Ryan Sullivan has worked as a public defender in Oklahoma County for more than a decade. His office often represents clients who need mental health and educational services before they can stand trial. But recently, fighting to get them to those services has become almost half of his job.
During the wait for court-ordered treatment to begin, Sullivan said, the prosecution process stalls.
"Nothing is happening on their case," he said. "They're just being detained, waiting. They can't face their charges. The state can't prosecute them."
Sullivan is talking about criminal defendants deemed "incompetent" to stand trial, meaning they lack the ability to understand the charges brought against them or help with their defense. Before their cases can resume, defendants have a constitutionally protected right to competency restoration services.
When the system functions, a lawyer or judge requests an evaluation, a medical professional assesses a defendant's capabilities and then, if needed, treatment to restore competency begins shortly after. Many states, including Oklahoma, are struggling to carry out that chain of events in a timely manner.
On any given day, Sullivan said his office has at least 20 people waiting in the Oklahoma County jail for services.
"The defendant is just sitting there really with no clue what's going on," he said.
Spots at the state's only facility equipped to provide competency restoration services are limited. The Oklahoma Forensic Center in Vinita has 200 inpatient beds and planned to add 80 more in July, however the state's department of mental health did not confirm construction was finished. Those beds are also divided into different types of treatment, further limiting capacity for people needing restoration services.
A recent estimate found 180 people in custody across the state waiting for competency restoration services. Another 135 people were in the "initial evaluation" phase and could be later added to the waiting list depending on whether they are found incompetent to stand trial.
The numbers were gathered by consultants hired to track the state's efforts to settle a class action lawsuit alleging long wait times for care. Progress is mandated by a consent decree, but so far, consultants said improvements have been "halting."
What services are people waiting for, and why?
Competency evaluations are the most common mental health evaluations performed in the American judicial system.
Christopher Slobogin is director of Vanderbilt Law School's Criminal Justice Program and helped author "Psychological Evaluations for the Courts," a more than 900-page volume about mental health's role in legal proceedings. He said there's a good reason why a person needs to comprehend what's happening before they stand in front of a judge.
"If the attorney doesn't know what the defendant was doing at the time of the crime, doesn't have a coherent story about what happened at the time of the offense, then the attorney can't do a good job representing the individual," he said.
Slobogin said people may need competency restoration services for multiple reasons. They could be experiencing mental health issues or have an intellectual disability. So while medication and treatment might be important parts of the restoration process, education and lessons on how a courtroom works are also part of the equation.
He also said people tend to conflate the competency restoration process with "not guilty by reason of insanity" pleas. Slobogin said while both might have to do with mental health, they serve completely separate functions and take place during different parts of the judicial process.
"Insanity is only relevant to adjudicate guilt or innocence," Slobogin said. "Competency has nothing to do with guilt or innocence. It's whether the person can undergo a criminal proceeding."
That's not the only thing the public often gets wrong, according to licensed clinical psychologist Kathryn Scott, who started her studies in Oklahoma and now performs competency evaluations for criminal defendants in Virginia.
She said court-ordered treatment isn't an evasion of blame.
"People think if someone's not competent to stand trial, that they're avoiding responsibility or getting away with whatever it is that they're charged with, which isn't the case," she said. "It may delay starting a trial, or whatever the outcome of the particular situation may be, but it's not someone getting away with it."
The root of the issue
In Virginia, where Scott works, the state implemented a ten-day maximum for incompetent defendants to be transferred to state hospitals for restoration services. She said it has significantly sped up wait times, but not without challenges.
"The [hospitals] that have never really had forensic patients before now are struggling with managing," she said.
Scott said facilities have had to sacrifice room for civil commitments and quickly adjust to higher security needs. There also needs to be enough trained and licensed professionals to support patient numbers.
Scott and Slobogin said there need to be more mental health and social service resources available before an arrest.
Deinstitutionalization, harsh penalties on people experiencing homelessness and the criminalization of mental illness have all contributed to a spike in the number of people depending on competency restoration resources that states like Oklahoma are failing to provide, Slobogin said.
"When resources in the community don't exist, sometimes the only way someone with mental illness ends up connected to treatment is through a criminal justice system," Scott said.
'Something has to change'
This problem isn't only in Oklahoma County. There are similar waitlists with dozens of names in Tulsa County and people languishing in jails across the state. Janay Clougherty, a public defender in Tulsa, said she has had some clients waiting for services for more than a year.
"People have died in jail waiting to go to the Oklahoma Forensic Center to be restored," Clougherty said.
Like Sullivan, Claugherty said advocating for defendants who need competency restoration services has become a large part of her job. She said she wishes there was a better understanding of the people whose lives are at stake.
"These are human beings," she said. "Even if they're accused of doing something bad, these are still human beings, and they deserve that basic dignity. Languishing in jail for mental health treatment is not okay."
Clougherty said she often has to tell her clients they are "waiting on a bed," without being able to give them an answer about how long it will take. She said the waiting takes a toll on their mental health.
"I just want to see something change. Something has to change," she said.
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