Episode 16: Why Some Courts Don't Evaluate Competence
And Who Pays For It
In a prior piece, I discussed the problematic incentive structure between many municipal governments and county governments. Here, I want to focus on a related issue: why city and town courts often do not evaluate defendants for competence to stand trial.
This is not an indictment of municipal governments. I have friends and colleagues who work in municipal systems. The point here is not to attack individuals, but to examine structures and incentives—and the downstream consequences they create.
What Is Competence to Stand Trial?
In the United States, a person cannot be legally tried for a crime, nor can he accept a plea agreement, if he is not competent to do so.
The legal definition of competence comes from the 1960 Supreme Court case, Dusky v. United States. The Court established what is commonly referred to as the “two-pronged test” for competence. To be considered competent, a defendant must:
Understand the nature of the charges against him, and
Be able to aid his attorney in his defense.
If a defendant cannot do either of those things, he is legally incompetent. This applies regardless of whether the alleged offense is a felony or a misdemeanor.
In a criminal case, any party—the prosecution, the defense, or the judge—can raise the issue of competence. If there is a reasonable question about a defendant’s competence, the court will typically order one or two independent forensic evaluations. The exact procedures vary by state, and some jurisdictions allow a single evaluation in misdemeanor cases.
If a defendant is found incompetent, the court generally orders competence restoration. Most often, that means a transfer to a state psychiatric hospital for a period of treatment, typically lasting a few months. If competence is restored, the defendant returns to court and the criminal case resumes where it left off.
If competence cannot be restored, things become more complicated. In many jurisdictions, including my own, the court must hold periodic review hearings—often every 90 or 180 days—to determine whether continued hospitalization is warranted. In practice, this can mean that some individuals remain in the state hospital system for years through repeated extensions. There is significant nuance here, but that is the basic framework.
It’s important to note that having a serious mental illness does not automatically make someone incompetent. Many individuals with diagnoses such as schizophrenia or bipolar disorder function well with appropriate treatment. Competence is a legal question, not a diagnostic one. The issue is whether the illness impairs the defendant’s understanding of the proceedings or ability to assist counsel—not whether a diagnosis exists.
County Courts vs. Municipal Courts
County-level courts are generally familiar with these procedures and budget for them. They typically allocate funds to pay outside clinicians to conduct competence evaluations when needed. If a defendant is found incompetent, court staff coordinate with the state hospital system and arrange transfer once a bed becomes available. Some jurisdictions experiment with jail-based restoration programs, but hospitalization remains the norm.
Municipal courts operate differently.
As I’ve discussed before, city and town courts often exist to retain local control and generate revenue. Competence evaluations are expensive. A relatively brief evaluation might cost $500 to $1,500. A more comprehensive evaluation can run $3,000 to $6,000. In larger jurisdictions, annual expenditures on competence evaluations can reach into the hundreds of thousands of dollars.
Most municipal courts do not maintain dedicated budgets for this.
Technically, a court cannot proceed if a defendant is incompetent. The constitutional options are clear:
Pay for a competence evaluation,
Transfer the case to a court capable of addressing the issue, or
Dismiss the case if it cannot proceed.
There are circumstances where each of these solutions makes sense. But in practice, county courts are not always eager to accept transfers that come with the added financial burden of a competence evaluation and possible hospitalization.
As a result, some municipal courts rely on strategies that exist in a legal gray area.
Two Common Workarounds
The first strategy is simple: proceed without formally raising competence.
Unless someone goes on the record to question the defendant’s competence, no evaluation is required. If neither the defense, prosecution, nor judge formally flags the issue, the case can move forward.
There is an obvious risk that a conviction could later be overturned if it becomes clear that the defendant was incompetent. In reality, that risk is often low. Many defendants in these circumstances lack the resources, awareness, or legal assistance needed to file a meaningful appeal.
The second strategy involves delay.
Municipal courts may repeatedly reset court dates and continue cases for months. This may or may not be intentional. A defendant might fail to appear. A judge may not fully recognize the extent of a defendant’s mental illness. But the effect can be the same: the defendant sits in jail for three to six months while the case drags on.
Eventually, the court may offer a “time-served” plea agreement.
In many jurisdictions, defendants receive credit for time spent in jail—sometimes at a two-for-one rate. Six months in custody can translate into credit for a full year, which is the maximum sentence for a misdemeanor in nearly every state.
At that point, the case resolves without a formal competence determination.
The Downstream Costs
These practices create two serious problems.
First, they undermine the spirit of constitutional protections. The right at stake is the right to a fair trial—not the right to be processed through a legal system you do not understand, or to sit in jail for months because you are mentally ill and no one raised the issue.
Second, these strategies can create significant financial burdens—often shifted to the county taxpayer.
Consider a defendant who spends six months in county jail on a low-level charge. At $100 per day in housing costs alone, that is roughly $18,000. Add in psychiatric medications that may cost $2,000 per month, and the total can approach $30,000 for a case that began on a Trespassing charge.
The municipal court avoids the immediate expense of a competence evaluation. The county absorbs the jail costs. The constitutional issue is quietly bypassed.
Everyone technically followed procedure—at least on paper. But the incentives have produced an outcome that is both costly and troubling.
The Broader Issue
The right to a fair trial should not depend on the size of a town or the size of a court’s budget. It is a constitutional safeguard.
When competence determinations are quietly sidestepped because they are expensive, we do more than shift costs from one level of government to another. We weaken the integrity of the justice system itself.
If we care about fiscal responsibility and constitutional integrity, this is a gap we cannot afford to ignore.