SAMHSA’s GAINS Center • 800.311.GAIN • gains@prainc.com

1 SAMHSA‘s GAINS Center | February 2024

The Unseen Waitlists 

Contrary to what many believe, waitlists are not a single, unified entity. 

There has been recent focus on waitlists for competence to stand trial and competence restoration. 

Importantly, there is not just one waitlist resulting in backlogs and people waiting in jails. There are numerous 

unseen waitlists related to trial competence. Defendants at various points in the process may have to wait for 

a competence evaluation, wait for a hearing date for a judge to decide on competence, and then, if found not 

competent, wait for an available bed at the state hospital. When restoration treatment has nearly finished, the 

defendant is once again waiting for a new hearing date and likely waiting to access community-based housing 

or ongoing treatment services. These multiple waitlists have far-reaching consequences, including a shortage 

of beds in state hospitals and the ethical dilemma of detaining pre-trial individuals for potentially lengthy 

periods of time. It’s crucial to ask who these individuals are, where they are located, why are they there, what 

services they await, and whether their presence in jail is justified.

RESOURCE DOCUMENT FEBRUARY 2024

Waitlists in the Competence to Stand Trial System

 
2 SAMHSA‘s GAINS Center | February 2024

The Front Door/ Back Door Problem

The number of individuals ordered for competence evaluations and inpatient restoration has increased 

significantly over the last ten years. For example, one Colorado report found that the number of court-ordered 

restorations increased from 87 in 2001 to 900 in 2017. If states rely solely on inpatient forensic beds for 

evaluations and restoration treatment, there will never be enough beds.

Judges have the authority to decide if a defendant is incompetent to stand trial (IST), whether they have been 

restored to competence and can begin their trial, their release or transfer status, and whether treatment for 

restoration should take place in a state hospital, the community or other location. Although these decisions 

are often made with testimony or reports from clinical evaluators, judges have historically relied on the state 

inpatient facilities to complete this work. There has been hesitation to change practices and order restoration or 

evaluations in outpatient settings. When defendants are ordered to the highest level of care, inpatient facilities, 

without consideration of their actual risk or treatment needs, psychiatrically stable defendants with non-violent 

charges and may be delaying admission for a more appropriate patient.

Unreasonable Confinement in Jails

Regardless of evaluation outcome, or treatment 

setting, many individuals who have been charged 

with nonviolent, misdemeanor crimes spend more 

time in jails waiting for evaluation and restoration 

services than what they would have served if they 

had been convicted. These individuals and their 

communities are left bearing substantial financial, 

resource, and behavioral health burdens due to 

waitlist and assessment durations that can span 

weeks or months. 

Diversion First

The primary way to reduce the number of people 

impacted by the multiple waitlists is to prevent entry 

into the waitlists at the beginning. Encouraging mental 

health crisis care instead of arrests when appropriate 

and utilizing community-based diversion programs 

instead of pursuing prosecution for nonviolent 

misdemeanors reduces the number of individuals 

requiring an evaluation. Community-based evaluation 

and restoration programs also reduce the number of 

defendants waiting for scarce inpatient hospital beds. At 

all points in the process, it is necessary for prosecutors 

and judges to exercise discretion and determine if 

prosecution and continued involvement in the criminal 

legal system is appropriate for individuals with serious 

mental illness charged with nonviolent offenses.

Information for this document derived from, “Substance Abuse and Mental Health Services Administration. (2023). Foundation work 

for exploring incompetence to stand trial evaluations and competence restoration for people with serious mental illness/serious emotional 

disturbance. HHS Publication No. PEP23-01-00-005. Rockville, MD: Substance Abuse and Mental Health Services Administration.”