Misdemeanor offenders are flooding Virginia’s state mental hospitals for competency restoration

It’s another strain on the state’s beleaguered system — and a civil rights issue for patients
Eastern State Hospital in James City County
Eastern State Hospital in James City County(Virginia Department of Behavioral Health and Developmental Services)
Published: Nov. 9, 2021 at 10:22 AM EST
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More and more people in Virginia are being deemed mentally unfit to stand trial, crowding already-struggling state mental hospitals with patients who, in many cases, have only been charged with minor crimes like trespassing or disorderly conduct.

But the lengthy process of restoring them to competency often means patients spend more time waiting to be evaluated and treated than they would face in jail if ultimately found guilty, creating civil rights concerns, officials who work in Virginia’s behavioral health and legal systems say.

“There was a time when you could do an evaluation in a week, 10 days,” said Nate Green, the commonwealth’s attorney for Williamsburg-James City County. “That time is gone — we just don’t have the workforce to do these evaluations that quickly.”

State data and new research from the University of Virginia’s Institute of Law, Psychiatry and Public Policy show an increase in both court-ordered competence evaluations and the number of people who are ultimately found unfit. From 2007 to 2018, the number of evaluations in Virginia increased by 218 percent, researchers found. The number of patients deemed incompetent to stand trial has also risen, jumping nearly 40 percent between 2016 and 2018 alone. Those numbers have continued to rise over the last three years

The influx of patients is another strain on state psychiatric hospitals, which are still struggling to maintain safe census levels and keep beds open after overcrowding forced more than half of them to temporarily close to new admissions earlier this summer. But the delays in restoration — the process of making sure defendants with mental illness are fit to stand trial — are an even bigger concern for most experts. Some evaluations can take up to a month or longer, leaving patients in limbo. Green said some are released on bond, sometimes under the supervision of a pretrial probation officer. But many patients are ordered to remain in jail, where they’ll stay until an evaluation can be completed.

“It doesn’t mean that they happen any faster,” he said. And the evaluations, once they’re completed, often determine that patients aren’t competent to stand trial — meaning they can’t understand the proceedings or aren’t equipped to assist with their own defense.

In many cases, clients who only committed misdemeanors are actually more likely to be found incompetent to stand trial. The UVA study examined more than 1,100 evaluation reports conducted across the state and found that 44 percent of misdemeanor defendants were found incompetent compared to 31.2 percent of felony defendants.

The same research indicated that clients who only committed misdemeanors are also more likely to be ordered to inpatient restoration at state hospitals than outpatient restoration in jail or through local community service boards — even though Virginia code prioritizes outpatient services as the preferable option. Sherri Carr, a public defender for the city of Norfolk, estimated that 75 percent of her restoration clients ended up getting referred to the state hospital for treatment.


.(Virginia Mercury)

The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.

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