings for CST reports and better than conditional release reports. Reasons for mediocre report quality and "fair" inter-rater agreement are discussed, including the fact that criminal responsibility evaluations are complex, retrospective in nature, and involve significant degrees of inference. In contrast to CST evaluations, assessment of criminal responsibility involves a mental state at the time of the offense evaluation. Threats to reliability in forensic reports are discussed. Suggestions for improvement of report quality are proffered, including standardization of procedures and report format and use of forensic assessment instruments.

Malingering in the correctional system: does incentive affect prevalence?

Incentives to malinger vary greatly dependent on the context, as does the prevalence. Malingering in the medico-legal context of the criminal courts is generally for one of two purposes: to present as incompetent to stand trial or to successfully plead not guilty by reason of insanity. Estimates of the prevalence of malingering in these contexts vary between 8 and 21%. The prevalence of malingering increases dramatically in a general offender sample, where the external incentive is likely to be substantially different. Malingering in this context can be as high as 56% and generally occurs to obtain a more desirable housing situation or desired medications. Our study examined data from two distinct samples to evaluate incentives to malinger: patients found incompetent to stand trial (IST) and sent to a state hospital for restoration and jail inmates seeking psychiatric services (JPS). Our results indicate that the rate of malingering in the IST sample was consistent with rates published in comparable samples (17.5%) and the rate for the JPS sample was substantially higher (64.5%). Only in the IST sample was rate of malingering associated with offense severity: patients found IST for murder and robbery evidenced malingering rates more than double the sample as a whole. Offense severity bore no relationship to malingering in the JPS sample.

Ten year research update (2001-2010): evaluations for competence to stand trial (adjudicative competence)

This article reviews and evaluates publications during 2001-2010 with relevance for assessments of competence to stand trial, referred to in this article as adjudicative competence. The review focuses specifically on articles that provide new concepts or data supported by research or case analyses. The studies are reviewed under the following headings: (i) systemic issues, (ii) conceptual guidelines for AC evaluations, (iii) AC assessment methods, (iv) empirical correlates of AC judgments and psycholegal abilities, (v) quality of AC evaluations and reports, (vi) interpretive issues, (vii) special populations (defendants who are elderly, defendants with intellectual disabilities), (viii) AC evaluations of juveniles, and (ix) treatment of incompetent defendants. Suggestions are offered for further research to advance the quality of clinical evaluations of adjudicative competence.

Psycholegal abilities and restoration of competence to stand trial

Criminal defendants adjudicated incompetent to stand trial are typically hospitalized for competence restoration in state institutions. Prolonged restoration hospitalizations involve civil rights concerns and increasing financial costs, and there remains interest in determining which individuals are likely to be successfully restored. We retrospectively reviewed hospital records of 455 male defendants admitted to a forensic treatment center for competence restoration in an effort to determine whether psychiatric diagnoses, demographic factors, or psycholegal abilities were predictive of successful or failed restoration. At varying stages of restoration efforts, psychotic disorder, mental retardation, and previous state hospitalization predicted unsuccessful restoration, while substance use and personality disorders were predictive of successful restoration. Psycholegal abilities were predictive of successful restoration and appeared to form a continuum, with basic behavior and outlook, factual legal understanding, and rational attorney assistance factors demonstrating progressively increased importance in successful restoration.

Quality improvement of forensic mental health evaluations and reports of youth in the Netherlands

Quality improvement of forensic mental health evaluations and reports is needed, but little information is available on how this can be attained, and relatively little conceptual analysis has been undertaken. The STAR, a standardized evaluation instrument of the quality of forensic mental health reports of youth, is developed on the basis of concept mapping to clarify the different perspectives on usability of these reports. Psychometric data are provided, demonstrating the reliability and supporting the validity of the STAR. The Dutch forensic context is described to better understand the development and psychometric properties of this standardized instrument. Quality improvement possibilities of forensic mental health evaluations and reports are discussed.

Evaluator agreement in placement recommendations for insanity acquittees

Research has examined differences between psychologists and psychiatrists in opinions on trial competency and criminal responsibility, but there is little research on such differences in risk assessment. This study examined the impact of disciplinary affiliation on opinions regarding whether new insanity acquittees should be hospitalized or released, and the risk factors given the most weight by each discipline. There was no significant difference between disciplines in the frequency of recommendations for hospitalization versus release. However, the concordance rate at the individual case level was only moderate when controlling for chance, which raises questions about the reliability and validity of forensic risk assessments in real-world settings. A number of variables emerged as significant in the decision-making of each discipline, with some differences noted.

Brain lesions and their implications in criminal responsibility

For over 200 years, Western courts have considered pleas of "not guilty by reason of insanity" (NGRI) for defendants in possession of a mental defect rendering them unable to understand the wrongfulness of their act. Until recently, determining the mental state of a defendant has fallen largely upon the shoulders of court psychologists and experts in psychiatry for qualitative assessments related to NGRI pleas and mitigation at sentencing. However, advances in neuroscience--particularly neurological scanning techniques such as magnetic resonance imaging (MRI), functional magnetic resonance imaging (fMRI), computed tomography scanning (CT), and positron emission tomography scanning (PET)--may provide additional, pertinent biological evidence as to whether an organically based mental defect exists. With increasing frequency, criminal defense attorneys are integrating neuroimaging data into hearings related to determinations of guilt and sentencing mitigation. This is of concern, since not all brain lesions and abnormalities indicate a compromised mental state that is relevant to knowing whether the act was wrong at the time of commission, and juries may be swayed by neuroscientific evidence that is not relevant to the determination of the legal question before them. This review discusses historical and modern cases involving the intersection of brain lesions and criminality, neuroscientific perspectives of how particular types of lesions may contribute to a legally relevant mental defect, and how such evidence might best be integrated into a criminal trial.

Psychiatric patients' comprehension of Miranda rights

Seventy-five psychiatric inpatients were evaluated with respect to their Miranda-related abilities using Grisso's (1998, Instruments for assessing understanding and appreciation of Miranda rights. Sarasota, FL: Professional Resource Press) instruments and Goldstein's (2002, Revised instruments for assessing understanding and appreciation of Miranda rights) revision to determine: whether different versions of Miranda warnings translate into differences in understanding; the influence of psychiatric symptoms, diagnostic categories, and IQ upon Miranda comprehension; and the relative performance of persons with psychiatric impairment on Miranda-relevant abilities. Results indicated that although the Miranda language used in Goldstein's revision generally showed lower grade reading levels and higher reading ease scores than Grisso's original instruments, this did not translate into improved understanding. In addition, psychiatric symptoms were negatively correlated with Miranda comprehension, even after controlling for IQ. Finally, results revealed that psychiatric patients' understanding and appreciation was substantially impaired compared to Grisso's adult validation samples, and was roughly comparable to Grisso's juvenile validation sample. Implications of these results for policy reform are discussed.

Adjudicative competence

PURPOSE OF REVIEW

Although the basic standards of adjudicative competence were specified by the US Supreme Court in 1960, there remain a number of complex conceptual and practical issues in interpreting and applying these standards. In this report we provide a brief overview regarding the general concept of adjudicative competence and its assessment, as well as some highlights of recent empirical studies on this topic.

RECENT FINDINGS

Most adjudicative competence assessments are conducted by psychiatrists or psychologists. There are no universal certification requirements, but some states are moving toward required certification of forensic expertise for those conducting such assessments. Current data indicate inconsistencies in application of the existing standards even among forensic experts, but the recent publication of consensus guidelines may foster improvements in this arena. There are also ongoing efforts to develop and validate structured instruments to aid competency evaluations. Telemedicine-based competency interviews may facilitate evaluation by those with specific expertise for assessment of complex cases. There is also interest in empirical development of educational methods to enhance adjudicative competence.

SUMMARY

Adjudicative competence may be difficult to measure accurately, but the assessments and tools available are advancing. More research is needed on methods of enhancing decisional capacity among those with impaired competence.