During the final weeks of the 2023 legislative session, the House Judiciary Committee focused on issues related to mental health in the criminal justice system. The Committee updated laws related to competency to stand trial and also set the stage for opening a forensic facility to secure certain individuals charged with an offense and facing a mental health crisis.

Individuals who have been charged with a criminal offense and are either afflicted with a mental illness or have an intellectual disability may not be competent to stand trial. The central question with competency is the defendant’s mental health status  at the time of the trial: a defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense. A person found incompetent to stand trial can be recharged with the crime later, if the person regains competency. This differs from a defendant being found not guilty by reason of insanity, which concerns their state of mind at the time of the offense rather than at the time of trial.

When a defendant’s competency is raised in a criminal proceeding, a mental health professional must perform a competency evaluation. Currently, it may take months before such an evaluation can be conducted. Such delays have existed for years, but were exacerbated during the Covid pandemic. 

Having to wait for a competency evaluation impinges on the defendant’s right to a speedy trial. Delays not only hurt defendants, who may end up awaiting trial in prison for a crime they did not commit, but also victims and victim’s family members. People naturally seek closure, and delays on the path to justice may cause further pain and harm. 

The legislature passed Senate Bill 91 to reduce wait times for the initiation of competency evaluations. At the present time, only a psychiatrist may conduct such evaluations. The bill would expand the availability of examiners by also allowing doctoral level psychologists with training in forensic psychology to conduct competency evaluations. 

The bill would limit the circumstances under which a court may order a subsequent competency evaluation.  In determining whether to order a subsequent evaluation, the court must consider any clinical evidence provided by the treating physician indicating that the defendant’s competency may have changed. The bill would also permit the court to issue an arrest warrant for a defendant who has received notice of a competency evaluation but failed to appear for it. Without any repercussions for failure to appear, many defendants do not show up for one or even multiple competency evaluations, at a significant cost to the State, and extending wait times. The bill would additionally ensure that mental health documents are expeditiously shared with the examiner conducting the competency evaluation. These and other provisions will help reduce the waiting time for evaluations, which also will help with the current overall court backlog. 

When a defendant is deemed to be incompetent to stand trial, the individual may be committed to the custody of the Department of Mental Health (DMH) or, if the person has an intellectual disability, to the Department of Aging and Independent Living (DAIL). Senate Bill 89 would lead to the opening of a forensic facility for certain individuals in the custody of DMH or DAIL.  The bill puts Vermont on a path to open a facility that would house individuals who have been charged with a violent crime, are deemed not competent to stand trial, and still present a significant risk of danger to themselves or others if not held in a secure setting. The facility would also house individuals who have been adjudicated as not guilty by reason of insanity. 

There is general agreement that Vermont is in need of a forensic facility. Vermont’s system of care does not account for individuals who do not need hospital-level care but do need intensive mental health support, sometimes including involuntary medication. A forensic facility would serve that need. 

The bill proposes to locate the nine-bed forensic facility within the existing Vermont Psychiatric Care Hospital, but several steps must be taken before the facility is ready to house individuals by the summer of 2024. DMH and DAIL will start a rule-making process related to the use of restraints or involuntary medication in a forensic facility. Also, a working group will examine whether commitment to a forensic facility is appropriate for Vermonters with intellectual disabilities and, if so, will propose legislation setting forth the procedures and criteria for considering whether individuals should be committed to such a facility.