Episode 22: The Competence Crisis
And Why Efforts to Solve it Will Fail
Today we’re going to talk about the competence crisis. I’ll explain what the competence crisis is, why it’s a problem for state and county governments, and finally, why all the national organizations and task forces trying to address the crisis are, and I say this respectfully, wrong.
I want to preface this by saying that there are a lot of very smart and compassionate people working on this problem, who care just as much about our brothers and sisters struggling with mental illness as I do. And, just because I disagree with them about how to solve the competence crisis does not mean that I don’t respect them or that I’m not willing to work with them.
What is Competence?
Let’s start by explaining what competence is for our purposes and why we have a competence crisis on our hands. In the criminal justice system, everyone has a right to a fair trial. This includes your right to understand the charges against you, and to aid in your defense. If you cannot understand what you are being charged with, or you are for whatever reason incapable of aiding your attorney in your defense, then you are considered “incompetent.” You can technically be incompetent to do a number of things such as take a plea or waive your rights, but for our purposes, we’re talking about defendants who are deemed “incompetent to stand trial.”
An example of someone who is incompetent to stand trial might be someone who is psychotic and thinks his attorney is involved in a conspiracy with the president or someone who with an intellectual disability who can’t speak in complete sentences. When someone is found incompetent to stand trial by the court, everything basically stops until the issue of competence is resolved.
How do you know someone is incompetent? Basically, what happens is when one party in the case suggests that the defendant might not be competent, the judge will order two independent competence evaluations by mental health experts. This is usually a psychologist, but can also be a psychiatrist or a master’s level provider depending on the charges in the case and the state in which the trial is being held.
These two clinicians will meet with the defendant, conduct their assessment, and file a report with the court opining about whether the defendant is or is not competent to stand trial. As long as these two clinicians agree, the judge will confirm the finding. If they disagree, the judge will order a third competence evaluation as a sort of tie-breaker. Now, this is all boiler plate stuff but for the sake of completeness, it’s worth mentioning that the final decision about whether or not a defendant is competent is a legal decision and therefore up to the judge. In my experience, a judge has never overruled the findings of the assigned clinicians.
Competence Restoration
If the defendant is found competent, the case proceeds as usual. However, if the defendant is found incompetent, then the court has to issue an order for “competence restoration.” Traditionally, this involves sending the defendant to a state psychiatric hospital for 30 to 90 days where he will participate in activities designed to help him understand the legal system and work with his attorney. Competence restoration may, and in my experience almost always does, also include the administration of psychotropic medications. If the defendant refuses, these medications will be administered involuntarily.
If the state hospital can “restore competence,” the bar for which is not very high by the way, then the individual will then return to jail and his trial will resume. In the event that the hospital cannot restore competence, the individual will remain at the hospital and they will continue to work toward this goal. I have seen some patients spend years at state hospitals and then return to the jail to finish their trial, and I have seen some go to the hospital for 9 years and counting. However, in my experience most state hospital stays for competence restoration are about 3 or 4 months long.
That’s competence and competence restoration in a nutshell.
The Costs of Incompetence to Stand Trial
Why is it problematic for defendants to be found incompetent to stand trial and to require competence restoration? Well, if it only happened once in a while it wouldn’t be a problem. The issue is that it is happening much more frequently over the past 10 years or so. We’ll come back to the crisis part, but for now let me tell you why incompetence itself is a problem.
Like pretty much everything I talk about on this channel, this is a problem of money and incentives. What does this mean when it comes to competence? Well, it costs anywhere from $50 to $300/day to keep someone in jail, depending on which jail we’re talking about. Let’s just call it $100 to keep the math simple. It costs between $1,000 and $2,000 per day to keep someone in a state psychiatric hospital. Let’s again just call it $1,000 per day for simplicity.
When a person is found incompetent, they spend additional time, usually about 30 days, in jail at $100 per day billed to the county or municipal jail, while they’re waiting on a hospital bed. Then when they go to the hospital, they’re usually there for about 3 months at $1,000 per day. So just based on this, you’re looking at a cost of $3,000 to the county and $90,000 to the state every time someone is found incompetent to stand trial. So if you had say 500 people per year in your state who were found incompetent to stand trial, the cost of incompetence findings would be 1.5 million annually spread throughout the various county and municipal jails, and 45 million annually for the state. This is quite expensive by itself.
But, we’re not here to talk just about competence, but about the competence “crisis.” The rate at which people are being found incompetent to stand trial has been increasing nationwide, and dramatically in some states. For instance, just in my state, the rate of incompetence findings has increased by 477% between 2013 and 2025. This means that if the state had been paying 45 million a year for state psychiatric hospital services in 2013, they would need about 260 million in 2025 to provide the same level of services. You can see why the state is extremely concerned about his ballooning cost.
But, as it turns out, things are actually a little bit worse than this, because the states have generally not been keeping up with this rising level of need. In my state, while the number of people found incompetent increased by 477%, and I can’t finds specific numbers of beds for 2013 or 2025, but according to the Treatment Advocacy Center, my state actually lost beds between 2016 and 2023. So as the problem has gotten worse and we need more resources, we are actually losing resources.
And just like a pot that boils over on the stove, now we have a bigger mess than we started with, because the lack of resources relative to the need for those resources has created long wait times in jails for competence evaluations, and long wait times for state psychiatric beds. This is extremely frustrating for people like me, who have to manage some very sick patients in a jail setting for up to 5 or 6 weeks while they wait for competence evaluations, and then another 3 or 4 or sometimes longer months for a state psychiatric bed to become available.
This bottleneck of incompetence also causes problems for prosecuting and defending attorneys who have to keep showing up for continuances just to say on the record that, “Your Honor we’re still waiting on that competence evaluation” or “all parties are still waiting for transportation to a hospital when a bed becomes available.”
I’ve talked before about the problems this causes jails who are often overcrowded as it is. Jail populations are on the rise nationally, by the way. It even creates problems for the state psychiatric hospitals themselves, which are not only operating understaffed in many cases, but faced with increasing pressure to restore competence as fast as possible so that they can open another bed for someone else who has been waiting.
This Impacts All of Us
Now at this point you might be thinking, it’s a good thing I’m not in jail so this problem doesn’t impact me. But guess what? First of all, you’re a taxpayer. These increased costs at both the local and state level are ultimately coming out of your pocket. Second, the dramatic rise in demand for competence restoration means that more of the limited bed space at the state hospitals is taken up by competence restoration cases rather than mental health cases. The state hospitals were originally designed to help people who were placed there by the civil court because of severe mental health issues that couldn’t be treated in the community. But now, very few of these beds are available for that purpose, because so many are being used by the courts. In my state, something like 80% of the admissions to the state hospital thus far this year have been for competence restoration. So, if you have a loved one who really needs the services of the state psychiatric hospital, you would, ironically, have an easier time getting them in the hospital if they committed a crime than if you tried to pursue a civil commitment. The wait time for civil commitments by the way is higher than for forensic commitments, which most if not all states prioritize.
Now we know that a lot more people are being found incompetent today than 10 years ago, and we know that this is dramatically increasing costs for the states, and significantly increasing costs for local and county governments. And this is a national phenomenon by the way. It’s not just my state, and some states have more problems than mine.
National Organizations Tackling the Competence Crisis
There are several task forces and agencies that have been working on this problem. In preparation for writing this episode I read three publicly available papers and presentations on this. First, the 2025 PowerPoint presentation entitled “Forensic Issues in the State Mental Health System” by the National Association of State Mental Health Program Directors. Next, the 2025 report from the State Judicial Task Force to Examine State Courts’ Response to Mental Illness. Finally, the 2024 report from the Treatment Advocacy Center entitled, “Prevention Over Punishment: Finding the Right Balance of Forensic and State Psychiatric Hospital Beds.”
I want to give some constructive feedback about these reports. Once again, all due respect to the authors and contributors. I think they are trying really hard to solve a complicated problem. That said, respectfully, I think all of these reports come to the wrong conclusions. Now, they are extremely well-written and the descriptive statistics are phenomenal. But this is a systems issue, and I think that the people preparing these reports were treating the competence crisis as a problem to be solved, rather than seeing it as a symptom of a much more serious problem, which is why their plans to address it will ultimately fail.
Before I explain my reasons for this opinion, I want to first draw an analogy for you. Let’s say you have two buildings that were constructed right next to each other. The building on the left is a hospital. The building on the right is a factory. If someone gets hurt in the factory, they have to go next door to the hospital to get treatment.
Now imagine that every year, the number of injuries at the factory increased. Let’s say that between 2013 and 2025, the number of annual injuries at the factory had increased 477%. How do you address this problem? If it’s me, my first thought is, “what the hell is going on in that factory?” Why are so many people getting injured, and why are injury rates increasing?
Now, if you apply this analogy to what we’re seeing in the competence crisis, it seems to me that all of these work groups are trying to find ways to make the hospital more efficient, to triage injuries in the field, and to refer patients to other hospitals. None of them seem to be asking why so many people are getting injured.
So, I want to touch on each of the reports I mentioned, and then I will explain why so many more people are being found incompetent and what we will need to do to reverse this trend.
NASMHPD PowerPoint from 2025
So first, the PowerPoint from the NASMHPD. They actually collected quite a bit of data here and everything is laid out in charts and easy to understand. They have correctly identified the symptom we’ve been discussing as something that is widespread across the United States. They’ve also done a good job highlighting the rise in forensic beds and the fall in civil commitment beds. Take a look at the graph on page 18. That is striking.
The number of non-forensic admissions to the state hospitals fell by half in only 7 years. And think about this for a minute... The US population has been rising during that time. Where do you think all those people who didn’t get into a state psychiatric hospital went? I’ll tell you where they went. They can’t get a state psychiatric hospital bed, so they end up wandering around in the street untreated, often psychotic, until they get in trouble with the police and end up with me in the county jail. A lot of the same people who went to the state hospital 10 or 15 years ago on a civil commitment are now going back to the state hospital on a forensic commitment, because they didn’t have access to treatment resources when they needed them.
Later in this PowerPoint the authors list some statutory and policy changes impacting competence restoration. Most of them are fine. There are two things I wanted to comment on. First, on page 25 when they talk about conducting competence evaluations in outpatient settings. I really don’t think this is going to work and it’s probably not worth your time trying to do this. I’ve worked with literally hundreds of patients who have been evaluated for competence. I can’t think of any off the top of my head who were both stable enough to be in the community and would voluntarily come to an outpatient office for a competence evaluation.
Now, I know that some people used to do this, and maybe still do. About 14 years ago I worked with Dr. Stephen Ross in Fort Wayne, Indiana who is a well-known forensic psychologist out there. He used to have corrections officers transport patients from the jail to his outpatient office to conduct evaluations. But that was 14 years ago, and 2026 is a very different time. Jails nationwide are short-staffed, often by 20% or more. And given the number of inmates who need competence evaluations, there’s no way most jails are going to have the manpower to get a team of two officers together, transport the patient to an outpatient office, sit there for an hour or two for this evaluation, and then drive the patient back. It’s just a logistical nightmare. If a clinician wants to do a competence evaluation in my jail, they can either physically come into the jail or we can set them up on Zoom/Teams/Etc. I suspect most modern jails have a similar policy.
The other thing I wanted to mention was on page 28. The third bullet point, and maybe I’m reading this wrong, but it seems to be saying that because of the competence crisis, costs are being shifted from the counties to the state governments? If this is what they’re saying then I disagree with this. In fact, I would argue that it’s the opposite. The fact that state governments have reduced the number of available psychiatric beds by about 96% over the past 60 years has resulted in a massive shifting of both costs and liability from the state onto county and municipal governments, because now they have a bunch of people with mental illness roaming around the community and no way to get them into a long-term treatment bed. These people end up in the local jails, treated by my team, who I have to remind you is not allowed to bill Medicaid for services and has to pay for our medications at monopoly retail prices, and guess who foots the bill for that? County and municipal governments, as well as ordinary citizens and business owners who end up the victims of violence, theft, or property damage because there were no treatment options available for someone who is chronically mentally ill. So anyway, if I misinterpreted your PowerPoint slide, I apologize.
National Judicial Task Force Report
Let’s move on to talking about the report from the National Judicial Task Force to Examine State Courts’ Response to Mental Illness. This report was well-written, well-organized, and fairly comprehensive. I liked the statistics and the fact that they cited all their sources so I could read them myself. It was also nice to see so many organizations working together on this; page 19 lists a lot of organizations that I’ve heard about independently prior to reading this report.
Overall, I liked the spirit of this report and I don’t really disagree with any of their recommendations. However, this report is almost 60 pages long, and I didn’t see any mention of addressing the root causes of the competence crisis. If you think back to my analogy about the factory and the hospital…This report was focused exclusively on how to make the hospital more efficient and reduce hospital costs. It doesn’t address why the injury rate at the factory is going through the roof.
To some extent, I get this. You can only control what you can control. But if we don’t identify and address the cause of the problem, and instead we only try to react to it after it’s happened, then we’re ultimately wasting our time.
Imagine your roof was leaking and you had water coming in. And we’re over here making plans for how to get more buckets to catch the water and how to get more efficient mops, and how we can buy high quality towels to clean up all the spills. But ultimately, you have to fix the roof. I would like to see more discussion from the task force on how to fix the roof. After reading this report, it’s not clear to me that they know why the roof is leaking.
Treatment Advocacy Center (TAC) Report
Finally, let’s touch on the report by the Treatment Advocacy Center. Of the resources I reviewed, this was the one I liked the most. And this is because they come the closest to actually identifying the problem causing the competence crisis. I actually suspect that the writers at TAC may know what the problem is, but for political reasons they’re not saying it out loud. Anyway, the report itself is phenomenal, and it’s worth your time to read it.
A couple of things I wanted to highlight. On page two they give a nice overview of how many psychiatric beds the country has lost. Now, even if this was the only thing that has changed, it would be sufficient to explain why the system is clogged up. The math is simple, the US lost 96% of its psychiatric bed capacity in the last 60 years, while the US population has increased by about 80%. You don’t have to be a genius to see that by eliminating almost all of our state psychiatric beds we now have a crisis because demand far outstrips supply.
A lot of these reports focus on little tips and tricks to avoid moving people to the state hospital. But the thing is, the state hospitals were built for a reason. It was to take care of people who cannot function independently in society, and there will always be people who fit this description. So, in my opinion, anyone who thinks they’re going to solve the competence crisis without dramatically increasing the number of state psychiatric hospital beds is not a serious person. Don’t get me wrong, I like the creativity of some of the solutions discussed in these reports. I made a video on my channel about AOT and why I think it’s important. But you cannot just gloss over the fact that we have a catastrophically low number of state hospital beds. I won’t rehash my arguments from before, but if you want to know why we don’t have enough state psychiatric hospital beds, go watch my video from last month explaining this.
The other thing I wanted to highlight from the TAC report was on page 15. According to the report, 94% of state hospitals are reporting staffing shortages, and the reason for this is…surprise surprise, low wages.
I have done multiple episodes were I talked about this – I refer you back to episode 9 where I said that the primary reason for the correctional officer staffing shortage nationwide was low wages. To any legislators out there in charge of budgets: you have to pay market rates if you want competent people to come and work for you. You can’t say “we’re going to pay $15/hour for mental health technicians and $25/hour for corrections officers,” and then act surprised when no one wants to work for you. If you pay people what they are worth, I guarantee you will not have these kinds of staffing problems.
So, those are my thoughts on the reports we talked about.
Why We Have a Competence Crisis
When I said in the beginning of this article that the people working to resolve the competence crisis are wrong – I didn’t mean that their suggestions are bad, I just meant that they’re addressing the symptoms of the problem rather than the problem itself. The real problem is that a lot more people are being referred for competence evaluations in the first place.
So, now I’m going to explain to you why this is happening. I’m going to move kind-of fast here, so if you want a more thorough explanation then go read/watch episodes 1 through 5 of this series. The real problem we have is that economic conditions in the United States, for ordinary people, have been getting significantly worse over the past 45 years, which is causing a collapse in their living standards. And as I have repeatedly explained, living standards are strongly correlated to mental health outcomes. So, as you see more families struggling to make ends meet over time, you’re going to see a concurrent increase in the number of people experiencing mental illness.
The cost of inelastic goods and services in the US, and by that I primarily mean housing, healthcare, childcare, and groceries, have all outpaced wage growth, especially among low income families. This is going to continue to get worse every year – see my video from last week where I explained the data that will prove this.
I think that, a lot of the time, people like us… That is, academics who are looking at this problem from 30,000 feet, don’t have a visceral understanding of how economic pressures are weighing on everyday people. If you have a doctorate like me, or if you’re a judge, or if you’re a politician, you are not getting financially squeezed in the same way that ordinary people are. I’m not saying I know exactly how it feels either. But, I have 45 acutely mentally ill inmates in my special needs unit right now, and even if I could snap my fingers and cure their mental illness today, most of them would leave the jail homeless, with no job, looking at rents close to $2,000/month for a basic apartment. How could a person not be mentally ill in that situation?
So, the more financially squeezed people are, the more evictions you’re going to see, the more homelessness you’re going to see, the more incarceration you’re going to see, the more mental illness you’re going to see, and finally, the more findings of incompetence you’re going to see. And thus far, the data bear me out on this. All of these things are increasing.
So, what this tells us, is that in order to actually solve the competence crisis, you need to solve the underlying economic problems that are causing it in the first place. You need to find a way to either increase wages for ordinary people, or decrease living costs, preferably both. And as I have discussed previously, there’s basically no way to do this without implementing a tax on wealth, enforcing antitrust legislation, and rebuilding the social safety net. And unfortunately, our government has, for the past 45 years, and especially in the past 18 months, been doing the exact opposite of all of those things.
I’m going to try not to be too dramatic about this, but this is very frustrating. I’m sitting here knowing exactly what the problem is and what we need to do to solve it. But because other people don’t understand it, or aren’t willing to actually do anything about it, I have to just sit here and watch it burn.
I don’t really know what to do, honestly. I started this channel to explain exactly all of these things. I thought if only people could understand what is happening then they would get on board. Every two years I watch people continue to gleefully vote themselves into poverty, ruin their children’s futures, and continue to perpetuate a mental health epidemic.
So, I guess I’ll keep making videos because I don’t know what else to do.
If anyone actually wants to help fix this problem then feel free to reach out to me and we can put our heads together. You can email me - jailpsychologist@gmail.com.
I’ll be back with another article in a couple weeks - I’m sure I’ll find another systemic deficiency in our economy or criminal justice system to point out.