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Mentally Incompetent to Stand Trial (IST) vs. Mental Capacity

An incarcerated female inmate lies covered in a blanket
Photo: Brett Coomer / Houston Chronicle

In the past year I have had several conversations with legal practitioners, legislative staff, and other stakeholders regarding the difference between IST and mental capacity. In an attempt to clarify some of the confusion surrounding the two, here is a brief description of the critically important differences.

Competency (to stand trial) requires that a person have the present mental ability to understand problems and make decisions as they relate to the legal proceedings against him or her. The American Bar Association has identified five areas that must be included in a defendant’s decision-making processes. These are:

  1. What pleas to enter;
  2. Whether to accept a plea agreement;
  3. Whether to waive a jury trial;
  4. Whether to testify on his/her own behalf; and
  5. Whether or not to appeal

The requirement that a criminal defendant be competent to stand trial has historical roots. Old English common law, from where we get almost all of our laws, required a criminal defendant to enter a plea or the trial did not proceed. Here in Texas, if an individual has been determined IST we pause the legal proceedings until the individual can be restored to competency. The competency standard should ensure the accuracy, reliability, and integrity of criminal trials. But does it?

While IST relates to the legal proceedings, mental capacity deals with the clinical or mental health care of an individual. It is very disheartening when the two are confused, misunderstood, or are neglected entirely. Though judges, jailers, and clinicians work more closely with this population, advocates cannot afford to drop the ball when trying to help. Knowing the difference between competency and capacity is a huge step in the right direction to more effectively helping mental health defendants.

After the tragic Sandra Bland case, most practitioners are on board with the notion that individuals dealing with mental health issues do not belong in jail. So why are we still holding low level charged, more acute mental health individuals in jails. Restoring a person to competency with treating, and maintaining treatment means the jails and emergency rooms will likely see that person again. The cycle we see does not make our criminal justice system more reliable nor ensure its integrity. It has made a mockery of the criminal justice system to point that we now dub jails “mental health care providers.” It’s time to move away from the competency standard (for lower level offenses) and begin looking to restore capacity, not just competency.

Kevin Garrett
Aug 25th, 2019
About "Peer Voices" - We believe that true systems change can only come from being informed and led by peers. This space brings the voices of lived experience such as TJP's own Peer Policy Fellow Kevin Garrett and other peers who are passionate about systemic change in the justice and mental health system. In speaking their truth and telling their stories, they provide courage, hope and support to each and every one of us engaged in this difficult work.

Category: Peer Voices |

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