WHEN TREATMENT IS PUNISHMENT:
THE EFFECTS OF MARYLAND’S INCOMPETENCY
TO STAND TRIAL POLICIES AND PRACTICES
JUSTICE POLICY INSTITUTE | OCTOBER 2011

TABLE OF CONTENTS

JUSTICE
Pf)LICY
INSTITUTE
Mission: Reducing the use of
incarceration and the justice
system and promoting policies
that improve the well-being of
all people and communities.

Foreword .............................................................................................. I
Introduction ........................................................................................ 1
History and Context: The impact of the 2006 amendments to the
IST statute...................................................................................... 2
What happens to people found incompetent to stand trial in
Baltimore City? ................................................................................... 5
What is competency treatment? ................................................... 7
How often are people .................................................................... 8
re-evaluated?.................................................................................. 8
Who is held at Spring Grove?......................................................... 10
The majority of people in Spring Grove are over age 35. ............ 10
The majority of people at Spring Grove are male. ....................... 10
The majority of people held in Spring Grove are African American.
..................................................................................................... 10
The majority of people in Spring Grove are held for assault. ...... 11
How long does it take to restore a person to competency?....... 13
Research shows that if people are going to be restored to
competency, it will happen in a relatively short period of time... 13
People are confined in Spring Grove for longer periods than
research shows is appropriate before being found competent or
not restorable. .............................................................................. 14
Why are so many people held at Spring Grove on IST status, and
for longer than is clinically necessary?.......................................... 20
Judges.......................................................................................... 20
Defense Lawyers ......................................................................... 21
Prosecutors .................................................................................. 22
Department of Health and Mental Hygiene (DHMH) .................. 22
How are incompetency cases in Baltimore City District Court
resolved? ........................................................................................... 24

th

1012 14 Street, NW, Suite 400
Washington, DC 20005
TEL (202)-558-7974
Fax (202)-558-7978
WWW.JUSTICEPOLICY.ORG

If competency is restored: Traditional Court Processing or Mental
Health Court ................................................................................. 24
If a person is unrestorable: Release to Community or Civil
Commitment ................................................................................ 25
If a person “times out”: Release................................................. 26
Where do people go when their IST status is resolved? ............ 26
What is the impact of the current IST law and the practices of
the Baltimore City District Court on mental health resources? . 28
Spending on Spring Grove Hospital Center has been increasing 28
Treatment in the community is less expensive than state
hospitals. ...................................................................................... 29
Recommendations ........................................................................... 31
APPENDIX ......................................................................................... 34

FOREWORD
That people with a mental illness and other mental disabilities are being arrested in large numbers
and incarcerated in our nation’s jails and prisons is a subject of widespread concern and increasing
attention. Another, less-examined issue involves treatment of persons arrested but subsequently
found incompetent to stand trial: more specifically, where treatment attempting to restore
competence takes place and for how long it can continue. Over the years, states have enacted laws
addressing the constitutional standards and due process rights of people found incompetent to
stand trial. While some have adopted reasonable maximum treatment periods and have shifted to
greater use of outpatient treatment to attempt to restore competency, others require costly inpatient
treatment for too many people and allow confinement for long periods of time. 1
In this report, the Justice Policy Institute looked specifically at Maryland’s “incompetent to stand
trial” (IST) law as applied by the Baltimore City District Court. Maryland is among those states that
do not have a maximum period for treatment to attempt to restore competency that is consistent
with scientific research. Instead, state law provides for the dismissal of criminal charges against a
person who cannot be restored to competence after set periods of time that are tied to whether the
person is charged with a misdemeanor, felony or capital offense. Baltimore City District Court
handles misdemeanor and nonviolent felony offenses that would not likely lead to significant, if
any, incarceration for a person who is competent to stand trial.
The research included in this report shows that too many people found not competent to stand trial
are unnecessarily locked in a secure setting for treatment and, on average, confined for longer
periods than research demonstrates is clinically reasonable. In addition, the majority of people who
are eventually found competent are not convicted and sentenced to incarceration, raising serious
concerns about the state’s interest in imposing lengthy periods of competency restoration treatment.
In the first six months of 2011, none of the 24 people from Baltimore City whose IST cases were
resolved were sentenced to spend any time behind bars, and most were not even convicted of the
charge. 2 Eleven of 24 people had their cases dismissed, including one person who had their case
dismissed after spending 147 days at Spring Grove for filing a false police report—the longest
possible sentence for this offense.
As people’s liberty is denied when they are involuntarily confined to an institution pretrial, and is
severely curtailed when required to enroll in residential and outpatient programs, it is critical that
they not be held in “competency limbo” beyond the time that research shows is reasonable to either
restore competency or to determine that competency is not substantially likely to be restored. Failure
to do so raises questions not only of civil liberties, but also of fiscal efficacy: it costs Maryland
taxpayers $512 per person per day to hold someone in Spring Grove, where the majority of
Baltimore City residents are placed; as the average length of stay of a person from Baltimore City for
forensic IST is 414 days (nearly 14 months), 3 that means that Maryland is spending an average of
$211,968 per person to house them in Spring Grove for competency restoration. 4
Maryland’s competency system is in need of reform. At a time when the state’s mental health budget
is in danger of even deeper cuts, it is imperative that Maryland stop wasting precious resources on
inappropriate use of confinement for competency cases.

WHEN TREATMENT IS PUNISHMENT

1

INTRODUCTION
The most recent U.S. estimates suggest that 50,000 to 60,000 people undergo
competency evaluations every year, 5 and that in about a fifth of these cases the
person was found incompetent to stand trial (IST). 6 In other words, around
12,000 people are found incompetent to stand trial in the U.S. every year, and
around 4,000 of these people are hospitalized for treatment to restore
competency at some point during a single incident of court involvement. 7
In FY2010, the Maryland Mental
The number of people on forensic IST status in state
Hygiene Administration provided
hospitals is increasing
789 pretrial screenings and
Percent
FY2006 FY2011
evaluations for incompetency to
Change
stand trial, 77 percent of which were
Maryland
for the District Courts. Baltimore City
Forensic
586
663
+13%
makes up the largest percentage of
Forensic IST
163
348
+113%
screenings and evaluations in the
Spring Grove
state: 23 percent come from
Hospital Center
Baltimore, 72 percent of which are for
Forensic
242
261
+18%
the Baltimore City District Courts. 8 In
Forensic IST
34
148
+335%
FY2011, 129 competency screenings
Source: Mental Hygiene Administration
were conducted in Baltimore City
For Spring Grove Hospital Center (Spring
District Court, 70 percent of which
Grove), where the majority of IST patients are
were referred for further evaluation due to the
committed by the Baltimore City District
possibility of incompetency to stand trial. 9
Court, this percentage increase is even greater:
At the end of FY2011, two out of every three
the number of people committed as IST
people (68 percent) in state psychiatric
increased 335 percent since FY 2006, from 34
hospitals in Maryland were on forensic status,
people to 148 at the end of FY2011.
meaning they were involved in the justice
system, either as incompetent to stand trial
This increase in the number of forensic IST
(IST) or after a finding of “not criminally
commitments is happening at the same time
responsible.”10 While the total number of
that Maryland is diverting civil admissions * to
people treated in state hospitals in Maryland
has decreased 18 percent since FY2006, the
* A person is categorized as a “civil” admission if she
number committed as IST increased 113
voluntarily admits herself into the hospital or is
percent since FY2006, from 163 people to 348 in
involuntarily confined after an administrative hearing
FY2011.
finding that she has a mental disorder, is in need of
inpatient treatment and there is no less restrictive
alternative, is a danger to herself or others, and is

2 JUSTICE POLICY INSTITUTE
private and community hospitals by
purchasing beds in those settings, closing
state hospitals and reducing beds in many
facilities. The reasons for this shift include a
belief that most people are more
appropriately served in hospitals and
outpatient settings located in their own
communities, and for cost-containment
purposes. 11 However, due to the increasing
numbers of forensic patients, including IST
patients, state hospitals are still operating at
or above capacity. 12
Increasing commitments by the courts and
increasing lengths of stay for people who are
committed puts intense pressure on Maryland
to continue operating at current state hospital
bed capacity, and perhaps even consider
expanding. During the 2011 legislative
session, the budget committee of the
Maryland General Assembly reallocated
$200,000 from the general fund appropriation
made to support the operations of the state
hospitals for Department of Health and
Mental Hygiene (DHMH) to use for an
independent study on (a) potential demand
for state hospital capacity, including the
maximum appropriate use of communitybased alternatives; and (b) best practices for
facility operations, including building size
and configuration; and (c) appropriate site
locations based on future demand. 13
An accurate analysis of future need for state
hospital beds cannot be made without close
scrutiny of the legitimacy of current use of
beds by the courts, particularly the rapidly
increasing IST population. As Spring Grove
alone saw a 335 percent increase in IST
patients, examining court practices—
especially those of the Baltimore City District
Court, which makes up the majority of IST
commitments to Spring Grove—is necessary
unwilling or unable to consent to voluntary
treatment. Md. Code Ann., Health-General, §10-617.

to make sure courts are using IST
commitments appropriately and effectively.

HISTORY AND
CONTEXT: THE
IMPACT OF THE 2006
AMENDMENTS TO
THE IST STATUTE
When a person is brought into court to stand
trial, it is legally imperative that they
understand what is happening to them and to
be able to assist in their defense. If it appears
that they may be unable to do so, they are
evaluated and may be found to be
incompetent to stand trial and ordered to
inpatient or outpatient treatment to restore
competency. 14 A person cannot legally be
tried for an offense if he or she is found to be
incompetent to stand trial.
In 1972, the U.S. Supreme Court ruled in
Jackson v. Indiana that people can only be held
for a “reasonable period of time” to determine
whether there is a substantial probability that
they may soon be restored to competency to
stand trial. 15 The Court did not set a
maximum time limit on attempts to restore
competency, leaving it up to the states to
make this determination. A number of states
base this time limit on research that shows
that most people will be restored within six
months to a year, and continued treatment
and detention to restore competency beyond
this time period is unnecessary. 16 Twenty
states have a maximum treatment period of
one year or less (See APPENDIX). 17 However,
Maryland law is not in line with these
findings and practices.

WHEN TREATMENT IS PUNISHMENT

3

INCOMPETENCY IN MARYLAND
In Maryland, “incompetent to stand trial” means that the person is not able to 1)
understand the nature or object of the proceeding, or 2) assist in their own defense.
Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-101. Definitions.

For nearly 35 years, Maryland allowed for
indefinite commitment to attempt to restore
competency to stand trial, contrary to the
Jackson decision. In 2006, the statute was
amended to provide people with certain due
process protections, including prohibiting
continued confinement of individuals without
a finding that there was a substantial
probability of restorability in the foreseeable
future and providing for annual review
hearings. In addition, the statute was
amended to say that DHMH include a plan
for community services if the person either
had their competency restored or was no
longer a danger to themselves or others based
on their mental disability, † and services were
necessary to maintain competency or ensure
that the person remained not dangerous. 18
In this amendment, Maryland rejected
adopting a maximum treatment period based
on the research on competency restoration.
Instead, it tied maximum treatment lengths to
the maximum sentence that a person could
have received if convicted of the charges
against them or up to three years for a
misdemeanor, five years for a felony and 10
years for a capital offense, whichever is
shorter. 19 In other words, a person charged
with a felony crime can be held in a state
hospital for up to five years, at which time
they “time-out” and must be released. For the
people who are confined until their charges
Throughout the report we will use the term “mental
disability” to describe people with a mental disorder,
developmental disorder, intellectual disorder or
traumatic brain injury.
†

are required to be dismissed (or a substantial
portion thereof), the use of forensic
confinement in this way is de facto
punishment for a crime in which the person
was never tried and convicted.
For example, people committed to Spring
Grove from the Baltimore City District Court
who are ultimately found not restorable are
spending an average of 19 months confined in
a secure hospital, or more than half of their
maximum “sentence” (three years) under the
IST law. While de facto punishment for an
offense that will never be tried may not be the
District Court’s intent, from the point of view
of the person forced to stay in these secure
hospitals, this is precisely what is happening.

“In reality, statutes tying
treatment to the maximum
sentence attempt to assure that
incompetent defendants are
punished sufficiently for their
alleged crimes.”
Grant H. Morris and J. Reid Meloy

4 JUSTICE POLICY INSTITUTE
In addition to lengthy confinement periods,
the requirement that DHMH develop a
discharge plan that the court considers
“adequate,” is also driving up lengths of stay.
Some of the services the court is demanding,
such as residential treatment or housing, are
not readily available and not always
necessary, resulting in people remaining
confined not because they need more
inpatient competency treatment, but due to
wait time for community services. Although
people should have access to the community
services that they need, using incompetency
status to judicially appropriate such services
is inappropriate. It is expensive to taxpayers
because it increases the number of inpatient
beds that are needed, may not be in line with
best practices for mental health treatment, and
is unfair to the person forced to stay in a
secure hospital without ever being convicted
of the offense.

“No credible social or
rehabilitative purpose is
achieved by punishing a
defendant who cannot
understand the nature and
purpose of a legal proceeding,
and who is unable to
understand the reason for
which a sentence has been
imposed.”
Daniel H. Swerdlow-Freed, Michigan
Criminal Law Annual Journal (2003)

WHEN TREATMENT IS PUNISHMENT

5

WHAT HAPPENS TO PEOPLE
FOUND INCOMPETENT TO
STAND TRIAL IN BALTIMORE
CITY?
By statute, the issue of competency may be raised at any point in the criminal
process prior to the conclusion of trial by the person charged with the offense, his
or her defense counsel, the Assistant State’s Attorney or the judge. 20
Once an order for competency evaluation is
issued by a judge, the person is screened at
the Court Medical Office, and if the clinician
performing the screening finds that the person
may be incompetent to stand trial (IST), he or
she is referred to the Mental Hygiene
Administration (MHA) for further evaluation.
Of the cases referred for competency
evaluation, at least 90 percent are referred to
MHA due to the presence of a mental
disorder. 21

the case is from District Court. The evaluation
report must include an opinion as to whether
the person is competent to stand trial and, if
not, whether the person is “a danger to self or
the person or property of another” due to a
mental health disorder. 23 Finally, the report
must be accompanied by a discharge plan for
those persons determined to be not dangerous
but incompetent to stand trial, if MHA
determines such services are necessary to
ensure that the person remains not dangerous.

The judge may order that the evaluation take
place in jail, in the community or at an MHA
facility. These full evaluations must be
completed within seven days of the court
ordering examination, but this time can be
extended by the court. 22 When the evaluation
is completed, the case moves to the Mental
Health Court ‡ for the competency hearing if

If a person is found to be IST and NOT a
danger, she can be released to a community
mental health program to receive treatment to
restore competency and may face specific
conditions of pretrial release and supervision
by the Community Forensic Aftercare
Program (CFAP). CFAP is a Department of
Health and Mental Hygiene (DHMH)
program that provides assessment and
monitoring services to people with mental
disabilities within the justice system,

In 2002, the District Court in Baltimore City
established a Mental Health Court that started by
consolidating into one docket all cases where
competency evaluations were ordered. Prior to this,
competency cases were scattered among nine
jurisdictions within the City. Today, the Baltimore
City Mental Health Court can serve up to 250 people
‡

at a time and is broken up into two dockets:
competency and voluntary diversion to community
mental health treatment.

6 JUSTICE POLICY INSTITUTE
including people who are IST
and those found not criminally
responsible and put on a
conditional release order.
Conditions of release can
include taking medications,
attending meetings and
treatment, abstaining from
using drugs or alcohol, not
possessing weapons and
seeking voluntary admission
to a hospital for treatment if
needed. If the person
“violates” – that is, fails to
follow the required conditions
– she is sometimes re-assigned
as “dangerous” and returned
to a state hospital. CFAP
monitors report back to the
court on their clients’
condition.

Competency Pathway into Baltimore City Mental Health Court

I

Competency
(ordered by the court)

Department of Health
and Mental Hygiene
Assessment

MENTAL HEALTH
COURT DOCKET
Competency Hearing

Incompetent to Stand Trial
Dangerous or
Non-Dangerous

(ISTD/ISTN)

1

Competent to
Stand Trial

,

.

If however, the person is
MENTAL HEALTH
found to be IST and
COURT DOCKET
dangerous, she is committed
Department of Health
and Mental Hygiene
to a secure DHMH hospital to
Consideration of Co urt
Management
Supervision
be restored. The criteria of
being dangerous for the
Source: Process Evaluation of Baltimore City Mental Health Court (Maryland Judiciary
purposes of inpatient
Research Consortium, March 2010)
confinement does not relate to
www.courts.state.md.us/opsc/mhc/pdfs/evalutations/bcmhcprocessevaluati on3-11-1 o. pdf
the nature of the charged
offense (i.e., whether it was a
crime of serious violence). §
offense can be considered a danger for
Thus, a person charged with a nonviolent
commitment purposes based on a current lack
§ The statute requires a finding that the person,
“because of mental retardation or a mental disorder,
is a danger to self or the person or property of
another.” Md. Code Ann., CrimProc §3-106, but does
not define or place limitations on what is reasonably
considered “dangerous.” For civil commitment, the
statute requires a finding that the person “presents a
danger to the life or safety of the individual or
others,” which is narrower because it excludes
property, and seems to more closely tie “danger” to
the potential threat of actual physical violence or
harm than does the criminal commitment criteria.

of services and supports, including housing, if
the evaluator believes that lack of such
services and supports makes the person a
danger to self or to the person or property of
others, and be confined in a state hospital for
many months – and even years - until such
services and supports are obtained.

WHEN TREATMENT IS PUNISHMENT

WHAT IS
COMPETENCY
TREATMENT?
People from Baltimore City District Court
who are found incompetent to stand trial and
dangerous are typically sent to Spring Grove
Hospital Center (Spring Grove) and, as are all
patients, assigned a treatment team that
includes a social worker, psychiatrist and
nurses. The treatment team meets every 60
days to discuss the patient’s progress.
Treatment is focused on restoring the person
to competency, which for purposes of the
court, primarily means that the person
understands how the court operates. 24 The
treatment team typically uses pharmaceutical
treatment to try to improve mental
functioning, and education to attempt to teach
the person how a court works – for example,
the roles of the judge, defense attorney and
prosecutor. Other than this court process
education, treatment of a person on IST status
is essentially the same as for all other patients,
with one striking exception - they are not
permitted to leave the confines of the unit and
its small, fenced-in courtyard.

7

A TYPICAL DAY AT SPRING GROVE
Spring Grove Hospital Center was established in
1797 and is the second oldest operating psychiatric
hospital in the country. The 200-acre campus is
located just outside of Baltimore City in Catonsville,
Maryland, and has the capacity for 425 beds. Units
house approximately 25 men and women and are
located in buildings throughout the campus. Each
unit has a small fenced-in yard for recreation and a
“comfort room” where people can go to be alone or
meet with guests. Each unit also has a “day room,”
with chairs, a television set, and tables that patients
can use to play games such as cards, checkers or
chess. Social workers are scheduled to meet with
their clients weekly. Medical doctors visit the units
once a week to monitor the patients’ physical
health, and psychiatrists review the progress of
their patients once a month.
Patients who are court-ordered for treatment to
restore competency to stand trial are confined in
locked units 24/7 and not permitted to earn grounds
privileges, regardless of their behavior. As a result,
they have access only to the activities/groups
provided on the unit. On a typical day, patients are
awakened and required to assemble in the day
room at 5:00AM, four hours before breakfast is
served in the dining room. After breakfast, patients
typically again congregate in the day room.
Depending on the unit and the day of the week,
staff members, such as nurses, nurse techs, and
other treatment professionals, may conduct one or
more groups. Groups are held on topics such as
the how the criminal justice system works (which is
considered part of treatment for restoring
competency to stand trial), or current events. Staff
may also facilitate activities such as arts and crafts
or trivia. On most units, people spend their days
sleeping or watching TV, rousing only to take a
noon and evening meal together in the dining room,
to get in line for medication, or to return to the
sleeping quarters between 8:00PM and 9:00PM.

8 JUSTICE POLICY INSTITUTE

HOW OFTEN ARE
PEOPLE
RE-EVALUATED?
American Bar Association standards
recommend that a person be re-evaluated
whenever a staff person feels that competency
has been restored, if the person is not likely to
have their competency restored, or at a
minimum of every 90 days. 25 Under Maryland
law, DHMH is required to report to the court
every six months from the date of
commitment of the person and whenever it
determines that the person no longer meets
the commitment criteria of incompetent to
stand trial and dangerous. 26 However, the
court is not required to hold a hearing more
than once per year unless it determines that a
report contains “opinions, facts or
circumstances that have not been previously
presented.” 27 Thus, for example, if the court
has previously made a finding of restorability
or dangerousness contrary to the opinion of
the DHMH
forensic
evaluator, it
may be difficult
to get a hearing
before the next
scheduled
annual hearing
date if the
evaluation
report contains
the same
opinion and is
based upon the
same or similar
facts.
Although the treatment team has the most
contact with the person and meets every 60
days to review progress towards achieving
competency and whether the person remains
dangerous, the practice at Spring Grove is to

have a separate DHMH “forensic”
psychiatrist conduct the evaluation and
provide written reports to the court at the
required six month period and at the annual
hearing. The Maryland Disability Law Center,
a nonprofit legal services organization that is
the mandated Protection and Advocacy
agency in Maryland, reviewed the cases of 20
people confined for at least one year as IST at
Spring Grove in 2011. They found that the
medical records did not indicate that any had
been formally re-evaluated to determine
whether they continued to meet commitment
criteria more frequently than at the required
six-month intervals. **
The lack of more frequent evaluations and the
discretion of the court to hold hearings upon
receiving reports can contribute to people
staying longer—in some cases significantly
longer—in a locked facility than is necessary
or fair. Since the treatment team has daily
access to the person, they should be making
preliminary determinations and the formal
forensic evaluation should take place
promptly upon notice from a member of the
team that the person’s condition has changed
and he or she may no longer meet the IST
commitment criteria. If that is the opinion of
the forensic evaluator, a report should be
promptly forwarded to the court and a
hearing should be scheduled.

These individuals gave written authorization to
review their medical records. None had been
determined to lack the capacity to do so or to agree to
psychiatric treatment, which they all consented to
receive.
**

WHEN TREATMENT IS PUNISHMENT

Mr. H: More than Two Years Confined in a Hospital
While Waiting for Housing
Mr. H has a passion for bicycling and recycling and, for over 30 years, he rode his
bike and collected scrap metal to sell. While he did not have permanent housing,
he reports that he had enjoyed the freedom that his lifestyle provided. In May 2009,
Mr. H allegedly threatened another individual with a large nail during an altercation
while in line at a Baltimore City soup kitchen. He was charged with trespassing,
second-degree assault, and concealment and possession of a dangerous weapon
with intent to injure. Following his arrest, he lost his belongings, which included his
bicycle and Permanent Residency Card (PRC). He was found incompetent to stand
trial and dangerous, and sent to Spring Grove for treatment.
In April 2010, the forensic evaluator reported to the court that Mr. H was fit to stand
trial. According to the medical record notes, despite the opinion that Mr. H was
competent, the judge found that he remained incompetent and “mandated” that the
hospital provide an aftercare plan, including housing, that he could order as
conditions of Mr. H’s pretrial release. Another year passed and, in April 2011, the
forensic evaluator provided the court with his opinion that Mr. H would not be
restored to competency “within the reasonably foreseeable future.” The court
dismissed the criminal charges and ordered him civilly committed to Spring Grove.
Several months later, a note in his records summarized why he then remained
confined “[t]he patient has a desire to be discharged from this hospital and live on
his own. Currently, the discharge plan is for the patient to be discharged to an
assisted living placement in Baltimore City. A placement has not been identified . . .
[t]he barrier to the patient’s discharge is the lack of necessary paperwork to get
identification and (subsequently) entitlements; all needed for community placement
. . . [After] application [for green card/Permanent Resident Card] is submitted it
usually takes approximately 6-8 months to obtain PRC. The patient has been made
aware of this but has difficulty understanding why he cannot be discharged without
his PRC.” Despite the belief that the lack of a replacement card was a barrier to
his discharge, no action was taken at any point during his lengthy confinement.
In September 2011, attorneys with the Maryland Disability Law Center (MDLC), the
state’s protection and advocacy system, intervened on his behalf. Within a few
weeks, his application for the replacement PRC was filed and independent housing
and support services were secured through a Baltimore City program for people
who are homeless and have mental health needs. MDLC also obtained a donated
bicycle for him and he was discharged from the hospital.

9

10 JUSTICE POLICY INSTITUTE

WHO IS HELD AT SPRING
GROVE?
The Maryland Mental Hygiene Administration reports that Spring Grove housed
148 forensic IST people and 261 non-IST forensic patients at the end of
FY2011. 28 This included 112 forensic IST people from Baltimore City—from both
District and Circuit Courts. 29

THE MAJORITY OF
PEOPLE IN SPRING
GROVE ARE OVER
AGE 35.
Nearly two-thirds (66 percent) of the 112
forensic IST people in Spring Grove from
Baltimore City in FY2011 were over age 35. 30
Five people were reported as age 65 and over.

THE MAJORITY OF
PEOPLE AT SPRING
GROVE ARE MALE.
Three-quarters of forensic IST people from
Baltimore City held at Spring Grove at the
end of FY2011 were male.

THE MAJORITY OF
PEOPLE HELD IN
SPRING GROVE ARE
AFRICAN AMERICAN.
African Americans make up 64 percent of
people in Baltimore City, 31 but 89 percent of
those held in the Baltimore City Detention
Center (the jail) 32 and 75 percent of forensic
IST people held at Spring Grove from

The majority of forensic IST
people from Baltimore City in
Spring Grove are over age 35.

65 and
Over
4%

36-64
66%

19-25
13%
26-35
17%

Source: Mental Hygiene Administration

The majority of forensic IST people
from Baltimore City in Spring Grove
are African American.
White
22%

Asian
2%
Other
1%

African
American/
Black
75%

Source: Mental Hygiene Administration

WHEN TREATMENT IS PUNISHMENT
Baltimore City at the end of FY2011.33 The
reasons for these disparities in criminal
justice involvement are numerous. African
Americans in Baltimore City
disproportionately rely upon the public
mental health system because of income
disparities and lack access to employment
opportunities that provide private
insurance; 34 it may be that inadequate access
to high quality, timely community-based
health services contributes to the
overrepresentation of African Americans in
the population confined to secure facilities
for restoration of competency treatment. It is
likely that many of the same factors that lead
to disparities in criminal arrest and
incarceration rates generally are applicable to
higher rates of confinement in a secure
facility for African Americans found
incompetent to stand trial.

THE MAJORITY OF
PEOPLE IN SPRING
GROVE ARE HELD FOR
ASSAULT.
The Office of Forensic Services reports that as
of June 2011, 65 people were being held at
Spring Grove on IST cases from Baltimore
City District and Circuit Courts. 35 For about
half of these people, their most serious current
charge was misdemeanor second degree
assault †† without a weapon, followed by a
drug offense, mainly possession of a

Assault in the first degree requires intentional
cause, or attempt to cause, serious physical injury, or
assault with a firearm. Md. Code, Crim.Law §§ 3-201,
202 and 203. Assault in the second degree includes
“assault”, “battery” and “assault and battery”, as
defined by the Maryland appellate courts. Thus, a
second degree assault charge may be filed against an
individual where no physical contact with the alleged
victim was made, or where the contact was slight and
resulted in no physical injury.
††

11

The most serious charge of most IST
people from Baltimore City being held in
Spring Grove is 2nd degree assault.

Indecent
Exposure
3%
VOP
5%
Robbery
3%

Other
17%

Burglary
8%

Drug
Offense
12%

Assault 2nd
46%

Assault 1st
6%

Source: Office of Forensic Services

controlled substance other than marijuana.
These are offenses that could generally be
handled by community supervision
programs.
While many of these charges are relatively
minor and may not illicit much if any jail time
if convicted, findings of IST and dangerous
can lead to their being held in secure state
hospitals for long periods of time under the
auspices of receiving treatment. People who
are mentally ill generally spend more time in
the criminal justice system under some form
of incarceration both pretrial and postconviction than the general public due to their
unique cases. 36 The lack of community-based
treatment options, training for police officers
and crisis services ‡‡ leads to more people with
mental illness being held in the justice system,
including in prisons and jails as well as secure
hospitals, often for minor offenses.

Baltimore City Crisis Response, Inc., for example,
can only operate its mobile crisis units between 7:00
a.m. and Midnight, due to lack of sufficient funds to
have 24-hour availability.
‡‡

12 JUSTICE POLICY INSTITUTE
Mr. E: More Than Two Years Confined Despite Existing
Involvement in the Mental Health System
Mr. E was living in a group home and receiving outpatient mental
health services when he was charged with assault for incidents
involving arguments with peers that did not result in any injuries. He
was found incompetent to stand trial and ordered to Spring Grove for
competency treatment. The notes in his medical records state that his
housing provider continued to stay in touch with Mr. E during his
confinement and was willing to have him return.
Mr. E was not likely to be sentenced to jail or prison even if convicted
of the minor charges against him and, because he had the opportunity
to return to community mental health services, his criminal case
should have been resolved quickly. Instead, he remained criminally
committed in a costly state hospital.

Main Building of Maryland Hospital for the Insane at Spring Grove near Catonsville, MD, as it existed
at the turn of the 20th-century. See www.springgrove.com for more pictures of Spring Grove Hospital
Center.

WHEN TREATMENT IS PUNISHMENT

13

HOW LONG DOES IT TAKE TO
RESTORE A PERSON TO
COMPETENCY?

A number of factors can determine whether a person will be restored to
competency with specific treatment and within a given time period. But research
shows that for the majority people who are likely to be restored, it usually
happens within the first six months of starting treatment to restore competency.

RESEARCH SHOWS
THAT IF PEOPLE ARE
GOING TO BE
RESTORED TO
COMPETENCY, IT
WILL HAPPEN IN A
RELATIVELY SHORT
PERIOD OF TIME.
Studies are inconclusive on the exact factors
that will increase a person’s likelihood of
restoration. However, a number of studies
report characteristics that may make a person
more or less likely to be restored. A study out
of Ohio, for example, found that people who
are chronically psychotic with a history of
lengthy inpatient hospitalization and people
whose incompetence stems from irreparable
cognitive disorders like an intellectual
disability have a low probability of
competency restoration. 37
Studies also show that the majority of people
who are restored to competency are restored
within a certain timeframe. Research on

competency restoration for people with
mental illness shows that 70 percent or more
become competent within six months of
starting treatment; 38 nine out of 10 will be
restored within a year. A very small
percentage of people do take longer to be
restored to competency, and if substantial
progress is shown, and the state’s interest in
prosecution is great, it may be appropriate to
attempt continued treatment for a brief
additional period.
•

•

•

A study of people in Oklahoma found that
the average length of stay for people who
were restored to competency was 63.7
days; less than 6 percent of the subjects
had a length of stay greater than six
months. 39
A study that reviewed 18 years of data in
Indiana found that 72.3 percent of people
admitted for incompetency to stand trial
were restored within six months and 83.9
percent restored within one year. 40
A Florida study found that 40 percent of
people were restored to competency in
three months or less and 78 percent within
six months. 41

14 JUSTICE POLICY INSTITUTE

PEOPLE ARE
CONFINED IN SPRING
GROVE FOR LONGER
PERIODS THAN
RESEARCH SHOWS IS
APPROPRIATE
BEFORE BEING
FOUND COMPETENT
OR NOT RESTORABLE.
Based on the research, we would expect to find
that three-quarters or more of all persons
committed to Spring Grove who are restored to
competency would be so restored within six
months or less. However, the data shows that
this is not happening.
The 48 forensic IST people from Spring Grove
whose cases were resolved—whether
competent or unrestorable—in the first six
months of 2011 spent an average of 354 days at
Spring Grove from commitment to resolution.

Eleven of these
People from
people—almost a
fourth—spent
more than a year
spent an average of
at Spring Grove;
six of these spent
two years or
more. Those who
were restored to
competency spent
an average of 232
days at Spring
in
Grove, while
before their case was
those who were
resolved.
unrestorable spent
an average of 591 days under IST status.

Baltimore City

414
days

Spring Grove

Half of the forensic IST people who had their
cases resolved were from Baltimore City. These
24 people—most of whom were from the
District Court—spent an average of 414 days in
the hospital before their case was resolved. 42
This does not include the time they spent in jail
before someone noticed that they
may be incompetent to stand trial, or the
additional time spent at the hospital while

Cumulative Percent of People Restored
Within the Given Timeframe

87 percent of people restored to competency in a Florida
study were restored in 9 months or less.
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%

87.3%
78.5%

40.9%

6.1%
30 days

90 days

180 days

270 days

Source: Data provided by Forensic Services Division, Florida Department of Children
and Families cited in Gary B. Melton and others, Psychological Evaluations for the
rd
Courts: A Handbook for Mental Health Professionals and Lawyers, 3 Edition (New
York: The Guilford Press, 2007)

WHEN TREATMENT IS PUNISHMENT

People from Baltimore City sent to Spring Grove spend
more time in treatment for competency restoration than
the average time it takes to restore someone.
Average days spent in treatment

being evaluated for IST, which can
be legally up to a week or more; this
is only the time after they are
officially committed for treatment
for competency restoration. Those
who were restored to competency
spent an average of 314 days in
Spring Grove before their case was
resolved. And even after the case is
resolved, they may continue to be
confined, waiting for housing and
other community services.

Those from Baltimore City who
DHMH determined were
unrestorable spent an average of 579
days in the hospital. This is more
than three times the typical amount
of time studies show that it takes someone to
have their competency restored—180 days.
Thus, the majority of people who are unlikely
to ever become competent can and are
remaining in a secure state hospital for longer
than the research shows is clinically necessary
or probable for restoration.
As of June 30, 2011, 100 people were held at
Spring Grove while receiving treatment to
restore competency. On average, these people
had already spent 244 days at the hospital by
this time; 28 of them have already been held
Of the Forensic IST people
discharged from Spring Grove in
FY06, 34 percent spent more than
six months in the hospital.

1-5 0-30
years days
10% 9%
181-364
days
24%
91-180
days
12%

700
579 days

600
500
400

314 days

300
200

180 days

100
0
Average time to
competency
restoration

Spring Grove
Restored

Spring Grove
Unrestorable

Source: Office of Forensic Services

for over a year.43 Sixty five of these men and
women are from Baltimore City. Of the people
from Baltimore City, the average number of
days they have been confined thus far is 257.
About a third (22 people) have already been
confined for more than a year.
Likely as a result of the 2006 amendment tying
length of treatment to sentence length, the
length of time spent at Spring Grove has
increased in the last five years. Of the 42
forensic IST people discharged from Spring
Of the Forensic IST people
discharged from Spring Grove in
FY11, 41 percent spent more than
six months in the hospital.

1-5
years
21%

31-90
days
45%

15

181-364
days
20%

0-30
days
18%
31-90
days
16%
91-180
days
25%

Source: Mental Hygiene Administration. Notes: Length of stay based upon true discharge date.

16 JUSTICE POLICY INSTITUTE
Grove in FY06, 34 percent of people spent more
than six months in the hospital for treatment to
restore competency; of the 138 people
discharged in FY11, 41 percent spent more than
six months at Spring Grove. 44 In addition, there
has been a dramatic decrease in the number of
people discharged within 90 days, from 54
percent in 2006 to 34 percent in 2011, which
may be connected to the amended statute’s
requirement that DHMH provide the court
with a comprehensive discharge plan.
As the majority of people held in Spring Grove
are charged with minor offenses, the practice of
holding people for longer than necessary to
restore competency is not necessary for public
safety: the vast majority of charges are
misdemeanor assaults, drug possession,
indecent exposure and violations of probation.
Given the nature of the offenses with which
most people sent to Spring Grove are charged,
the State’s interest in keeping them locked up,
and perhaps eventually prosecuting, is not
nearly as great as their liberty interest.
Even after the forensic evaluator determines
that the person is competent, unrestorable or
no longer dangerous, unjustified delays often
continue. People should have a hearing within
30 days of the hospital’s filing a report with the
court that the person no longer meets the IST
commitment standard; however this is not
always the case. Some people are waiting more
than double or even triple that time for
hearings. 45 Not only do these delays violate
people’s rights under the law, they can hamper
discharge efforts as community programs often
have waiting lists and cannot hold open slots
pending the outcome of the hearing. In
addition, any housing arrangement a person
may have had prior to his arrest is frequently
long gone by the time the charges are disposed.
With nowhere to go after months or years
locked in Spring Grove, some will agree to
remain in the hospital to wait for housing –

Mr. F: Two Years Attempting to Restore
Competency Despite the Progressive
Deterioration of his Cognitive Functioning
In March 2009, Mr. F was charged with seconddegree assault after alleging hitting a nurse at the
University of Maryland Medical Center, where he
had been admitted for psychiatric treatment. At the
time of his arrest, he had been receiving mental
health services and housing for the previous eight
years through a Baltimore City agency, and had
intermittently held a variety of jobs in the community.
At Spring Grove, where he wound up for
competency treatment, he was given the provisional
diagnosis “rule out dementia.” His psychiatrist
documented that his cognition “has been worsening”
in the four months since his commitment, and
throughout his medical records he is noted to have
dementia or, alternatively, a “cognitive disorder” of
unknown origin. At the time of admission, he was
ambulatory and did not need assistance with daily
living activities such as eating, bathing or toileting.
His strengths were noted to include an ability to care
for self, history of compliance with treatment and
having a place to return to in the community.
Over the course of his first year of treatment, Mr. F’s
physical and mental state deteriorated significantly.
During the year, he lost approximately 35 pounds
and staff observed that, most of the time, he was
“virtually unresponsive.” He also had begun to
engage in self-injurious behavior (biting his hands).
In his 2010 annual competency evaluation report,
the evaluator describes that he was brought into the
interview in a wheelchair because he could no
longer walk independently and that he could not
meaningfully participate due to his disoriented and
confused condition. The evaluator further noted that
Mr. F now needed nursing staff assistance to feed,
toilet and dress him. Nevertheless, the evaluator
determined that Mr. F was “potentially restorable to
stand trial” because his psychiatrist had recently
increased his psychiatric medication and because
his “occasional clear thinking and reasonable
responses to questions suggest the potential” for
regaining competency. The court ordered continued
commitment for treatment to restore competency to
stand trial.

although this cannot truly be considered a
voluntary decision.

WHEN TREATMENT IS PUNISHMENT

17

CHALLENGES IN RESTORING COMPETENCY TO STAND TRIAL FOR
PEOPLE WITH OTHER TYPES OF DISABILITIES
People with intellectual disabilities and brain disorders such as dementia may face particular
challenges in restoring competency to stand trial.
Dementia – Multiple studies have shown that people with dementia have lower chances of
being restored to competency once deemed incompetent. A 2009 study found that people
diagnosed with dementia, while able to be restored, were significantly less likely to be restored
1
to competency within a year of treatment. A 2002 study that focused on geriatric patients (over
the age of 60) found that the major distinction between the group of people who were
competent to stand trial and those who were incompetent was the higher prevalence of
2
dementia in the latter group.
Intellectual Disabilities – The issue of competency to stand trial for people with an intellectual
3
disability is significant, yet most programs designed to restore competency do not explicitly
4
consider the needs of people with intellectual disabilities. One study found that 60 percent of
5
people with an intellectual disability who undergo competency hearings are found incompetent.
People with IQs ranging from 50 to 75 frequently do not understand legal terms and concepts,
6
despite reporting familiarity with legal terminology. Restoring competency can be a challenge
for people with an intellectual disability; a study of 75 people with an intellectual disability who
7
were incompetent to stand trial found that two-thirds failed to be restored. In Maryland, if a
person with an intellectual disability is committed for competency restoration, he or she will be
8
confined in a secure unit operated by the Developmental Disabilities Administration.
Sources:
1
Douglas R. Morris and George F. Parker, “Effects of advanced age and dementia on restoration of competence
to stand trial,” International Journal of Law and Psychiatry 32 (2009): 156-160, p. 158.
2
Richard L. Frierson and others, “Competence-to-Stand-Trial Evaluations of Geriatric Defendants,” The Journal
of the American Academy of Psychiatry and the Law 30 (2002): 252-256, p. 254.
3
R. Bonnie, “The competence of criminal defendants: A theoretical reformulation,” Behavioral Sciences and the
Law 10 (1990): 291-316.
4
Barry W. Wall and others, “Restoration of Competency to Stand Trial: A Training Program for Persons with
Mental Retardation,” Journal of the American Academy of Psychiatric Law 31, No. 3 (2003): 189-201, p. 189.
5
C. Everington & C. Dunn, “A second validation study of the competence assessment for standing trial for
defendants with mental retardation (CAST-MR),” Criminal Justice and Behavior 22 (1995): 44-59
6
K. Ericson & N. Perlman, “Knowledge of legal terminology and court proceedings in adults with developmental
disabilities,” Law and Human Behavior 25 (2001): 529-545.
7
Shawn D. Anderson and Jay Hewitt, “The Effect of Competency Restoration Training on Defendants with
Mental Retardation Found Not Competent to Proceed,” Law and Human Behavior 26, no. 3 (2002): 343-351, p.
348.
8
Annotated Code of Maryland, Criminal Procedure Article §3-106, 2008.

18 JUSTICE POLICY INSTITUTE
SPECIAL CHALLENGES FACED BY PEOPLE WITH TRAUMATIC OR OTHER
ACQUIRED BRAIN INJURY
A Traumatic Brain Injury (TBI) can occur following an intentional or accidental injury to the head. While this
occurs in a number of ways including assaults, car accidents and sporting injuries, TBI is increasingly being
1
found in military members who have been in combat. TBI can affect a person’s ability to perform normal,
everyday activities, and can interrupt thought processes, including concentration, memory and attention. In
turn, this can affect a person’s ability to stand trial, resulting in an evaluation of incompetence to stand trial.
MHA data identified 6 people admitted to Spring Grove in FY 2011 as having a TBI diagnosis. However, a
random sampling of 20 medical records reviewed by the Maryland Disability Law Center identified an additional
3 persons who were documented as having a self-reported history of brain injury, but no formal screening tool
was used and none of the people were further evaluated. Experts note that informal screenings at intake in
correctional facilities do not yield accurate prevalence rates and that a detailed and reliable screening tool is
2
needed. Based on recent studies, it is estimated that between 25 percent and 87 percent of people in jail and
prison have reported some history of brain injury or traumatic head injury– three to ten times the prevalence
3
rate of 8.5 percent in the general population. Given the lack of reliable screening in Maryland it is impossible
to know the true rate of TBI in persons found incompetent to stand trial, but it is reasonable to assume that it
falls within the range of estimated rates among the jail and prison population.
The failure to identify TBI has profound negative consequences for the individual. Depending on the region of
the brain that sustained injury, a person might exhibit a range of deficits and challenging behaviors, including
attention and memory deficits, uninhibited or impulsive behavior, irritability or anger that is difficult to control,
4
and slowed verbal or physical responses. The use of standard medications targeted to psychiatric symptoms
5
can compromise the person’s medical condition and can actually cause an increase in challenging behaviors.
In addition, without understanding TBI, staff may grow frustrated with what they see as the person’s failure to
follow rules and impose sanctions that prevent them from progressing through the hospital’s “level system.”
Uninhibited or impulsive behavior, including problems controlling anger and unacceptable sexual behavior,
may result in high-risk restraint or seclusion incidents and/or may provoke other patients to retaliate, putting the
person at risk of injury, including further head trauma. As the cycle of aggressive or unacceptable behavior
followed by punishment continues, the person’s chances of being deemed safe for return to the community
diminishes.
While it is critical to accurately identify the presence of TBI, a state mental hospital is not the proper
environment for most brain injury survivors and does not have the medical and psychiatric staff with training
6
and expertise in the neuro-behavioral programming that is essential to properly treat them. Further, the lack of
funding and adequate community TBI programs presents a significant barrier to discharge. As a result, people
with a TBI are either remaining stuck in an inappropriate and potentially harmful environment or, as with those
with unidentified TBI, being discharged to traditional mental health programs and services that do not meet
their needs.
Note: While we use the term TBI, many of the concerns also apply to those with other forms of ABI, including but not limited
to stroke, near drowning, hypoxic or anoxic brain injury, tumor, neurotoxins, electric shock or lightening strike.
Sources:
1
See, Maryland Traumatic Brain Injury Resources,
www.dhmh.state.md.us/mha/TBI%20Fact%20Sheet%20military%2008.09.doc; Brain Injury Association of America, About
Brain Injury, Accessed August 2011, www.biausa.org/_literature_81103/Military_Fact_Sheet_2011
2
In a project in Minnesota to identify inmates with TBI, researchers found that only 1 percent reported a history of head
injury during intake screening, as compared to 83 percent who reported at least one head injury through a more detailed
screening questionnaire. See Marlena M. Wald, Sharyl R. Helgeson and Jean A. Laongois, Traumatic Brain Injury Among
Prisoners, “Brain Injury Professional,” www.brainline.org/content/2008/11/traumatic-brain-injury-among-prisoners.html.
3
Webinar: Traumatic Brain Injury and Competency to Stand Trial: Issues and Advocacy for the National Disability Rights
Network, February 2010. www.ndrn.org/images/Documents/Issues/TBI/NDRN2-8-10.pdf
4
Department of Health and Human Services and Centers for Disease Control, Traumatic Brain Injury in Prison and Jails:
An Unrecognized Problem. www.cdc.gov/traumaticbraininjury/pdf/Prisoner_TBI_Prof-a.pdf
5
Interview with Diane Triplett, Former Executive Director of Brain Injury Association of Maryland and currently the Clinical
Evaluator and Coordinator for NeuroRestorative, a national brain injury provider, and Suzanne Kantt, Assistant Director,
Brain Injury Association of Maryland. September 2011.
6
Ibid

WHEN TREATMENT IS PUNISHMENT

Mr. A: No Treatment for His Brain Injury and Trauma Despite Two
Years of Commitment for Competency Treatment
Mr. A suffered a brain injury as a child when he was involved in a serious auto
accident that resulted in his being hospitalized. He received no rehabilitation
services or follow-up care for his head injury and his family assumed that he
had fully recovered. He was subsequently the victim of a violent attack, but did
not receive psychological services related to this trauma. Over the years, he
struggled to recover from these physical and emotional wounds as his family
tried, unsuccessfully, to locate appropriate services for him. He was eventually
arrested on minor charges, found incompetent to stand trial and committed to
Spring Grove.
Although his medical records noted that he had a prior brain injury, he was
given a mental illness diagnosis and only treated for that condition. In addition,
although his medical records documented the traumatic event that he
suffered, he was not offered trauma-specific services. During the years of his
confinement, the forensic evaluator submitted conflicting reports regarding the
probability of restoration, and submitted opinions about his dangerousness
that conflicted with the treatment team’s medical record notes.
After more than two years at Spring Grove, his legal case was resolved and
he was discharged to traditional community mental health services. Shortly
thereafter, a mental health provider conducted a TBI screen and concluded
that many of his difficulties are likely related to brain injury. However, his
family reports that, to date, he is still not receiving services targeted to either
the brain injury or his trauma.
Mr. A’s case illustrates that keeping people for unreasonably long periods of
competency treatment on minor charges is not only a waste of resources and
an unnecessary deprivation of liberty, it does not necessarily ensure that they
receive all of the treatment and services that they may need to successfully
recover.

19

20 JUSTICE POLICY INSTITUTE

WHY ARE SO MANY PEOPLE
HELD AT SPRING GROVE ON
IST STATUS, AND FOR LONGER
THAN IS CLINICALLY
NECESSARY?
A number of factors can affect how long someone remains on IST status, other
than whether they are showing significant progress towards soon achieving
competency—the only legal justification.
As noted earlier, using the maximum time for
dismissing criminal charges as the outer limit
on treatment can be perceived as punishment
for a crime without trial and conviction. But in
many cases, particularly those heard in the
Baltimore City District Court, the motivation
is often getting people services. While the
various players in the system are undoubtedly
operating with “good intentions” (i.e., out of a
belief that getting a person mental health
treatment is the best outcome for that person)
using the IST statute for that purpose is
inappropriate. Further, confinement in a
secure facility, particularly lengthy
confinement, can have a devastatingly
negative impact on people. Trapped in a legal
limbo that they may not understand, they can
become frustrated and despondent, as they
are isolated from family and friends and lose
the social connections and confidence that
they may have previously had to navigate life
outside of the institution. For those who have
a co-occurring brain disorder or injury, such
as dementia or TBI, confinement in a mental

hospital can lead to diminished mental and/or
physical health. §§

JUDGES
One reason more people are not released to
the community on a timely basis is that what
judges consider “adequate treatment” is not
readily available and may be more than what
is necessary to attempt to obtain competency
or to live safely in the community. Many
judges require residential treatment *** or
§§ For example, for people with TBI, who often exhibit
provoking behaviors, confinement in a mental
hospital can put them at significant risk for physical
injury. From a clinical perspective, this type of
confinement can set the person’s treatment prognosis
back several months or even years. Interview with
Diane Triplett, Former Executive Director of Brain
Injury Association of Maryland and currently the
Clinical Evaluator and Coordinator for
NeuroRestorative, a national brain injury provider,
and Suzanne Kantt, Assistant Director, Brain Injury
Association of Maryland. September 2011.
*** Residential treatment programs require people to
live with other program participants in apartments or
group homes and adhere to a variety of program

WHEN TREATMENT IS PUNISHMENT
treatment that is accompanied by some form
of housing and intensive case management,
such as that provided by Baltimore City’s
Forensic After Care Treatment Team
(FACTT), to discharge someone from a state
hospital. Currently, there is a two-year
waiting list for some residential rehabilitation
programs (RRPs). But these intensive forms of
treatment may not always be necessary and
waiting for them to become available leads to
keeping people locked up for longer than
what is a clinically or legally appropriate
period of time. Baltimore Mental Health
Services (BMHS), which oversees public
mental health services in Baltimore City,
reports that while mental health treatment is
available, not all of it involves residential
treatment or intensive treatment. And not
everybody needs this form of treatment—
many people can live in the community with
minimal care and supervision. 46 While
housing, which the court frequently requires
be included in a discharge plan, is certainly a
critical issue for many persons with a mental
illness, keeping people confined until it is
obtained is the wrong approach, from both a
fiscal and human rights perspective.

DEFENSE LAWYERS
Lawyers can also contribute to their clients
remaining in state hospitals on IST status
longer than necessary. Attorneys may contest
findings of restored competency for a number
of reasons. The most common is that they do
not believe their client is competent and wish
to have a second opinion to ensure that their
rules, which often include severe restrictions on
freedom of movement, choice of recreational activities
and employment. In addition, these programs
provide intensive staff monitoring, which decreases
over time as the person “progresses” through the
program. If a person receives social security benefits,
the program charges for “room and board,” often
leaving the individual with $40 per month – the legal
minimum required under federal law.

21

client’s due process rights are being protected.
And while this does not occur often with
people held at Spring Grove due to the lowlevel nature of their offenses, lawyers may
also contest competency because they know
that if their client is found competent and still
dangerous, there is the possibility that they
will be sent to jail to await trial, which can
have a negative impact on their mental state,
including competency. People with mental
illness decompensate in jails 47 and may lose
all of the progress they had made in restoring
competency, in addition to the personal
negative impacts on the person in jail. Upon
release, community health professionals say
they then have to work “twice as hard to get
them back to where they were before they
entered jail.” 48

“The ability to obtain community
services is often a factor in a State’s
Attorney’s decision to prosecute or
nolle pross a charge, or a judge’s
decision as to whether incarceration
or commitment to the Department [of
Health and Mental Hygiene] is
necessary. Without adequate funding
and prompt availability of community
services, it is likely even more
individuals with mental illness will be
incarcerated or court committed to the
Department [of Health and Mental
Hygiene].”
Forensic Populations and DHMH, 2008

Defense attorneys generally believe that it is
in their client’s best interest to keep them out
of jail, and therefore may want to keep them
from being found competent. However, this is
not always what the client would prefer, and
it is not necessarily true that he or she would
end up in jail if found competent, particularly
people confined to Spring Grove on low-level
charges. The majority of people ultimately
found competent to stand trial are released to

22 JUSTICE POLICY INSTITUTE
the community or back to inpatient treatment
on civil commitment by the judge, not to jail.
In addition, the data showing that people who
are not restored are spending long periods of
time confined in secure units at Spring Grove
Hospital indicates that defense attorneys can,
and should, be more aggressive in pushing for
timely competency determinations and
dispositions, particularly once the client has
been held for six months.

PROSECUTORS
Prosecutors may also contribute to longer
lengths of stay for people on incompetency
status. Prosecutors may challenge DHMH’s
findings of unrestorability, especially when it
is a more serious or high profile case, as a
finding of unrestorability means that the
person cannot be tried for the crime.
Nevertheless, in accordance with the Supreme
Court’s ruling in Jackson, it violates the
person’s constitutional rights to keep him or
her confined if restoration is not substantially
probable. If the person is still dangerous, he
can be civilly committed to a state hospital.
Moreover, cases involving crimes of serious
violence are relatively rare overall and
certainly do not comprise the docket at
Baltimore City District Court. The
prosecutor’s interest in bringing these cases to
trial is diminished and it is improper to insist
upon longer lengths of stay.

Prosecutors may also insist that people not
receive treatment to restore competency in the
community unless it includes receive
residential treatment to ensure some level of
monitoring. But, again, such a service is
difficult to access and is frequently
unnecessary from a public safety perspective.

DEPARTMENT OF
HEALTH AND MENTAL
HYGIENE (DHMH)
DHMH contributes to unnecessary ongoing
confinement by failing to adhere to maximum
treatment standards that are supported by
clinical evidence, such as the studies
contained in this report. The majority of
people treated should be restored to
competency within six months. At that point,
if a person is still incompetent, there must be
clearly documented evidence of significant
progress toward competency to justify
continued treatment. At the first annual
hearing, very few people, if any, should be
evaluated as having a substantial probability
of soon becoming competent.
DHMH also contributes to delays whenever it
fails to provide opinions to the court
immediately upon a change in the person’s
condition that impacts his or her commitment
status. As previously discussed, while the
current law permits DHMH to file such
reports, it only requires a report every six
months. Data showing that the number of
people released from Spring Grove prior to six
months has decreased significantly suggests
that, after the initial evaluation hearing and
commitment for treatment, the hospital may be
waiting for the required six-month interval
before filing a report, thereby potentially
prolonging a person’s confinement.
In addition, DHMH appears to be making
determinations that a person is “dangerous”

WHEN TREATMENT IS PUNISHMENT
that are out of line with its opinions in civil
cases. When a person is committed as
dangerous in a civil case, DHMH may release
him at any time it determines he is no longer a
danger. Lengths of stay data show that as the
civil admissions to state hospitals decreased,
the average lengths of stay increased. In FY
2007, 60 percent of those admitted were
discharged within 30 days. In FY 2010, that
number dropped to 39 percent. 49 As discussed
previously, there is often no marked
difference in the behaviors that result in arrest
for some and civil commitment for others. It is
likely that people who can return to the
community for treatment are remaining at
Spring Grove for much longer periods than
are reasonable or necessary for clinical or
public safety purpose.
Finally, with DHMH keeping more people in
state hospitals for longer, resulting in fewer
available beds for people who may need
ongoing treatment, some people who do not
qualify for community placement are forced
to stay in jails while awaiting bed space to
open up so they can be transferred. 50 The law
states that people can be evaluated in jails as
well as state hospitals and community centers,
but some judges require that evaluations take
place in DHMH facilities. Currently, some
people are waiting 14-21 days or more in jail
awaiting competency evaluations after the
Court Medical Office screening found that
they were likely to be incompetent. 51

23

24 JUSTICE POLICY INSTITUTE

HOW ARE INCOMPETENCY
CASES IN BALTIMORE CITY
DISTRICT COURT RESOLVED?
People committed to Spring Grove can have their cases resolved in a number of
different ways, depending on whether they are restored to competency or not.

IF COMPETENCY IS
RESTORED:
TRADITIONAL COURT
PROCESSING OR
MENTAL HEALTH
COURT
Traditional Court Processing
A person who becomes competent after
treatment can go through traditional court
processing either with a judge or jury trial. The
court determines whether the person can be
released on bail or on their own recognizance,
or whether he is remanded to the Baltimore
City Detention Center (jail). For those who
were out in the community receiving
treatment, they may continue to receive
treatment and pretrial supervision in the
community either through the Pretrial Release
Services Program or Forensic Aftercare
Services Team (FAST). In some cases, the court
may order that the person remain at Spring
Grove while awaiting trial, to ensure that he
does not again become incompetent due to
possible disruptions in treatment. If at any time
any court personnel feels that the person is no
longer competent, an evaluation can be

ordered and the trial put on hold until the
person again becomes competent.
The defense attorney may enter a plea of “not
criminally responsible” and ask for an
evaluation for that purpose. ††† Often, this
evaluation will have been already completed
while the person remained at Spring Grove,
but sometimes the person is again returned to
the hospital to be evaluated for criminal
responsibility.

Mental Health Court
People who become competent after
treatment can, if approved, voluntarily enter
the mental health court rather than go
through traditional adjudication in District
Court. ‡‡‡ People are eligible for the District
For the IST population confined at Spring Grove
on minor charges, an NCR plea is not generally
appropriate, as it would result in continued
commitment for an indeterminate period – and likely
be lengthy as the court frequently requires a
residential community program with monitoring
before approving release on conditions.
‡‡‡ At this time the Baltimore City Circuit Court does
not have a mental health court. Judge Gale Rasin at
the Circuit Court is working with Baltimore Mental
Health Systems, Inc. on three-year pilot program to
work with people with mental illness who come into
contact with the justice system on more serious
offenses that are handled in Circuit Court.
†††

WHEN TREATMENT IS PUNISHMENT

25

NOT CRIMINALLY RESPONSIBLE
If a person pleads Not Criminally Responsible (NCR) and is found to qualify for this status after
examination, he or she can be committed to DHMH for inpatient care, face conditional release (usually
supervised by the Community Forensic Aftercare Program (CFAP)), or be released without
1
conditions. A person is considered not criminally responsible if, at the time of the offense, the person
lacked the “substantial capacity” due to mental disorder or intellectual disability to appreciate the
2
criminality of the offense or to conform to the law. If the person is committed for inpatient care, he
remains committed until the court finds that he would not, as a result of intellectual disability or mental
disorder, be a danger to self or to the person or property of others if released, with or without
conditions. The length of stay for people committed as NCR can be significantly longer than people
3
civilly committed.
Sources:
1
Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-112. Not criminally responsible—Commitment.
2
Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-109. Test for criminal responsibility.
3
John Colmers, George Lipman and Charlotte Cooksey, Report on Forensic Populations and the Department of
Health and Mental Hygiene, February 19, 2008.

Court’s mental health court if they have a
diagnosis of an Axis I serious mental illness 52
like schizophrenia, bipolar disorder or major
depression and/or a trauma-related disorder
and are eligible for public mental health
services. The Mental Health Court accepts
people charged with a misdemeanor or felony,
but not those charged with domestic violence or
who have any record of violent offenses. 53 The
Court’s Forensic Aftercare Services Team
(FAST) determines if the person is eligible for
the mental health court and whether they can
supervise them while under mental health
court. The FAST program screens about 800-900
cases a year for mental health court eligibility.54
If a person decides to enter the mental health
court, he must plead guilty to his offense— he
will not have a trial—and will receive a
treatment and supervision plan mandated by
the court and supervised by the Division of
Parole and Probation, the Pretrial Release
Services Program or FAST, depending on what
agency is deemed most appropriate by the
judge, and these agencies’ willingness to
supervise. 55 He will be required to periodically
attend mental health court and follow his
tailored conditions of release, which may
include treatment, housing and other
requirements. If he is not able to follow the

conditions of the mental health court or wishes
to opt out of the program, he will be
traditionally processed under the guilty plea he
accepted. 56

IF A PERSON IS
UNRESTORABLE:
RELEASE TO
COMMUNITY OR CIVIL
COMMITMENT
Release to Community
If a person is found to be unrestorable and no
longer dangerous to himself or others due to
the nature of his mental illness, he can be
released from the DHMH hospital with a
discharge plan that may include plans for
housing and/or treatment.

Civil Commitment
But if a person is found to be unrestorable and
still dangerous, he can be civilly committed to a
DHMH hospital. Commitments can only be
made if the court finds by clear and convincing
evidence that:
1. the person has a mental disorder;

26 JUSTICE POLICY INSTITUTE
2. inpatient care is necessary for the person;
3. the person presents a danger to the life or
safety of self or others;
4. the person is unable or unwilling to be
voluntarily committed to a medical facility;
and
5. there is no less restrictive form of
intervention that is consistent with the
welfare and safety of the person. 57

IF A PERSON “TIMES
OUT”: RELEASE
If a person remains in the facility until their
“time-out” date, they must be released from
the facility. Time-outs occur when a person
has been held in a secure state hospital
awaiting competency restoration for the
maximum amount of time they could have
been sentenced if found guilty of the offense. 58
At this time, the person must be released to
the community or civilly committed to a
mental health facility.

Grove, §§§ and four people had no disposition
noted on their public record.60
Of this sample, people who had their cases
dismissed spent an average of 450 days in
Spring Grove before their case was resolved.
This is equal to 15 months of their life that they
spent in this hospital only to have their charges
dropped—never being convicted or sentenced.
If the courts had no interest in convicting these
people, it is unclear why they wait so long to
drop the charges. The use of competency
commitments in this way is as good as
punishment for a crime for which these people
were never tried. Not only is this a deprivation
of liberty, but it is wasteful policy. Rather than
force people to receive treatment for
competency restoration, Baltimore should be
looking for ways to keep people in the
community and get them access to the types of
treatment they need or want.
None of the 24 people whose IST cases
were resolved from January to June 2011
received a sentence of incarceration.

WHERE DO PEOPLE
GO WHEN THEIR IST
STATUS IS
RESOLVED?
In the first six months of 2011, none of the 24
people from Baltimore City whose IST cases
were resolved were sentenced to spend any
time behind bars, and most were not even
convicted of the charge. 59 Eleven of 24 people
had their cases dismissed, including one person
who “timed-out” and had their case dismissed
after spending 147 days at Spring Grove for
filing a false police report—the longest possible
sentence for this offense. Four of these 24 people
pled guilty (three of whom were sentenced to
probation), two were found not criminally
responsible (NCR) after spending two years—
more than 700 days—on IST status at Spring

N/A, 3
Dismissed,
6

NCR, 2

Guilty-Probation,
4
No
Disposition
Listed, 4

Nolle
Prosequi, 4

Stet, 1

Source: Office of Forensic Services Data

As previously mentioned, the strategy of pleading
NCR for people with relatively minor charges may
not be the best outcome for the person who will then
be confined for an unspecified additional time period
and continue to be subject to court jurisdiction and
monitoring.
§§§

WHEN TREATMENT IS PUNISHMENT

Operating model of Baltimore City Mental Health Court

COMPETENCY

VOLUNTARY

Court Ordered Competency Evaluation

Request for Evaluation

Department of Health
and Mental Hygiene

Forensic Alternative
Services Team

(FAST)

MENTAL HEALTH COURT DOCKET
(District Court)

Competency
Determinations and Review

Incompetent to

Stand Trial

Competent to
Stand Trial

Dangerous
or Non-Dangerous

Determination of Supervision
Court Monitoring

FAST Monitoring
(Court Review)

Office of
Pretrial Intervention
Parole and Probation

(ISTD/ISTN)

Voluntary Pathway
Consideration of
Court Supervision

Source: Process Evaluation of Baltimore City Mental Health Court (Maryland Judiciary

Research Consortium, March 2010)

www.courts.state.md.us/opsc/mhc/pdfs/evalutations/bcmhcprocessevaluati on3-11-1 o. pdf

27

28 JUSTICE POLICY INSTITUTE

WHAT IS THE IMPACT OF THE
CURRENT IST LAW AND THE
PRACTICES OF THE BALTIMORE
CITY DISTRICT COURT ON
MENTAL HEALTH RESOURCES?
SPENDING ON
SPRING GROVE
HOSPITAL CENTER
HAS BEEN
INCREASING

increased 4.4 percent from FY2006 to FY2011,
while spending on all other psychiatric hospitals
(excluding Spring Grove) decreased 6.6
percent. 61
It costs Maryland taxpayers $512 per person per
day to hold someone in Spring Grove—about
$186,880 per year. 62 As the average length of
stay of a person from Baltimore City for forensic
IST is 414 days (nearly 14 months), 63 that means
that Maryland is spending an average of
$211,968 per person to house them in Spring

Maryland appropriated $256 million for state
psychiatric hospitals in FY2011, including $76.7
million for Spring Grove Hospital Center
(Spring Grove). Spending on Spring Grove

Spring Grove expenditures are growing faster than the total for all state
hospitals.
$290,000,000

$85,000,000

$280,000,000
$79,563,415

$80,000,000

$270,000,000
$260,000,000

$265,686,359
$265,724,369 $75,000,000
$73,466,353

$250,000,000

$70,000,000
FY12
Allowance

FY10

FY09

Spring Grove

FY11
Appropriation

All State Psychiatric Hospitals

FY08

FY07

FY06

$240,000,000

WHEN TREATMENT IS PUNISHMENT
Grove for competency restoration. Furthermore,
for people who are found to be unrestorable—
which the research shows should be determined
within six months to a year of starting
treatment—the average length of stay is 579
days (approximately 19 months). At this rate,
people who may be unlikely to be restored to
competency are costing an average of $296,448
per person for treatment at Spring Grove.
In order for the state to realize cost savings, the
number of beds utilized for treatment to restore
competency to stand trial needs to be reduced.
A small number of beds for those who truly
need it clinically, and for a short period of time,
is all that is needed if Maryland reforms its IST
system and provides an adequate communitybased system of care, including an array of
housing options.
During the last legislative session, the Maryland
General Assembly ordered DHMH to conduct
an independent analysis of the future need for
beds. 64 At the same time, the General Assembly
appropriated funds for a “Redevelopment Plan
for Spring Grove Hospital Center” by the
Maryland Economic Development Corporation

29

(MEDCO). This plan must include detail on the
construction of a new hospital (to replace the
aging, inefficient and costly institution) and
evaluate how to utilize proceeds from the sale of
a parcel of land sought by a developer to
“benefit the Community Mental Health
System.” By diverting people found IST to
community treatment and moving people
found NCR out more quickly it is possible to
construct a small hospital that will better serve
those who need inpatient care, and use the
savings to expand community services and
supports. As most of the people held in Spring
Grove currently are held on low-level charges,
this should have minimal impact on public
safety and can have a positive impact on people
with mental illness. 65

TREATMENT IN THE
COMMUNITY IS LESS
EXPENSIVE THAN
STATE HOSPITALS.
Spring Grove is one of the most costly
methods of treating people for incompetency
to stand trial, without the coinciding benefits.

Maryland could save an average of $109,568 per person who is unrestorable
by reducing the length of time they spend at Spring Grove to one year from the
current average.
$1,000,000
$934,400

Cost per person

$800,000
$600,000
$400,000
$200,000

$186,880

$211,968

One Year

Averate for all
patients (414
days)

$280,320

$296,448

18 Months

Average for
unrestorable
patients (579
days)

$93,440

$0
Six Months

Five Years

Source: Per diem cost of Spring Grove: Mental Hygiene Administration; Average Length of Stay: Office of
Forensic Services.

30 JUSTICE POLICY INSTITUTE
For people with more extensive needs, the
Capitation Project, for example, provides a
comprehensive range of coordinated services
for people in Baltimore City with serious
mental illness who are able to live in the
community but have difficulty managing
certain treatment aspects independently.
According to Baltimore Mental Health
Systems, Inc., the core service agency that
directly manages public mental health system
services in Baltimore City, “The Capitation
Project, in its 13th year, provides 354
consumers with histories of long or recurring
inpatient admissions a viable community
alternative. The average cost per year for a
Capitation Project consumer is $28,920.” 66 If
people were moved to the community, they
may access a variety of different services at a
lower cost and to the same effect of either
restoring competency or working with people
who are not able to be restored to
competency. Moving people from Spring
Grove in a reasonable amount of time could
potentially save Maryland millions of dollars
a year, even when accounting for the costs of
community treatment.
However, while community treatment while
attempting to restore competency is less
expensive and less restrictive, it is important
that same reasonable maximum treatment
periods should apply. Frequent re-evaluations
should be conducted and people should only
be required to continue competency treatment
after six months if there evidence of
substantial progress. Once it is determined
that there is not a substantial probability of
restoration, the person’s charges should be
dropped and he should be offered the
opportunity to access those mental health
services and supports that he needs.
Currently, because judges in the District
Court are reluctant to release a person from
the hospital without a discharge plan that

It costs Maryland taxpayers

$512
per person
per day

to hold
someone in Spring Grove—

$186,880
per year

about

.

they believe is “adequate,” the most intensive
community resources, such as residential
beds, may be unnecessarily over-utilized by
the IST population instead of what may
otherwise be recommended by MHA as
necessary for competency treatment or to
ensure that the person remains safely in the
community. In FY2008, Baltimore City spent
$178,388,747 on public mental health services
(PMHS), 35 percent of Maryland’s PMHS
expenditures. 67 Over the past three years,
Baltimore City spending on PMHS increased
faster than total Maryland expenditures (24. 7
percent increase versus 10.1 percent). **** While
the number of persons who receive
community mental health services and related
supports as a result of their IST status is low
relative to the total number of Baltimore City
recipients, it is imperative that resources are
allocated based on sound clinical judgment,
not what judges or lawyers believe is
sufficient.

Starting in FY 08 case management services
became a contract-funded service, and thus not
included in City expenditures.

****

WHEN TREATMENT IS PUNISHMENT

31

RECOMMENDATIONS
Too many people are unnecessarily confined in secure settings and placed under
orders for outpatient treatment for longer than necessary, for purposes of
attempting to restore competency to stand trial. Not only is this a civil rights
issue, but a waste of increasingly scarce resources. The following
recommendations are designed to create a fairer and more efficient system,
while allowing Maryland to continue to downsize and close its aging institutions
and reallocate those resources to the community, so that all who need them will
have timely access.
1.

e.

Establish policies and practices in
Department of Health and Mental Hygiene
(DHMH) facilities to ensure IST cases are
resolved and people are either found not
dangerous, restored to competency or
determined not restorable, more quickly
and consistent with research. DHMH
policies and practices should include:
a. targets for restoring competency
within six months;
b. Mental Hygiene Administration
(MHA) administration-level reviews
of people determined “dangerous”
every 30 days to ensure that
evaluators are appropriately applying
the legal standard;
c. Ensure that treatment teams are
making frequent assessments on
competency, restorability or
dangerousness and notifying the
forensic evaluators as soon as there is
a change of status to ensure that
evaluations take place within a short
period of time following such notice
by the team;
d. MHA administration-level reviews of
forensic evaluation recommendations
for continuing treatment beyond six
months;

2.

3.

31

MHA administration-level approval
for treatment beyond one year; and
f. periodic independent system review
to ensure that timely and appropriate
determinations are made and reported
to the court.
Establish policies and practices for the
Judiciary governing the proper use of the
incompetency law. Such policies and
practices should include a clear expectation
that courts follow the narrow purpose of the
incompetency statute – to provide a
reasonable period to attempt to restore
competency to stand trial; provide
guidelines with respect to making findings
of competency, restorability and
dangerousness consistent with the clinical
evidence in the record; and provide
guidelines on the proper role of the court in
reviewing discharge plans presented by
DHMH.
Establish policies and practices for the
Office of the Public Defender for
representing persons found incompetent to
stand trial. Such policies and practices
should be developed with input from
mental health consumers, and should:
a. be trauma-informed;

32 JUSTICE POLICY INSTITUTE
b.

include guidelines on case
management for people charged with
misdemeanors and felonies and found
incompetent to stand trial that would
not be expected to result in a
significant period of criminal
incarceration if the person were
competent;
c. provide guidelines for appealing court
findings on competency, restorability
or dangerousness; and
d. ensure periodic internal review so that
clients are returned to the community
as quickly as possible and that
treatment for competency restoration
is ended within a reasonable period of
time consistent with scientific and
legal studies.
4.

Develop training for DHMH, judiciary,
defense attorneys, prosecutors and other
relevant court personnel, based upon
available best or evidence-based practices
and standards on treatment to restore
competency to stand trial, including
outpatient treatment, and appropriate limits
on treatment periods. Currently, Maryland
law does not have a limit on treatment, other
than a de-facto limit based on required
dismissal of charges at set time periods. This
legal flaw in the statute should not operate to
extend treatment beyond a reasonable period
of six months to a year, as demonstrated in
various studies. Criminal justice and DHMH
forensic treatment personnel must be aware
of, and adhere to, standards based on sound
clinical practice rather than extraneous
improper motives such as “punishment” or a
person’s “need” for mental health treatment
and housing. While consideration should be
given to amending the law to provide
treatment limits, it is not necessary if system
players adhere to the purpose and narrow
intent of incompetency laws. Twenty states
have maximum treatment limits of one year
or less. There is no reason why Maryland
should not follow their progressive lead.

5.

Develop processes for streamlining
competency evaluations for people confined
while awaiting evaluations. Currently,
DHMH must conduct competency
evaluations within seven days of court
orders. People who are confined during this
time—especially those confined in jails—can
experience negative consequences during this
time, including decompensation and loss of
liberty. Streamlining the process will reduce
these negative impacts and ensure that
people are moved to the appropriate status
quickly and fairly.

6.

Develop better policies and practices for
people with TBI or other acquired brain
injuries. The impact of TBI on behaviors is
not widely understood among people
working in the justice system. Training is
essential so that more-informed decisions can
be made when a person demonstrating TBIbased behavior is arrested and brought
before the court for processing. Based on
estimates of prevalence rates in jails and
prisons, it is imperative to accurately identify
and meet the needs of persons with TBI who
are arrested and found incompetent to stand
trial. The need to expand community-based
TBI services is acute in Maryland and the lack
of community capacity contributes to
individuals getting arrested for behavior
related to their TBI.
a. Use valid and reliable measures for TBI
screening, including structured
interviews to identify TBI in persons
screened for possible incompetency,
evaluations for competency in-patient
or outpatient, and orders for
competency restoration treatment.
b. Develop training for DHMH, judiciary,
defense attorneys and prosecutors, on
the impact of TBI on people in the
criminal justice system; and
c. Develop and fund appropriate
community-based programs, to ensure
that people with TBI receive treatment
to attempt to restore competency to
stand trial in an appropriate setting.

WHEN TREATMENT IS PUNISHMENT
7.

Ensure that effective community-based
mental health resources are available and
properly utilized. A number of communitybased mental health centers and programs
that include housing—Forensic Assertive
Community Treatment Team (FACTT)
program and the Capitation pilot program,
for example—are available in Baltimore, and
are shown to be effective in working with
people with mental health problems.
Investing in more community mental health
resources—especially for people with cooccurring mental health and substance abuse
problems—can ensure that people have
access to community services that use the
most currently effective methods available.

8.

Invest in quality, affordable and supportive
housing for people who need it. A primary
reason for the high incidence of people with
mental illness in the justice system—and in
turn, the high number of people in state
hospitals receiving mental health treatment—
is the lack of housing available. The
availability of housing has been associated
with reduced criminal justice involvement
and can have a positive impact on people
who are living with a mental illness and need
the stability of a home.

9.

33

Intervention Teams. 68 Baltimore City has
the Behavioral Emergency Services Team
(BEST), which provides training to police on
how to deal with crises involving people
with mental illness. But this program may
not be enough. Baltimore should look to
programs like the Crisis Intervention Teams
(CIT) in Memphis, Tennessee for effective
police programs that can work with
agencies to improve outcomes for people
with mental illness. 69 An adopted model
should include training on other mental
disabilities, including TBI, intellectual
disability, and brain disorders such as
dementia, and coordination with
appropriate service agencies. People should
not be arrested just for exhibiting signs of a
behavioral disorder—the police should have
other options, and know of these options,
for getting people the treatment and services
they need in the community.
11. Ensure that the current studies on future
state hospital bed needs and redevelopment
plans for Spring Grove Hospital Center take
into account the findings in this report that
people are being unnecessarily confined for
treatment to restore competency and for too
long. To get an accurate estimate of future
needs, it is imperative not to base
assumptions on current use and the rapid
expansion of IST commitments since the 2006
amendments to the statute. As detailed in
this report, the failure to have reasonable
maximum treatment periods, together with
the practice of confining people to get them
community services and housing, are the root
causes. By implementing these
recommendations for reform, Maryland can
plan to downsize Spring Grove and replace it
with a much smaller facility that will better
serve patients, and use the savings to expand
community services and provide housing
opportunities.

Eliminate quality of life policing sweeps
that bring more people with mental illness
and other mental disabilities, including
TBI, into the justice system. Many of the
people who are held on incompetency status
are charged with low-level offenses such as
misdemeanor assault, disorderly conduct or
public urination. Police sweeps that target
people in certain neighborhoods or of
certain social status only work to bring more
people into the justice system, disrupting
lives and stealing precious resources from
more effective public safety strategies.

10. Expand Baltimore’s current special police
team to a model based on Memphis’ Crisis

33

34 JUSTICE POLICY INSTITUTE

APPENDIX
State

Maximum Defined Competency Treatment Periods

Alabama

No max treatment
180 days for crimes not involving force; 1 year crime of force against another

Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D.C.

Florida

21 months
1 year
Misdemeanor charges – lesser of 1 year or maximum sentence; felony –
lesser of 3 years or maximum sentence.
max sentence
Lesser of max sentence or 18 months.
No max
180 days total if charge did not involve crime of violence; If crime of violence
max is required dismissal of charges at 5 years (except murder or 1st degree
sex abuse and 1st degree sex abuse of child, in which case, no requirement
to dismiss charges).
No max treatment limit. Criminal charges dismissed after 1 year for
misdemeanors and 5 years for felonies.

Minnesota

1 year.
No treatment maximum; no required dismissal of charges.
270 days.
At the end of 1 year, state either asks to dismiss charges or there is a
“discharge hearing” in which there must be a finding of guilt “beyond a
reasonable doubt,” or person released or civilly committed. If found “guilty”
can have treatment for an additional 15 months to 5 years, depending on
criminal charge.
6 months
Lesser of 18 months or maximum sentence of charged offense
6 months.
60 days.
maximum sentence
1 year.
40 days (plus possible 6 month civil commitment).
Lessor of 1/3 of max sentence or 15 months.
Cannot be ordered for treatment on misdemeanors (charges dismissed);
felonies, excluding murder = 3 years.

Mississippi
Missouri
Montana
Nebraska

No max either treatment or criminal charges.
12 months.
No max treatment or criminal charges.
No max treatment or criminal charges.

Georgia
Hawaii
Idaho

Illinois

Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Massachusetts
Michigan

WHEN TREATMENT IS PUNISHMENT

35

Lessor of max sentence or 10 years.
Nevada
New Hampshire 12 months.
No max treatment or required dismissal of charges.
New Jersey
9 months, except if felony involving “infliction of great bodily harm on another
person,” use of firearm, aggravated arson, criminal sexual penetration or
sexual contact of a minor, in which case (unless charges dropped) court may
New Mexico
order hearing on “factual guilt” and if found “guilty and dangerous may order
continued treatment for period not to exceed max sentence.
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia

Washington
West Virginia
Wisconsin
Wyoming

90 days misdemeanor; felonies 2/3 of max sentence.
60 days.
No maximum treatment; charges dismissed at max sentence.
1 year maximum through tiered system: 3rd or 4th degree misdemeanor = 30
days; 1st or 2nd degree misdemeanor = 60 days; Non-violent felonies = 6
months; Violent felonies = 1 year
Lesser of max sentence or 2 years.
Lesser of 3 years or max sentence.
No maximum; criminal charges dismissed after lesser of maximum or 10
years except 1st or 2nd degree murder can remain indefinitely.
2/3 of maximum term of imprisonment for most serious charged offense.
90 days total.
1 year for other than Class A or B felony; in those cases, maximum sentence
could have received.
no maximum treatment; no requirement for charges dismissed.
180 days maximum.
36 months if charged with aggravated murder; 18 months serious felony; 1
year all other charges (not to exceed maximum penalty).
No commitment
Misdemeanors max 45 days (except for “peeping into dwelling/enclosure or
disorderly conduct in public places); for all other charges – lesser of max
penalty or 5 years, except murder charge, no limit.
Non-felony & no history of violence or previous findings of IST or NGRI = no
commitment Non-felony and history of one or more violence acts or
previously been found IST or NGRI = 120 days
9 months
Lesser of 12 months or max sentence
No maximum.

35

36 JUSTICE POLICY INSTITUTE

See Grant H. Morris and J. Reid Meloy, “Out of Mind? Out of Sight: The Uncivil Commitment of Permanently
Incompetent Criminal Defendants,” U.C. Davis Law Review 1, no. 27 (1993).
2 Office of Forensic Services data
3 Office of Forensic Services data
4 Based on FY10. Data supplied through Maryland Office of Reimbursement.
5 JL Skeem, SL Golding, G Berge, et al, “Logic and reliability of evaluations of competence to stand trial,” Law of
Human Behavior 22 (1998): 519–47; RJ Bonnie and T Grisso, “Adjudicative competence and youthful offenders, in
Youth on Trial: A Developmental Perspective on Juvenile Justice,” Edited by T Grisso and RG Schwartz. Chicago:
University of Chicago Press, 2000, pp 73–103
6 GB Melton, J Petrila, NG Poythress, et al, Competency to stand trial, in Psychological Evaluations for the Courts (ed 2).
New York: Guilford Press, 1997; JI Warren, WL Fitch, PE Dietz, et al, “Criminal offense, psychiatric diagnosis, and
psycholegal opinion: an analysis of 894 pretrial referrals,” Bulletin of the American Academy of Psychiatry & Law 19
(1991):63–9, Cited in Douglass Mossman, et al, “AAPL Practice Guideline for the Forensic Psychiatric Evaluation of
Competence to Stand Trial,” The Journal of the American Academy of Psychiatry and the Law 35, no. 4 (2007)
www.forensic-experts.net/files/Forensic%20Psychiatry%20CTST%20evals.pdf
7 TG Gutheil and PS Appelbaum, Clinical Handbook of Psychiatry and the Law (ed 3). Philadelphia: Lippincott Williams
& Wilkins, 2000; D Mossman, “Is prosecution ‘medically appropriate’?” New England Journal of Criminal Civil
Confinement 31 (2005):15– 80, Cited in Douglass Mossman, et al, 2007
8 Office of Forensic Services, FY10 Pretrial Evaluations and Screenings
9 Office of Forensic Services, MHA Community Forensic Evaluation Program FY2011 (Jessup, MD: Mental Hygiene
Administration, 2011)
10 Funding and Characteristics of State Mental Health Agencies, 2007 (Rockville, MD: U.S. Department of Health and
Human Services, 2010) Table 13. http://store.samhsa.gov/shin/content//SMA09-4424/SMA09-4424.pdf
11 Forensic Populations and the Department of Health and Mental Hygiene, Report to the General Assembly,
February 2008.
12 Personal Interview with Susan Steinberg, Department of Health and Mental Hygiene, August 2011.
13 Chapter 395, pp 87-88, Budget Bill, Fiscal Year 2012. The report is due December 1, 2011.
14 RD Miller, “Hospitalization of criminal defendants for evaluation of competence to stand trial or for restoration of
competence: clinical and legal issues,” Behavioral Science in the Law 21 (2003):369 –91; DA Pinals, “Where two roads
meet: restoration of competence to stand trial from a clinical perspective,” New England Journal of Criminal Civil
Confinement 31 (2005): 81–108.
15 406 U.S. 715 (1972).
16 See Grant H. Morris and J. Reid Meloy, 1993
17 Based on a 2005 review of the 50 state statutes and District of Columbia, conducted by the Maryland Disability Law
Center.
18 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-108. Reports on incompetent persons.
19 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-107. Dismissal of charges.
20 Process Evaluation of Baltimore City Mental Health Court (Maryland Judiciary Research Consortium, March 2010)
www.courts.state.md.us/opsc/mhc/pdfs/evalutations/bcmhcprocessevaluation3-11-10.pdf
21 Process Evaluation of Baltimore City Mental Health Court 2010
22 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-105. Examination of defendant by Health Department.
23 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-106. Finding of incompetency.
24 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-101. Definitions.
25 American Bar Association, Mental Health, Competence to Stand Trial, Accessed July 2011.
www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_mentalhealth_blk.html#74.11
1

WHEN TREATMENT IS PUNISHMENT

37

26 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-108(a)(1).
27 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-106(c)(1)(i)(iii).
28 Mental Hygiene Administration
29 Mental Hygiene Administration
30 Mental Hygiene Administration. Age calculated based on age at admission.
31 U.S. Census, Quick Facts, Baltimore City, Maryland. http://quickfacts.census.gov/qfd/states/24/24510.html
32 See Nastassia Walsh, Baltimore Behind Bars: How to Reduce the Jail Population, Save Money and Improve Public Safety
(Washington, D.C.: Justice Policy Institute, 2010) www.justicepolicy.org/reseach/1917
33 Mental Hygiene Administration.
34 Mental Health: Culture, Race, Ethnicity Supplement, a Report of the Surgeon General, 2001.
www.surgeongeneral.gov/library/mentalhealth/
35 Office of Forensic Services data
36 Criminal Justice/Mental Health Consensus Project (Washington, D.C.: Council of State Governments, 2002).
www.consensusproject.org.
37 D. Mossman, “Predicting restorability of incompetent criminal defendants,” Journal of the American Academy of
Psychiatry & Law 35 (2007): 34–43
38 See, G. Bennett and G. Kish, “Incompetency to stand trial: Treatment unaffected by demographic variables,” Journal
of Forensic Sciences 35 (1990): 403-412; S. L. Golding, D. Eaves, and A. Kowaz, “The assessment, treatment and
community outcome of insanity acquittees: Forensic history and response to treatment,” International Journal of Law
and Psychiatry 12 (1989): 149-179; D. R. Morris and G. F. Parker, “Jackson’s Indiana: State hospital competence
restoration in Indiana,” Journal of the American Academy of Psychiatry and Law 36 (2008): 522-534,
www.jaapl.org/cgi/reprint/36/4/522; R. Nicholson and J. McNulty, “Outcome of hospitalization for defendants found
incompetent to stand trial,” Behavioral Sciences and the Law 10 (1998): 371-383.
39 RA Nicholson and JL McNulty, 1992
40 D. R. Morris and G.F. Parker, 2008
41 Data provided by Forensic Services Division, Florida Department of Children and Families cited in Gary B. Melton
and others, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, 3rd Edition
(New York: The Guilford Press, 2007)
42 Office of Forensic Services
43 Office of Forensic Services
44 Mental Hygiene Administration. Notes: Length of stay based upon true discharge date. Includes all discharges
regardless of origination.
45 Office of Forensic Services data
46 Personal Interview with Crista Taylor and Steve Johnson, Baltimore Mental Health Systems, Inc. August 2011.
47 Louden, Dickinger, and Skeem, “Parolees with mental disorder: Toward evidence based practice,” In press; Cited
in Seth Jacob Prins and Laura Draper, Improving Outcomes for People with Mental Illnesses under Community Corrections
Supervision: A Guide to Research-Informed Policy and Practice (New York: Council of State Governments Justice Center,
2009) http://consensusproject.org/downloads/community.corrections.research.guide.pdf
48 Ed Rosado, Diverting the Mentally Ill From Jail (Washington, D.C.: National Association of Counties Legislative
Department, 2002) www.naco.org
49 Maryland Mental Hygiene Administration, Annual Report Fiscal Year 2010. Lengths of stay data include both
persons committed as IST and persons committed as Not Criminally Responsible (NCR). Delays in discharging the
NCR population are even greater and should also be addressed.
50 Personal Interview with Judge Gale Rasin, August 2011.
51 Personal Interview with Sharon Bogins, Office of the Public Defender, August 2011.
52 See Diagnostic and Statistical Manual of Mental Disorders (DSM) IV.
53 Judge Charlotte Cooksey and Judge Mimi Cooper, Mental Health Programs
www.courts.state.md.us/district/archive/mental%20health.pdf
54 Rochelle Banta, “Mental Health Courts,” NAMI Montgomery County, NAMI News 28, no. 7 (July/August 2006)
www.namimc.org/PDF/News/NAMI%20News%20-%20Jul-Aug%202006.pdf

37

38 JUSTICE POLICY INSTITUTE

Process Evaluation of Baltimore City Mental Health Court 2010
For more information on the negative impact of being kicked out of specialty courts please see, Nastassia Walsh,
Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities (Washington, D.C.:
Justice Policy Institute, 2011) www.justicepolicy.org/drugcourts
57 Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. § 3-106. Finding of incompetency.; § 3-112. Not Criminally Responsible—Commitment.
58 Time out dates for Capital Crimes (Murder 1) are 10 years; Felonies and crimes of violence (as defined in the
Criminal Law Article § 14-101) are 5 years; Other crimes are 3 years or the maximum sentence, whichever is less.
Annotated Code of Maryland, Criminal Procedure Article. Title 3. Incompetency and Criminal Responsibility in
Criminal Cases. §3-107. Dismissal of charges.
59 Office of Forensic Services data
60 Three people’s records were unavailable. Source: Public Court Records.
61 Maryland Operating Budget Books, http://dbm.maryland.gov/agencies/operbudget/Pages/operatingbudget.aspx
62 Based on FY10. Data supplied through Office of Reimbursement.
63 Office of Forensic Services data
64 Chapter 395, Budget Bill, pp 88-89, Fiscal Year 2012.
65 Many of the people at Spring Grove as NCR have been committed on the same type of low-level, nonviolent
offenses as those committed as IST. Those who were found guilty of more serious crimes are at Spring Grove after
being transferred from Clifton T. Perkins Hospital Center, the maximum-security facility, as a “step-down” prior to
release to the community.
66 Jane D. Plapinger, Mental Health Plan FY2010-2011 (Baltimore, MD: Baltimore Mental Health Services, 2009) Page
55. www.bmhsi.org/admin/upload/Microsoft%20Word%20-%20FY%20201011%20FINAL%20MENTAL%20HEALTH%20PLAN%20052209.pdf
67 Jane D. Plapinger, 2009
68 See also, Melissa Reuland, Laura Draper, and Blake Norton, Improving Responses to People with Mental Illnesses:
Tailoring Law Enforcement Initiatives to Individual Jurisdictions (Washington, D.C.: Council of State Governments Justice
Center and the Police Executive Research Forum, 2010)
http://consensusproject.org/jc_publications/tailoring_le_responses/Tailoring_LE_Initiatives.pdf
69 For more information, please contact Memphis Police Department’s Major Sam Cochran, or visit
http://cit.memphis.edu/TechAssistance.php
55
56

Justice Policy Institute (JPI) is a national nonprofit organization that changes the conversation
around justice reform and advances policies that promote well-being and justice for all people and
communities.

ABOUT THE AUTHOR
Nastassia Walsh is JPI’s research manager. In her over five years at JPI, she has had the opportunity
to work on a number of different national and Maryland-specific research and policy reports,
including Addicting to Courts: How a Growing Dependence on Drug Courts Impacts People and
Communities, When More is Less: How a Larger Women’s Jail in Baltimore will Reduce Public Safety and
Diminish Resources for Positive Social Investments, and Baltimore Behind Bars: How to Reduce the Jail
Population, Save Money and Improve Public Safety. She holds a Master’s degree in forensic psychology
from Marymount University and a Bachelor of Science degree from Arizona State University.

ACKNOWLEDGEMENTS
This report would not have been possible without the generous support of the Maryland Disability
Law Center. The work of the Justice Policy Institute is also made possible in part by grants from the
Open Society Foundation and the Public Welfare Foundation.
This report is the culmination of interviews with many people in Baltimore, including stakeholders
and people affected by the mental health and criminal justice system; research and data analysis;
and visits to different parts of the system.
JPI greatly appreciates the input and expertise of the staff of the Maryland Office of the Public
Defender; Susan Steinberg, Department of Health and Mental Hygiene; Judge Gale Rasin, Baltimore
City Circuit Court; Judge George Lipman and staff, Baltimore City Mental Health Court; Larry Fitch
and staff, Maryland Office of Forensic Services; Susan Bradley, Mental Hygiene Administration;
Crista Taylor and Steve Johnson, Baltimore Mental Health Systems, Inc.; and JoAnne Dudek,
Community Forensic Aftercare Program. And to the men and women currently in Spring Grove
Hospital who we were willing to share their stories, we thank you.
Finally, the author would like to thank Laura Cain, Sarah Rhine and the staff of the Maryland
Disability Law Center for their input and careful review of the report.
JPI staff includes Paul Ashton, Jason Fenster, Zerline Hughes, Amanda Petteruti, Kellie Shaw, Tracy
Velázquez, Keith Wallington and Nastassia Walsh.

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