Restorative Justice and the Competency Crisis

• mental competency
• restorative justice
• mental disorders
• criminal law

Longstanding legal doctrine necessitates that a criminal defendant must be competent to stand trial.¹ In Dusky v. United States, the U.S. Supreme Court held that a defendant must have present ability to work with an attorney and have a rational and factual understanding of the proceedings.² Rulings on later cases outlined the basic structure for pretrial management of defendants with a mental disability or mental illness.³ This legal structure ensures the integrity of the legal process for a fair and accurate criminal process for offenders with mental illness.

Although estimating the exact number of competency evaluations has proved difficult, there is a consensus that numbers of referrals nationwide have been rising.⁴ In addition to the numbers of referrals increasing, there has also been an increased proportion of alleged offenders referred for evaluation who are subsequently deemed incompetent to stand trial (IST).⁵ This has necessitated an increased need for competency restoration capacity at the same time many state systems have been reducing the number of beds in state hospitals.⁶ A raft of ever-increasing referrals for competency restoration combined with ever-decreasing state hospital beds has led to this being referred to by some authors as a “competency crisis.”⁵

One response to this trend has been a movement to use the “least restrictive alternative” of competency restoration for alleged offenders who are mentally ill.⁷ This has increased competency capacity in some systems by adding, for instance, an option for jail-based competency restoration treatment for mentally ill alleged offenders rather than hospital-based treatment. Some states allow community outpatient competency restoration.⁸ Competency restoration rates in these nonhospital settings have, to date, been less consistently robust than competency restoration in inpatient settings.⁹

The most effective way of restoring competence for alleged offenders who are rendered not competent because of symptoms of severe mental illness is treatment with psychiatric medication.¹⁰ Although nonhospital competency restoration settings can treat patients who voluntarily accept medication, they have limited authority to treat jail patients or outpatients with involuntary psychiatric medications.¹¹ Intermittent or poor medication compliance has been associated with lower rates of restoration of accused offenders in jail-based restoration programs.¹²

Unfortunately, without regular compliance with psychiatric medications, alleged offenders with severe mental illness are often unable to attain competency. Because of this, many systems that are starting to incorporate the least restrictive means for competency restoration utilize clinicians to triage patients to the clinically appropriate level of care necessary for competency restoration. In other words, patients willing to take medication voluntarily may be designated to receive treatment at less restrictive, nonhospital settings, reserving hospitalization and state hospital beds for patients who are unwilling to voluntarily accept psychiatric medication (and who presumably may need involuntary medication in the future).¹³

Although this sort of triage allows for a more efficient usage of limited state resources, it does not address some of the fundamental problems of the competency crisis. For example, systems need to address the reasons for the increasing number of patients referred for competency evaluations and for the increasing number of patients who are found incompetent.⁵ Also, as we shift resources and attention to increased competency restoration outside of a hospital setting, we may be missing other opportunities to better serve the needs of our patients, the law, and even society.

The Dusky decision was issued in 1960, when antipsychotic medication had just been discovered.² At that time, the states had the capacity to treat incompetent defendants utilizing the hundreds of psychiatric beds per 100,000 of the population. Almost all these psychiatric hospital beds no longer exist.⁶ The legal system and our understanding of justice and liberty have also changed and evolved since that time. This raises the question of whether continuing to pursue restoration of competency as an end for the justice system alone is the proper approach for our patients and society. We might imagine a system in which we could simultaneously serve the interests of patients with severe mental illness who are accused of crimes as well as the community that has been affected by crime.

I suggest offering a restorative justice diversionary option for accused offenders with mental illness undergoing jail-based or community outpatient restoration efforts. I think this could increase voluntary adherence to psychiatric medication, increasing competency restoration rates in jail-based or community settings. I also think utilizing restorative justice would increase reintegration of people with severe mental illness who have been accused of crimes back into their community. Offering a diversionary option for a person experiencing mental illness in this situation would not be coersive.¹⁴

Restorative justice is not a new concept and has been utilized for years inside and outside the United States.¹⁵ Restorative justice is a community-based approach to justice where trained professionals provide a structured setting and process by which offenders can potentially be held accountable for their actions by victims and address and mitigate the harm they have done.¹⁶

The restorative justice process is structured so that, if both parties (the offender and the victim) agree, the harm done by the offender can be discussed and a solution that is satisfactory for all parties involved can be reached. The focus is on “restoring” justice to the victim rather than the state punishing the offender (retributive justice). Typically, by utilizing restorative justice as an alternative to the criminal justice system, offenders stand to avoid further time in jail, prison, or state hospitals.

A prerequisite for a restorative justice process to occur is that the offender must admit guilt. Also, the victim(s) must be willing to participate in the restorative justice process. Restorative justice has typically been used for lower level offenses, although restorative justice processes have also had success with more serious offenses.¹⁷

To my knowledge, restorative justice has never been utilized following jail-based or community outpatient competency restoration. I believe that utilizing jail-based or community restoration as the home for a restorative justice “hub” would have benefits. By embedding restorative justice options in the jail or community, restorative justice would be rooted in the community where the person with mental illness is alleged to have offended.

Restorative justice would have to be carefully integrated into a competency restoration process. For instance, it would not serve the interests of the alleged offender, the victim, or society to have an incompetent person in a restorative justice process. But if utilizing restorative justice were a possible way to resolve charges for offenders, certainly competency classes could include information about such a program. An alleged offender would then be eligible to utilize restorative justice only after being restored to competency.

Utilizing restorative justice in this way might reduce the need for some patients to require hospital-level care. More incompetent alleged offenders might voluntarily accept psychiatric treatment if they had a restorative justice avenue potentially available. In this way, having a potential way to resolve charges without sentencing could be a powerful but noncoercive way to encourage people on their own to decide that voluntarily accepting psychiatric medication is in their own interest. This would potentially increase medication adherence and thus competency restoration outcomes in the jail or community setting.

Once the accused offender was competent, and a restorative justice process was undertaken, any agreements arrived at by a restorative justice process could potentially place charges in suspension or under a court agreement. If part of the restorative justice agreement involved the alleged offender maintaining medication compliance in the community, this could be monitored in the community as part of conditions of release. This could potentially also improve medication adherence in the community for these people in the future.

Similarly, involving restorative justice in jail-based or community restoration could also increase utilization of community social supports. Resources such as community-based mental health and substance use services, or even services like food banks and disability services could be involved in the restorative justice process. This could better engage supportive community services and programs in alleged offenders’ lives.

Now, providing offenders with mental health problems a pathway to avoid “punishment” is not without controversy. In 2013, Quinn and Simpson¹⁸ described the circumstances and intentions behind the Not Criminally Responsible Reform Act, which at that time was proposed federal legislation in Canada. This legislation was proposed in the context of public outcry following several cases where offenders who were mentally ill were found not criminally responsible on account of mental disorder (NCR).¹⁸ The stated purpose of the Not Criminally Responsible Act (proposed in 2013, passed in 2014) was to increase public safety and increase victim protections for “high risk” offenders acquitted as NCR and hospitalized after the verdict.

Quinn and Simpson described how the criminal justice system has conflicting needs and obligations in serving society and the offender with mental illness. On the one hand, our justice system functions for our society as a way of assigning blame and retribution for crimes. But because offenders who are found not guilty by reason of their mental illness do not, by definition, appreciate what they were doing as wrong, they receive treatment, not punishment. One rationale of the Not Criminally Responsible Act can be seen as designed to provide a proportional degree of punishment (through longer compulsory mental health treatment) for offenders acquitted because of NCR, based on their pattern of risk or the seriousness of the index offense. A second rationale of the act is to provide more protections and rights to victims of crimes by giving them the right to participate in decision-making processes and to notice and potential protections if an NCR acquittee is released from the hospital.¹⁸

In 2012, Dirks-Linhorst and Kondrat¹⁹ analyzed how “tough on crime” legislation in Missouri enacted in 1996 affected the lengths of stay for patients found not guilty by reason of mental illness (NGRI). In their study of data from 1,130 Missouri NGRI acquittees, tough on crime laws and attitudes were associated with longer hospitalizations in the Missouri state hospital system for all NGRI acquittees.¹⁹

Both Dirks-Lihorst and Kondrat and Quinn and Simpson suggested restorative justice could have a role for NCR and NGRI acquittees, although with some caveats. Dirks-Lihorst and Kondrat suggested that, in using it for NGRI murder acquittees, it could provide an opportunity for improved understanding on the part of the victim’s family and the NGRI acquittee’s family and improve release transitions. Nonetheless, they cautioned that public support is probably lacking if it is perceived that restorative justice helps NGRI murder acquittees escape responsibility or accountability.¹⁹ Quinn and Simpson pointed out that some attempts to use restorative justice in a California juvenile mental health court were unsuccessful because the offender was mentally ill at the time restorative justice was attempted. Quinn and Simpson also cited evidence that suggests some victims might never accept a NGRI verdict as just. They suggested, however, that given the evidence of high victim satisfaction ratings and lower recidivism, it would be worthwhile to explore utilizing restorative justice when offending is caused by mental illness.¹⁸

In a 2022 law review, Welch defined restorative justice and documented and analyzed how different countries have implemented restorative justice into or, in certain situations in place of, a criminal justice model.¹⁵ Welch analyzed international data that support the conclusion that, when restorative justice is used, both victims and offenders come away with positive experiences and both victims and offenders believe restorative justice processes are fair and produce satisfactory results. In addition, Walsh pointed out that evidence suggests that significantly more offenders involved in restorative justice complete sentencing plans from the restorative justice process compared with offenders given other forms of sentences, like standard probation.¹⁶

One very interesting point made in Welch’s review is that some of the currently used alternatives to traditional sentencing (drug courts, mental health courts, driving while impaired (DWI) courts, veteran courts, etc.) have unintentionally placed a heavy burden on court systems. These courts require a team of professionals, but the burden of ensuring frequent court appearances falls to probation and parole. In contrast, because restorative justice occurs outside the retributive justice system, restorative justice approaches do not require repeated use of a courtroom and the docket system.

These points all suggest that utilizing restorative justice for offenders after competency restoration can be seen as fair by both victims and offenders. If the restorative justice outcome includes an agreement for medication adherence, the offender is probably more likely to follow the agreement in comparison to a sentence. Utilizing restorative justice rather than other alternatives to traditional sentencing is also likely to require less court or probation and parole resources.

Of course, integrating restorative justice into jail-based or community settings is not without challenges. For instance, finding funding for restorative justice activities is challenging. But, if restorative justice processes are colocated in the jail or community setting, the cost of a restorative justice expert is surely less than attorneys or court time. I wonder if states or municipalities have considered how much money can be saved treating and monitoring mental health offenders in community settings versus in inpatient settings. Also, if restorative justice resources are in jail or outpatient settings close to the site of the offense, there will be easier access for victims and experts to participate in restorative justice processes. Many law schools have restorative justice classes, and the number of restorative justice student law clinics continues to grow (Holmes S, personal communication, September 2025). Utilizing volunteers or law students to run restorative justice processes is a low-cost option that could be explored.

In the Just and Well report in 2020,²⁰ a national advisory group worked together on a shared vision of an ideal competency to stand trial process. Part of their vision (Strategy 4) was for a robust system of community-based care and supports accessible before, during, and after criminal justice contact. As previously stated, utilizing restorative justice would increase community supports for people with mental illness. Another part of the vision (Strategy 5) was to expand opportunities for diversion to treatment at all points in the criminal justice system, including after competency has been raised. Utilizing restorative justice after competency restoration would also fit that vision. Utilizing restorative justice would also support promoting responsibility and accountability across systems (Strategy 7); conducting evaluations and restoration in the community, when possible (Strategy 9); and providing high-quality and equitable evaluations and restoration services and ensure continuity of clinical care before, during, and after restoration and upon release (Strategy 10).

As the competency crisis has and should prompt a response where alternative locations for restoring competency are explored, it should also prompt a response where the system itself is analyzed as to the goals and principles we seek. This is more than just opening more beds and locations for competency restoration. We should also be seeking to promote healing for our incompetent patients accused of a crime and also the victims of crime. Utilizing restorative justice in a jail-based or community competency setting would promote the dual goals of justice and healing.

• © 2025 American Academy of Psychiatry and the Law