Competence & Restoration


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In this episode, Steve Price interviews Robert Linville, Attorney at Law. Mr. Linville has been a practicing attorney in New York State for many years. He is a graduate of Columbia Law School and has worked as a private attorney, a public defender, and for several state and international agencies. He is a committed and staunch advocate for his clients.

Overview of criminal procedural law regarding competency and restoration:

Following a finding of incapacitation, misdemeanor defendants are sent to a civil psychiatric facility and simultaneously the accusatory instrument is dismissed. It is up to the evaluating doctors at the hospital to decide whether the person is admitted or released back into the community. That is, there is no court order demanding that the individual be admitted–at least in New York.

Defendants charged with a felony are almost always sent to a secure forensic facility for restoration. With felonies, we have the complicating factor of indictment. If a defendant is sent for restoration prior to being indicted, then the burden falls on the district attorney to obtain an indictment within a relatively brief period of time. Should he/she fail to obtain an indictment, the charges are dismissed and the defendant’s status changes from that of a prisoner to being a civil patient.

After a defendant has been indicted a couple of things change. First, she/he can be held for restoration for a period of time equivalent to 2/3rds of what they would have been sentenced to had they been convicted of the top charge on the indictment. So, for example, if the top charge on an indictment would have resulted in a 15 year sentence, then the defendant can be continually committed involuntarily at the forensic facility for restoration for a period of time not to exceed 10 years. The only exception to this is a Life sentence–and that’s because there is no 2/3rds of Life. Lastly, any time spent in a psychiatric facility for the purposes of restoration counts toward time served.

Another issue that arises is what we refer to as Jackson Relief. This has to do with the Supreme Court case of Jackson v. Indiana. Essentially, there are cases where it becomes apparent that the individual will never be restored and will likely languish in a secure forensic facility for years.

Typically, any interested party can petition for Jackson Relief. If granted the order allows for the person to be treated as a civil patient. Specifically, the individual can be transferred to a civil facility or even discharged. But, the charges are not dismissed. They are, essentially in limbo and will remain so unless the person is restored. Moreover, the 2/3rds clock, if you will, stops ticking. If the defendant is ever restored, the district attorney has the prerogative to refile the charges. 

This is usually a non-issue because most petitions are brought under the belief that the person’s symptoms are recalcitrant. But, there have been instances when following discharge the individual is arrested again on new charges. If the person is found competent for the new charges, then, as said, the original charges can be re-filed and the person can find themselves facing both.

In the courtroom, competency is usually assumed and securing an exam is often a matter of obtaining appropriate historical documents and too often comes down to the defendant’s available financial resources.

Mr. Robert W. Linville discusses his strategies and struggles in detail which all criminal justice, law, and forensic social work students should find informative and enlightening.

Mr. Linville can be contacted at:

Old Chatam, NY

Rte 13 Box 94

Old Chatam, NY 12136

Our artwork was handpainted by Jenn Koonz, Ph.D., and converted into digital format by Stephen Koonz. Our music was composed and performed by Adam Price. Both are used with permission.

Forensic InService podcast by Stephen Koonz & Stephen Price is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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