The Court went on to note the senselessness of involuntarily restoring
those charged with simple misdemeanors, explaining that “one charged with
[a simple misdemeanor] could spend
29 days in mental health evaluation
and care for a crime that carries only
a 90-day jail term at most.”
put, when it comes to low-level offenders, “[t]he individual liberty interest
at stake [when a defendant is charged
with a misdemeanor] weighs more
heavily in the balance than the government interest in public safety and prosecution of misdemeanors.”
Of course, those who cannot grasp
the concept that they are charged with
a crime, or are unable to assist in their
own defense are in need of services.
And a common justification for competency restoration among low-level
offenders is that they will receive the
medication and treatment they need to
get better. But involuntary competency
restoration is not about long-term care,
and its purpose is not to help the defendant live a healthy and fulfilling life.
Rather, the point of competency restoration is to temporarily medicate someone solely for the purpose of standing
trial, with no concern that the person
may slip back into incompetency. Many
of these individuals are cast right back
to the street once their case has been
resolved and their medication has
served its limited, pragmatic purpose.
Competency restoration is about case
disposition, not care.
The state Legislature has given
courts broad statutory latitude to order
involuntary competency restoration
for defendants charged with nonvio-
lent misdemeanor offenses. Given the
significant liberty interest in avoiding
forcible medication, it is understand-
able that the Washington Supreme
Court has expressed its clear discomfort
with such breadth. The Sell court went
to great lengths to create a rigorous
judicial test that should be employed
in only rare, serious circumstances.
It would behoove the Legislature to
re-examine the definition of “serious
offense” for incompetent misdemeanor
defendants and amend the law to align
more closely with Sell and Born. In the
meantime, criminal law practitioners
and judges should thoroughly scruti-
nize each Sell factor before ordering
involuntary competency restoration.
The Sell court declared that involuntary competency restoration can only
be used in rare circumstances when a
defendant is charged with a serious offense. Our state law should reflect the
spirit and letter of that ruling. NWL
is a graduate
student at the
School of Law in
International Development LL.M.
program. He is a member of the
WSBA Editorial Advisory Committee. He can be reached at jakestills@
1. Addressing Mental Illness in the Criminal
Justice System. Justice Blogs. (Posted Dec.
1, 2009, updated Sept. 15, 2014), www.
illness-criminal-justice-system (online blog
of the U.S. Department of Justice).
2. See, e.g., Drope v. Missouri, 420 U.S. 162, 171
(1975); see also RCW 10.77.010( 15) (“’
incompetency’ means a person lacks the capacity
to understand the nature of the proceedings
against him or her or to assist in his or her
own defense as a result of mental disease or
3. United States v. Ruiz-Gaxiola, 623 F.3d 684,
691 (9th Cir. 2010).
4. Sell v. United States, 539 U. S. 166, 179 (2003).
6. State v. Hernandez-Ramirez, 129 Wn.App.
504, 510-11 (Div. II 2005).
7. Sell, 539 U.S., at 180.
8. RCW 10.77.084(b).
9. RCW 10.77.092( 1).
10 RCW 10.77.092( 1)(e) (citing RCW 9A. 46.
060( 16) and RCW 9A. 52.080).
11. RCW 10.77.092( 1)(e) (citing RCW 9A. 46.
060( 19) and RCW 9A. 48.090).
12. RCW 10.77.092( 2).
13. Sell, 539 U.S., at 170.
14. Born v. Thompson, 154 Wn.2d 749, 756
15. Id. at 757.