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Use of an Interpreter as a Predictor of Length of Competency Restoration

10 July 2018


In the United States, it is estimated that approximately 60,000 adult defendants undergo competency to stand trial (CST) evaluations each year (Bonnie & Grisso, 2000; Colewell & Gianesini, 2011; Mossman, 2007; Warren et al., 2006). CST evaluations examine a defendant’s current mental state to determine if they are capable of standing trial. In the United States the legal standard for competency to stand trial is outlined by Dusky v. United States, a Supreme Court landmark case from 1960 which found that a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and…a rational as well as factual understanding of the proceedings against him” (Dusky v. United States 362 U.S. 402, 1960, p. 1). If a defendant is found incompetent to stand trial (IST), the trial is put on hold while an attempt is made at restoring the defendant to competency, even if the defendant is pursuing, or plans to pursue, an insanity defense (Reich & Wells, 1985). In 1972, the Supreme Court outlined basic standards for restoration efforts in Jackson v. Indiana, noting “a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future” (Jackson v. Indiana 406 U.S. 715, 1972, p. 11).

Although CST evaluations were designed to protect defendants’ constitutional rights, numerous concerns have been raised with regards to their impartiality. Specifically, the vague, minimal language in both Dusky v. the United States and Jackson v. Indiana leaves defining the standards for both adjudicative fitness and restoration procedures open to broad interpretations. Thus, individual states have adopted different guidelines for determining how competency is assessed and what qualifies as a ‘reasonable period of time’ for restoration efforts. Even decades after the original rulings, the challenges in interpreting both Dusky and Jackson continue to plague competency evaluations and restoration efforts.

In Oregon, when a defendant’s competency to stand trial is questioned by either the defendant or the prosecution, the court enlists the services of a mental health professional to decide whether the defendant’s competency level meets the minimum standards as outlined by Dusky and whether hospitalization is necessary to keep the defendant and others safe during the period of evaluation. The mental health provider then makes one of three determinations: (a) The defendant is competent to stand trial; (b) The defendant is IST and likely to be restored to competency in the near future; or (c) The defendant is IST and unlikely to be restored to competency in the near future. If the defendant is found IST and likely to be restored, the court decides whether the defendant will receive treatment in the community, as an inpatient in a psychiatric hospital, or in jail. In any case, the mental health provider in charge of the defendant’s care must update the court every 180 days on the defendant’s progress. However, no defendant in Oregon may be committed longer than three years or than the maximum sentence for the crime(s) of which they are accused (Determination of Fitness, 2015). If the defendant is still unfit for trial at the end of jurisdiction the case returns to the judge. The judge, with input from the mental health provider(s), then decides if the criminal case should be dismissed or if the defendant should be committed civilly (Disability Rights Oregon, 2012).


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