Key Features of State Statutes
| Jurisdiction | Source of Law | Definition of Incompetence | Who May Evaluate | Test for Restorability | Statutory Provision for Involuntary Treatment for Competence Restoration | Where Restoration May Occur | Maximum Time for Restoration |
|---|---|---|---|---|---|---|---|
| Alabama | ARCrp § 11.1 to 11.8 | Cannot consult with counsel with a reasonable degree of rational understanding of the facts and legal proceedings | Psychiatrist or psychologist appointed by commissioner of Dept. of MH/MR | Substantial probability of restoration in a reasonable time | Not specified | Dept. of MH/MR, or outpatient (if defendant is not dangerous and can consent to treatment) | Indefinite, with annual review |
| Alaska | Alaska Stat. § 12.47.100 to 110 | Cannot understand proceedings or assist with defense | Qualified psychologist or psychiatrist | Substantial probability of regaining competence in a reasonable time | Not specified | Custody of the Commissioner of Health and Social Services | 180 days; 360 days if defendant is charged with violent crime and is presently dangerous |
| Arizona | Ariz. Rev. Stat. § 13-4501 to 17 | Cannot understand the nature and object of proceedings or assist with defense | Two or more mental health experts, including at least one psychiatrist | Substantial probability defendant will regain competence within 21 months of original finding of incompetence | Defendant is incompetent to refuse treatment and should be subject to involuntary treatment | Program designated by county board of supervisors; Arizona State Hospital; jail; outpatient program; any court-approved facility | The lesser of 21 months or the maximum sentence for the offense |
| Arkansas | Ark. Code Ann. § 5-2-301 to 311 | Cannot understand proceedings or assist effectively in own defense | Qualified psychiatrist or psychologist | Not specified | Not specified | Custody of Director of Dept. of Human Services | One year |
| California | Ca. Penal Code § 1367 to 1376 | Cannot understand the nature of criminal proceedings or rationally assist counsel in conducting defense | Psychiatrist, licensed psychologist, or any expert the court deems appropriate | Substantial likelihood that defendant will regain mental competence in the foreseeable future | Defendant lacks capacity and needs treatment; without medication, serious harm will result | State hospital; public or private facility; outpatient program | Felony: lesser of 3 years or the maximum sentence for the most serious offense. Misdemeanor: lesser of 1 year or the maximum sentence for the most serious offense |
| Colorado | Colo. Rev. Stat. § 16-8-110 to 115 | Cannot understand the nature and course of proceedings; or participate or assist in defense; or cooperate with defense counsel | Not specified | Substantial probability that defendant will be restored to competency within the foreseeable future | Not specified | Custody of Dept. of Human Services; outpatient treatment at or under the supervision of a facility | Maximum term of confinement for offenses charged |
| Connecticut | Conn. Gen Stat. § 54-54 to 56d | Cannot understand proceedings or assist in defense | Psychiatrist or clinical team (psychiatrist, psychologist, and either social worker or nurse) | Substantial probability that the defendant, if provided with treatment, will regain competence within maximum period of any placement order permitted | Involuntary medication will render defendant competent; no less intrusive means to achieve adjudication; proposed treatment is narrowly tailored to minimize intrusion on liberty and privacy interests and will not cause unnecessary risk to defendant's health; seriousness of alleged crime is such that state interest in achieving adjudication overrides defendant's interest in self-determination | Custody of the Commissioner of Mental Health and Addiction Services, Commissioner of Children and Families or Commissioner of Mental Retardation, or any appropriate mental health facility or treatment program | Maximum sentence that defendant could receive if convicted, or 18 months, whichever is less |
| Delaware | Del. Code. Ann. tit. 11, § 404 | Cannot understand the nature of proceedings, give evidence, or instruct counsel | Not specified | Not specified | Not specified | Delaware Psychiatric Center | Not specified |
| Florida | Fla. Stat. Ann. § 916.12-145; Fla. R. Crim. P. 3.210 to 215 | Does not meet Dusky criteria | At least two mental health professionals, unless one opines that the defendant is incompetent and findings are stipulated to | Substantial probability that defendant's illness will respond to treatment and defendant will regain competence in reasonably foreseeable future | Not specified | Defendants are committed for restoration only if incompetent and civilly committable. Otherwise, restoration occurs in community, correctional facility, or another facility. | Felony: 5 years; misdemeanor: 1 year |
| Georgia | Ga. Code Ann. § 17-7-130; Echols v. State, 255 S.E.2d. 92 (Ga. Ct. App. 1979) | Cannot participate intelligently in defendant's trial | Not specified | Substantial probability of attaining competence to stand trial in foreseeable future | Not specified | Dept. of Human Resources | One year |
| Hawaii | Haw. Rev. Stat. § 700-403 to 406; State v. Kotis, 984 P.2d 78 (Haw. 1999) | Lacks capacity to understand proceedings or assist in defense | Three qualified psychiatrists in felony cases and 1 qualified psychiatrist in nonfelony cases | Substantial likelihood of becoming fit to proceed in the future | “Detention, care, and treatment” may includee a court order authorizing involuntary administration of antipsychotic drugs | Custody of the Director of Health | Not specified |
| Idaho | Idaho Code Ann. § 18-210 to 212 | Lacks capacity to understand proceedings or to assist with defense | Psychiatrist or psychologist | Substantial probability defendant will be fit to prodceed within foreseeable future | Defendant lacks capacity to give informed consent | State hospital, institution, mental health center or Dept. of Corrections | Two hundred seventy days |
| Illinois | 725 Ill. Comp. Stat. 5/104-11 to 104-23 | Cannot understand nature and purpose of proceedings or assist in defense | One or more licensed physicians, clinical psychologists, or psychiatrists | Likelihood of attaining fitness within 1 year if provided with treatment | Not specified | Dept. of Human Services, or other appropriate public or private facility or treatment program | One year |
| Indiana | Ind. Code § 35-36-3 to 4 | Cannot understand proceedings and assist in preparation of defense | Two or 3 disinterested psychiatrists or psychologists; at least 1 must be psychologist | Substantial probability of attaining competence in foreseeable future | Not specified | Division of Mental Health and Addiction | Six months |
| Iowa | Iowa Code § 812.3 to 812.9 | Cannot appreciate charge, understand proceedings, or assist effectively in defense | Psychiatrist or psychologist | Substantial probability accused will regain capacity within a reasonable time | Somatic treatment is necessary and appropriate to restore defendant and defendant will not consent; director of facility may request order authorizing treatment | Dangerous defendants: Dept. of Human Services or Dept. of Corrections for placement at Iowa Medical and Classification Center. Others: outpatient treatment | Lesser of maximum term of confinement for alleged criminal offense, or 18 months |
| Kansas | Kan. Crim. Proc. Code Ann. § 22-3301 to 3306 | Cannot understand nature and purpose of proceedings, or cannot make or assist in making a defense | Psychiatrist or psychologist | Substantial probability of attaining competence in foreseeable future | Not specified | State security hospital; any appropriate county or private institution | Six months |
| Kentucky | Ky. Rev. Stat. Ann. § 504.060, 504.090 to 110 | Cannot appreciate nature and consequences of proceedings or participate rationally in defense | Psychiatrist or psychologist | Substantial probability of attaining competency in 360 days | Not specified | Treatment facility; forensic psychiatric facility; Cabinet for Health and Family Services facility | Misdemeanor: 60 days; felony: not specified |
| Louisiana | La. Code Crim. Proc. Ann. art. 641-649 | Lacks capacity to understand proceedings or to assist in defense | Sanity commission | Mental capacity is likely to be restored within 90 days as a result of treatment | Not specified | Jail; Feliciana Forensic Facility | Maximum sentence defendant could receive if convicted |
| Maine | Me. Rev. Stat. Ann. tit. 15, § 101-B; State v. Lewis, 584 A.2d 622 (Me. 1990) | Cannot understand nature and object of charges, comprehend condition in reference thereto, or cooperate with counsel to conduct a rational, reasonable defense | State Forensic Service; independent psychiatrist or psychologist | Substantial probability defendant will be competent in foreseeable future | Not specified | Custody of Dept. of Health and Human Services | One year |
| Maryland | Md. Code Ann., Crim. proc. § 3-101 to 3-108; Sangster v. State, 541 A.2d 637 (Md. Ct. App. 1988) | Cannot understand the nature of proceedings and assist in defense | Health Dept. or community forensic screening program | Not specified | Not specified | Facility that Health Department designates | Ten years for capital case, 5 years for felony |
| Massachusetts | Mass. Gen. Laws ch. 123, § 15-17; Commonwealth v. Vailes, 275 N.E.2d 893 (Mass. 1971) | Does not meet Dusky criteria | One or more qualified physicians psychologists for initial evaluation | Not specified | Not specified | If civilly commitable, hospitalization for treatment | Maximum time of imprisonment that person would serve before becoming eligible for parole for most serious charge |
| Michigan | Mich. Comp. Laws § 330.2020 to 330.2044 | Cannot understand nature and object of proceedings or assist rationally in defense | Center for Forensic Psychiatry; facility certified by Dept. of Mental Health | Likelihood of Defendant's attaining competence, if treatment for statutory time frame | To maintain the competence of the defendant to stand trial, pending and during trial | Dept. of Mental Health or any inpatient mental health facility if commitment is necessary for effective treatment | Lesser of 15 months or one-third of maximum sentence |
| Minnesota | Minn. R. Crim. P. Rule 20.01 | Cannot consult with defense counsel with reasonable degree of rational understanding or cannot understand proceedings and participate in defense | Licensed physician or consulting psychologist, knowledgeable, trained, and practicing in the diagnosis/treatment of the alleged impairment | Substantial probability that with treatment or otherwise the defendant will ever attain competence | Not specified | Defendant is civilly committed; place is not specified | Three years, except for murder, for which time frame is not specified |
| Mississippi | Miss. Uniform Rules of Circuit and County Court practice Rule 9.06; Gammage v. State, 510 So.2d 802 (Miss. 1987) | Cannot consult with lawyer with reasonable degree of rational understanding; lacks rational and factual understanding of proceedings | Psychiatrist or psychologist | Substantial probability of becoming competent in the foreseeable future | Defense attorney may authorize treatment | Mississippi State Hospital or other appropriate mental health facility | Within a reasonable time |
| Missouri | Mo. Rev. Stat. § 552.020 | Cannot understand proceedings and assist in defense | Psychiatrists, psychologists, or physicians with >1 year's training or experience in treating the mentally retarded or mentally ill | Substantial probability of attaining fitness to proceed in forseeable future | Not specified | Commitment to the Director of the Dept. of Mental Health | Not specified |
| Montana | Mont. Code Ann. § 46-14-103, 202, 206, 221, and 222 | Cannot understand proceedings and assist in defense | At least 1 qualified psychiatrist, licensed clinical psychologist, or advanced-practice RN | Appears that defendant will become fit to proceed in reasonably foreseeable future | Overriding justification for medically appropriate treatment | Dept. of Public Health and Human Services, for placement in appropriate mental health or residential facility | If court determines that so much time has elapsed since the commitment of the defendant that it would be unjust to resume the criminal proceedings, the court may dismiss the charge |
| Nebraska | Neb. Rev. Stat. § 29-1823 | Cannot understand nature and object of the proceedings, comprehend own condition in reference to such proceedings, and make a rational defense | Physician, psychiatrist, or psychologist | Substantial probability of becoming competent in the foreseeable future | Not specified | State hospital for the mentally ill or other appropriate state-owned or -operated facility | Six months initial, maximum length not specified |
| Nevada | Nev Rev. Stat. § 178.399 to 178.460 | Does not meet Dusky criteria | Two psychiatrists, 2 psychologists, or 1 psychiatrist and 1 psychologist, certified by Division of Mental Health and Developmental Services of the Department of HHS | Substantial probability that treatment can restore competence and that defendant will attain competence or receive pronouncement of judgment in forseeable future | Involuntary administration of medication if appropriate for treatment to restore competence | Committed to Administrator of Division of Mental Health and Developmental Services, or outpatient treatment | Lesser of 10 years or longest period of incarceration provided for alleged crime |
| New Hampshire | N.H. Rev. Stat. Ann. § 135:17 | Does not meet Dusky criteria | Psychiatrist on staff of any public institution, or private psychiatrist | Reasonable likelihood that defendant can be restored to competence through appropriate treatment within 12 months | Not specified | State mental health system; secure psychiatric unit; or outpatient treatment | Twelve months |
| New Jersey | N.J. Stat. Ann. § 2C:4-5, 4-6 | Cannot understand proceedings and assist with defense | At least 1 qualified psychiatrist or licensed psychologist | Substantially probable that defendant could regain competence within foreseeable future | Not specified | Custody of Commissioner of Human Services for inpatient treatment if defendant is dangerous, or outpatient treatment | Initial 3 months, maximum time frame not indicated |
| New Mexico | N.M. Stat. § 31-9-1 to 31-9-1.5 | Does not meet Dusky criteria | Psychologist, psychiatrist, or other professional recognized by district court as an expert | Probability of defendant's attaining competence within 9 months of original finding of incompetence | Not specified | Dept. of Health in a secure, locked facility | Maximum sentence defendant would have received if convicted |
| New York | N.Y. Crim. Proc. Law § 730.10 to 730.70 | Cannot understand proceedings and assist with defense | Two qualified psychiatrists (psychiatrist or psychologist); if 2 psychiatrists disagree, a 3rd psychiatrist is appointed | Not specified | Not specified | Facility designed by Commissioner of Mental Health or MR/DD | Two-thirds of maximum term for highest-class felony charged |
| North Carolina | N.C. Gen. Stat. § 15A 1001-1009 | Cannot understand nature and object of proceedings, comprehend situation in reference to the proceedings, and assist with defense in a rational or reasonable manner | Impartial medical experts, including forensic psychiatrists approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services | Likelihood of defendant's gaining capacity to proceed, to the extent that the hospital, institution, or individual can make such a judgment | Not specified | Civil commitment to hospital or other institution; if given bail, custody of designated person or organization agreeing to supervise defendant | Maximum term of confinement for the crime charged or 5 years (misdemeanor) or 10 years (felony) from date of incapacity to proceed |
| North Dakota | N.D. Cent. Code § 12.1-04-04 to 04-09 | Cannot understand proceedings and assist with defense | Psychiatrist or licensed psychologist | Whether defendant will attain fitness to proceed or ability to effectively communicate with counsel in the foreseeable future | Not specified | Civil commitment | Maximum period for which the defendant could be sentenced |
| Ohio | Ohio Rev. Code Ann § 2945.37-39 | Cannot understand nature and objective of proceedings and assist with defense | Psychiatrist, or licensed clinical psychologist who satisfies the satutory criteria or works for a certified forensic center | Likelihood of being restored to competence within 1 year if treated | Medication is necessary to restore competence; defendant lacks capacity to give informed consent or refuses medication | State hospital; MR/DD facility; community mental health or Mental retardation facility; psychiatrist or other MI/MR professional | Thirty or 60 days for misdemeanors; 6 months for lesser felonies; 12 months for major felonies |
| Oklahoma | Okla.Stat. tit. 22, § 1175.1 to 1175.8 | Cannot understand nature of charges and proceedings, and effectively and rationally assist with defense | Psychiatrist, psychologist, or licensed mental health professional with forensic training | Whether person can attain competence within reasonable period of time if given treatment, therapy, or training | Court shall order defendant to undergo treatment, therapy, or give training that will restore competence | Dept. of Mental Health and Substance Abuse Services | Lesser of maximum sentence for most serious offense charged, or 2 years |
| Oregon | Or. Rev. Stat. § 161.360 to 161.370 | Cannot understand nature of proceedings, assist and cooperate with counsel, and participate in defense | Psychiatrist or psychologist | Substantial probability in foreseeable future that defendant will have capacity to stand trial | Not specified | State hospital; outpatient treatment; secure intensive community inpatient facility for juveniles | So much time has elapsed that it would be unjust to resume criminal proceedings |
| Pennsylvania | Pa. Stat. Ann. § 7402-7406 | Cannot understand the nature or object of proceedings and participate and assist in defense | At least 1 psychiatrist | Substantial probability of attaining competence in the foreseeable future | Court is reasonably certain that involuntary treatment will restore competence | Not specified | Lesser of maximum sentence imposed for the crime charged or 10 years. For murder, no limit on restoration period |
| Rhode Island | R.I. Gen. Laws § 40.1-5.3-3 | Cannot understand character and consequences of proceedings, or cannot properly assist with defense | Physician | Whether defendant will regain competence within maximum period of placement | Not specified | Dangerous defendants: facility established pursuant to § 40.1-5.3-1, or to general wards of the Institute of Mental Health; outpatient treatment | Two-thirds of maximum sentence for most serious offense charged |
| South Carolina | S.C. Code Ann. § 44-23-410 to 460 | Cannot understand proceedings or assist defense | Two psychiatrists designated by the Dept. of Mental Health or Dept. of Disabilities and Special Needs | Substantial probability of attaining competence in forseeable future | Not specified | Appropriate facility of Dept. of Mental Health or Dept. of Disabilities and Special Needs | Maximum period to which the person could have been sentenced if convicted as charged |
| South Dakota | S.D. Codified Laws § 23A- 10A-1to 16 | Cannot understand nature and consequences of proceedings and assist properly in defense | Psychiatrist or psychologist | Substantial probability that in the foreseeable future defendant will attain capacity to permit the trial to proceed | Not specified | Human Services Center; state developmental centers; adjustment training center mental health center; or other facility approved by Dept. of Human Services | Maximum penalty allowable for most serious charge |
| Tennessee | Tenn. Code Ann. § 33-7-301 to 302 | Does not meet Dusky criteria | Community mental health center, licensed private practitioner, or outpatient evaluation by state hospital | Not specified | Not specified | Forensic services unit or community-based service | Not specified |
| Texas | Tex. Code Crim. Proc. Ann. art. 46B.001 to 171 | Does not meet Dusky criteria | Psychiatrist or psychologist | Whether defendant will obtain competence in foreseeable future | Medication is medically appropriate and in defendant's best interest; state has compelling interest in defendant's being competent; no less invasive means of obtaining competence; medication will not unduly prejudice the defendant's rights or defense theories at trial | Community, mental health or MR facility | Maximum term for offense on which defendant would be tried |
| Utah | Utah Code Ann. § 77-15-1 to 6 | Unable to have rational and factual understanding of proceedings him or potential punishment, or cannot consult with counsel and participate in proceedings with a reasonable degree of rational understanding | At least 2 mental health experts not involved in the current treatment of the defendant | Substantial probability that the defendant may become competent in forseeable future | Not specified | Dept. of Human Services | Maximum period of incarceration that defendant could receive if convicted |
| Vermont | Vt. Stat. Ann. tit. 13, § 4814-4822 | Does not meet Dusky criteria | Designated mental health professional | Not specified | Not specified | Custody of Commissioner of Developmental and Mental Health Services | Indeterminate, as long as person is civilly committable |
| Virginia | Va. Code Ann. § 19.2-169.1 to 169.3 | Cannot understand proceedings or assist attorney with defense | Psychiatrists, psychologists or master-level psychologists | Restorable in foreseeable future | Not specified | Outpaitent; hospital designated by the Commissioner of Mental Health, Mental Retardation and Substance Abuses Services | Lesser of maximum sentence if convicted of charges or 5 years |
| Washington | Wash. Rev. Code § 10.77.010 to 10.77.092 | Cannot understand nature of proceedings and assist with defense | At least 2 qualified experts or professional persons | Futher treatment is likely to restore competence | For serious offenses | State hospital; other facility as determined by department or under guidance and control of professional person | Maximum possible penal sentence for any offense charged, or 180 days |
| West Virginia | W. Va. Code § 27-6A-1 to 5 | Cannot participate substantially in defense and understand nature and consequences of trial | One or more psychiatrists, or psychiatrist and psychologist | Substantial likelihood that defendant will attain competence within 6 months | Not specified | Mental health facility | Nine months |
| Wisconsin | Wis. Stat. § 971.13 | Cannot understand the proceedings or assist with defense | One or more psychiatrists having specialized knowledge and deemed appropriate by court to evaluate and report on defendant | Likelihood that defendant, if treated, may be restored to competence within statutory time period | Court may order defendant to receive medication for duration of criminal proceedings | Dept. of Health and Family Services for placement in appropriate institution | Lesser of 12 months or maximum sentence for most serious offense |
| Wyoming | Wyo. Stat. Ann. § 7-11-301 to 303 | Cannot comprehend situation, understand the nature and object of proceedings, conduct defense rationally, or cooperate with counsel to use available defenses | Licensed psychiatrist, or other physician with forensic training, or licensed psychologist with forensic training | Substantial probability that accused will regain fitness to proceed | Not specified | State hospital or other facility designated by the court | Not specified |
| U.S. Federal | 18 U.S.C.S. § 4241 | Cannot understand nature and consequences of proceedings and assist properly with defense | Psychiatrist or psychologist | Substantial probability that in the foreseeable future, defendant will become competent | Sell v. U.S. (2003) | Custody of Attorney General for treatment in a suitable facility | Initial hospitalization for four months; thereafter, for “reasonable period of time” |
| US Military | U.C.M.J. § 876b; R.C.M. 706, 909; 18 U.S.C.S. § 4241 | Cannot understand nature of proceedings or conduct or cooperate intelligently in defense | A board of 1 or more persons; each member must be physician or psychologist; normally, at least one member is psychiatrist or psychologist | Same as federal law | Sell v. U.S. (2003) | Same as federal law | Same as federal law |