‘This is a crisis’: 3 bills could help Utah better identify and treat mentally ill defendants

Lawmakers and officials hope the proposed measures will clarify when a person can be found incompetent to stand trial and incentivize treatment for mentally ill defendants.

(Illustration by Christopher Cherrington | The Salt Lake Tribune) Utah leaders hope three proposed measures will clarify when a person can be found incompetent to stand trial and incentivize treatment for mentally ill defendants.

Utah mental health evaluators find more than half of all criminal defendants incompetent to stand trial — much higher than the U.S. average of around 25%, according to a Salt Lake County district attorney’s office analysis.

When a person is found incompetent, it means they don’t understand criminal proceedings and can’t assist in their defense. But lawmakers and officials don’t think more defendants in Utah are mentally ill than in other states — they think state guidelines for such determinations aren’t clear enough.

Utah’s uniquely high rate of incompetency also exacerbates other issues in the criminal justice system, officials argue, and may be fueling recidivism rates that some Utah residents, including many in the Ballpark neighborhood, have raised concerns about.

(Christopher Cherrington | The Salt Lake Tribune)

“This is a crisis,” Salt Lake County prosecutor Will Carlson said during an August interim legislative committee. “This is something Utah is off track on.”

Together, Carlson and the former chief policy adviser to the Salt Lake County district attorney’s office, Darcy Goddard, broached the issue during the summer meeting. Committee chair Rep. Ryan Wilcox at the time thanked them for their presentation, saying, “We’re all sufficiently horrified.”

This legislative session, Utah lawmakers have proposed several bills meant to fix these issues, but even they acknowledge they can’t address every problem.

“Criminal defendants who are not competent to stand trial unfortunately have become an epidemic for us,” said Wilcox, R-Ogden. “We have not just recurring criminals, but we’re cycling them in and out of courts to the point where we’re creating additional victims who don’t need to exist.”

HB330: A clearer checklist and a more flexible timeline

Wilcox’s bill, HB330, aims to improve the competency evaluation process and give the court system more power to extend someone’s timeline for restoration.

Under the current law, mental health professionals have:

  • 60 days to restore someone charged with a class B misdemeanor or lower.

  • 195 days for someone charged with a class A misdemeanor or a 3rd or 2nd-degree felony, excluding manslaughter.

  • 13 months for all other crimes but murder and aggravated murder.

  • 37 months for murder and aggravated murder.

Salt Lake County District Attorney Sim Gill said the current structure’s time frames are “great — if you have all the resources and can actually work with them.” But with misdemeanor offenders, the “chances of you getting restoration in those timelines are really small.”

If a person isn’t restored during that time frame, a defendant is either released from custody or put under “civil commitment.” Despite the name, civil commitment is a legal status — not a physical one — and the defendant could be released from a secure facility and reoffend.

This bill gives the courts flexibility to lengthen that timeline if they think a person is restorable.

Goddard, who now works for Strong & Hanni Law Firm, said during a Feb. 7 committee hearing that Wilcox’s bill also clarifies what evaluators should be looking for when testing someone’s competency.

She said some evaluators were finding people incompetent if they met any criteria outlined in statute, like “if psychoactive medication is currently being administered.”

The bill clarifies that evaluators must consider whether a defendant’s mental illnesses or intellectual disability prevents them from “rationally and factually” understanding their case and whether or not they can consult with their attorneys to assist with their own defense. It lists other factors evaluators can consider to that end — such as if a defendant can “engage in reasoned choice of legal strategies and options” — but nixes language about medication.

Under this bill, evaluators with the Department of Health and Human Services would also receive regular training in forensic mental health.

The proposed measure also addresses Gill’s concern about an apparent lack of oversight for those found incompetent and subsequently sent to the state hospital. Currently, if someone is found incompetent and transferred to the facility, but prosecutors dismiss their case, the state hospital can release them.

It’s not clear what mental health treatment a person receives after they leave the hospital, and Gill said he worries that people restored to competency while in custody could relapse without proper support.

“My concern and fear continues to be in this model, if we are not paying attention to that, that person who is ‘nonrestorable’ but mentally ill, and moves into a civil commitment release or ultimately released back into the community, then there’s a future victim that is there,” Gill said.

This bill requires that the state hospital notify involved attorneys 60 days before such a release, so they can decide where that person should be released to and what level of care they need.

“There’s a lot of issues to work through, but I’m hoping the adoption of this measure…will at least help us to understand that and to make a little bit of headway,” Wilcox said during the Feb. 7 committee meeting.

HB330 passed through the House and was introduced to the Senate on Wednesday, where it was sent to the Senate Judiciary, Law Enforcement and Criminal Justice Committee.

HB380: What evaluators can consider

Rep. Christine Watkins, R-Price, has proposed a bill that also takes aim at the factors that evaluators use to determine someone’s competency.

Her bill clarifies that an evaluator can look at a defendant’s criminal history — including whether they were previously found incompetent — but states that the court should not make a decision based solely on the defendant being found incompetent before in an unrelated case.

Watkins recently amended the bill to say the courts can find a person incompetent based on a ruling in an older case if that finding happened less than a year before they were charged.

Carlson, with the Salt Lake County district attorney’s office, said at a Tuesday committee hearing that he supported the bill after Watkins amended it, noting that recent findings of incompetency — such as when a defendant is involved in two ongoing cases in different court systems — “really can weigh on what the other court should do.”

“But when it comes to some rulings from years ago, that should not be the determining factor on whether somebody’s competent or incompetent today,” Carlson said.

The Utah Association of Criminal Defense Attorneys also supported the bill.

Sam Knight, an attorney who represented the association at the Tuesday hearing, said, “While I’m sure that there will be bills in the years to come to clarify this area of law, we appreciate the efforts in this one.”

The House Judiciary Committee passed the bill with a favorable recommendation. It was sent to the House for consideration and passed to the Senate on Thursday.

HB385: Incentives for treatment if pleading ‘guilty with a mental illness’

While the first two bills dealt with defendants who aren’t considered competent to stand trial, HB385 would impact those who are found competent to stand trial — perhaps after being restored — but still have a mental illness or condition.

Rep. Nelson Abbott, the bill’s sponsor, said during a Tuesday committee hearing that he hopes the law change will get more mentally ill defendants into treatment. He said the current plea of guilty with a mental illness is “rarely used, because it’s not beneficial to defendants.”

“And so they don’t want to use it,” he continued, “and it doesn’t really protect public safety very effectively.”

This bill would amend the “guilty with a mental illness” law to allow judges to defer someone’s sentence and “front load” it with either inpatient or outpatient mental health treatment, said Abbott, R-Orem. Once a person has received treatment for a period of time, they would return to a judge, who can take that treatment into account, including giving them credit for time spent in a mental facility when ordering their sentence.

It also allows for defendants to receive a two- or three-step offense reduction once they serve their sentence.

“There’s some things in there to try and encourage defendants to try and enter this program, and get their treatment upfront,” Abbott said. “The idea being once they’re treated there, they’re not nearly as high risk to reoffend.”

The bill passed out of committee with a favorable recommendation and was sent to the House for consideration. If passed, it will move to the Senate.

Abbott has also proposed HB473, Civil Commitment Examiner Requirements, which expands and clarifies who is qualified to be a civil commitment evaluator. That bill was introduced in the House on Wednesday.

Find out more about these and other bills up for consideration this session at le.utah.gov.