The State of Washington has consistently failed to provide timely competency evaluations and restoration services to defendants facing criminal charges. Despite years of litigation, injunctions, consent decrees, and contempt fines ranging into the hundreds of millions, problems persist unabated. With mentally ill detainees languishing in jails untreated and unable to stand trial or otherwise resolve the charges against them, county governments have joined the legal fray and filed suit against the state, too.

Competency Requirements

Understanding the competency crisis in Washington requires knowledge of what the U.S. Constitution and state statutes mandate for criminal defendants who have competency issues.

The Fourteenth Amendment guarantees that no state will deprive its citizens of life, liberty, or property “without due process of law.” Due process prohibits the criminal prosecution of a defendant who is not competent. A defendant, according to U.S.C. § 4241, is considered incompetent if they lack the “capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Due process also prohibits the indefinite detention of incompetent defendants. Instead, a defendant “who is committed solely on account of his incapacity to proceed to trial” cannot be held “more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” See: Jackson v. Indiana, 406 U.S. 715 (1972).

Washington codified these constitutional rights more than 50 years ago in Chapter 10.77 RCW. As the Washington Supreme Court has recognized, “believing that those with mental illness are better served by rehabilitative programs that provide medical treatment and support than traditional punitive prisons, in 1973 the state legislature adopted a comprehensive scheme for dealing with competency of criminal defendants.” The failure to observe the procedures set out in Chapter 10.77 RCW is itself a violation of due process.

Mirroring the federal standard, Washington law states that a defendant is incompetent if they lack the capacity to understand the proceedings against them or cannot participate in their own defense due to mental illness. State law also provides that an incompetent defendant may not be “tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.”

A trial court “on its own motion or on the motion of any party” must order a mental health evaluation whenever there is “genuine doubt” about a defendant’s competency. To determine whether or not to approve a formal evaluation, a trial judge is mandated to consider a number of factors, including “the defendant’s appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel.”

Once a trial court determines that grounds exist to question a defendant’s competency, it must appoint an expert to conduct an evaluation. This expert may be a qualified evaluator from the general professional mental health community or a person designated by the state Department of Social and Health Services (DSHS). The defendant is entitled to have a qualified expert to conduct an independent evaluation. The defendant’s expert must be allowed to observe the court-ordered evaluation and submit a competency evaluation of his own. If the defendant is indigent, the trial court must appoint an expert evaluator for the defense. During the evaluation, the defendant has the right to have an attorney present and may refuse to answer any incriminating questions.

The evaluation may be conducted “in a jail, detention facility, in the community, or in court to determine whether a period of inpatient commitment will be necessary to complete an accurate evaluation.” Any inpatient commitment for an initial evaluation may not exceed 15 days. An evaluation outside jail at a state hospital should not be ordered unless the defendant is charged with first-degree murder or a transfer to a hospital is necessary for an “accurate evaluation” or for the “health, safety, or welfare of the defendant.” Both the court-appointed and defense expert evaluations must include a description of the nature of the evaluation, a diagnosis or description of the current mental status of the defendant, and an opinion as to competency.

Washington law also sets target dates for completing initial evaluations. For example, a defendant in pretrial custody requiring inpatient commitment for an initial evaluation should be transferred to a state hospital within seven days. Defendants who remain in jail should have an initial evaluation within 14 days, and those in the community should receive one within 21 days. But these performance targets are completely unenforceable because the legislature specifically provided that failing to meet them “does not create any new entitlement or cause of action related to the timeliness of competency to stand trial services, nor can it form the basis for contempt sanctions under chapter 7.21 RCW or a motion to dismiss criminal charges.”

Once an initial evaluation has been completed, the trial court must hold a hearing to determine whether the defendant is competent to stand trial. If the court-appointed evaluator has found that the defendant is incompetent, the trial court must stay proceedings in the criminal case and order the defendant to undergo competency restoration treatment at a state hospital. If the court-appointed and defense evaluators disagree as to the defendant’s competency, the defendant bears the burden of disproving competency by a preponderance of the evidence.

Curiously, competency restoration treatment varies depending not on the severity of the underlying mental problem but on the severity of the crime with which the defendant is charged. For defendants facing misdemeanor charges, “the court shall first consider all available and appropriate alternatives to inpatient competency restoration.” The trial court must dismiss the criminal case without prejudice and refer the defendant to a diversion program unless the prosecution objects. Otherwise, the court must dismiss the charges without prejudice and order the defendant detained for competency restoration treatment for up to 120 hours.

Felony cases are handled much differently. “[I]f the defendant is charged with a felony and determined to be incompetent,” 10.77 RCW states, “until he or she has regained the competency necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event for a period of no longer than 90 days, the court shall commit the defendant to the custody of the [DSHS] for inpatient competency restoration.” The only exception is for certain defendants facing non-violent class C felony charges who, like misdemeanant defendants, may be referred for outpatient services. In-custody defendants found to be incompetent should be transferred from jail to a state hospital for competency restoration treatment within seven days of the court’s order.

After the initial competency restoration period expires, the trial court must hold a hearing to determine whether the defendant remains incompetent. The court may order up to two additional 90-day restoration periods if the defendant is still incompetent, but they have the right to a jury trial as to the question of competence before the court may impose further periods of commitment. Felony charges may be dismissed only if the court finds or the parties agree that the defendant is unlikely to regain competency. If the charges are dismissed, the defendant must be referred for civil commitment pursuant to Chapter 71.05 RCW. Such defendants may remain detained by DSHS at a state hospital “for up to 120 hours … for evaluation for the purpose of filing a civil commitment petition.”

Competency evaluations and restoration treatment typically take place at one of four locations operated by DSHS: Western State Hospital, Eastern State Hospital, and the Fort Steilacoom and Maple Lane competency restoration centers. These facilities historically have been underfunded, understaffed, and overcrowded. As a result, defendants routinely languish in county jails across the state for hundreds of days waiting for evaluations or restoration services while not receiving the mental health medications and treatment they desperately need. And while they wait, their criminal cases remain pending and unable to proceed. They are stuck in legal limbo.

These delays are particularly shocking considering what competency restoration treatment actually entails. As the U.S. Supreme Court has recognized, the competency requirement has the “modest aim” of ensuring only that the defendant “has the capacity to understand the proceedings and to assist counsel.” See: Godinez v. Moran 509 U.S. 389 (1993). To this end, competency restoration services are not akin to actual mental health treatment. Rather, as a recent law review article explains, “competency restoration often includes just medication sufficient to achieve temporary psychiatric stability such that a defendant can retain information.” This, the article continues, is supplemented with “a cursory lesson about court proceedings and how the criminal justice system functions.” A defendant is considered competent once they can “parrot back this basic information,” even if it is not fully understood. See: West, Gwendloyn, Insanity and Incompetency: Courts, Communities and the Intersections of Mental Illness in the Wake of Khaler and Trueblood, Golden Gate Univ. Law Review 53:2 (Oct. 2023)

The restoration procedures employed by DSHS are consistent with these meager requirements. According to its website, DSHS relies on the Breaking Barriers Competency Restoration Program to “help patients to become competent.” That curriculum consists of classes designed to “address areas such as courtroom knowledge and understanding, symptom management, coping skills, and effective communication with attorneys.” It is coupled with “psychotropic medication” and “individual monitoring.” Considering the limited nature of competency restoration services and the fact that the constitutional competency requirement itself has only a “modest aim,” it is concerning that the state has been unable to deliver such basic services in a timely manner.

Trial judges have few tools at their disposal to remedy the situation beyond imposing monetary sanctions against DSHS, which are made payable to the court, not the defendant. As noted above, the Washington legislature has specifically stated that failure to comply with the statutory “performance target” dates does not “form the basis for … a motion to dismiss criminal charges.” To make matters worse, Washington’s Supreme Court has held that dismissal of criminal charges with prejudice is not an appropriate remedy for delays in providing competency treatment. See: State v. Hand, 192 Wn.2d 289 (2018).

In Hand, the defendant was found incompetent and the trial court ordered DSHS to admit him for treatment within 15 days of its order. The department failed to do so and the defendant remained in the county jail for a total of 76 days before being transferred for restoration treatment. His competency was eventually restored and he was convicted as charged. On appeal, he argued that failing to transfer him to the state hospital as required by the trial court’s order violated his substantive due process rights and the charges against him should be dismissed with prejudice as a result. The Washington Supreme Court agreed that the delay violated the defendants’ right to due process, but dismissal with prejudice was “simply not warranted under these facts.” Instead, his remedy was to bring a civil claim for damages against DSHS.

In State v. Kidder, a case cited with approval in Hand, a Washington appeals court affirmed a trial court order dismissing without prejudice an arson charge against the defendant where the state hospital failed to take Darla Kidderinto custody for competency restoration services within the initial 90-day period, and the state didn’t request an additional 90-day period of commitment. The defendant was eventually admitted to a hospital but not until after the initial 90-day period had expired. Evidence presented at a subsequent hearing indicated that hospital staff would not know whether she could be restored to competency for at least another 70 days. The trial court’s order dismissing the case was, therefore, consistent with statutory authority authorizing dismissal without prejudice when the defendant’s competency is unlikely to be restored within the allowable time period. See: State v. Kidder, 197 Wn.App. 292 (2016).

But the remedy granted in Kidder has proven elusive. First, the state can avoid dismissals without prejudice by simply requesting an additional 90-day competency restoration period prior to expiration of the initial 90-day period—leaving the defendant sitting in jail for up to 180 days without competency restoration services. Defendants do have the right to demand a jury trial concerning their competency before the court may order a second restoration period, but it seems defense attorneys rarely assert that right on behalf of their clients. In fact, a diligent search failed to locate a single Washington appellate court decision involving a defendant who requested and received a jury trial prior to a court entering a second 90-day commitment order.

More importantly, the remedy of dismissal without prejudice approved in Kidder is not available to defendants experiencing long delays obtaining initial competency evaluations which, as discussed below, is an all-too-common problem. State court rules specifically exempt the time waiting for a competency evaluation and restoration services from the speedy trial period. In other words, defendants unable to stand trial because they are or may be incompetent, but who are not receiving timely and appropriate competency-related services, remain confined in local jails that are unable or unwilling to address their serious mental health treatment needs.

The Trueblood Litigation

In 2014, a group of jail detainees in Washington filed a class-action suit in federal court, arguing that lengthy delays in court-ordered competency evaluations and restoration services violated their due process rights. As PLN reported, the U.S. District Court for the Western District of Washington granted the class members’ motion for summary judgment, concluding the state had “consistently and over a long period of time violated the constitutional rights of the mentally ill,” adding “this must stop.” [See: PLN, April 2016, p. 46].

The district ourt noted that such delays unquestionably violate due process because detainees incarcerated while waiting for court-ordered competency evaluation and restoration services face extraordinary hardships in city and county jails. “Plaintiffs and class members are incarcerated for many weeks not because they have been convicted of a crime and not because they have been found to be dangerous or pose a flight risk,” the ruling stated. “Rather, Plaintiffs and class members are incarcerated because Defendants do not have sufficient bed space or available staff to provide the evaluations and restorations they are charged by state law with providing.”

The district court’s opinion chronicled some of the hardships faced by the named plaintiffs. One, identified as A. B., was held for 37 days in solitary confinement, where she declined to take medication and refused to wash herself. Another plaintiff, D. D., informed his defense counsel that he had concocted a plan to kill himself due to his extended stay in solitary confinement. As the district court noted, jails routinely use segregation as a way to manage prisoners waiting for competency evaluations because they are “ill equipped to handle the challenges posed by mentally ill detainees.” Other prisoners awaiting competency-related services have resorted to harming themselves or others, defecating or urinating on themselves, refusing to eat or bathe, or simply withdrawing into their own worlds and refusing to interact with anyone.

On April 2, 2015, the same federal district court found that DSHS was “violating the constitutional rights of pretrial criminal detainees in city and county jails by failing to provide them timely court-ordered competency evaluations and restoration services.” The district court wrote that “prolonged incarceration exacerbates class members’ underlying mental illnesses, denies them access to consistent mental health treatment, and adds yet more trauma that leads to recidivism.” A permanent injunction was issued requiring DSHS to comply with a seven-day deadline for providing detainees with competency evaluations. The district court also appointed a monitor to ensure compliance by the state, and it held that the nonprofit Disability Rights Washington had organizational standing as a plaintiff.

The U.S. Court of Appeals for the Ninth Circuit vacated and remanded the district court’s order on May 6, 2016, with respect to time limits for in-jail competency evaluations. Following remand, the appellate Court amended the injunction, ordering DSHS to provide in-jail evaluations within 14 days of receiving a court order. If unable to do so, the department “must secure an extension from the ordering court for individualized good cause, or must immediately admit the individual to a state hospital to finish conducting the evaluation.” The seven-day deadline for in-patient hospital competency evaluations remained unchanged. The district court noted that prolonged delays that kept mentally ill defendants in jail were “unnecessary and inhumane for the sixty percent of individuals charged with misdemeanors who have their criminal charges dismissed after the completion of a competency evaluation.”

In 2017, the district court found the DSHS in contempt for violating the injunction, resulting in the imposition of daily fines for each class member who did not receive timely competency evaluations. DSHS negotiated a settlement in the case in September 2018; the agreement included the addition of 92 forensic beds for use by class members at two of the state’s psychiatric hospitals. However, DSHS remained out of compliance with both the injunction and settlement, racking up more than $400 million in fines by July 2023. While most of the fines were held in abeyance, the court, frustrated with the state’s continued failure to comply, ordered it to pay $100 million.

But even that sanction did not compel the state to meet its obligations to the Trueblood class members, so the plaintiffs moved for another contempt ruling. The district court obliged,holding on July 7, 2023, that DSHS had violated the settlement agreement. Although 90forensic beds had been added at the hospitals (a year late), 150 other beds had been removed.DSHS said that it needed 213 additional beds to comply with the Court’s injunction, since some of the available bedspace was occupied by patients who were civilly committed or found not guilty by reason of insanity.

Further, delays after evaluations had been performed and incompetent defendants were waiting for restoration services had increased to up to seven months. The longest wait for admission to a hospital for restoration treatment was an incredible 681 days. The district courtfound DSHS in contempt and ordered the state to pay $100.3 million of the remaining fines held in abeyance. as PLN also reported. [See: PLN, Feb. 2024, p.52.]

Additionally, DSHS was ordered to make more bedspace available for competency and restoration services by removing civil conversion patients currently in state psychiatric hospitals; civil conversion patients are defendants whose criminal cases were dismissed before they were then civilly committed for mental health reasons. The district court also imposed fines on DSHS for civil conversion patients held in state hospitals over 21 days after dismissal of their criminal charges, ranging from $1,000 to $2,000 per day. The state appealed the district court’s order only to withdraw the appeal in April 2025.

The Counties Sue

A number of counties have grown weary of DSHS’s failure to provide timely competency-related services. Spokane County filed suit against DSHS Director Jilma Meneses on December 6, 2022, seeking a writ of mandamus requiring the agency “to comply with statutory duties under Chapter 10.77 RCW and timely provide competency services in criminal proceedings.” The case was filed as an original action with the Washington Supreme Court.

In a ruling on April 18, 2024, that Court wrote that “DSHS has a statutory duty to provide competency services when a court so orders.” The state legislature had enacted Senate Bill 5440 in May 2023 to address “unprecedented wait times in jail” for criminal defendants awaiting transfer to mental health facilities for competency-related services. The bill amended RCW 10.77.086(1) to allow a court to dismiss charges without prejudice if the prosecutor and defense counsel agree that “there exists an appropriate and available diversion program willing to accept the defendant.”

The Washington Supreme Court referenced the Trueblood injunction and noted that despite ongoing oversight by the federal district court, “DSHS’s delay in providing competency services to criminal defendants continues.” The Court observed that from 2013 to 2022, the number of defendants held in Washington jails who had been ordered to receive competency evaluations had soared from 2,064 to 6,199, an increase of more than 300%. Over the same time period, inpatient competency restoration orders also tripled from 694 to 2,105.

The state legislature had established a statutory “performance target of 21 days or fewer to complete a competency evaluation in the community.” According to DSHS, however, most out-of-custody defendants did not receive such evaluations for 11 to 13 months. For defendants held in jail and ordered to receive competency restoration services, DSHS “is statutorily required to extend an offer of admission … within seven days from DSHS’s receipt of the court order or 14 days from signature of the court order, whichever is shorter.” In early 2023, the wait time for such orders for jail detainees was estimated at five to six months.

The Marshall Project reported that “some [mentally ill] defendants waited so long in jail for a bed at a state hospital that their defense attorneys argued that the state was violating their right to due process.” In one of those cases, a trial court ordered the state to pay $16,000 as a sanction for the delay. Defendants with mental health problems often decompensate while in jail—particularly when held in solitary confinement—which makes them more likely to be found incompetent to stand trial.

Despite the delays in providing competency-related services, which were of “great concern,” the Washington Supreme Court said, its ruling held that the Court was “not the proper avenue to obtain the relief sought” in Spokane County’s petition. The Court has original jurisdiction in mandamus actions “as to all state officers” under Article IV, section 4 of the state’s Constitution. The director of the DSHS, however, was not considered a “state officer” within the legal definition of that term. Therefore, the county’s petition was dismissed.

Justice Montoya-Lewis, in a concurring opinion, wrote that “there does not appear to me to be any obvious legal procedure by which a case involving competency or restoration wait times gets to an appellate court.” Disability Rights Washington, the Washington Defender Association, and the ACLU of Washington had filed a joint amicus brief in support of DSHS.

The Washington Association of Counties, joined by 22 individual counties, filed a lawsuit in Pierce County Superior Court in 2023, naming the DSHS and Director Meneses as defendants. The complaint argued that DSHS was violating state law by “refusing to admit individuals for court-ordered civil commitment evaluations” and not providing notifications before releasing defendants who had been committed for competency restoration services.

After the state removed the case to the U.S. District Court for the Western District of Washington, the plaintiff counties filed an emergency motion to remand the suit back to the superior court. The federal district court cited the Trueblood class-action litigation and injunction but held that the Trueblood class did not include civil conversion patients, which was the issue raised in the complaint filed by the counties. “Civil conversion patients have recently become entangled in DSHS’s longstanding failure to provide timely competency services to the Trueblood class,” the Court wrote.

DSHS acknowledged that it had refused to admit defendants for civil conversion evaluations. However, the district court found that the counties had raised claims which “do not pose a substantial federal question” based on the applicable legal factors; rather, it noted, “the primary dispute here primarily turns on interpretations of state statutory law.” The case was therefore remanded to Pierce County Superior Court for further proceedings in September 2023. See: Pierce Cnty. v. Wash. State Dep’t of Soc. & Health Servs., 2023 U.S. Dist. LEXIS 173156 (2023).

The Bigger Picture

While Washington’s failure to provide timely competency-related services is particularly egregious, it serves as just one example of a larger crisis: Many other states are plagued with similar problems. In October 2022, the National Judicial Task Force to Examine State Courts’ Responses to Mental Illness, created by the National Center for State Courts, released a report concerning mental health services in the criminal justice system. Based on two years of research, the report’s authors concluded that criminal defendants charged with low-level offenses remained in jail for extended periods of time awaiting mental health treatment, and “courts should prioritize timely evaluations pertaining to competency to stand trial evaluations,” according to a Reuter News article.

The task force recommended that state and local courts create their own commissions to address issues related to the mental health needs of criminal defendants. There is a definite need for that approach nationwide.

In 2023, the Savannah Morning News in Georgia reported that due to a shortage of psychiatrists and beds in mental health facilities, defendants held in jail must wait months for evaluations. A 2024 article in the News-Gazette in Illinois similarly found a “lack of resources at state hospitals,” resulting in defendants spending months in local jails.

The ACLU of Kansas filed suit in 2022 over lengthy wait times for competency evaluations and treatment at the state’s sole hospital where such services are offered. The complaint alleged that the delays violated defendants’ substantive and procedural due process rights.

In 2024, the Baltimore Banner reported that the city’s jail detainees found incompetent were waiting over six months to be sent to psychiatric facilities—even though state law mandates such transfers occur within 10 days. The Maryland Court of Appeals affirmed, in part, a lower court’s order in February 2024, upholding $1,000 daily fines assessed against the state health department until an incompetent defendant is admitted to a psychiatric facility. The appellate Court noted that competency evaluation orders had increased from 740 in 2021 to 2,144 in 2022. See: Md. Dep’t of Health v. Myers, 260 Md. App. 565 (2024).

A 2024 Kansas City Star article revealed that “253 people languishing in jails across Missouri” were “found unfit to stand trial but can’t be sent to a psychiatric hospital for treatment because of a shortage of beds and lack of staffing.” Defendants had to wait up to 11 months before being moved to a mental health facility after being found incompetent. KERA News in Texas reported that, in April 2023, an average of 359 people in the Dallas County Jail were waiting for a state mental health bed for competency restoration. The average time a man spent waiting for a maximum-security [hospital] bed was 729 days. For a woman needing a maximum-security bed, the average wait time was 564 days.”

Similar problems have been reported in other states since 2022, including Alaska, Colorado, Kentucky, Montana, Nebraska, Nevada, and Wisconsin. But Washington state serves as the epitome of what can happen when state officials neglect their constitutional duty to ensure criminal defendants are competent to stand trial, and to provide restoration treatment if they are not. Lawsuits by affected detainees and counties that bear the cost of holding them in local jails result in injunctions, court oversight, and hefty fines and litigation costs.

Over $400 million in fines have been imposed against DSHS due to its failure to provide timely competency-related services required by state law—money it could have spent to comply with its constitutional and statutory obligations. Those costs will only increase so long as competency and restoration services remain inadequate, and so will the personal costs suffered by mentally ill defendants who languish and decompensate while in jail.

Washington officials have recently allocated additional funding for evaluation and restoration services and more staff at mental health hospitals, in an effort to address this enduring problem. Yet much more needs to be done. At the least, other states need to take note and ensure that their own competency-related services for criminal defendants are up to constitutional par.  

Additional sources: Reuters, The Marshall Project, The Baltimore Banner, The Kansas City Star, KERA News, Savanah Morning News

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