DENVER (CN) — On Nov. 27, 2015, a man pulled into the Planned Parenthood Colorado Springs Health Center armed with four SKS rifles, two handguns, a shotgun, a rifle and a propane tank. The 57-year-old man intended to wage war against the fertility clinic which provides abortions. He fired 198 bullets at patients and staff, killing three innocent people.
They are remembered as: 44-year-old police officer and champion ice skater Garrett Swasey; 29-year-old Iraq War veteran and father of two Ke'Arre Stewart; and 35-year-old Jennifer Markovsky, a mother of two who accompanied a friend at the clinic.
Nine others were injured.
The armed man, Robert Dear, was apprehended at the scene and quickly professed his guilt to the court. Seven years later, he has yet to stand trial or be sentenced.
For the better half of a decade, Dear has consistently failed mental competency evaluations, indicating he is unable to participate in his own defense, making it unconstitutional to prosecute him.
According to the Colorado Department of Human Services, 1,567 defendants were referred to the state last year for competency restoration. That’s nearly triple the rate it was in 2017, when just 553 defendants entered state custody for treatment.
A lack of centralized data leaves it near impossible know the number or outcome of competency evaluations nationwide, but some studies estimate 50,000 to 60,000 are given annually.
“These evaluations determine whether or not he is even capable of being prosecuted, whether his mental health is such that he is capable of being prosecuted, such that his constitutional rights are protected,” explained legal analyst David Beller, who practices criminal defense at Recht Kornfeld in Denver.
A growing number of defendants are deemed mentally incompetent each year. But Beller considers the cases relatively rare and the trial bar low: a defendant can stand trial as long they understand the charges against them well enough to help defend themselves.
“James Holmes was undoubtedly mentally ill," Beller said, of the man convicted of killing 12 at an Aurora movie theater in 2012. "His history and his conduct showed he suffered from debilitating mental illness, and even with him being an extreme example, he was found not only competent, but sane at the time he committed the acts, so mental illness does not necessarily equate to incompetency.”
Last year, nearly a quarter of patients undergoing state treatment in Colorado, 320, were deemed restored, according to the state Department of Human Services. This number does not include patients who were removed from treatment after charges were dropped.
Research published in the Journal of the American Academy of Psychiatry and the Law estimates 75 to 90% of defendants nationally are restored to competency within six months of treatment. A limited survey also found older defendants less likely to be restored and that the longer a defendant undergoes treatment, the less likely it is to work.
“One of the issues we can run into is quality of treatment,” said Scott Kirkorsky, a board-certified forensic psychiatrist who completed about a dozen competency exams last year. “Most genuinely incompetent defendants are incompetent because of a psychotic disorder and psychosis requires medication in nearly all cases for treatment.”
Common drivers of incompetency include schizophrenia, schizotypal personality and delusional disorders. When a defendant isn’t being prescribed the proper medication or refuses to take it, restoration can be delayed.
But restoration is not equivalent to rehabilitation or recovery.
“Competency restoration does not equal mental health care,” said Shannon Scully, senior advisor for justice and crisis response policy at the National Alliance on Mental Illness. “Mental health care often looks at long term wellness and engagement.”
“We hear from a lot from family members that have loved ones in the justice system waiting to be restored to competency,” Scully said. “They often believe that that process is going to lead to their loved one getting on the road to recovery, and that's just not the case in terms of the goals of competency restoration.”
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