Lawmakers weigh mental health, criminal justice reforms

North Carolina lawmakers are studying whether changes to involuntary commitment and outpatient treatment laws could reduce repeat arrests of defendants with serious mental illness, after prosecutors and legislative staff outlined gaps in the current system. The discussion took place on Feb. 10 before the NCGA House Select Committee on Involuntary Commitment and Public Safety.

Lisa Coltrain, homicide and arson resource prosecutor for the North Carolina Conference of District Attorneys, told lawmakers that courts regularly encounter defendants whose mental illness prevents their cases from moving forward. 

“There’s a mental health system and there’s a criminal justice system, and independently they work pretty well,” Coltrain said. “And then when you try to put the two of them together, sometimes there are some gaps. The cogs in the machine don’t quite line up.”

Under existing law, a defendant is considered “incapable to proceed” (ITP) if, because of mental illness or defect, the person is unable to understand the nature of the proceedings, comprehend their own situation, or rationally assist in their defense. When that standard is met, criminal proceedings must stop.

Any party — the prosecutor, defense attorney, or the court — may raise the issue of capacity. Judges typically order a forensic mental health evaluation, followed by a hearing to determine whether the defendant can proceed. A mental health diagnosis alone is not enough; the legal test focuses on whether the defendant can function in the courtroom process.

If a judge finds the defendant incapable, the trial or sentencing is halted. The court may order temporary involuntary commitment for treatment aimed at restoring capacity. If the individual does not meet the criteria for inpatient commitment based on dangerousness, however, they may be released while charges remain pending.

Coltrain said that often leads to repeat arrests in low-level, nonviolent cases. “Most people dealing with mental illnesses are not violent, so they’re just being released,” she said. “It just winds up being a quick-revolving jailhouse door.”

She described situations involving repeated trespassing charges, where a defendant may be arrested, found incapable, released, and then arrested again for the same behavior.

Coltrain told lawmakers that roughly 70% to 75% of defendants initially deemed incapable eventually regain capacity. But access to formal restoration services is limited, particularly for those charged with nonviolent offenses.

“The only way to get capacity restoration except for a couple of pilot programs is if it’s a violent crime and you are a danger to self or others,” she said. “The majority of people who are found to be ITP have no option to get capacity restoration because there’s nothing happening in the jail. There’s nothing we can do, point them in the direction of in the community.”

Charges do not automatically disappear when someone is found incapable. Cases remain pending in anticipation that capacity may be restored. Charges may be dismissed if a defendant is unlikely to regain capacity or has been confined for a period equal to the maximum possible sentence. Misdemeanor charges must be dismissed after five years and felonies after 10 years.

Lawmakers also noted that incapacity to proceed in a criminal case is different from “incompetence” under current law, which addresses a person’s ability to manage personal affairs and may lead to guardianship proceedings. 

State Rep. Marcia Morey, D-Durham, a retired chief district court judge, cautioned against relying on incarceration to address untreated mental illness.

“The answer isn’t always a criminal answer,” Morey said. “Constitutionally, we can’t keep people in jail or prison just because they have mental illness or incapable to proceed.”

Following Coltrain’s presentation, lawmakers heard from Robert Ryan, a staff attorney with the NCGA Legislative Analysis Division, who outlined the Assisted Outpatient Treatment program New York uses. The civil court-ordered treatment model was created in 1999 under Kendra’s Law, after a fatal subway incident involving a man with a history of mental illness.

Under the New York system, a court may order community-based mental health treatment for individuals who meet statutory criteria. Violating an outpatient order is not a crime. If a participant is noncompliant, officials may seek an “involuntary removal” for hospital evaluation to determine whether inpatient commitment standards are met.

Ryan said New York lawmakers recently amended eligibility criteria to allow involuntary hospitalization when release would likely result in serious harm, including a substantial risk of physical harm due to an inability to provide for essential needs such as food, clothing, medical care, personal safety, or shelter. He noted that North Carolina law already contains similar language.

A key difference, Ryan said, is administrative oversight. The New York program operates through a statewide Office of Mental Health, supported by regional field offices and local government units that investigate referrals, file petitions, oversee treatment plans, and monitor compliance. Care management providers track adherence and report significant events. The program is funded through a dedicated state budget line item of approximately $30 million annually.

North Carolina has authority for outpatient commitment, but some lawmakers questioned whether it is consistently used or adequately monitored.

State Rep. Carson Smith, R-Onslow, said the state’s current system lacks meaningful follow-through.

“It is highly ineffective here because there’s no way to really… treat, to monitor, and to follow through with violations,” Smith said. “There’s no need to put folks on this if they’re just going to all of them fall through the cracks.”

Ryan noted that nearly all states have some form of outpatient commitment statute, though structures and funding mechanisms vary.

The committee is scheduled to meet again on March 18.

“Lawmakers weigh mental health, criminal justice reforms” was originally published on www.carolinajournal.com.