Why New York’s Competency Restoration Law Needs to Be Amended By Jed Wolkenbreit, Counsel, NYS Conference of Local Mental Hygiene Directors
O
ne major legislative priority for the coming legislative year for both NYSAC and the NYS Conference of Local Mental Hygiene Directors will be to seek changes in section 730 of the New York State Criminal Procedure Law (CPL). This archaic and partially unconstitutional statute remains on the books at the increasing expense of most county governments and is in drastic need of updating if not wholesale renovation. CPL 730 is the section of the Criminal Procedure Law that governs the procedures to determine competency to stand trial. In 1960, the US Supreme Court, in Dusky v. US, held that to be competent to stand trial, a defendant must have sufficient ability to rationally consult with his or her lawyer and a rational and factual understanding of the proceedings. In New York, if a doubt is raised with regard to competency of a defendant, the court can order the defendant to be examined by psychiatric examiners and then conduct a hearing to determine competence. If the court finds the defendant to be incompetent, then he or she can be sent to a state institution to receive services that are intended to restore that defendant to competency and allow the trial to proceed. Restoration services may include some traditional mental health treatment elements such as providing medications but mainly include classroom training as to how to act in court and how to answer questions asked by the judge to establish ability to stand trial. The cost of such restoration now ranges between $1261.70 and $1588.54 per day depending on the state facility and that cost is borne 100% by the county where the court issuing the order is located. Sadly, many judges do not understand that restoration is not treatment and honestly believe they are helping the defendant to move toward recovery by ordering a 730 restoration. This is simply not the case.
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NYSAC News | Winter 2024
Mental health treatment leads to recovery, restoration only leads to a courtroom. In too many cases we see a defendant sent for 180 days of restoration at a cost to the county of $227,106, only to return to the courtroom to plead guilty to a misdemeanor charge and be released, still suffering from the same mental disability which led to the original charge. Too often, that same defendant, still suffering from untreated mental illness, will end up right back in front of the same judge on another charge. Wouldn’t that money be better spent in the community by arranging for that defendant to receive real mental health treatment aimed at helping him or her to recover from their illness and to become a contributing member of the community? A bill, currently introduced in the Assembly by Assemblywoman Gunther (A.5063) and in the Senate by Senator Brouk (S.1874), would make significant improvements to the current competency restoration process by, among several other provisions, creating a clear definition of restoration services, requiring improved progress reporting, creating new regulations, and allowing the Court rather than the DA to decide if a person can be sent for restoration services in the community rather than in a state facility.