Competency to be Determined in Seven Days

By Lance Hester, October 2016

Last year I represented two different defendants whose cases began with concerns of mental competency.  One client remained in custody through the entire process, including the initial competency evaluation process.  After about a month following his initial arrest, the other client was out of custody during the majority of the remaining proceedings.

Capacity to stand trial is governed by RCW 10.77 et. seq.  RCW 10.77.068 requires mental competency evaluations to be completed within seven days.

One of my two cases took exactly one month from the time his competency evaluation was ordered until the time when the psychological report was produced.  The other took three weeks for the state’s psychologist’s report to the court.  Obviously, both cases had my client locked up pending evaluation for times well in excess of the seven days statute.

In reality, my client’s competency evaluations were processed much faster than many other defendants held awaiting competency evaluations.  In a recent order addressing the constitutionality of holding subjects of competency evaluation beyond the seven days, US District Court Judge Marsha Pechman noted Eastern State Hospital averages over 41 days for the evaluations and Western State Hospital averages 30.  When the evaluations are completed without the accused being moved to a hospital, jail evaluations ranged between 14 and 56 days.

Judge Pechman’s order is in response to an ACLU lawsuit.  The lawsuit alleged Washington defendants are being held unconstitutionally when detained for more than the seven days authorized by the legislature.  Among the issues noted in the order, Judge Pechman found the following:

  • The state legislature created the seven day policy and it is reasonable;
  • Delays in the provision of competency services result in people with confirmed or suspected mental illness spending more time incarcerated for the same offenses than those without mental illnesses;
  • Sitting in jail without an evaluation deprives services and treatment to those who need it;
  • DSHS can overcome its excuses for delays.  And, with appropriate planning, coordination, and resources, none of the purported barriers to timely evaluations prevent DSHS from providing competency services within seven days;

Ultimately, Judge Pechman ordered DSHS to change its ways, stating,
“DSHS is capable of providing the services they are charged with providing within seven days with more resources and better management. If the forensic mental health system is given the resources it requires, wait times of seven days or less can be achieved in nine months.”

Ultimately, Judge Pechman ordered the defendants to cease its continual violation of plaintiffs’ (criminally charged defendants) constitutional rights.  She gave the state 9 months to have its new process in place, and instituted reporting requirements along the way.

Both now and following the nine month period that Judge Pechman ordered for compliance, Defense counsel must maintain its tenacity ensuring court dates are set that correspond with the seven day rule if we are to be effective advocates for our clients.