Olmstead in Jail: Implementing Outpatient Competency Restoration as a Less Restrictive Alternative

• In Event: Legal Services for the Indigent: Representation of Persons with Mental Disabilities

Abstract

In Olmstead v. L.C., the US Supreme Court found that the “integration mandate” of the Americans with Disabilities Act requires public agencies to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” While a significant amount of work has been done in the context of community integration – moving individuals with mental illness out of nursing homes and adult homes – there remains a disconnect in the criminal justice system.

One more recent effort to implement the Olmstead mandate of “least restrictive alternative” in the criminal justice system has been the use of outpatient competency restoration programs for individuals who otherwise would have been evaluated in jail or a forensic psychiatric hospital. This option not only allows for non-dangerous individuals to remain in the community during their competency evaluation and restoration, but it also frees up spaces in hospitals, which is frequently hard to come by and a contributing factor to the ever-growing wait times faced by individuals in jail who need a bed for the purposes of competency restoration.

Using New York as an example, I will discuss the benefits of outpatient competency restoration programs. Additionally, I will discuss why programs such as these are therapeutically beneficial, and help to promote a therapeutic jurisprudence model of mental healthcare in the criminal justice system. Finally, I will offer suggestions about how public defenders in states with different regulations regarding outpatient competency restoration can begin to form strategies to advocate for this model of treatment.

Author

• Alison J. Lynch, Disability Rights New York