Wisconsin’s criminal justice system is straining from a significant rise in the number of criminal defendants deemed unfit for trial due to mental illness.
Recent reporting by Milwaukee Journal Sentinel investigative data reporter Eva Wen found that the number of Wisconsin defendants deemed unfit for trial has nearly tripled since 2013. And the number of court-ordered competency evaluations for defendants has nearly doubled over the same period.
Mark Sanders is a Milwaukee County Circuit Court Judge for Branch 28, which primarily handles the county’s felony mental health docket. Sanders told WPR’s “Wisconsin Today” that several factors are driving the spike in felony mental health cases.
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“There’s been both an increase in the awareness of mental health issues, that there’s a greater need for community resources, that sometimes, unfortunately, it seems that the criminal justice system is the easiest way to get people involved in the mental health system,” Sanders said. “And people may find themselves getting charged when, hopefully, they would find some other avenue so their mental health issues could be addressed.”
On “Wisconsin Today,” Sanders spoke about the challenges of competency evaluations and their effects on the justice system.
The following was edited for brevity and clarity.
Rob Ferrett: Why do we pay attention to whether someone is “competent,” as we legally define it, to stand trial? Why is this an important issue?
Mark Sanders: Competence really is the most foundational thing in any criminal case. If we don’t have a high degree of confidence that a defendant is competent, we can’t have any confidence in anything that goes on in the case. We don’t know if a defendant wants to plead guilty, for example. If we’re not sure that they’re competent, we don’t know whether their desire to plead guilty is because that’s what they want to do, or because they have a misunderstanding about what the case involves, or about defenses they might have or really anything in connection with the case.
We also don’t have confidence in the effectiveness of a case in the criminal system. We don’t just prosecute people and have cases just to prosecute people. The goal is to ultimately reduce crime and reduce crime victims, and if people who are being prosecuted don’t understand that they’ve got a case pending or don’t understand the substance of the case, it’s hard to have confidence that the goals of the system are ever going to be reached.
RF: Your assignment involves the felony mental health docket in large part. Why does Milwaukee County’s court system need this kind of specialized docket for these cases?
MS: We started this docket about two years ago, and it involves really three different components. The largest component is competency. The competency cases from all of the criminal courts, with the exception of homicide and sexual assault cases, are heard by the judges who preside over those cases. The goal is to concentrate all of these cases in one spot so that systemic issues can be more easily addressed, so that we can free up some space in the other courts and so that hopefully we can also concentrate knowledge both in the lawyers that are in here regularly and in the judge that presides over the calendar. That way, we’ve got a better, more detailed understanding of how competency works and the details of the statute and how things need to move forward in the legal system.
RF: On a practical level, who flags this? Is it a defense attorney or someone in the court system who says they have concerns about the competency of the defendant before moving to trial?
MS: The issue can be raised by anybody, but it’s most commonly raised by the defense attorney, who, in their engagement with their client, will discover that maybe they don’t understand fully what they’re charged with or maybe they’re not really able to assist in their own defense. They’ll raise the issue with the court if they have concerns about those things. Then we order an evaluation, and the process moves down that direction.
RF: Where do you see the best investment in mental health treatment that helps keep people out of the situation where they’re in jail awaiting competency treatment?
MS: There are really two areas that I think are ripe for working on that issue. One would be increasing the number of beds that are available at state institutions for competency restoration. I know the Department of Health Services is working on that, and hopefully, that will provide some relief to those people who are on the wait list.
The other resource that I think would be valuable is improving the level of mental health resources at the community level, so that people could access treatment and hopefully never find themselves in the criminal justice system to begin with. We’re trying to use the outpatient competency restoration program as much as we reasonably can, and that’s another area where we could enhance the resources that are available for restoring people to competence. But I think on the whole it’s really increased bed space and increased community resources where we could use the resources the most.