The question of sanity restoration in jail [2020]

Severe mental illness, especially psychotic disorders that are worsening, acute or complicated, normally require intensive psychiatric care and treatment that is most appropriately provided in a mental hospital. For criminal defendants, transfer to a forensic security hospital has traditionally been the means of achieving hospital care for mentally disordered defendants who have been found incompetent to stand trial or not guilty by reason of insanity. In recent years, with the shortage of intermediate and long‐term hospital beds in the United States, including forensic security hospital beds, jail‐based competency restoration programs are being established, seemingly obviating hospital transfer. Potential advantages of and concerns about jail‐based, as opposed to hospital‐based, competency restoration programs are discussed in the literature. If defendants with severe mental illness traditionally treated in a forensic security hospital for competency restoration are now treated for competency restoration in jail, it is not inconceivable that insanity acquittees could one day be treated in jail for sanity restoration. With the premise that it is better to consider the potential consequences before this becomes a serious proposal and is implemented, this analysis examine the advantages and concerns that have been put forth for jail‐based competence restoration programs as they may or may not apply to jail‐based sanity restoration programs. Substantial commonality is recognized, but also some differences, as well as reason for skepticism of the purported virtues of either alternative to care and treatment in forensic security hospitals.

Alan R. Felthous
Behavioral Sciences & the Law, 10 September 2020