A bill requested by the governor and sponsored by Sen. Manka Dhingra (D–Redmond) defers state responsibility to local governments to provide timely competency evaluations and restoration services to individuals suffering from behavioral health disorders in jails. AWC opposes SB 5440, which is scheduled for a public hearing on Thursday.

The 2014 Trueblood v. DSHS lawsuit challenged unconstitutional delays in competency evaluation and restoration services for people detained in jails. As it currently works, if a court believes a mental disability may prevent a defendant from assisting in their own defense, the criminal case is put on hold while an evaluation is completed to determine the defendant’s competency. If the evaluation finds the defendant competent, they are returned to stand trial. If the evaluation finds the person is not competent to stand trial, the court can order services to restore competency. As it stands now, the state Department of Social and Health Services (DSHS) must provide competency evaluations within 14 days and competency restoration services within seven days of court orders and is fined when those deadlines are not met.

The numbers of in-jail competency orders have ballooned in the past few years, from 978 statewide in 2013 to 2,397 last year and DSHS is not keeping up. According to DSHS’s own data, wait times for mental health services had reached an average of over 80 days and have cost Washington taxpayers an estimated $98 million since 2018.

Currently, DSHS is in court again as Disability Rights Washington has filed a motion in federal court alleging a breach in the 2018 settlement to provide timely competency restoration services (source).

The Governor’s solution defers responsibility from the state and DSHS and puts that responsibility on local governments.

The bill states that if there is genuine doubt as to competency, the court on its own motion or on the motion of any party shall first review the allegations of incompetency. The court must appoint a qualified expert, approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant. For individuals charged with a misdemeanor who have had two or more competency evaluations in the past two years, a forensic navigator would be assigned to meet with the individual and come up with a recommended diversion plan.

For defendants with a class C felony charge, the county would be responsible to hold that individual for inpatient competency restoration or outpatient restoration based on a recommendation from a forensic navigator. There are some situations where the prosecutor could request restoration to be conducted by the state, including in cases of domestic violence. DSHS or the county would also be able to authorize law enforcement transport to the designated inpatient competency restoration facility.

The Washington State Association of Counties is opposed to this bill as it shifts a significant burden to counties and county run jails. However, it will also impact cities directly and indirectly.

Dates to remember

SB 5440 is scheduled for public hearing in the Senate Law & Justice committee on Thursday, February 2 at 8 am.