When a Criminal Defendant is Incompetent to Stand Trial Due to Mental Illness


As a criminal defense attorney in Orange County, I am sometimes left with the heart-wrenching task of helping the parents of an adult child with a mental illness wind their way through our state justice system; a system that often leaves no room for opportunities to address the underlying basis for the crime—the mental illness—but rather seeks only to punish. A person who suffers from schizophrenia, severe bi-polar disorder, or other serious mental illness is probably not going to be rehabilitated by incarceration. Yet all too often, mentally ill individuals commit crimes for which they are sent to jail or prison only to be released and start the cycle again.

Parents of these individuals are understandably frustrated and often at their wit’s end. Why, they ask me, does the system keep punishing my child for these crimes he or she commits (crimes driven only by his or her mental illness), rather than providing mental health treatment?  After their child has been through the revolving door enough times, the parents want to know, why can’t they just “lock him up” in a residential facility? Unless the crimes committed are serious felonies, their mentally ill child will not be “locked up” for long. Unfortunately, incarceration in jail or prison can exacerbate the mental illness.

While recent California legislation, which offers pre-trial diversion to some mentally ill defendants, attempts to address this issue, the problem is wider and deeper than the new pre-trial diversion legislation alone can solve, but it’s a start. Until the recently enacted pre-trial diversion legislation, mentally ill defendants who were not in certain classes (veterans, some drug cases), entered and exited the justice system without the system ever genuinely addressing the underlying reason for their criminal behavior.

When a person who is clearly suffering from a mental disorder commits a crime–and many crimes are committed by individuals with a serious mental illness—there may be doubts  as to whether the defendant is mentally competent to stand trial (or take a plea).  Under California law, a prosecution cannot proceed against an incompetent defendant. Penal Code section 1368 provides that the court may suspend the proceedings against a person believed to be mentally incompetent, and confirmed by a mental health professional, until such time as the defendant is deemed mentally competent. The declared mentally incompetent defendant is then required to submit to psychiatric treatment. This treatment is usually provided by a state mental hospital or other state-approved facility. In reality, the mentally incompetent defendant is not treated in any meaningful way but rather is put on psychiatric medications until he or she is deemed mentally competent by a mental health professional, whereupon the criminal proceedings will resume.

We should not be quick to blame the state for this. Treatment of the thousands of mentally ill criminal defendants requires a huge amount of resources and money; it’s fair to say that the California taxpayer doesn’t want to foot that bill.  But the frustration for a parent or other loved on of a mentally ill person in the criminal justice system cannot be assuaged by the inadequate measures the system has in place.

In my next blog post, I will discuss the option of a mental health conservatorship. This option can provide some relief to families of the mentally ill, but it is available only when the psychiatric disorder is severe, and it requires substantial perseverance and resources. Yet, for the family of a mentally ill loved one who is in and out of the criminal justice system, a mental health conservatorship may be the best option.

You may contact Orange County criminal defense attorney William Weinberg for a free consultation regarding your criminal matter. You can reach him at 949-2=474-9700 or by emailing him at bill@williamweinberg.com.