Robina Institute of Criminal Law and Criminal Justice

New Report by Alexis Lee Watts: Closing the “Gap” Between Competency and Commitment in Minnesota ​: ​Ideas from National Standards and Practices in Other States

New Report by Alexis Lee Watts: Closing the “Gap” Between Competency and Commitment in Minnesota ​: ​Ideas from National Standards and Practices in Other States

January 9, 2018

Alexis Lee Watts

Suggested citation: Alexis Lee Watts, Closing the “Gap” Between Competency and Commitment in Minnesota: Ideas from National Standards and Practices in Other States, Robina Inst. of Crim. Law and Crim. Just. (2018). 

In Minnesota, a “gap” exists in the justice system for defendants with mental illness. Defendants in criminal cases are found incompetent to stand trial, yet do not meet the higher standard for civil commitment. Commitment is the only way to receive competency restoration treatment, so individuals who do not meet the standard are unable to resolve their criminal cases or to receive treatment. The Robina Institute of Criminal Law and Criminal Justice conducted research see how other states address incompetency. Below are the key findings from that research:

1. Minnesota’s system, in which a determination of incompetency to stand trial is not a sufficient basis for the court to mandate some form of restoration to competency treatment, is unique. Most states employ a few basic strategies to treat defendants. A finding of incompetency may trigger:Some form of commitment (often based on the incompetency finding and not on a separate commitment standard);

  • Some form of commitment (often based on the incompetency finding and not on a separate commitment standard);
  • Court-ordered inpatient or outpatient treatment; and/or
  • Pre-trial release during which treatment is a condition of release.

2. States that have not found adequate treatment alternatives but require judges to order treatment often experience an overflow of mentally ill defendants waiting in limbo for a bed after treatment is ordered; many await treatment in jails.

3. Defendant rights are an important consideration in writing a law that closes the “gap.” Minnesota’s current system holds the individual rights of mentally ill defendants in high regard and does not simply confine them for being incompetent to stand trial as many other states do.

4. A handful of jurisdictions that have streamlined the commitment process or created other legal mechanisms to close the gap have also taken steps to ensure treatment for defendants in the least-restrictive setting. However, the “least restrictive setting” language loses meaning where no alternatives to inpatient treatment exist (similar to civil commitment in Minnesota, which can only be to a secure hospital setting).

5. In some states, “treatability” is a key consideration in determining the appropriate action upon a finding of incompetency. Untreatable defendants may face civil commitment or release but they are not offered treatment resources.

6. Thirty-one states operate formal and informal outpatient competency restoration treatment programs. Meanwhile, several different states have begun to utilize jail-based treatment to competency. However, such a program may not satisfy Minnesota’s due process requirements.

Solutions to address the “competency gap” in Minnesota should focus on several areas:

  • Consider whether to preserve the current legal standard for commitment, lower the standard for this type of commitment, and/or to design an alternative legal mechanism (such as pre-trial conditional release or a court order) for the purposes of competency treatment. Any proposal for change should take into account the capacity of the system and consideration of the state’s commitment to the rights of defendants.
  • Work to develop less restrictive forms of treatment than exist in a maximum-security hospital. Community-based outpatient care may meet the needs of many low-to-medium risk defendants.
  • Ensure that the treatment delivered is high quality and truly addresses the competency needs of the criminal defendant.
  • Work to improve the mental health infrastructure in general to make it easier to access care before a crime can take place and to offer an alternative to defendants whose cases are dismissed but who still need treatment.