The Hole in the Justice System You Probably Didn’t Even Know Existed: Incompetent Non-Restorable Defendants

By Mackenzie Moore 

Let me start by saying that this is in no way an in-depth analysis of Mental Health law in Arizona, something which can’t be done in 1161 words. Now if you are an expert in Ariz. R. Crim. P. 11, you might find yourself saying, “well that’s an oversimplification” or “she sure missed a step” but bear with me for the purpose of the issue. The Arizona Criminal Justice System is dropping charges against and releasing incompetent, non-restorable defendants back into society without punishment.

In Arizona, defendants cannot be tried, convicted, sentenced or punished if as a result of a mental illness, defect, or disability, the defendant is unable to understand the proceedings against him or her, or to assist in his or her own defense.[1] To be sure, the presence of a mental illness, defect, or disability alone is not grounds for finding a defendant incompetent to stand trial.[2] Either party – or the Judge – may request the defendant be examined for competency to stand trial[3] and within three days of this motion being filed, all available medical and criminal history records must be provided to the Court.[4] The Court may then order a preliminary examination under Ariz. Rev. Stat. Ann. § 13-4503C to assist the Court in determining if reasonable grounds exist to order further examination of the defendant.[5]

If at this point the defendant is found competent, the Ariz. R. Crim. P. 11 proceedings conclude and the matter is immediately set for trial.[6] However, if the Court determines that reasonable grounds for an examination exist, the Court will appoint two mental health experts to examine the defendant and testify to the defendant’s mental condition.[7] These experts can also be nominated by each party and appointed by the Court.[8] The expert reports made pursuant to Ariz. R. Crim. P. 11.3 must be submitted within ten working days to the Court and made available to all parties.[9]

Within thirty days after the expert reports have been submitted to the Court, the Court will make a determination of defendant’s competency.[10] If the Court finds defendant competent, trial proceeds as scheduled.[11] If the Court determines, however, that the defendant is incompetent and there is no substantial probability that the defendant will become competent within twenty-one months, the Court may release the defendant from custody and dismiss the charges without prejudice, remand the defendant to an evaluating agency to begin civil commitment proceedings, or order the appointment of a guardian. This rule – Ariz. R. Crim. P. 11.5(b)(2) – is the issue.

While the charges would be dismissed without prejudice, meaning they can be re-filed at any time and the case subsequently litigated, a potentially dangerous defendant is being released into the community.[12] This option would require almost constant monitoring by various parties in order to determine when re-filing would be appropriate, if at all. Further, even if civil commitment proceedings are initiated pursuant to Title 36, Chapter 5, there is a chance that the defendant will still be released.[13] Defendants can only be civilly committed if they are currently a danger to themselves or others.[14] Believe it or not, incompetent, non-restorable defendants who have committed the crime of first degree capital-eligible murder could be considered not to currently be a danger to themselves or others. Finally, pursuant to Title 14, Chapter 5, the Court can appoint a guardian[15] meaning that the guardian has custody of the defendant, and defendant’s titles and contracts, and may decide “what company the [defendant] may keep.”[16] Essentially, Ariz. R. Crim. P. 11.5(b)(2)(C) is making the defendant another person’s problem. Like issues with Ariz. R. Crim. P. 11.5(b)(2)(A), there are not enough resources to constantly monitor defendants released to guardians to ensure that they are not only being taken care of, but to also re-determine their competency.

Ariz. R. Crim. P. 11.5(b) is drafted to explicitly comply with the United States Supreme Court’s holding in Jackson v. Indiana[17] that the State’s power to commit an incompetent person accused of a criminal offense is severely limited by the due process and equal protection clauses. In Jackson, defendant – a mentally defective deaf mute with the mental level of a pre-school child – was charged with robberies of two women.[18] Mental health experts were appointed, both of which determined defendant was incompetent to stand trial.[19] The Trial Court ordered defendant committed to the Indiana Department of Mental Health.[20] Defendant’s counsel asserted that this would be a life sentence without being convicted of a crime.[21] The United States Supreme Court agreed, stating that defendants committed solely on the grounds of incompetence to stand trial can only be committed for the reasonable time period necessary to determine whether there is a substantial probability that defendant will attain capacity in the foreseeable future.[22]

But what happens when we swing the pendulum this far towards defendant’s rights? We risk the safety of victims, and cannot provide them with the Justice they deserve. Mental health professionals evaluating incompetent non-restorable defendants are, by statute, not responsible for acts committed by the defendants once they’re released.[23] So, the concern is that these professionals have no “skin in the game” so to speak. Furthermore, under Ariz. Rev. Stat. Ann. § 36-503.03, Arizona State hospitals are not required to house more individuals than their funded capacity, and if the Arizona State hospital reaches its funded capacity in civil commitment treatment programs, the superintendent of the State hospital merely establishes a waiting list for admission based on the date of the Court order issued pursuant to this section.[24]

In defendant Jackson’s case, he was accused of two robberies of about four and five dollars, respectively.[25] The Court, however, does no analysis on defendant’s likelihood to reoffend. So, is the solution to reevaluate and revamp our commitment proceedings based on the severity of the crime? Could this be the missing balancing factor in the totality of the circumstances? The Arizona Rules of Evidence, for example, allow for the propensity to commit certain crimes to come in at trial,[26] so could this be part of the solution to civil commitment? Unfortunately, I don’t have the answer – sorry if you thought I did – so this is yet another question for our Arizona Courts.

[1] Ariz. R. Crim. P. 11.1.

[2] Id.

[3] Ariz. R. Crim. P. 11.2(a).

[4] Ariz. R. Crim. P. 11.2(b).

[5] Ariz. R. Crim. P. 11.2(c).

[6] Ariz. R. Crim. P. 11.2(e).

[7] Ariz. R. Crim. P. 11.3(a).

[8] Ariz. R. Crim. P. 11.3(c).

[9] Ariz. R. Crim. P. 11.4(a).

[10] Ariz. R. Crim. P. 11.5(a).

[11] Ariz. R. Crim. P. 11.5(b)(1).

[12] The Free Dictionary by Farflex, http://legal-dictionary.thefreedictionary.com/without+prejudice (last visited October 7, 2017).

[13] Ariz. Rev. Stat. Ann. § 36-531(B) (2017).

[14] Id.

[15] Ariz. R. Crim. P. 11.5(b)(2).

[16] Harrison v. Laveen, 196 P.2d 456 (1948).

[17] Jackson v. Indiana, 406 U.S. 715 (1972).

[18] Jackson v. Indiana, 406 U.S. 715, 717 (1972).

[19] Id. at 718-19.

[20] Id. at 719.

[21] Id.

[22] Id. at 738.

[23] Ariz. Rev. Stat. Ann. § 36-527(B) (2017).

[24] Ariz. Rev. Stat. Ann. § 36-503.03 (2017).

[25] Jackson v. Indiana, 406 U.S. 715, 717 (1972).

[26] See, e.g., Ariz. R. Evid. 404(c).

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