Reforming Competence Restoration Statutes: An Outpatient Model

45 Pages Posted: 8 Mar 2018 Last revised: 4 Aug 2021

See all articles by Susan McMahon

Susan McMahon

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: March 1, 2018


Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, which default to the inpatient treatment model. Several states mandate inpatient restoration in their statutory scheme. The rest allow for outpatient restoration, but the language of these laws often preserves the inpatient default by requiring defendants to meet a series of nebulous criteria before allowing them to participate in outpatient treatment.

This Article is the first to examine how the language of competence restoration statutes, even those that allow for outpatient treatment, defaults to commitment to an inpatient facility. I do so by examining the wide latitude these statutes give to judges to place defendants in inpatient care and show how that discretion, paired with widespread false presumptions about the mentally ill, leads to overcommitment of incompetent defendants in state mental health facilities.

I propose amendments to these statutes that will encourage judges to place defendants in outpatient care. Statutes must flip from inpatient-required or inpatient-unless to outpatient-unless, defaulting to outpatient treatment unless some specific criteria justify committing the defendant to an inpatient facility. Such a change would relieve pressure on inpatient facilities, opening up space for those who truly need inpatient treatment for competence to be restored. It would also ensure that specific criteria—not misunderstandings or fears about the mentally ill—inform the decision to commit the defendant to inpatient care.

Keywords: incompetence, competence restoration, mental illness, criminal law

Suggested Citation

McMahon, Susan, Reforming Competence Restoration Statutes: An Outpatient Model (March 1, 2018). Georgetown Law Journal, Vol. 107, No. 601, 2019, Available at SSRN: or

Susan McMahon (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Box 877906
Tempe, AZ 85287-7906
United States

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