General Intelligence Is a More Robust Predictor of Competency Restoration than a Measure of Externalizing Behaviors

The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized in a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days. No MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 17, No. 2, 167-180

Personality, Psychiatric, and Cognitive Predictors of Length of Time for Competency to Stand Trial Restoration

Authors

Laura M. Grossi, M.A., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Debbie Green, Ph.D., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Melanie Schneider, M.A., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Brian Belfi, Psy.D., Department of Psychology, Kirby Forensic Psychiatric Center, New York, NY USA
Shanah Segal, Psy.D., Department of Psychology, Kirby Forensic Psychiatric Center, New York, NY USA

Abstract

Certain defendant characteristics, including psychiatric diagnosis, externalizing problems, and cognitive deficits, are associated with longer periods of restoration of competency to stand trial and general lack of treatment success. Prior research has called for a more detailed examination of symptom-level differences between defendants rapidly restored to competency and those who require lengthier treatment for competency restoration. The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized at a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days; no MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at select time points.

Keywords

Competency to stand trial, competency restoration, symptoms, MMPI-2-RF, WASI-II

Summary of the Research

“In the United States, defendants facing legal charges must be competent to stand trial (CST) in order to move forward with their legal proceedings…Accurate evaluations of CST are imperative, as the courts generally defer to the opinions of forensic evaluators with regard to the competency of defendant…Although prior research has examined the extent to which defendant characteristics including psychopathology, personality, and intellectual abilities predict length of stay and treatment completion in other settings, this approach has not yet been used with regard to length of treatment for competency restoration. The current study examined whether the MMPI-2-RF and WASI/WASI-II have clinical utility in predicting the length of time that IST defendants undergo restoration of competency to stand trial, operationalized as the number of days from admission to the hospital to the date in which they passed a formal CST evaluation” (p. 167-170).

“We hypothesized that scores on the MMPI-2-RF scales assessing problems in thinking and externalizing problems would be positively associated with length of time for competency restoration, with the length of restoration variable defined (1) continuously, reflecting the number of days from hospital admission until a passed formal CST evaluation, and (2) dichotomously, representing restoration status at 90 days and 180 days…we additionally hypothesized that composite scores (FSIQ-2) and subtest scores (Vocabulary and Matrix Reasoning) of the WASI/WASI-II would be negatively associated with length of time for restoration of competency to stand trial…Finally, the present study explored whether reasons for MMPI-2-RF profile un-interpretability were predictive of time to achieve competency restoration” (p.170).

“Analyses examining whether IST and CST defendants could be differentiated at 90 days based on MMPI-2-RF and WASI/WASI-II scores indicated that only JCP scores significantly differentiated those who were restored and those who were not, although RC4 approached significance. However, both the results of JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in child and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days…the hypothesis that MMPI-2-RF and WASI/WASI-II scales would be predictive of restoration status at 180 days was not supported…Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored” (p.176-177).

“Further, a large proportion of defendants were excluded due to invalid or inconsistent MMPI-2-RF profiles (42.4%), which calls into question the generalizability of the findings for the major analyses to the broader population of IST pretrial defendants…Thus, the exclusion criteria may have obscured our ability to assess fully the combined impact of cognitive abilities and personality characteristics on competency restoration. The exclusion criteria used in this study were consistent with prior research examining treatment adherence and completion in other settings but may be too stringent considering the severity of mental illness in the present sample…” (p.178).

Translating Research into Practice

“As measures of behavioral instability and oppositionality (i.e., scales nested under BXD within the MMPI-2-RF interpretation hierarchy), the JCP and RC4 scales likely have implications for management in the forensic psychiatric hospital, in terms of reflecting chronic behavior problems and lack of cooperation…Instead, the ability of JCP to differentiate IST and CST defendants at a time point as early as 90 days may indicate that forensic psychiatric hospitals are well-equipped to work with defendants with antisocial characteristics and to ensure that legal and hospital resources are allocated appropriately. Furthermore, these scales may be indicators of familiarity with the legal system, and thus better response to psychoeducational aspects of competency restoration. Alternatively, these scales may serve to differentiate patients whose traits are more criminogenic, and less psychiatric in nature, and thus require a lesser degree of pharmacological intervention than their peers…” (p.176-177).

“Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored…These findings raise important implications for clinicians, who can quickly assess estimated general intelligence, gaining information regarding a defendant’s relative time for competency restoration, without the administration of more extensive cognitive tests or other additional measures” (p.177).

Other Interesting Tidbits for Researchers and Clinicians

“…Both the results of the JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in childhood and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days. These findings…are inconsistent with literature indicating that elevated RC4 and JCP scores…predict treatment failure in non-forensic contexts. The achievement of competency is not necessarily comparable to treatment success in other therapeutic contexts, and this finding may be interpreted in a straightforward manner, to mean that different personality characteristics have different predictive utility in different contexts. Notable tendencies toward antisocial or criminogenic behaviors…may lead evaluators to believe that a defendant in this context (i.e., a maximum security forensic hospital) is more likely to possess competency-related abilities…which would not be typically perceived as beneficial in non-forensic clinical contexts (e.g., civil hospital)” (p.176).

“Given the exclusion rate, future research might examine the ability of tests of personality and intelligence to predict time until competency restoration using a much larger sample. Larger samples might include female participants, as the present findings are not necessarily generalizable to the broader population of incompetent pretrial defendants. With a much larger sample, future research might examine whether elevations on specific scales…are predictive of time for competency restoration, as opposed to relatively high or low scores. Such an approach would be more informative for clinicians, who could then interpret scores above or below a particular threshold as indicative of alternative treatment…” (p.178).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

MMPI-2-RF Scales Have Limited Utility in Predicting Competency Restoration

The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF) and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration of a sample of male pretrial defendants in a maximum security forensic psychiatric hospital. No MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, the results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at certain time points. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | The International Journal of Forensic Mental Health | 2018, Vol. 17, No. 2, 167-180

Personality, Psychiatric, and Cognitive Predictors of Length of Time for Competency to Stand Trial Restoration

Authors

Laura M. Grossi, MA, Fairleigh Dickinson University
Debbie Green, PhD, Fairleigh Dickinson University
Melanie Schneider, MA, Fairleigh Dickinson University
Brian Belfi, PsyD, Kirby Forensic Psychiatric Center
Shanah Segal, PsyD, Kirby Forensic Psychiatric Center

Abstract

Certain defendant characteristics, including psychiatric diagnosis, externalizing problems, and cognitive deficits, are associated with longer periods of restoration of competency to stand trial and general lack of treatment success. Prior research has called for a more detailed examination of symptom-level differences between defendants rapidly restored to competency and those who require lengthier treatment for competency restoration. The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized at a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days; no MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at select time points.

Keywords

Competency to stand trial, competency restoration, symptoms, MMPI-2-RF, WASI-II

Summary of the Research

“The psychological treatment of incompetent (IST) defendants as preparation for adjudication, termed, competency restoration, is largely educational and aimed at helping defendants gain a factual and rational understanding of the legal system. In addition, symptom and behavior management of those deemed IST plays an important role in various aspects of the restoration process…Although there is no standard competency restoration treatment protocol, treatment typically involves psychotropic medication, group therapy focused on psychoeducation, and when resources are available, individual therapy…Approximately two-thirds of IST defendants are deemed CST within 6 months of competency restoration treatment and more than 80% are restored to competency within one year…” (p.167-168).

“A relatively small literature has identified factors that are predictive of restoration/restorability, or length of time for competency restoration more generally…Even so, several demographic, historical, and clinical factors appear associated with restoration of competency or restorability…diagnoses of non-psychotic disorders, a criminal history, younger age, and/or female gender are typically associated with a determination that a defendant is restorable. In contrast, diagnoses of psychotic disorders and irremediable/organic cognitive disorders, greater number of days previously hospitalized, lack of prior convictions, current violent charge, older age, and male gender are frequently associated with a determination that a defendant is IST and/or unrestorable…The present study examined the extent to which specific psychological measures assessing personality, psychopathology, and intelligence may assist forensic evaluators in estimating the requisite length of treatment for competency restoration, in a sample of male IST pretrial defendants. Specifically, we examined the utility of the Minnesota Multiphasic Personality Inventory-2 Restructured Form…and Wechsler Abbreviated Scale of Intelligence…for informing predictions of competency restoration” (p.168).

“We hypothesized that scores on the MMPI-2-RF scales assessing problems in thinking and externalizing problems would be positively associated with length of time for competency restoration, with the length of restoration variable defined (1) continuously, reflecting the number of days from hospital admission until a passed formal CST evaluation, and (2) dichotomously, representing restoration status at 90 days and 180 days. This was predicted as the constructs assessed by these MMPI-2-RF scales are negatively associated with treatment adherence and completion in other settings. Further, this hypothesis was developed with the assumption that traits assessed by the MMPI-2-RF scales may not be necessarily reflected in a defendant’s behavioral history…” (p. 170).

“We additionally hypothesized that composite scores (FSIQ-2) and subtest scores (Vocabulary and Matrix Reasoning) of the WASI/WASI-II would be negatively associated with length of time for restoration of competency to stand trial. Based on the limited literature described above, we anticipated that the strongest associations with length of competency restoration would include FSIQ-2 and Vocabulary, and that Matrix reasoning would be less strongly related. Overall, we expected that pathological traits and impaired abilities, assessed by MMPI-2-RF scales and WASI/WASI-II subtests, would contribute to impairment of examinee’s competency-related abilities (i.e., defendants’ factual understanding, rational understanding, and ability to consult with a defense attorney) and thus prolonged hospitalization for competency restoration. Finally, the present study explored whether reasons for MMPI-2-RF profile un-interpretability were predictive of time to achieve competency restoration” (p.170).

“As standard practice, all defendants were evaluated for diagnostic clarification and treatment planning within a few weeks of admission to the hospital. As part of that assessment, the Wide Range Achievement Test – 4th Edition (WRAT-4), MMPI-2-RF, and WASI/WASI-II were administered. For the purposes of the present study, the results of these measures, along with defendants’ demographic and legal information, were obtained from defendants’ hospital records…Analyses examining whether IST and CST defendants could be differentiated at 90 days based on MMPI-2-RF and WASI/WASI-II scores indicated that only JCP [Juvenile Conduct Problems] scores significantly differentiated those who were restored and those who were not, although RC4 [Antisocial Behavior] also approached significance. However, both the results of JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in childhood and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days” (p.176).

“None of the MMPI-2-RF or WASI/WASI-II scores differentiated between IST and CST groups at 180 days, although Vocabulary approached significance. The scales in combination were predictive of restoration status at 180 days; however, age, which was entered as a covariate, was the only variable that uniquely contributed to the model. Thus, the hypothesis that MMPI-2-RF and WASI/WASI-II scales would be predictive of restoration status at 180 days was not supported. Instead, older age appeared to be a stronger indicator of continued incompetency at 180 days, consistent with the literature” (p.177).

Translating Research into Practice

“It is imperative for clinicians to be able to identify those defendants who are likely to require hospitalizations for restoration of competency to stand trial early in their treatment for several reasons. Such defendants might have treatment needs that are distinct from those of defendants who are on a more typical restoration trajectory. For example, such defendants may benefit from intensive or specialized treatment (e.g., cognitive remediation or individual therapy), among other resources that will help them move more rapidly through the restoration process…Further, identifying such individuals and intervening appropriately may pre-empt a potential standstill in the legal process, and help to ensure that defendants’ legal rights and liberty are protected. In particular, treatment providers and defendants may benefit from reliable early identification of those defendants who are not restorable, so that Jackson relief can be applied for appropriately and in a timely fashion” (p.176).

“As measures of behavioral instability and oppositionality…the JCP and RC4 scales likely have implications for management in the forensic psychiatric hospital, in terms of reflecting chronic behavior problems and lack of cooperation. We had presumed that the characteristics assessed by these scales, including antagonism, antisociality, and lack of responsibility, might persistently impair a defendant’s ability to work with a lawyer. Instead, the ability of JCP to differentiate IST and CST defendants at a time point as early as 90 days may indicate that forensic psychiatric hospitals are well-equipped to work with defendants with antisocial characteristics and to ensure that legal and hospital resources are allocated appropriately” (p.177).

“Furthermore, these scales may be indicators of familiarity with the legal system, and thus better response to educational aspects of competency restoration. Alternatively, these scales may serve to differentiate patients whose traits are more criminogenic, and less psychiatric in nature, and thus require a lesser degree of pharmacological intervention than their peers. Regardless, JCP (and potentially RC4) may be clinically useful for the early identification of those defendants who will be successfully restored to competence with treatment as usual…Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored. Further, these findings are applicable to the entire sample of defendants…These findings raise important implications for clinicians, who can quickly assess estimated general intelligence, gaining information regarding a defendant’s relative time for competency restoration, without the administration of more extensive cognitive tests or other additional measures” (p.176-177).

“Ensuring that defendants who have the potential to gain competency do so as quickly as possible is also important for economic reasons…the minority of IST defendants hospitalized for competency restoration for more than six months received a disproportionate amount of state mental health resources, when compared with those restored within six months…institutional and political pressures (e.g., to make room for new admissions, and to prosecute a violent offender, respectively) may influence determinations of competency status, particularly in cases of long-term hospitalization for competency restoration. As biases deriving from such pressures may impact decision-making about competency status and restorability, it is particularly important for evaluators to pay attention to relevant historical and empirical test data in forming empirically supported opinions” (p. 176).

Other Interesting Tidbits for Researchers and Clinicians

“These findings were somewhat consistent with prior research indicating that a lengthy criminal history is associated with restoration. However, findings are inconsistent with literature indicating that elevated RC4 and JCP scores (i.e., scores above the manual-recommended T-score cut-off) predict treatment failure in non-forensic contexts. The achievement of competency is not necessarily comparable to treatment success in other therapeutic contexts, and this finding may be interpreted in a straightforward manner, to mean that different personality characteristics have different predictive utility in different contexts. Notable tendencies toward antisocial or criminogenic behaviors (i.e., captured by psychological testing data including RC4 and JCP) may lead evaluators to believe that a defendant in this context (i.e., a maximum security forensic hospital) is more likely to possess competency-related abilities (e.g., due to familiarity with the legal system and prior experiences successfully completing the trial process) which would not be typically perceived as beneficial in non-forensic clinical contexts (e.g., civil hospital)” (p.176).

“Given the exclusion rate, future research might examine the ability of tests of personality and intelligence to predict time until competency restoration using a much larger sample. Larger samples might include female participants, as the present findings are not necessarily generalizable to the broader population of incompetent pretrial defendants. With a much larger sample, future research might examine whether elevations on specific scales (i.e., scores above the manual-recommended cut score) are predictive of time for competency restoration, as opposed to relatively high or low scores. Such an approach would be more informative for clinicians, who could then interpret scores above or below a particular threshold as indicative of alternative treatment…” (p.178).

“Further research might also examine the ability of self-report personality inventory scores to predict restoration status or restorability using less conservative exclusion criteria, as well as with alternative measures of personality and psychopathology (e.g., the Personality Assessment Inventory). Given the rate of exclusion and limited significant results related to personality and psychopathology in the present study, the MMPI-2-RF scales demonstrated little clinical usefulness in predicting length of competency restoration. This is important, as the administration of measures such as the MMPI-2-RF can take precious time and resources that could otherwise be allocated. It may be more efficient to obtain information relevant to behavioral instability and antisociality through brief clinical interviews and archival review of RAP sheets or hospital records” (p.178).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and hopes to obtain her PhD in forensic clinical psychology. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

Attorneys’ perspectives on their clients’ abilities to plead guilty

A substantial minority of attorneys may have faced a professional quandary in terms of doubting a client’s competence to plead but choosing not to raise the issue—a conflict for which little professional guidance exists. This is the bottom line of a recently published article in Psychology, Public Policy and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy and Law | 2018, Vol. 24, No. 2, 171-179

Attorney Perspectives on Juvenile and Adult Clients’ Competence to Plead Guilty

Authors

Amanda NeMoyer, Drexel University
Sharon Kelley, Drexel University
Heather Zelle, University of Virginia
Naomi E. S. Goldstein, Drexel University

Abstract

An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney— believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

Keywords

guilty pleas, admissions, competence, attorney perspectives, competence to plead

Summary of the Research

“The Supreme Court has historically adopted a laissez-faire approach to plea bargains, lauding them for their conservation of judicial resources and declining to scrutinize the practices that have developed around them. In addition, the Supreme Court has handed down few holdings specific to plea bargains because they are commonly believed to occur within the “shadow of the trial,” such that defendants engage in a rational decision making process and accept plea deals based on the strength of existing evidence. Thus, the Supreme Court has often rotely applied the Dusky standard of adjudicative competence (i.e., factual and rational understanding and ability to assist counsel) as the appropriate standard for questions surrounding adult competence to plead guilty. No national standard for juvenile adjudicative competence exists: some jurisdictions apply the Dusky standard used in criminal court, other jurisdictions apply a modified version of the Dusky standard, and one state (Oklahoma) has declined to apply any competence standards to defendants in juvenile court. Competence to plead guilty is therefore generally considered to include factual understanding, rational understanding, and ability to assist counsel” (p. 171-172).

“Defendants who plead guilty waive a multitude of rights—a total of 40 according to Redlich and Bonventre (2015). As a result, the waiver of rights standard (i.e., that a waiver be knowing, intelligent, and voluntary) also applies when a defendant seeks to plead guilty. As Justice Thomas articulated in Godinez: The focus of a competence inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the defendant is uncoerced.

In sum, then, there are several requisites for a valid guilty plea, each of which could be a point of concern for a defense attorney. The process for bringing a potential case of incompetence to the court’s attention mirrors the process for other competencies—both in theory and in practical application. Because of the importance of proceeding only with competent defendants, any of the three actors (prosecutor, defense attorney, judge) may serve as gatekeeper and raise questions about competence to plead guilty. Nevertheless, this role typically falls to the defense attorney, who has relatively more interaction with the defendant and is duty bound to discuss pleas with his or her clients. Given the weight of responsibility associated with this gatekeeper role, it is critical to understand defense attorneys’ experiences related to questioning clients’ competence to plead guilty. Nevertheless, little is known about which considerations are of greatest concern to attorneys, whether attorneys view certain client characteristics as likely related to deficits of certain requisites, or other perspectives attorneys might have regarding application of the standards to their clients” (p. 172).

“Despite evidence suggesting that a considerable number of juvenile and adult clients demonstrate deficits that implicate the ability to plead guilty, no empirical studies have examined defense attorneys’ perspectives on their clients’ abilities to plead guilty. The few existing inquiries into defense attorneys’ experiences with competence to plead guilty have typically been speculative in nature, with conclusions drawn from a small number of individual defense attorney interviews rather than a systematic survey. Further, no researchers have examined the proportion of lawyers who have faced this issue, nor have researchers examined the underlying reasons for why attorneys have or have not raised the issue. To fill these gaps and add more quantitative data to literature in this area, the current study surveyed defense attorneys about their experiences questioning clients’ competence to plead guilty— both for juvenile clients in juvenile court and for adult clients in criminal court” (p. 173).

“Results indicate that a considerable majority of attorneys have raised questions about their juvenile and adult clients’ competence at the pleading stage. It is interesting to note that although a greater proportion of attorneys endorsed [factors that had] ‘ever’ [contributed to] having raised this issue for their adult clients, attorneys who had raised this issue before tended to report having done so more frequently for juvenile clients than for adult clients. It may be that, in general, attorneys are more inclined to raise this issue for adult clients given the increased severity of direct and collateral consequences for pleading guilty in criminal court as compared with juvenile court (e.g., prison sentence vs. juvenile probation). However, once attorneys decide that they will raise this issue for juvenile clients, they might raise it more often because of the frequency with which cognitive deficits and other challenges related to developmental immaturity contribute to questions related to the ability to competently proceed at the plea stage. Of course, the fact that attorneys with criminal court experience reported representing more adult clients (as compared with the number of juvenile clients represented by attorneys with juvenile court experience) may have contributed to the difference in whether they had ‘ever’ raised this issue for their adult clients; however, the fact that attorneys reported raising this issue more frequently for juvenile clients despite representing fewer juvenile clients overall seems to strengthen the suggestion that this issue is particularly relevant for clients in juvenile court.” (p. 177).

“Further, the focus on the ability to assist prong of the competence standard—of all the available components of the competence and waiver standards—may be the product of practical necessity. That is to say, attorneys in the preplea context are likely to find themselves more reliant on their clients than in later stages because they have not yet had the opportunity to review materials or develop a defense strategy. This reliance could be further increased in “closed-file” jurisdictions, where prosecutors are not required to provide as much preplea discovery. Thus, of all the prongs, the ability to assist prong is more pressing at this stage than the need for a client to understand the consequences of a plea bargain (which the attorney will likely address as plea bargaining progresses) or the need for a waiver to be knowing (which will be addressed later by the court via a plea colloquy)” (p. 177).

“Finally, our hypothesis that attorneys would report not raising the issue to avoid negative consequences for their clients was arguably supported—length of detention/incarceration and obtaining a better plea were among the most often cited reasons; however, concern about timely resolution of a case and maintaining relationships in the court (which might have an indirect negative effect on a client) were not frequently reported. It is worth highlighting that the clear ‘lead’ reason for not raising the issue in the case of both adult and juvenile clients was attorneys’ belief that, despite their perceptions of clients’ deficits, their clients would not be found to fall below the low threshold of the competence standard. Further suggesting the salience of this issue, 18% of participants who voluntarily responded to a final, open-ended request for additional information reported a belief that the competence threshold is far too low as currently defined” (p. 177-178).

Translating Research into Practice

“It appears that attorneys are raising this issue for juvenile clients based on a wider variety of reasons than they are for adult clients, for whom mental illness appears to be the major motivating factor. This trend might suggest that attorneys working with juvenile clients, in particular, could benefit from additional training focused on identifying the appropriate reasons to raise this issue and how to do so in a successful manner” (p. 177).

“It is generally accepted that the decision to plead guilty is in the purview of the client, which would seem to require, by extension, that an attorney raise the issue of competence when in doubt—a decision to plead guilty can hardly be the meaningful client choice countenanced by legal ethics and guidelines if it is made by a client who is incapable of making informed decisions. Yet, defense attorneys are also aware of the many external forces at play in the justice system and the paradoxical negative outcomes that might flow from their attempts to prevent a client from making this decision while incompetent. This diametric tension seems to defy resolution, leading even the recently revised ABA (2016) Criminal Justice Standards on Mental Health to simply leave the problem at the feet of defense attorneys: “If the defense attorney has a good faith doubt concerning the defendant’s competence to make decisions within the defendant’s sphere of control . . . , the defense attorney may make a motion to determine the defendant’s competence” (Standard 7–5.2, emphasis added). This dilemma underscores the need for additional guidance for defense attorneys as well as system-wide changes that reduce the tension in the first place” (p. 178).

“The sheer volume of cases that are processed via plea bargaining should already be enough to spur meaningful scrutiny of how the plea process works, and data regarding the proportion of defense attorneys who have faced internal questions about their clients’ competence without raising the issue add to that pressure. These findings—and the results of future research in this area—ought to prompt serious dialogue about and examination of the extent to which justice systems are (not) effecting due process via their uncritical reliance on an expedient, but largely unregulated, procedure” (p. 178).

Other Interesting Tidbits for Researchers and Clinicians

“The current study was merely an early step in identifying potential issues related to attorneys’ decisions to raise—or not raise—questions about their clients’ competence to plead guilty and was limited in several ways. First, the data were gathered by a self-report survey and, therefore, were likely affected by issues such as participant self-selection and cognitive bias. For example, few attorneys endorsed maintaining relationships with the court as a reason for not raising competence to plead guilty; it may be that this reporting reflects reality, but it also may be that social desirability effects deterred participants from endorsing some of these reasons. In addition, the item options were not randomly ordered, which may mean that the frequency with which they were endorsed was affected by where they were located within each option list. As noted in the Methods section, we chose not to inquire about how many times attorneys doubted clients’ competence but did not raise the issue. An estimate of how frequently this professional quandary arises would further strengthen the call for clearer guidelines and potential system reform, but we felt the current survey design was not the best approach for obtaining accurate information on that point. Finally, because the study focused solely on juvenile clients in juvenile court and adult clients in criminal court, we did not examine juvenile clients who are tried in criminal court. Because this group can face more severe sanctions than defendants in juvenile court while still demonstrating cognitive and developmental immaturity, questions of competence to plead guilty may arise more frequently for these clients. Future research should address this omission” (p. 178).

“Future studies should also examine judges’ perspectives on the issue, with attention to both standards that apply at the pleading stage (i.e., competence to plead, rights waiver validity). Attorneys might also be asked more explicitly about both standards, as well, given that the current study included rights waiver standard prongs as item options but phrased all questions in terms of competence to plead guilty. It would be informative to know whether attorneys and/or judges see the two standards as complementary or effectively the same—or perhaps they may even view one or the other as rather ineffectual or redundant. To build upon the current study, future research should also collect more qualitative data that will allow for a more nuanced understanding of the reasoning and tensions at play when defense attorneys are faced with clients who may be incompetent to plead guilty” (p. 178).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

MMPI-2-RF comparison groups for defendants evaluated for Competency to Stand Trial and Criminal Responsibility

The MMPI-2-RF can be useful in characterizing defendants evaluated for Competency to Stand Trial and Criminal Responsibility, which will allow forensic examiners to have a better sense of what to expect in terms of MMPI-2-RF results from individuals undergoing such evaluations. This is the bottom line of a recently published article in The International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | The International Journal of Forensic Mental Health | 2017, Vol. 16, No. 4, 304-312

Using the MMPI-2-RF to Characterize Defendants Evaluated for Competency to Stand Trial and Criminal Responsibility

Authors

Martin Sellbom, Department of Psychology, University of Otago, Dunedin, New Zealand

Abstract

This study sought to provide more specific comparison groups for examiners using the MMPI-2-RF in criminal forensic evaluations, as well as to expand upon the existing literature by comparing defendants evaluated for Competency to Stand Trial (CST) and Criminal Responsibility (CR) on psychological functioning. In a large pre-trial criminal defendant sample (n D 486), significant differences were observed between defendants evaluated for CST and those evaluated for CR on scales reflecting emotional and externalizing dysfunction, but not thought dysfunction. Moreover, those opined competent to stand trial by forensic examiners scored lower than those opined incompetent on measures of psychoticism/paranoia, whereas those opined not criminally responsible were less likely to exhibit externalizing psychopathology relative to those opined to be criminally responsible. Implications for forensic psychology practice are discussed.

Keywords

MMPI-2-RF, personality assessment, criminal responsibility, competency to stand trial

Summary of the Research

“Competency to Stand Trial (CST) and Criminal Responsibility (CR) are among the most frequent psycho-legal questions addressed in criminal proceedings in the United States. For instance, CST evaluations comprise approximately 20–30% of all criminal forensic evaluations. Forensic examiners frequently rely on psychological testing to elaborate on the psychological status of defendants undergoing such evaluations. The most recent available surveys on forensic test usage indicated that the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) was the most frequently used test instrument in forensic evaluations. The most recent version of this test, the MMPI-2 Restructured Form, has not yet been studied with respect to CST and CR evaluations. Furthering this knowledge base is critical in light of its emergent use in clinical and forensic practice” (p. 305).

“Although normative data based on large nationally representative samples are key to the interpretation of psychological test scores generally, the presence of comparison groups specific to the evaluation at hand are important. The MMPI-2-RF has adopted comparison groups from a variety of settings, including various forensic settings. In particular, the test publisher has made a pre-trial criminal comparison group available that forensic examiners can use for targeted comparisons to determine whether a defendant’s scores are typical of or deviate meaningfully from scores of others who undergo these evaluations. However, the current criminal pre-trial group available for the MMPI-2-RF consists of a heterogeneous collection of defendants (e.g., those evaluated for drug intervention in lieu of conviction in addition to CST and CR). Therefore, a more specific comparison group for use with the most common pre-trial forensic evaluations (i.e., CST and CR) would be very useful to forensic examiners who employ the MMPI-2-RF in their testing arsenals” (p. 305).

“The current study had two broad aims. The primary goal was to determine specific mean MMPI-2-RF profiles for CST and CR groups, respectively, to provide more homogeneous comparison groups for examiners using the MMPI-2-RF in criminal forensic evaluations. As stated earlier, such groups can be useful in improving MMPI-2-RF interpretations via comparison data. We conducted analysis to determine whether defendants undergoing such evaluations would be different from one another, as such findings would warrant separate comparison groups. On the other hand, if the differences were minimal, combined CST/CR comparison groups could be considered. Second, and more broadly, the study aimed to extend the literature on the psychological status of defendants evaluated for CST and CR by directly comparing these groups using an omnibus personality inventory on over-reporting response styles, clinical symptoms and maladaptive personality traits that go beyond diagnosis” (p. 305).

“Findings indicate that the MMPI-2-RF can be useful in characterizing defendants evaluated for CST and CR, which will allow forensic examiners to have a better sense of what to expect in terms of MMPI-2-RF results from individuals undergoing such evaluations. Those evaluated for CR exhibited higher rates of emotional and behavioral dysfunction relative to those evaluated for CST only; however, the groups are comparable with respect to thought dysfunction. Not surprisingly in light of the extant literature, those opined competent or criminally responsible exhibited higher levels of both over-reporting of psychopathology and externalizing disorder symptoms. Overall, these findings provide forensic examiners with access to more specific comparison groups (i.e., CST and/or CR) as they use the MMPI-2-RF in these types of evaluations” (p. 307-309).

“The MMPI-2-RF Validity scales also revealed an interesting pattern of findings that are consistent with intuitive expectations. Individuals referred for CR evaluations (arguably higher stakes than CST) scored higher on Validity scales indicative of over-reporting and had higher rates of individuals meeting threshold for over-reporting compared to those for CST-only, suggesting that individuals undergoing such evaluations might have a greater incentive to present themselves in a more exaggerated manner. These findings are not unexpected given that the rates of malingering likely increase as the external incentives for such behavior increase. Furthermore, those defendants opined by the forensic examiners to meet the criteria for incompetence to stand trial or NCR scored significantly lower on scales indicative of over-reporting and exhibited lower rates of outright over-reporting (which would be potential evidence for malingering). These findings also make intuitive sense, as such individuals who over-report would be less likely to be opined to meet such psycho-legal standards. Interestingly, however, some individuals opined incompetent to stand trial (11.9%) presented with over-reporting profiles (unlike NCR for whom the rate was 0%), indicating that forensic examiners might be more lenient in opining incompetence relative to NCR in light of potential feigning” (p. 311).

Translating Research into Practice

“Overall, the current findings increment the already consistent previous literature focusing on specific mental health disorders that the same pattern of findings emerge when using dimensional symptom measures as opposed to categorical diagnoses. This increment is important in light of the ever intense discussion of the clinical utility of dimensional psychopathology constructs, including in forensic psychology practice, as symptom measures very much conform to clinical expectations and also allow for the documentation of severity level unlike diagnostic categories. Indeed, dimensional symptom measures are better suited to forensic psychology decision-making, as different decisions can be better linked to different severity thresholds in light of the psycho-legal question posed” (p. 311).

“The current findings have explicit implications for forensic examiners who use the MMPI-2-RF in CST and CR evaluations. The MMPI-2-RF scales are likely to yield scores that are consistent with extant research on CST and CR defendant characteristics. As such, using these findings will allow forensic examiners to compare the MMPI-2-RF scores of those individuals whom they evaluate to typical CST and CR defendants (including those referred to both types of evaluations). Such comparisons will allow the clinician to determine the degree to which scores are typical or atypical. For instance, the individual might be engaging in greater levels of over- or underreporting than would be expected in this context, or might be exhibiting greater levels of persecutory ideation but lower levels of externalizing proclivities than typical of this setting. This information could be beneficial for the forensic examiner conducting CST or CR evaluation as such individuals might present in a way more reflective of those with serious mental health problems qualifying for incomptency or NCR. Of course, it is also important that forensic examiners consider that these profiles will not be indicative of individuals who qualify for competency vs. incompetency to stand trial or CR vs. NCR, as they only reflect mean-level distributions. Furthermore, these are to be viewed solely as comparison groups and not actual normative data for forensic settings, which is in line with current recommended practice for MMPI-2-RF interpretation” (p. 311).

Other Interesting Tidbits for Researchers and Clinicians

“First, although the sample sizes are relatively large for this type of study, they are derived from only one forensic clinic in the Midwestern part of the U.S. The sample is also somewhat old, and thus, replication in more recent samples is necessary, though it is worth noting that empirical data indicate that MMPI-2-RF scale scores have not changed meaningfully since the 1980s. Furthermore, statistical power was clearly a concern when divided into specific evaluation types, and therefore an a priori alpha level of .05 was used. This decision has the potential for generating a substantial number of Type I errors, but was made in the balance of identifying potentially novel findings with observed meaningful effects. The sample size for those opined NCR, in particular, was too small for meaningful statistical power; the findings are nonetheless presented in light of the novelty of these types of data. Information about CR vs. NCR defendants remains scarce, and to this author’s knowledge, no previous study has used an objective, multiscale symptom inventory to characterize such defendants. Nevertheless, it will therefore be important for future research to replicate these findings in using other samples. Another avenue for future inquiry would be to incorporate potential outcome data relevant to CR and CST evaluations for systematic examination of predictive validity of MMPI-2-RF scale scores obtained in these evaluations” (p. 311-312).

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Authored by Amanda Beltrani

Amanda Beltrani is a current graduate student in the Forensic Psychology Masters program at John Jay College of Criminal Justice in New York. Her professional interests include forensic assessments, specifically, criminal matter evaluations. Amanda plans to continue her studies in a doctoral program after completion of her Masters degree.

Research should Include Consideration of Combined CST and MSO Evaluations

Combined evaluations of competency to stand trial (CST) and mental state at the time of the offense (MSO) should be incorporated into research methodology to more closely mirror clinical practice. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2017, Vol. 41, No. 3, 217-229

Combined Evaluations of Competency to Stand Trial and Mental State at the Time of the Offense: An Overlooked Methodological Consideration?

Authors

Lauren Kois, John Jay College and the Graduate Center, City University of New York
Preeti Chauhan, John Jay College and the Graduate Center, City University of New York
James M. Wellbeloved-Stone, University of Virginia
Janet I. Warren, University of Virginia

Abstract

Combined evaluations of competency to stand trial (CST; competency) and mental state at the time of the offense (MSO; sanity) frequently co-occur. However, most research examines the 2 as discrete constructs without considering 4 potential combined evaluation outcomes: competent-sane, incompetent- sane, competent-insane, and incompetent-insane. External validity can be improved if research more closely mirrored practice. It may be incorrect to assume incompetent defendants are similar across CST-only and combined evaluations, and insane defendants are similar across MSO-only and combined evaluations. Using a sample of 2,751 combined evaluations, we examined demographic, clinical, offense, evaluation, and psycholegal characteristics associated with evaluators’ combined evaluation opinions. Multinomial regression analyses revealed older defendants were more likely to be opined incompetent- insane. Defendants with psychotic disorders were more often opined insane, regardless of competency status. Affective diagnoses predicted competent-insane opinions. Developmental disorders were closely related to incompetence, regardless of sanity status. Defendants with organic disorders tended to have global psycholegal impairment, in that they were more often opined incompetent-insane, incompetent- sane, or competent-insane, relative to competent-sane. Prior hospitalization predicted competent-insane relative to competent-sane opinions. Defendants not under the influence of a substance during the offense or with no prior convictions were more likely to be opined insane, regardless of competency status. We interpret these findings in light of psycholegal theory and provide recommendations for research and practice. Collectively, results suggest incorporation of combined evaluations into CST and MSO research is an important methodological consideration not to be overlooked.

Keywords

forensic assessment, competency to stand trial, mental state at the time of the offense, insanity, combined evaluation

Summary of the Research

“Evaluators regularly conduct combined evaluations of competency to stand trial (CST, competency) and mental state at the time of the offense (MSO, sanity). In their survey of U.S. pretrial forensic services, Grisso, Cocozza, Steadman, Fisher, and Greer found referral and evaluation processes for CST and MSO were similar and evaluators frequently conducted evaluations of both referral questions simultaneously in most states. Researchers have documented the frequency of these combined evaluations, with estimates occurring up to 100% of the time in study samples. However, the research literature most often examines correlates of CST and MSO independently, instead of examining them in the context of the four potential combined evaluation opinions or outcomes— competent-sane, incompetent-sane, competent- insane, and incompetent-insane. This brings to question the external validity and generalizability of this body of research, in that research thus far does not usually mirror clinical practice.” (p. 217)

“CST and MSO are strongly associated, although the correlation is not perfect. Indeed, Chauhan et al. found correlates of CST and MSO differed across CST-only, MSO-only, or combined evaluations. Furthermore, forensic evaluators in their study more often opined defendants incompetent in CST-only evaluations (36.6%) compared to combined evaluations (13.8%) and more often opined defendants insane in combined evaluations (15.0%) relative to MSO-only evaluations (12.2%), although the latter effect size was small. Still, taken together, research suggests defendants, evaluation processes, and CST and MSO opinions may be fundamentally different across singular and combined evaluations, and we cannot assume base rates and correlates of CST and MSO remain consistent regardless of the referral question and clinical inquiry implemented to address them.” (p. 218)

“Our literature review suggests base rates and correlates of CST and MSO may vary according to a sample’s composition of singular and combined evaluations. This provides further evidence that, with combined evaluation samples, CST and MSO outcomes should be examined according to the four evaluation outcomes, rather than competent versus incompetent and sane versus insane. To shed light on this methodological consideration, we examined which demographic, clinical, offense, evaluation, and psycholegal characteristics are correlated with the four definitive outcomes of combined evaluations. Consistent with the literature, we hypothesized clinical and psycholegal impairment would demonstrate the most robust relationships with opinions of incompetent-sane, competent-insane, and incompetent-insane as compared to competent-sane.” (p. 219)

“At least 282 [evaluators] submitted 5,998 joint evaluations for this study between 1990 and 2005. Note that 1.7% (n =104) of cases were missing evaluator identification numbers, so the number of evaluators is likely larger. The number of evaluations conducted by each evaluator ranged from 1 to 922 with a mean of 21.00 (SD 80.03). Five evaluators contributed more than 260 cases (3 SDs above the mean) in our study. Therefore, we randomly selected the mean number of cases (n=21) for inclusion for each of these evaluators and removed all cases with missing evaluator identification. This brought our sample size to 3,371 joint evaluations.” (p. 220)

“Guided by our results, we believe combined evaluations of CST and MSO are unique relative to CST-only or MSO-only evaluations and should be examined accordingly. Study highlights include age predicted incompetentinsane outcomes; psychotic disorders were more often associated with insanity, while developmental disorders were more often associated with incompetence; organic disorders were linked to global psycholegal impairment; and defendants who were not under the influence at the time of the offense and who did not have prior convictions were more often opined insane. Importantly, study variables did not always predict consistent CST or MSO opinions across the four outcomes:
the only variable to do so was diagnosis of an organic disorder.” (p. 227)

Translating Research into Practice

“With respect to practice implications, we found evaluators are finding defendants incompetent but still opining on defendants’ MSO status on the FEIS, although we do not know whether or not evaluators included both opinions in their written reports for the court. Along with Bush, Connell, and Denney (2006), we recommend that when evaluating both psycholegal questions, evaluators
submit two separate reports to the court, accompanied by a message explaining the reports are kept separate so as not to violate defendants’ rights from self-incrimination. Combined evaluation reports may create important ethical and legal issues currently underaddressed in the literature. For instance, is it incriminating for an evaluator to note, in a CST report, whether or not defendants
were also evaluated for MSO? At present, there is no consensus or standard protocol for opining combined evaluation outcomes, and we are unsure of how evaluators typically proceed in combined evaluations when they believe a defendant is incompetent. Our missing opinion data could suggest evaluators vary in this process. According to the American Bar Association, “Existing professional ethics boards and committees should develop specific criteria and special review procedures designed to address the ethical questions that may arise when mental health professionals participate in the criminal process” (American Bar Association, 2016, Standard 7-1.6[b], “Joint professional obligations for improving the administration of justice in criminal cases involving individuals with mental disorders”). Combined evaluation issues require further contemplation by our field.” (p. 227)

“This research, in conjunction with others’ work, begins to illuminate the complexities of combined CST and MSO evaluations. As it stands, the nature of these evaluations is largely overlooked in the literature, and there are still many questions to pursue in order to develop a comprehensive understanding of the intricacies of CST and MSO research and practice. On a broader level, this study encourages researchers to carefully consider external valid-ity (meaning, true practice) when conceptualizing clinical study designs. Moving forward, we hope researchers and practitioners consider the methodological implications of combined evaluation structures in their work.” (p. 228)

Other Interesting Tidbits for Researchers and Clinicians

“Our findings indicate we cannot assume (1) defendants opined competent-sane in combined evaluations resemble those who are opined competent or sane in solitary CST or MSO evaluations (or similar patterns), and (2) there is no difference between defendants opined competent-sane and competent-insane, and no difference between defendants opined incompetent-sane and incompetent- insane. Assuming “pure” CST or MSO samples may set the stage for methodological confounds (e.g., evaluation type) that cloud the true nature of CST and MSO research findings. These findings highlight the need for further research to attend to the complexity of combined evaluations and the impact they may have on evaluation outcomes and the related research.” (p. 227)

“We encourage researchers to replicate our study across jurisdictions. We cannot assume our results are typical or if they will generalize to other forensic systems. Although Grisso et al. found more similarities than differences among individual states’ pretrial forensic services, divergence in referral base rates, legal criteria, and evaluator and defendant characteristics will likely influence evaluation outcomes. Past research that incorporated a subset of our data identified both inter- and intrastate differences in these domains.” (p. 227)

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kenny Gonzalez

Kenny Gonzalez is currently a master’s student in the Forensic Psychology program at John Jay College. His main research interest include forensic assessment, specifically violence risk. In the future, Kenny hopes to obtain a Phd in clinical forensic psychology and pursue a career in academia and practice.

 

Conducting competent research on competency and sanity

Incorporating combined competency to stand trial (CST) and mental state at the time of the offense (MSTO) evaluations into CST and MSTO research is an important methodological consideration not to be overlooked. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2017, Vol. 41, No. 3, 217-229

Combined Evaluations of Competency to Stand Trial and Mental State at the Time of the Offense: An Overlooked Methodological Consideration?

Authors

Lauren Kois, John Jay College and the Graduate Center, City University of New York
Preeti Chauhan, John Jay College and the Graduate Center, City University of New York
James M. Wellbeloved-Stone, University of Virginia
Janet I. Warren, University of Virginia

Abstract

Combined evaluations of competency to stand trial (CST; competency) and mental state at the time of the offense (MSO; sanity) frequently co-occur. However, most research examines the 2 as discrete constructs without considering 4 potential combined evaluation outcomes: competent-sane, incompetent-sane, competent-insane, and incompetent-insane. External validity can be improved if research more closely mirrored practice. It may be incorrect to assume incompetent defendants are similar across CST-only and combined evaluations, and insane defendants are similar across MSO-only and combined evaluations. Using a sample of 2,751 combined evaluations, we examined demographic, clinical, offense, evaluation, and psycholegal characteristics associated with evaluators’ combined evaluation opinions. Multinomial regression analyses revealed older defendants were more likely to be opined incompetent-insane. Defendants with psychotic disorders were more often opined insane, regardless of competency status. Affective diagnoses predicted competent-insane opinions. Developmental disorders were closely related to incompetence, regardless of sanity status. Defendants with organic disorders tended to have global psycholegal impairment, in that they were more often opined incompetent-insane, incompetent-sane, or competent-insane, relative to competent-sane. Prior hospitalization predicted competent-insane relative to competent-sane opinions. Defendants not under the influence of a substance during the offense or with no prior convictions were more likely to be opined insane, regardless of competency status. We interpret these findings in light of psycholegal theory and provide recommendations for research and practice. Collectively, results suggest incorporation of combined evaluations into CST and MSO research is an important methodological consideration not to be overlooked.

Keywords

forensic assessment, competency to stand trial, mental state at the time of the offense, insanity, combined evaluation

Summary of the Research

“Evaluators regularly conduct combined evaluations of competency to stand trial (CST, competency) and mental state at the time of the offense (MSO, sanity). In their survey of U.S. pretrial forensic services, Grisso, Cocozza, Steadman, Fisher, and Greer (1994) found referral and evaluation processes for CST and MSO were similar and evaluators frequently conducted evaluations of both referral questions simultaneously in most states. Researchers have documented the frequency of these combined evaluations, with estimates occurring up to 100% of the time in study samples. However, the research literature most often examines correlates of CST and MSO independently, instead of examining them in the context of the four potential combined evaluation opinions or outcomes—competent-sane, incompetent-sane, competent-insane, and incompetent-insane. This brings to question the external validity and generalizability of this body of research, in that research thus far does not usually mirror clinical practice” (p. 217).

“We make two implicit assumptions when neglecting to identify this frequent pairing of referral questions, relative to CST-only or MSO-only evaluations. First, we assume defendants opined competent-sane in combined evaluations resemble those who are opined competent or sane in solitary CST or MSO evaluations, with the same pattern continuing for those opined incompetent-sane, competent-insane, or incompetent-insane. The second assumption is when combined evaluations are conducted in one assessment process, there are no differences between defendants opined competent-sane and competent-insane and no differences between defendants opined incompetent-sane and incompetent-insane. Stated differently, those found competent, regardless of their sanity status, are assumed to resemble each other; those found incompetent, regardless of their sanity status, are also assumed to resemble each other, and so on” (p. 217-218).

“Given CST and MSO embody different psycholegal concepts requiring different types of clinical inquiry, it may be inappropriate to consider singular and combined evaluations as mirrored reflections of one another, devoid of differences associated with referral or clinical processes” (p. 218).

“While they may be evaluated simultaneously, CST and MSO are distinct psycholegal constructs. CST evaluations focus on current functioning and assess two primary abilities: whether defendants understand the legal proceedings against them and whether they can work with their attorney in developing a defense” (p. 218).

“Whereas CST evaluations are present focused, MSO evaluations are retrospective inquiries. In order to be acquitted insane in most jurisdictions, defendants must demonstrate a major mental disease or defect substantially impaired their ability to understand the nature or consequences of the illegal act, their ability to distinguish right from wrong, or their ability to resist their illegal impulse” (p. 218).

“Our literature review suggests base rates and correlates of CST and MSO may vary according to a sample’s composition of singular and combined evaluations. This provides further evidence that, with combined evaluation samples, CST and MSO outcomes should be examined according to the four evaluation outcomes, rather than competent versus incompetent and sane versus insane. To shed light on this methodological consideration, we examined which demographic, clinical, offense, evaluation, and psycholegal characteristics are correlated with the four definitive outcomes of combined evaluations. Consistent with the literature, we hypothesized clinical and psycholegal impairment would demonstrate the most robust relationships with opinions of incompetent-sane, competent-insane, and incompetent-insane as compared to competent-sane” (p. 219).

“In line with our hypotheses, psychiatric diagnoses and psycholegal abilities were strongly associated with evaluators’ CST and MSO opinions. Furthermore, we found predictors of incompetency and insanity vary when considering all four combined evaluation outcomes. We can conclude those found competent, regardless of their sanity status, do not always resemble each other; those found incompetent, regardless of their sanity status, do not always resemble each other, and so on. As a result, our findings shed light on the complexity of opinions associated with combined evaluations” (p. 223).

Translating Research into Practice

“Along with Bush, Connell, and Denney (2006), we recommend that when evaluating both psycholegal questions, evaluators submit two separate reports to the court, accompanied by a message explaining the reports are kept separate so as not to violate defendants’ rights from self-incrimination. Combined evaluation reports may create important ethical and legal issues currently under addressed in the literature. For instance, is it incriminating for an evaluator to note, in a CST report, whether or not defendants were also evaluated for MSO? At present, there is no consensus or standard protocol for opining combined evaluation outcomes, and we are unsure of how evaluators typically proceed in combined evaluations when they believe a defendant is incompetent” (p. 227).

“According to the American Bar Association, ‘Existing professional ethics boards and committees should develop specific criteria and special review procedures designed to address the ethical questions that may arise when mental health professionals participate in the criminal process.’ Combined evaluation issues require further contemplation by our field” (p. 227).

Other Interesting Tidbits for Researchers and Clinicians

“Our findings indicate we cannot assume (1) defendants opined competent-sane in combined evaluations resemble those who are opined competent or sane in solitary CST or MSO evaluations (or similar patterns), and (2) there is no difference between defendants opined competent-sane and competent-insane, and no difference between defendants opined incompetent-sane and incompetent-insane. Assuming ‘pure’ CST or MSO samples may set the stage for methodological confounds (e.g., evaluation type) that cloud the true nature of CST and MSO research findings. These findings highlight the need for further research to attend to the complexity of combined evaluations and the impact they may have on evaluation outcomes and the related research” (p. 227).

“We encourage researchers to replicate our study across jurisdictions. We cannot assume our results are typical or if they will generalize to other forensic systems. Although Grisso et al. (1994) found more similarities than differences among individual states’ pretrial forensic services, divergence in referral base rates, legal criteria, and evaluator and defendant characteristics will likely influence evaluation outcomes. Past research that incorporated a subset of our data identified both inter- and intrastate differences in these domains” (p. 227).

“Our base rate of incompetency was much lower than that of Pirelli, Gottdiener, and Zapf (2011), but similar to research incorporating combined evaluations. It may be that, in general, base rates of incompetence are much higher when the only psycholegal question is a defendant’s CST. We suggest researchers begin to clearly state the source of their data (i.e., CST-only, MSO-only, or combined evaluations). In doing so, research will better mirror practice and enhance external validity” (p. 227).

“Like Crocker et al. (2002), we had small portions of evaluators provide no opinion for CST or MSO in our study. Pirelli, Zapf, and Gottdiener (2011) proposed that exploring the ‘gray areas’ (i.e., deferred opinions) of CST is an important pursuit. This is an important endeavor in MSO research as well. Deferred evaluation opinions could limit due process by stalling legal proceedings. Unfortunately, our sample sizes were too small to analyze ‘no opinions.’ While it may be difficult to locate a significant number of deferred opinions given their low base rates, researchers may oversample this group in future analyses” (p. 227).

“As it stands, the nature of these evaluations is largely overlooked in the literature, and there are still many questions to pursue in order to develop a comprehensive understanding of the intricacies of CST and MSO research and practice. On a broader level, this study encourages researchers to carefully consider external validity (meaning, true practice) when conceptualizing clinical study designs. Moving forward, we hope researchers and practitioners consider the methodological implications of combined evaluation structures in their work” (p.228).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

About the Author

Amanda Beltrani is a current graduate student in the Forensic Psychology Masters program at John Jay College of Criminal Justice in New York. Her professional interests include forensic assessments, specifically, criminal matter evaluations. Amanda plans to continue her studies in a doctoral program after completion of her Masters degree.

Cognitive Processing Style May Represent a Threat to Making Competent Plea Decisions

A person’s cognitive processing style may affect his or her decision to accept a plea bargaining more so than his or her values. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2017, Advance Online Publication

Logical but Incompetent Plea Decisions: A New Approach to Plea Bargaining Grounded in Cognitive Theory

Authors

Rebecca K. Helm Cornell University
Valerie F. Reyna Cornell University

Abstract

Although much research considers the cognitive processes involved in legal decision making of jurors and judges, decisions to accept or reject plea bargains have received far less attention. We examine decisions in plea scenarios to test predictions of Fuzzy-Trace Theory regarding how cognitive processing style (specifically, greater reliance on gist or verbatim representations) affects plea decisions and how this could lead to suboptimal decision making, especially among defendants who are young adults. Results support Fuzzy-Trace Theory’s predictions by showing that the type of mental representation relied on by an individual (gist or verbatim) predicts plea bargain decisions—with those relying on gist being more influenced by categorical meaning-based distinctions, such as being guilty versus innocent or getting a felony versus misdemeanor. Importantly, results suggest that differences between the 2 groups are not caused by a difference in values but by the fact that individuals relying on verbatim representations are making decisions that do not reflect their underlying values, due to a “hyper-rational” reasoning process. These results reveal a new threat to competent plea decisions—a logical reasoning process that is arguably not fully competent—which has implications for the current plea bargaining system.

Keywords

competence, plea bargaining, criminal adjudication, fuzzy-trace theory, decision making

Summary of the Research

“Plea bargaining—a process in which a person accused of a crime pleads guilty to a lesser crime in order to receive a lesser punishment—is a widespread practice in the American criminal justice system. In 2014, 97.1% of federal criminal cases that were resolved were settled through pleas, with only 2.9% being adjudicated in bench or jury trials. Despite the prevalence of plea bargaining, it remains a largely “unregulated industry” in the sense that prosecutors have a wide latitude in setting the terms of pleas, with little judicial regulation. The law requires that guilty pleas must be made knowingly, intelligently, and voluntarily (e.g., Brady v. United States, 1970), but there has been relatively little research about the factors that make a plea knowing or intelligent” (p. 1).

“As well as requiring that a defendant actually makes a knowing, intelligent, and voluntary decision, the law regulates whether an individual has the ability to make such a decision using competency standards. Certain defendants are not competent to make plea bargains under the adjudicative competency standard. This standard is based on the Supreme Court decision in Dusky v. United States (1960). In Dusky, competence to proceed was defined by the court as the defendant’s ability to consult rationally with an attorney to aid in his own defense and to have a rational and factual understanding of the charges against him. Previous work has examined the concept of adjudicative competence and outlined specific abilities that the law is concerned with, classifying them into three psycholegal constructs— understanding (basic comprehension of the purpose and nature of the trial process), reasoning (capacity to provide relevant information to counsel and to process information), and appreciation (ability to apply information to one’s own situation in a manner that is neither distorted nor irrational) … In this study, we use Fuzzy-Trace Theory (FTT), a psychological theory of memory and decision making, to examine ways in which some people may lack the capacity to make competent plea decisions in criminal trials despite having understanding, reasoning, and appreciation in the traditional legal senses” (p. 1).

“Empirical research has confirmed that risk preferences and probabilities of conviction influence defendants. However, research has also shown that this is not all that is important to defendants when making plea decisions. Other factors may be important to defendants when deciding whether to plead guilty, such as their factual guilt or innocence, the charge offered by the prosecutor (e.g., felony or misdemeanor), and short-term benefits from pleading guilty. Plea decision making is, therefore, complex and requires that defendants appropriately apply their values (meaning what they consider to be important) to weigh these different considerations and make decisions that truly reflect their values” (p. 2).

“When defendants are presented with information about a plea deal, the way that they remember and reason about that information is likely to shape the decisions that they make. According to FTT, people encode information in two types of memory representations—verbatim and gist. Verbatim memory is memory for precise surface details; for example, memory representations of exact words, numbers, or pictures. Gist memory is memory for essential meaning, the “substance” of information irrespective of exact words, numbers, or pictures. When making decisions, individuals retrieving and relying on gist representations process information in a fuzzy and impressionistic way (known as gist processing). Individuals retrieving and relying on verbatim representations process information in a more precise analytical way (known as verbatim processing). FTT predicts that certain groups (e.g., the young and inexperienced, and those with high levels of autistic traits) will rely more on verbatim representations of information than gist representations, and that verbatim processing can result in suboptimal decision making. Individuals who rely on verbatim processing may lack the ability to make informed plea decisions due to developmentally inferior cognitive processing that can lead to unhealthy risk taking and decision making that does not reflect values” (p. 2).

“In the context of plea bargaining, FTT predicts that defendants relying on verbatim processing are more likely to conduct a superficial trade-off of risks and rewards. This trade-off would be likely to be influenced by the probability of conviction and the magnitude of potential outcomes, as opposed to the importance of categorical meaning-based distinctions such as the distinction between a felony and a misdemeanor or between guilt and innocence.

Decisions in which the outcome of pleading guilty is a misdemeanor conviction and the outcome if convicted at trial is a felony are decisions in which there is a categorical difference between outcomes. From a gist perspective, a felony conviction is not just worse than a misdemeanor in some quantifiable way— one felony is not equivalent to, say, two or three misdemeanors. A felony has a qualitatively as well as quantitatively different effect on a person’s life. This means that the distinction is likely to influence those relying on gist more than those relying on verbatim processing, specifically in cases involving small risks (e.g., when the probability of conviction at trial is low). For defendants relying on gist, the possibility of a felony conviction should supersede more fine-grained considerations of magnitudes of risk and reward, whereas for individuals relying on verbatim processing, it would just be another aspect of a risk/reward calculation” (p. 2-3).

“In this study, we use a risky-choice framing task to probe which participants rely more on gist processing and which participants rely more on verbatim processing, and relate this to decisions in hypothetical plea situations. We investigate two classes of questions. First, how does reliance on gist and verbatim processing influence plea decisions? Second, does reliance on verbatim processing produce decisions that reflect values?” (p. 3).

“Participants were 410 adults recruited from the participant pool at Cornell University (n = 210) and from Amazon Mechanical Turk (n = 200)… In order to investigate whether the individuals in our sample were individuals who may have to make plea decisions we analyzed responses to questions about engagement in crime. Overall in our sample, 209 participants had committed at least one of the crimes that we asked them about (drinking and driving, driving without a license, stealing cars and going for joy rides, taking drugs and underage drinking) or had been convicted of a crime in the past (164 in our Cornell sample, and 45 in our Mechanical Turk sample). Thirty-three participants said that either they or a close family member (meaning a parent or sibling) had made a real plea decision in the past (7 from our Cornell sample and 26 from our Mechanical Turk sample)” (p. 4).

“[W]e tested the influence of probability of conviction, sentence-length distinction (facing a shorter sentence at plea than the sentence if convicted at trial), conviction-charge distinction (facing a misdemeanor at plea compared to a felony if convicted at trial), and guilt/innocence on plea decisions. We predicted that individuals relying more on verbatim processing would be less influenced by guilt/innocence, less influenced by the distinction between a misdemeanor and felony when the probability of conviction was low, and more influenced by superficial differences in sentence length. We found support for two of these predictions. As predicted by FTT, individuals thought to be relying most on verbatim processing were less influenced by guilt or innocence or by the distinction between a misdemeanor and felony when the probability of conviction was low” (p. 10).

Translating Research into Practice

“If confirmed by future research, the findings of this study could have important implications for the criminal justice system, particularly as a disproportionate amount of crime is committed by young adults, who may still be transitioning from verbatim processing to gist processing (Bureau of Justice Statistics, 2016). Results suggest that plea decisions are influenced by cognitive processing style; in particular, reliance on gist or verbatim mental representations. This is important for the criminal justice system because it suggests that plea decisions in certain groups may be driven by a predisposition to rely on fine-grained quantitative distinctions, rather than qualitative, categorical distinctions, and bottom-line meaning. This means that certain individuals—specifically those with a strong disposition toward verbatim processing and especially those who are also sensitive to reward amounts—may not be driven by their values when making plea decisions. For such individuals, incentives could become coercive. This is problematic regardless of age but also due to developmental trends in cognitive processing styles” (p. 11-12).

“This lack of connection between values and plea choices is a particular threat for adolescents and young adults who are known to rely less on gist processing than older adults, indicated by less frequent standard framing, but who are sometimes asked to make plea decisions that will affect them for the rest of their lives. Adolescents and young adults are making decisions at a stage in their development that predisposes them to rely on verbatim detail rather than meaning-based processing that takes into account qualitative dimensions and values. Importantly, our results suggest that those relying on verbatim processing take into account whether they are guilty or innocent less often when making plea decisions, even when they state that this is important to them” (p. 12).

“[T]his research should inform the standard that is used to determine whether an individual is competent to plea bargain. Current standards rely on traditional ideas about cognitive competence, relying on understanding (a basic comprehension of the purpose and nature of the trial process), reasoning (the capacity to provide relevant information to counsel and to process information), and appreciation (the ability to apply information to one’s own situation in a manner that is neither distorted nor irrational). This research suggests that a more expansive view of competence should be considered, building on these constructs but going beyond them. People relying on verbatim processing are likely to “understand” the legal process in the sense that they can parrot back instructions, be able reason in a traditional sense (balancing risks against rewards), and recognize the explicit risks and rewards that apply to their situation. However, they may not deeply appreciate the noncompensatory impact of a felony conviction or the death penalty. Moreover, due to their cognitive processing they may not cue principles that are important to them when making the decision (e.g., a desire to not plead guilty to a crime they did not commit or a desire to avoid risking a felony). This means that people with a greater level of reliance on verbatim processing may be able to apply legal information and knowledge of risks and rewards to their decisions, but may be less able to apply relevant values. Such a cognitive disposition is temporary in many cases because of developmental immaturity. In any case, such reasoners could be argued to be “logical, but incompetent,” in the sense that they make decisions that do not adequately reflect their values, violating a fundamental precept of informed decision making” (p. 12).

Other Interesting Tidbits for Researchers and Clinicians

“These results regarding categorical differences, such as those between misdemeanors and felonies, may have implications for when the death penalty is a potential outcome at trial. This is because verbatim processors would be more likely to neglect categorical distinctions (such as between life in prison and a risk of death if convicted), even when this does not reflect their values. Although it seems extreme to fail to appropriately weigh a risk of death, research has shown adolescents (thought to rely on more verbatim processing) trade off risk and reward when making life or death decisions, such as whether to risk HIV infection” (p. 10).

“These results support FTT’s predictions that groups predisposed to rely on verbatim representations are less likely to be affected by the categorical distinction between guilt and innocence when making plea decisions due to their cognitive processing style, not due to their values per se. This finding can provide insight into previous findings in the plea bargaining literature. For example, it has been shown that adolescents plead guilty to crimes that they did not commit more often than adults do. Combined with prior research showing that reliance on gist develops from adolescence to adulthood, the current research suggests that adolescents’ greater reliance on verbatim processing would lead them to neglect meaning-based, qualitative concepts, such as guilt or innocence, in their decision making. Note that this study did not specifically show that reliance on verbatim processing leads to pleading guilty more to crimes that were not committed, but it did show that individuals relying on verbatim processing are less likely to be influenced by whether they are guilty or innocent when deciding whether to plead guilty” (p. 11).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Reed

Amanda L. Reed is a first year student in John Jay College of Criminal Justice’s clinical psychology doctoral program. She is the Lab Coordinator for the Forensic Training Academy. Amanda received her Bachelor’s degree in psychology from Wellesley College and a Master’s degree in Forensic Psychology from John Jay College of Criminal Justice. Her research interests include evaluator bias and training in forensic evaluation.

Use of Psychological Instruments Makes No Difference in Contested Competency Cases

Forensic Psychology Practice

Identifying which defendants are at increased risk to repeat a return to competency (RTC) program would allow more resources to be allocated toward those who have the greatest need, thus reducing the cost associated with repeating the program. This study found that defendants diagnosed with a psychotic disorder and who had three or more previous psychiatric hospitalizations were at much greater risk to repeat the program. Those with a psychotic disorder but without multiple psychiatric hospitalizations, however, were less likely to repeat the RTC program. In addition, the researchers found that the use of psychological instruments, both forensic assessment instruments (FAIs) and traditional assessments, did not make a significant difference in whether a case was contested. This is the bottom line of a recently published article in the Journal of Forensic Psychology Practice. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Journal of Forensic Psychology Practice| 2016, Vol. 16, No. 2, 61-73

 

Jail-Based Restoration to Competency: An Investigation of Program Recidivism and Contested Competency Cases

Authors

Cassandra Valerio, MA
Judith V. Becker, PhD

Abstract

While jail-based restoration to competency (RTC) programs are becoming more common, research on these programs and defendants who complete them is limited. The present study investigated characteristics of defendants who have completed a jail-based RTC program more than once to determine what factors differentiate them from those who completed the program only once. This study also investigated whether the use of psychological tests in competency to stand trial (CST) evaluations reduced the number of competency cases that are contested. Several predictors of RTC program repetitions were identified. However, no differences in number of contested cases were found in CST evaluations that used assessment instruments compared to evaluations where no assessment was used.

Keywords

Competency to stand trial; adjudicated competency; restoration to competency; jail-based restoration to competency; forensic evaluation.

Summary of the Research

“While competency restoration has traditionally been performed in a hospital setting, the expense and sometimes long delays associated with hospital-based restoration has led to the development of jail-based RTC (restoration to competency) programs in several states…As…noted in a meta-analysis of CST literature, research in this area has primarily examined characteristics of competent and incompetent defendants (e.g., psychiatric diagnosis, ethnicity, sex, criminal charges) and the performance of defendants on both traditional psychological tests and tests specifically designed to assess competency. Two related, although understudied, areas of research of interest in this RTC program are issues related to (a) defendants who are ordered to complete the RTC program more than once, and (b) the use of assessment instruments in CST evaluations as a means to reduce contested competency cases (p.61-62).”

“The current study aims to contribute to the body of CST literature by addressing a gap in research related to (a) defendants who repeat RTC programs and (b) use of assessment instruments to reduce contested competency cases…Specifically, it is hypothesized that repetition of the RTC program evaluated in the present study will be predicted by a diagnosis of a psychotic disorder and previous psychiatric hospitalizations. Research regarding the relationship between various demographic variables and CST have been somewhat mixed; however, it is not clear whether demographic characteristics of defendants are related to repetition of the RTC program. Therefore, the current study will also explore whether defendants’ ethnicity, sex, and age are predictive of repeating the RTC program (p.65-66).”

“The current study also aims to determine whether the use of assessment instruments in CST evaluations is helpful in reducing the number of contested competency cases. For this study, a contested competency case will be defined as a case in which a motion for a contested competency hearing was filed. It is hypothesized that the use of assessment instruments, both forensic and traditional, will reduce the number of contested competency cases compared to cases in which no assessment instrument is used (p.66).”

“In the present study, data from a southwestern Arizona county’s Restoration to Competency program were analyzed to determine whether (a) characteristics of defendants at risk to repeat the program could be identified, and (b) whether the use of psychological assessments in competency-to-stand-trial evaluations could reduce the number of contested competency cases within the program…Interestingly and contrary to the study hypothesis, defendants with a psychotic disorder but without multiple psychiatric hospitalizations were less likely to repeat the RTC program. The lower number of hospitalizations among these defendants may reflect generally better functioning and thus a lower risk of program repetition. Similarly, younger defendants may be less likely to have a lengthy hospitalization history (p.71).”

“The second goal of the present study was to investigate whether the use of assessments in CST evaluations reduced the likelihood that a competency case would be contested. Consistent with previous research, the present study found that the majority of psychologists used assessment instruments in CST evaluations, although many fewer psychiatrists utilized an assessment instrument. Furthermore, the majority of assessments used were FAIs specifically intended to assess competency rather than more general psychological constructs. However, contrary to the study’s hypothesis, the use of psychological assessment instruments (both FAIs and traditional assessments) did not make a significant difference in whether a case was contested. This null finding may be a reflection of the small sample size available for this analysis. Alternatively, this finding could indicate that the use of assessments in CST evaluations is not a significant determinant of whether a case is contested (p.71).”

Translating Research into Practice

“…Few studies report specific components of the restoration process. Previous researchers found that more than half of studies did not report restoration procedures…Other RT programs may benefit from treatment outcome research to determine what specific components of restoration work for which defendants and why…(p.72).” Clinicians might consider adding a description of the competency restoration process and procedures to their evaluation reports to further elucidate this process.

“Future research could also further investigate the use of assessment instruments in CST evaluations…For example, attorneys’ perceptions of these evaluations may moderate the relationship between assessment use and contested case status. That is, the use of assessments may reduce contested competency cases, but only among attorneys with favorable attitudes toward psychological assessments. Research investigating attorneys’ knowledge of and attitudes toward competency assessments would be useful in elucidating this relationship (p.72).”

“Given the growing number of jail-based RTC programs, more research is needed to investigate these programs and develop ways to make them work more efficiently. Additional research in this area will benefit not only the programs themselves, but also the large number of defendants served by these programs (p.72).”

Other Interesting Tidbits for Researchers and Clinicians

“Future research could expand upon the present findings regarding characteristics of defendants at higher risk to repeat the RTC program. While several predictive characteristics were identified, there are likely may other relevant variables that contribute to a defendant’s likelihood of repetition, including additional demographic or offense-related characteristics such as family characteristics, community access to mental health services, and homelessness. Further, the present study investigated only whether the presence of a psychotic disorder contributed to program repetition. Future studies could investigate whether other psychiatric disorders also increase risk, including bipolar disorder or personality disorders (p.72).”

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and hopes to obtain her PhD in forensic clinical psychology. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

Outpatient Competency Restoration Shows Promising Outcomes

Forensic Training AcademyOutpatient competency restoration programs (OCRP’s) demonstrate high competency restoration rates, low program failure rates, and financial savings for state institutions. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

 

Psychology, Public Policy, and LawFeatured Article | Psychology, Public Policy, and Law | 2016, Vol. 22, No. 3, 293-305

 

Lookin’ for Beds in All the Wrong Places: Outpatient Competency Restoration as a Promising Approach to Modern Challenges

 

Authors

Neil W. Gowensmith, University of Denver
Lynda E. Frost, University of Texas at Austin
Danielle W. Speelman, University of Denver
Danielle E. Therson, Univesrity of Denver

Abstract

In response to consistently increasing numbers of individuals found incompetent to stand trial, some states have identified community-based or “outpatient” competency restoration programs (OCRPs) as a viable alternative to inpatient restoration. This study used a multistep approach to capture information about OCRPs nationwide. We reviewed states’ competency statutes to determine which states have provisions that allow for outpatient competency restoration, and we then corroborated this review with a brief preliminary survey that was disseminated to each representative of the Forensic Division of the National Association of State Mental Health Program Directors. We received responses from 48 of 51 U.S. jurisdictions (47 states and the District of Columbia). We conducted in-depth interviews with forensic representatives in those 16 states that identified having operational OCRPS. The current study presents our analysis of state statutes and then compares and contrasts current OCRPs. In summary, OCRPs are a recent but rapidly developing alternative to traditional inpatient restoration. Through a comparison of existing OCRPs, we believe OCRPs show preliminary but promising outcomes in terms of high restoration rates, low program failure rates, and substantial cost savings

Keywords

competency restoration, outpatient competency restoration, community-based

Summary of the Research

“Much scholarly and practical attention has focused on competency to stand trial. Competency to stand trial (CST) evaluations are the most common forensic evaluations ordered by the criminal courts. Estimates range from 50,000 to 60,000 evaluations annually. Moreover, the number of evaluations is growing annually … A great deal of research, litigation, and service provision has been dedicated to improving the competency process throughout the last 30 years, with the lion’s share devoted to competency evaluation” (p. 293).

“In contrast, less attention has been given to competency restoration—the treatment and service array required by persons adjudicated as IST… When a person is adjudicated as IST, legal proceedings are typically put on temporary hiatus and the person is remanded to competency restoration. Restoration usually involves some combination of psychiatric medication, mental health treatment, psycho-education about the legal process, and consistent evaluation regarding progress, although experts disagree about the relative importance of these approaches in various cases. Courtroom status hearings are usually held at regular intervals to gauge progress, often with the input of updated competency evaluations and/or progress updates from treating professionals. A person will typically remain in restoration until he or she is “restored” to competency or until the court is convinced that the person is unable or significantly unlikely to regain competency in the future” (p. 294).

“Competency restoration typically occurs in state hospitals. A recent survey of state hospital administrators shows that the largest subpopulation of forensic patients in state hospitals is remanded for competency restoration  … thus hospital bed capacity falls far short of demand, while beds that do exist are increasingly being used for competency restoration services” (p. 295).

“Some states have identified community based (or “outpatient”) competency restoration services as a partial solution to these issues. In these services, individuals who do not meet inpatient hospitalization criteria are treated in an outpatient setting, thereby reducing the hospitalization waiting list for others with more acute needs… Miller (2003) emphasized the untapped potential of outpatient competency restoration programs (OCRPs). At the time of his article, 37 states permitted outpatient competency restoration; however, few states actually had programs in operation. Miller argued that OCRPs represented a cost-effective and least restrictive alternative to inpatient hospitalization” (p. 295).

The present study served to update and expand Miller’s (2003) study examining the benefits of OCRP’s. National Association of State Mental Health Program Directors were contacted to participate in a survey asking whether their state had any OCRP’s in operation. A total of 48 directors responded, creating a list of 16 states that allow outpatient restoration. After the initial survey, an additional survey was administered to the same respondents that consisted of a semi-structured interview examining the following: size and longevity of OCRP’s, demographics of participants, clinical status of the participants, admission procedures, jail-based competency restoration, agencies providing OCRP services, location, staffing, and scope of restoration services, and several other outcome measures.

Results

An analysis of OCRP’s in operation revealed that, “while 44 states’ statutes (86.3%) either explicitly or tacitly allow outpatient competency restoration, only 16 (31.4%) states had OCRPs in operation. In other words, while most states can do outpatient competency restoration, most states do not… however several states without OCRPs surveyed in this project mentioned that they are actively planning OCRPs for the future” (p. 301). Overall, the present study’s results “indicate that OCRPs show generally positive results, including financial savings, increased inpatient bed capacity, maintenance of public safety, and high rates of restoration” (p. 299).

Although rates of competency restoration were considered high in general, “in this study, rates of competency restoration for outpatient programs were found to be slightly lower than reported rates for inpatient restoration programs (70.0% compared to inpatient restoration rates of 70% to 80%; Warren et al., 2013) … however, rather than finding the OCRP participant competent to stand trial, courts instead dismissed the individual’s charges. It seems that some courts view OCRPs as a chance for participants to establish a track record of stability in the community, albeit with enhanced structures and services, before releasing them from criminal commitment” (p. 301).

“In summary, OCRPs show great promise in addressing the challenges many states face regarding ever-increasing numbers of forensic referrals and commitments. OCRPs seem to provide an innovative outlet that can relieve state hospital capacity pressures at both the “front door” and “back door,” maintaining public safety, saving taxpayer dollars, and improving the efficiencies of both the criminal justice and mental health systems while concurrently promoting recovery and community reintegration of the participants themselves” (p. 303).

Translating Research into Practice

One concern with screening participants for OCRP’s is that administrators may be overly cautious about accepting individuals who have violent charges. “Perhaps instead of flatly denying any candidate with a violent charge, for example, programs might consider adding program elements to mitigate risk (e.g., increased monitoring, multiple reporting sources, individualized risk assessment and management planning, or increasing participants’ criminogenic insights) to enhance safety” (p. 302).

Another issue pertains to additional requirements OCRP programs may require in addition to competency restoration. For example, participants may have to meet certain standards other than competency in order to graduate from the program, thus some programs “run the risk of resembling an involuntary outpatient mental health commitment under the guise of competency restoration” (p. 302). Perhaps OCRP programs could consider how their program requirements are similar to or compare with standards for general competency restoration and adjust their expectations and program guidelines as such.

Finally, OCRP treatments are considered psycho-educational, thus limiting the ability for reimbursement. “This poses a serious barrier to many agencies who might be interested in providing such services. As a result, all of the formal programs in this study were funded from state dollars; nonreimbursed costs were still less expensive than analogous hospital costs for restoration services. Still, accessing funding for such services could create opportunities for private agencies or providers to operate OCRPs more effectively. Alternatively, graduate-level psychology programs with training clinics could offer OCRP services, since such clinics are typically operated as training clinics rather than for-profit clinics” (p. 302).

Other Interesting Tidbits for Researchers and Clinicians

“Future research directions could include comparing the effectiveness of formal OCRPs to informal outpatient restoration programs. Additionally, research should be done to investigate why the average length of time to restoration for outpatient programs is longer than that found in analogous inpatient programs, and what implications those differing lengths of time may have on participants. Given the ethical dilemmas addressed earlier in the Discussion section, it would seem prudent to explore how certain programmatic elements in various OCRPs (e.g., housing, case management) correlate with program outcomes (e.g., length of restoration rates, negative outcomes). Finally, investigation into jail-based competency restoration programs should occur across programs to determine the effectiveness and limitations of such programs” (p. 302).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Sara Hartigan

Sara Hartigan is a second year Forensic Psychology Master’s student at John Jay and hope to obtain a Ph.D. in Clinical Forensic Psychology in the future. My main areas of interest include clinical evaluations and developing treatment interventions within the forensic population.

CONCEPT Offers Fall Training course on Competence to Stand Trial

Best Practices in the Evaluation of Competence to Stand Trial

Dr. Patricia Zapf

October 4 – December 12, 2015

30 hours over 10 weeks (includes 10 hours of consultation)

 

One of the primary foundations of criminal law is that all defendants have a right to a fair trial. Towards this end, upwards of 60,000 evaluations of competency to stand trial are conducted annually in the USA. Research has shown that the opinion of the evaluator in these evaluations is accepted by the courts upwards of 95% of the time. Thus, it is imperative that these evaluations be conducted using best practices. Two important sources have recently been recognized as setting the foundation for best practices in competency evaluation. This training program provides a strong foundation for any mental health professional involved in or wishing to become involved in the evaluation of adjudicative competence.

This training program covers the legal foundations for adjudicative competence, including new developments in the conceptualization of the Dusky standard, as well as practical and theoretical issues in competency evaluation. Competency assessment instruments are reviewed in depth as are report writing and expert testimony.

The trainee is taken through the foundations for competency evaluation, the specific abilities to be evaluated, how to formulate a case conceptualization and ultimate opinion regarding a defendant’s adjudicative competence, how to communicate opinions about competence in the written report and through expert testimony. In addition, participants will engage in one hour of weekly small group consultation with the instructor to discuss current clinical cases and other clinical implementation issues.


Patricia Zapf

About the Instructor

Patricia A. Zapf obtained her PhD in Clinical Forensic psychology from Simon Fraser University in Canada and currently holds the position of Professor in the Department of Psychology at John Jay College of Criminal Justice, The City University of New York. She is the Editor of the American Psychology-Law Society book series; Associate Editor of Law and Human Behavior; and is on the Editorial Boards of 5 journals in psychology and law. Dr. Zapf is on the Board of Directors for the International Association of Forensic Mental Health Services and currently serves as President-Elect for the American Psychology-Law Society (AP-LS; Division 41, APA).

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