By Susan McMahon

The competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are possibly incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to be returned to court and released without any connection to long-term support.

Scholars have long advocated for changes to this process. But even the most ambitious of these reforms will only shift outcomes at the margins. As long as the competence system remains in place, it will be overused, and it will continue to cause massive harms, both in dollars wasted and in human suffering.

This Article is the first to propose a more fundamental change: barring misdemeanor defendants from even entering the competence process. If a court finds a bona fide doubt as to an individual’s competence, that person would instead have the charges against them dismissed and would be transferred to treatment outside of the criminal system. This shift reduces the harms of the current competence system and shrinks its footprint, decreasing delays and freeing up funds that could be better spent elsewhere.

At the same time, this approach recognizes that the criminal legal system simply does not work for individuals with mental disabilities. Rather than tinker with its mechanics or create exceptions for this population, a better solution, exemplified by this proposal, is to abandon that system altogether in favor of non-carceral models.

. UC Irvine School of Law Research Paper No. 2024, 53p.