Understanding the competency evaluation and restoration process for Oklahoma criminal defendants
Many states have struggled to provide timely, efficient competency evaluation and restoration services for mentally ill defendants facing criminal charges. When defendants face long delays for competency services, they often have no choice but to wait in jail, where their symptoms may worsen and where mental health treatment can be inadequate and costly.
When someone is deemed “incompetent” in a criminal proceeding, it means the person lacks the ability to understand the charges brought against them or help with their own defense — for example, being able to provide an alibi. As soon as a defendant’s competency is questioned, the criminal case is put on hold until a mental health professional evaluates whether the person is competent to stand trial.
In many cases, with education, medication, and treatment, a person initially deemed incompetent can regain competency, allowing their criminal case to resume.
Competency evaluation and restoration services are critical to ensuring a person’s due process rights are protected. The Constitution ensures everyone the right to a fair trial, and states may not try, convict, or sentence a person deemed mentally incompetent to participate in their criminal proceedings.
As Oklahoma and other states face lawsuits over lengthy waitlists for competency restoration services, it’s important to understand how these processes work in Oklahoma.
Defining incompetency
Competency evaluation in Oklahoma
In Oklahoma, the competency process begins when either the presiding judge, the prosecution, or the defense attorney files a motion to evaluate the defendant’s competency. As soon as this motion is filed with the court, all court proceedings are suspended.
From there, a qualified licensed forensic examiner performs an evaluation of the defendant, who may be in jail or out in the community. Forensic examiners are typically licensed mental health professionals with specialized forensic training, and they either work for or are contracted by the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) to conduct these evaluations. They are typically doctoral or master’s level clinicians.
How competency is evaluated
Through the evaluation, the examiner’s main goal is to determine if the defendant understands the criminal charges they face and if they can effectively and rationally assist in their own defense.
For example, the examiner may ask the defendant whether they know what charges have been brought against them and whether they understand what kind of penalties come with those charges. They may ask whether the person can identify any evidence against them and any possible defense strategies.
At any point during this process, the defendant may argue that they are competent and can ask for a jury trial to determine their competency.
The evaluation is a complicated mental health inquiry that considers what kinds of symptoms a person might be experiencing, whether their symptoms or behaviors are legitimate (rather than feigned to avoid prosecution), and other more general measures about their personality, intellect, and functioning.
If, through the evaluation, the examiner determines the defendant is competent and all parties agree, the criminal proceedings resume where they left off.
Next steps when a defendant is deemed incompetent
On the other hand, if the examiner determines that the defendant is incompetent to stand trial and all parties agree, the criminal proceedings remain on hold and the court refers the defendant to treatment, with the goal of eventually restoring the defendant’s competency so the case can proceed. At this point, ODMHSAS assumes custody of the defendant.
Under the custody of ODMHSAS, the individual is transported to the Oklahoma Forensic Center, or OFC, which is located in Vinita, about 65 miles northeast of Tulsa.
OFC is the state’s only facility for competency restoration services in an inpatient setting, serving all of Oklahoma’s 77 counties with 200 beds. An expansion of the facility would add 80 more beds and is currently under construction.
The department is instructed to make the transport in a reasonable amount of time – typically, when a bed becomes available. If a bed is not immediately available, the defendant remains in jail and is added to a waitlist for transport to OFC.
The waitlist varies in length, spanning from days to weeks, or months. While court cases were suspended due to COVID-19, the number of people needing competency restoration grew, creating a backlog for treatment beds and leaving individuals evaluated as incompetent to stand trial in jails awaiting transportation to receive services.
Competency restoration in Oklahoma
When a defendant arrives at OFC, they receive a treatment team, generally made up of a psychiatrist, a social worker, and a nurse. While at the facility, they may receive services including additional psychiatric evaluations, medication management, and courtroom education.
Once a patient is stable behaviorally — typically when a stable medication regimen has been developed — they move through OFC’s three competency restoration groups: the standard group, the advanced group, or the special needs group.
Defendants begin in the standard group, where they undergo a two-week course consisting of six lessons and concluding with a quiz to assess whether they’ve mastered the material, which includes an overview of courtroom roles and procedures. For courtroom education, OFC uses a mock courtroom, flashcards, and videos on the criminal court process to help defendants understand how the system works.
If the defendant passes the quiz, they graduate to the advanced group where the focus shifts to higher-level concepts concerning courtroom proceedings.
If the defendant doesn’t pass the quiz, they can retake it. If they still fail the quiz, they move into the special needs group. Material for the special needs group is the same as the standard group but presented in a simplified form. When the defendant masters the material in the special needs group, they then move on to the advanced group.
Once the defendant completes the material in the advanced group, their competency is reevaluated by a forensic examiner. If the examiner determines that their competency has been restored, the defendant is transported back to county jail and the criminal proceedings resume, with a hearing scheduled within 20 days.
Visualizing the competency evaluation and restoration process
However, if the examiner determines that the defendant’s competency was not restored, the defendant stays at OFC, and providers try again to restore competency through behavioral stabilization and courtroom education, addressing concerns from the examiner along the way.
Providers can often tell whether someone can reach competency again during the first 60 to 90 days of restoration services, but this process can continue for up to two years or for the duration of the maximum sentence for the most serious charge a defendant faces, whichever is less.
In 2020, ODMHSAS performed 930 competency evaluations. Of this group, the vast majority were found to either be competent or able to attain competency.
Competency evaluation findings in 2020
When a person is found incompetent and unable to regain competency, the court can dismiss the criminal case “without prejudice,” meaning the case can be reopened in the future. The court can also require involuntary civil commitment for the person, in which case they would be transferred back to ODMHSAS’ care.
When a person is under civil commitment in these circumstances, the statute of limitations — the period where an individual can be charged after an alleged crime — for their criminal case is “tolled,” or put on pause until they are discharged from commitment.
ODMHSAS may discharge someone from civil commitment if they are no longer considered a risk to themselves or others, they can survive safely alone or with voluntary support, and they have a discharge plan in place. After the individual is released from ODMHSAS custody, prosecutors may choose to refile criminal charges.
Oklahoma’s attempts at alternative settings for competency restoration
Across the U.S., competency restoration services are often delivered in institutional settings such as inpatient facilities or jails. Amid movements to divert people with mental illness away from jails and prisons, there is growing interest in community-based competency restoration services to offer defendants with lower-level charges and less intensive behavioral health needs opportunities to regain competency in less restrictive, more supportive environments.
In Oklahoma, most competency restoration services are delivered at the Oklahoma Forensic Center, an inpatient setting, along with some limited jail-based competency services.
Jail-based competency restoration services can be controversial. Advocates suggest offering these services in jails can allow defendants to receive competency services faster, rather than waiting for an inpatient bed. Critics of jail-based competency services argue that jails are not therapeutic environments and that holding someone in jail for competency services can both hinder the restoration process and traumatize the individual.
In recent years, Oklahoma lawmakers have introduced several bills that would expand ODMHSAS’ authority to offer jail-based competency services, including Senate Bill 1113 in 2022 and Senate Bill 552 in 2023. Neither bill became law.
SB 1113, authored by Sen. Michael Bergstrom (R-Adair), proposed offering jail-based competency restoration services to more quickly treat people and reduce a backlog of defendants waiting for a bed at the Oklahoma Forensic Center.
Similarly, SB 552 by Sen. John Haste (R-Broken Arrow) and Rep. Rande Worthen (R-Lawton) proposed modifying the procedures around competency restoration to allow mental health professionals to complete competency exams and begin restoration services in county jails. SB 552 passed both chambers but was ultimately vetoed by Gov. Kevin Stitt, who said many jails lacked the proper resources — including staff, procedures, and environments — to offer jail-based restoration services.
Meanwhile, ODMHSAS has offered limited jail-based competency restoration services since December 2022, mainly focused on medication compliance as a method to restore a defendant’s competency. Through the jail-based program, Oklahoma’s certified community behavioral health clinics are contracted to deliver competency restoration services in jails in their catchment area, except in Tulsa County, which does not have an active program, and Oklahoma County, where ODMHSAS staff delivers jail-based restoration services.
Competency restoration in other states
Other states experiencing increases in wait times for defendants to access competency evaluation and restoration services have taken measures to address these issues, either proactively or as a response to litigation.
Faster inpatient competency restoration
Colorado, Oregon, and Washington have each faced lawsuits over competency services, resulting in settlements requiring states to address competency evaluation and restoration delays. These settlements are called “consent decrees,” which act as legally binding accountability plans agreed to by all parties to resolve the litigation and take steps to fix the issues outlined in the lawsuits.
Through consent decrees, states often redetermine appropriate timelines for competency evaluation and restoration services, including how quickly an individual must be evaluated for competency and transported to receive competency restoration services after being deemed incompetent.
Under a consent decree, if these deadlines are not met, states pay a fine for each day past the deadline per defendant, and the fine funds are set aside to support competency restoration services. Consent decrees are often revisited or re-litigated — no state has found the perfect solution to efficiently provide competency services.
Outpatient, community-based, and jail-based competency restoration
Other states have begun to offer competency restoration services in outpatient or community settings. Arkansas, Colorado, Louisiana, and Texas have each established formal outpatient competency restoration programs.
Outpatient programs tend to be more cost-effective and use the same restoration strategies as inpatient programs, while keeping low-risk defendants under less supervision. Proponents of outpatient programs for competency restoration say defendants would often be released from jail on bond had their competency not come into question, so there is low risk for providing these defendants competency restoration services outside of an inpatient setting. Furthermore, strong relationships and open communication between judges, attorneys, law enforcement, and program staff have increased the number of defendants being referred to outpatient and community-based restoration programs, especially when data surrounding program outcomes and cost is included.
Some states have opted to create jail-based competency restoration programs, including in Colorado, Louisiana, and Texas. Jail-based competency restoration, while controversial, can be less costly than inpatient beds and a way to decrease wait times for defendants who need competency restoration.
What’s next for Oklahoma
Competency evaluation and restoration processes are complicated, and these systems have become overburdened across the country. As Oklahoma faces ongoing litigation over the state’s competency services, it’s crucial that the state addresses issues across sectors to ensure defendants can access the treatment they need in a timely manner.
Currently, Oklahoma has a proposed consent decree which would include implementing pilot community- and jail-based restoration programs, in addition to clearer timelines regarding when competency evaluations and restoration services should begin. The consent decree is still pending before the presiding judge and the Oklahoma Legislature amid ongoing conversations about the best course of action for the lawsuit’s defendants and Oklahoma as a whole.
Beyond litigation, it will be critical for Oklahoma to grow its behavioral health workforce, including those with specialized forensic training, to expand the state’s capacity for competency services. Oklahoma and other states can further increase capacity by growing its number of inpatient beds and exploring alternative settings for competency restoration – such as outpatient or community-based services.
