Creating community care: decarceration strategies in competency litigation

• Pages: 1183-1212
• Date: 01 October 2025
• Published date: 01 October 2025
• Author: Rebecca Shaeffer

CREATING COMMUNITY CARE: DECARCERATION STRATEGIES

IN COMPETENCY LITIGATION

Rebecca Shaeffer*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1183

I. THE INCOMPETENT TO STAND TRIAL (IST) CRISIS . . . . . . . . . . . . . . . . 1185

II. UNDERSTANDING COMPETENCY PROCESSES . . . . . . . . . . . . . . . . . . . . . 1193

A. Jail-Based Competency Restoration. . . . . . . . . . . . . . . . . . . . 1195

B. Community-Based Competency Restoration . . . . . . . . . . . . . . 1198

III. FOUNDATIONAL CASES ESTABLISHING COMMUNITY BASED CARE . . . . . . . 1199

A. Mink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200

B. Trueblood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204

IV. ELEMENTS OF A SUCCESSFUL IST WAITLIST SETTLEMENT . . . . . . . . . . . 1208

V. ONGOING CHALLENGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210

A. Criminalization of Homelessness . . . . . . . . . . . . . . . . . . . . . . 1210

B. Mental Health Care in Jails . . . . . . . . . . . . . . . . . . . . . . . . . 1210

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211

INTRODUCTION

A disability justice approach to decarceration understands that jails and prisons

exist on a spectrum of carcerality. This spectrum includes other forms of institu-

tionalization, such that decarceration is one element of a larger effort to ensure that

people with disabilities can live freely, with the necessary supports and accommo-

dations for integration and autonomy in the community. Accordingly, efforts to

reduce reliance on incarceration must extend beyond targeting jails and prisons

and must answer the unmet needs of people with disabilities that have given rise to

their criminalization. In addition, these efforts must engage with processes outside

and adjacent to the criminal legal system through which criminalized people cycle.

Litigation challenging long waiting lists for admission to state psychiatric hospi-

tals in order to obtain competency evaluations and restoration has sought to decar-

cerate people with mental health disabilities from jails in part through establishing

community-based forensic evaluation and restoration systems, with wraparound

services including housing. These wraparound services lay the groundwork for

sustained liberation. Achieving these remedies requires the involvement of agen-

cies outside of jails, including state departments of health, human services, and

housing; prosecutors; defenders; and courts. It also requires an understanding of

* The author is a Staff Attorney for Criminal Systems at the National Disability Rights Network. Deep thanks

to Simone Oberschmied for research assistance, and to Chloe Merino, Kim Mosloff, Chris Carney, Tom Stetson,

and to the entire teams at Disability Rights Washington and Disability Rights Oregon for consultation. © 2025,

Rebecca Shaeffer.

1183

the pressures on bed space at state hospitals created by excessive use of civil com-

mitment and other failures of community care. This trans-institutional understand-

ing of decarceration by disability rights organizations provides a pathway to

reduction in incarceration and investment in community care. Mental health serv-

ices have been historically diminished by years of austerity measures in successive

legislative cycles, most prominently in the years following the 2008 f‌inancial cri-

sis.

1

See NAT’L ALL. ON MENTAL ILLNESS, STATE MENTAL HEALTH CUTS: THE CONTINUING CRISIS 1 (2011),

https://www.nami.org/wp-content/uploads/StateMentalHealthCuts2.pdf.

In more recent years, during and following the COVID-19 pandemic, work-

force shortages in behavioral health, driven by both insuff‌icient investment and

increased demand,

2

NAT’L CTR. FOR HEALTH WORKFORCE ANALYSIS, STATE OF THE BEHAVIORAL HEALTH WORKFORCE, 2024

(2024), https://bhw.hrsa.gov/sites/default/f‌iles/bureau-health-workforce/state-of-the-behavioral-health-workforce-

report-2024.pdf.

have frustrated the effectiveness of some renewed investment

initiatives.

3

See Mia Antezzo, Investments in Behavioral Health Services: Top Three Emerging Themes from State

Home and Community Based Services Spending Plans, NAT’L ACAD. FOR STATE HEALTH POL’Y (Oct. 18, 2021),

https://nashp.org/investments-in-behavioral-health-service-systems-top-three-emerging-themes-from-state-home-and-

community-based-services-spending-plans/.

As a result of these challenges to sustained investment in community

mental health, the three largest providers of mental health services in the United

States are not community centers or hospitals, but jails: Cook County Jail in

Chicago, Los Angeles County Jail, and New York City’s Rikers Island Jail.

4

Eric Westervelt & Liz Baker, America’s Mental Health Crisis Hidden Behind Bars, N

AT’L PUB. RADIO

(Feb. 25, 2020, 5:01 AM), https://www.npr.org/2020/02/25/805469776/americas-mental-health-crisis-hidden-

behind-bars.

This Article attempts to illustrate the kinds of legal, policy, and budgetary shifts

that are necessary in order to shift people in need of competency services out of

jails and into community care. To lay the groundwork, this Article will explain the

competency waitlist crisis, the legal order that attempts to regulate it, and the vari-

ous pathways through which impacted people travel through incarceration, hospi-

talization, and community-based alternatives to these institutional responses. It

will then examine two of the major permanent injunctions in competency waitlist

litigation, Oregon Advocacy Center v. Mink and A.B. ex rel. Trueblood v.

Washington State Department of Social and Health Services, that have resulted in

signif‌icant decarceration of this population. Both lawsuits resulted in permanent

injunctions limiting the number of days a state has to transfer a person from jail to

a psychiatric facility for competency services. Enforcement of those timelines,

however, has required years of litigation and innovation in service provision,

including expansion of community-based competency programs, wraparound serv-

ices, and housing. By exploring key and common features of the settlement

enforcement efforts, this Article will attempt to identify key reforms necessary to

ensure the liberty and due process interests of people criminalized with mental

health disabilities.

1.

2.

3.

4.

1184 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:1183