Pandemic as Opportunity for Competence Restoration Decarceration

Arizona State Law Journal Online 2020

13 Pages Posted: 27 Oct 2020 Last revised: 11 May 2021

See all articles by Susan McMahon

Susan McMahon

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

Date Written: October 21, 2020


Before the pandemic, a defendant found incompetent to stand trial was often stranded in jail for weeks or months as she waited for an inpatient bed to open at a psychiatric facility. While there, she usually received no treatment, her mental health deteriorated, and she was astonishingly likely to be abused and neglected. She almost certainly came out of jail in a worse state than she was when she went in.

The pandemic has made this desperate situation even worse. Now that wait in jail is both longer, as many psychiatric facilities stopped accepting new patients as they dealt with outbreaks or imposed social distancing measures, and more dangerous. Jails have been the sites of some of the worst virus outbreaks in the country.

The solution to this problem is simple: release defendants. There is no inherent magic to inpatient treatment that renders it superior to community treatment. Even if community treatment is unavailable—a common problem in many jurisdictions—it is far worse to keep a person found incompetent in jail, where she will likely decompensate, suffer abuse or neglect, and, now, be exposed to a pandemic, than to release her.

Before March, judges rarely released defendants found incompetent to stand trial. But the pandemic has forced judges’ hands, and some are opting to release individuals who would have been slated for inpatient care and extended jail waits pre-COVID-19. In the District of Columbia, thirty-five people in competence proceedings were released. In Washington, a man charged with robbery was ordered to inpatient treatment; after he waited over three months in jail for a transfer, a judge dismissed the charge. While these are certainly small numbers, they indicate an opportunity to experiment with the decarceration of individuals found incompetent to stand trial. As the pandemic drags on, and defendants found incompetent remain stuck in limbo, pressure to decarcerate may continue to mount.

Thus, while the pandemic has made the already egregious lag times for competence restoration treatment worse, it might also contain the seeds of a solution to this intractable problem. A crisis of this proportion might be the one thing that could shake the criminal justice system out of its assumptions that defendants should be detained while they wait for an inpatient bed to open.

Suggested Citation

McMahon, Susan, Pandemic as Opportunity for Competence Restoration Decarceration (October 21, 2020). Arizona State Law Journal Online 2020, 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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