Background: A criminal defendant is incompetent to stand trial when, due to a mental disorder, the defendant lacks the capacity to understand the nature of the criminal proceedings or lacks the ability to rationally assist in his or her defense. Whenever there is reason to doubt the competency of the defendant, the criminal proceedings must be halted for a competency evaluation by a psychologist, psychiatrist, or mental health professional. Most competency evaluations are provided by the Department of Social and Health Services (DSHS) through Western State Hospital or Eastern State Hospital.

If the court determines, following evaluation, that a defendant is incompetent, a period of competency restoration treatment is permitted in order to restore the defendant to competency in all felony cases, and in all misdemeanor cases which are classified as "serious" offenses. Competency restoration treatment takes place at a state hospital. In a felony case, the defendant may be ordered to undergo 90 days of competency restoration treatment, followed, if necessary, by 90 more days of competency restoration treatment, followed by, subject to some restrictions, a final 180 days of competency restoration treatment. If the defendant remains incompetent following all permitted periods of competency restoration, the criminal case must be dismissed and the defendant may be referred for civil commitment to a state hospital or an evaluation and treatment facility.

Competency evaluations may take place on an inpatient basis at a state hospital, or on an outpatient basis at the jail or in the community. The location of the evaluation, and the number of evaluators assigned to the evaluation, is determined by the court.

Competency proceedings are associated with long delays in criminal trials. As a result of these delays, some defendants with mental illnesses are held in custody prior to adjudication for far longer periods than other defendants accused of similar crimes. Data received from the Mental Health Division of DSHS indicates that between January 2005 and August 2008, a defendant in custody who was ordered to receive an inpatient competency evaluation waited an average of 35 days in jail before being transported to a state hospital for evaluation. A defendant in custody who was ordered to receive an outpatient evaluation waited an average of 17 days to be seen by an evaluator.

Summary of Bill (Recommended Substitute): All competency evaluations must be ordered to take place on an outpatient basis. The competency evaluation and evaluation report must be completed within 21 days. An evaluator may request the defendant to be transported to a state hospital only if transportation to a state hospital is necessary in order to complete an accurate evaluation, in which case DSHS must authorize transportation of the defendant to a state hospital within seven days. The number of evaluators assigned to an evaluation will be determined by DSHS. The evaluation report will include an opinion as to competency and a recommendation as to whether the defendant should be evaluated for civil commitment by a designated mental health professional.

Any party may request the court to hold a show cause hearing if DSHS has not complied with a time limit for a competency evaluation. If the court finds that a time limit has been exceeded without good cause, it may set a fixed time for completion of the evaluation and order DSHS to reimburse jail expenses for excess days at the rate of $90 per day.

DSHS will not conduct an evaluation for insanity and diminished capacity unless the defendant has pleaded not guilty by reason of insanity or announced an intention to rely on a defense of diminished capacity and endorsed a witness who will testify in support of a diminished capacity defense.

A defendant charged with a felony who remains incompetent following 90 days of competency restoration treatment must not be ordered to undergo a second 90 days of competency restoration treatment if further treatment would cause the defendant to be held in custody longer than the top of the defendant's standard sentencing range, unless the court determines that further treatment is in the public interest due to particular circumstances related to the offense or to the defendant. A third period of competency restoration treatment must not be ordered for an offense which is not a "serious" offense.

An incompetent defendant charged with a serious misdemeanor whose case is dismissed because the defendant is incompetent to stand trial may be detained in jail for three days before transportation to an evaluation and treatment for civil commitment, after which the defendant may be detained at the facility for 72 hours prior to filing of a civil commitment petition. DSHS may agree to admit the defendant into the state hospital. The defendant may be screened before transportation to determine whether the defendant meets civil commitment criteria. An incompetent defendant who is not eligible to be transported to a facility for evaluation following dismissal of charges may be held in custody for up to twelve hours for evaluation by a designated mental health professional.

A jail is not civilly liable for delay by DSHS in providing competency evaluations, or for releasing a defendant, within the requirements of RCW 10.77.084.

DSHS must annually publish a report describing the waiting periods for competency evaluations and competency restoration treatment by county, and must adopt and publish a corrective action plan if it has not complied with time limits for competency evaluations.

Staff Summary of Public Testimony on Original Bill: PRO: This bill should streamline and clarify the competency evaluation and restoration process, and bring down the excessive waiting times that have been clogging up local jails around the state. It will reduce the disparity in jail time experienced by people with mental illness compared with other people accused of the same crimes. The bill will end many needless referrals to the state hospital, freeing up space for those who need to be there. The state hospitals are experiencing 7 percent growth per year in the number of competency evaluation referrals, with 52 percent growth since 2001. This legislation should delay the need to add additional forensic hospital beds. It can be implemented within existing resources. We want to reduce the time mentally ill defendants spend in jail. The bill should have more controls in it to reduce the wait times.

CON: This bill doesn't give jails enough power to enforce the 21-day time limit. Evaluators don't have enough information in the jail. Hospitals have the ability to stabilize and treat mentally ill persons who just decompensate in jail. If the defendant is in the hospital, the hospital pays for medication, not the jail.

OTHER: We are uncertain that the methods in this bill will work. We prefer adding hospital beds and adding evaluation staff to reduce wait times.