Golden Gate University Law Review


Gwendolyn West


Today, people with mental illnesses in the United States are ten times more likely to be incarcerated than hospitalized. About 20 percent of the United States population experiences some kind of mental illness each year, and about 3 to 5 percent of the population experiences a severe and persistent mental illness. By contrast, more than 60 percent of jail inmates and at least 45 percent of prison inmates in the United States have a diagnosed mental illness. Studies have found that anywhere from 25 percent to 71 percent of people with serious mental illness in a given community have a history of criminal justice involvement. There are many reasons for these disparities, but the presence of a mental illness alone increases an individual’s likelihood of being arrested or shot by police. Inadequate access to mental health care, among other unmet needs, is considered to be a significant contributor to this overrepresentation. People with mental illnesses who commit crimes and enter the criminal justice system might not have engaged in such behavior if they had been receiving adequate and appropriate mental health treatment instead. Mental health care access in the United States has consistently failed to meet the demand. The American Psychiatric Association has declared this phenomenon a crisis. Part I of this Comment lays the contextual groundwork for a discussion of state competency restoration systems and of the insanity defense. Part II defines and differentiates competency and insanity, distinct areas of the law applied to distinct legal questions bearing on defendants with mental illnesses. Part II first describes the origins of competency restoration and its place in constitutional law, discusses some of the failures of the competency process, then reports on the effects on state competency restoration systems of the 2017 United States Court of Appeals for the Ninth Circuit case Trueblood v. Washington State Department of Social and Health Services. Part II then provides an historical perspective on the insanity defense, followed by a brief discussion of the 2020 United States Supreme Court case Kahler v. Kansas, then a discussion of promising developments in the use of neuroscientific evidence in criminal cases. Finally, after documenting the problems and shifts in the use of competency restoration, as well as the effective loss of the affirmative insanity defense, this Comment addresses existing gaps in state justice systems and recommends programming and investments states should consider making.