Defendants found incompetent to stand trial now occupy much of the public psychiatric bed supply. States are buying capacity from jails, counties, and private hospitals.
Key Takeaways
- Forensic patients now dominate the census: Indiana officials say about 70 percent of state psychiatric hospital patients arrived through the criminal justice system, and Texas reports roughly the same share for its fiscal 2025 patients.
- Courts are enforcing the clock: A federal judge ordered Texas in July to admit committed defendants within 21 days, and a September complaint says Florida misses its 15-day deadline by more than 100 days on average.
- Waits run for months: Texas auditors found the average wait for a restoration bed rose from 96 days in fiscal 2019 to 343 days in fiscal 2023.
- Capacity is being purchased as well as built: California cut its pending placement list from 1,953 people in January 2022 to 256 this spring with added beds, shorter stays, and contracted jail, community, and private hospital programs.
In May 1968, prosecutors in Marion County, Indiana, charged a 27-year-old man named Theon Jackson with two robberies. One involved a purse and its contents, valued at four dollars. The other involved five dollars. Jackson was deaf, could not read or write, and communicated only through limited sign language. Two court-appointed psychiatrists concluded he could not understand the charges or take part in his defense, and one described his prognosis as “rather dim.” The trial court committed him to the state’s Department of Mental Health until the department could certify that he was “sane.”
Four years later, in Jackson v. Indiana, the U.S. Supreme Court ruled that a defendant committed solely because he cannot stand trial may be held only for the reasonable period needed to decide whether there is a substantial probability he will regain that capacity in the foreseeable future. The ruling still sets the constitutional floor beneath every competency restoration program in the country. And Indiana, half a century on, is again where the strain is most visible.
Officials from the Indiana Family and Social Services Administration told a state council of executive, legislative, and judicial leaders that referrals for competency restoration rose 477 percent between 2013 and 2025, Indiana Public Radio reported in August. More than 709 people were under restoration orders at the end of 2025, and the agency projected the number would pass 800 this year. About 70 percent of patients in Indiana’s state psychiatric hospitals are now forensic, meaning they came through the criminal justice system. Among new admissions, 86 percent are competency restoration or other forensic cases, against 13 percent civil commitments. Sarah Sailors, who oversees the state’s Division of Mental Health and Addiction, told the council there is little room left for other patients.
How Competency Restoration Took Over State Psychiatric Hospital Beds
The shift is national and has been building for decades. A 2017 analysis that NRI prepared for the National Association of State Mental Health Program Directors found that, across 37 reporting states, the number of forensic patients in state psychiatric hospitals rose 76 percent between 1999 and 2014, with most of the growth tied to defendants found incompetent to stand trial. In July, NRI released an updated competency restoration profile built on responses from 40 states, tracking forensic census and admissions through 2024 along with waitlists and state policy changes.
Texas has produced the most detailed public accounting. A November 2024 report from the State Auditor’s Office found that the Health and Human Services Commission’s waitlist for competency restoration grew from 650 people in September 2018 to 2,254 at the end of 2023, after peaking at 2,711 in December 2022. Average waits for admission climbed from 96 days in fiscal 2019 to 343 days in fiscal 2023, and over the same stretch, the Commission told auditors, its hospitals moved from a majority of civil patients to roughly two-thirds forensic commitments. Nearly a year, on average.
Auditors traced the backlog chiefly to beds, and the beds chiefly to staff. The state hospital system began the review period with 103 psychiatrists and ended it with 85, and the Commission cited private-sector pay and telework as competition. It also identified 142 patients, about 7 percent of average capacity, who could have been treated in less restrictive settings had placements, guardians, or dismissed charges been available. A quieter pattern lengthened the queue. Auditors counted 341 people who appeared on the waitlist two to six times on the same charges, which the Commission attributed to defendants losing competency again while waiting for trial.
The list has shortened since the audit without disappearing. About 1,626 people were waiting as of June, a Commission spokesperson told the Texas Tribune, and the Commission told a state Senate committee in July that about 70 percent of its fiscal 2025 state hospital patients were on forensic commitments.
Competency Restoration Lawsuits Set the Deadlines States Must Meet
On September 16, Disability Rights Florida, with the Southern Poverty Law Center and the Florida Justice Institute as co-counsel, filed a federal complaint against the Interim Secretary of the Florida Department of Children and Families. Florida law gives the department 15 days after it receives court paperwork to move a committed defendant from jail to a state treatment facility. According to the complaint, the department attested in July 2025 that 881 people were waiting, 772 of them beyond the deadline, with average waits of 117 days for men and 125 days for women.
The complaint also cites a state-commissioned gap analysis projecting that Florida would need 2,034 additional forensic beds by 2029 to operate at an 85 percent occupancy rate, and it notes that the department’s 2026-27 budget request sought funding for 85 community residential beds and no new state hospital forensic beds. Disability Rights Florida says it identified three people who died in county jails after the transfer deadline had passed. The department told The Florida Trib it does not comment on pending litigation, and it has historically pointed to a lack of resources to explain the delays.
Texas now has a court-ordered deadline of its own. In July, U.S. District Judge David Ezra ruled in a class action that Disability Rights Texas filed in 2016 that holding committed defendants in jail for more than 21 days violates due process, and he gave the Health and Human Services Commission four years to meet that standard, according to Disability Rights Texas. The state has appealed, and in August the judge denied its request to pause the order while the appeal proceeds, the San Antonio Report reported.
Washington has operated under a court-ordered clock for more than a decade. Litigation known as Trueblood produced orders requiring the state to provide in-jail competency evaluations within 14 days and inpatient restoration within seven, and when the state fell behind, a 2018 contempt settlement followed, its fourth phase now running from July 2025 through June 2027 under the state’s implementation plan. The Department of Social and Health Services’ September 2026 semiannual report describes outpatient restoration, residential supports, and diversion services that have been added region by region under the agreement.
All three cases lean on Jackson. Once a court finds a defendant incompetent, the criminal case pauses, and confinement is lawful only as a means of restoring capacity. Florida’s complaint argues that months in a county jail without that treatment no longer bear a reasonable relationship to the purpose of the commitment.
Who Gets Paid to Add Competency Restoration Capacity
Restoration is unusual among behavioral health services because Medicaid seldom pays for it. Federal rules generally bar Medicaid payment for inmates of public institutions, and the exclusion for institutions for mental diseases, defined in statute as facilities of more than 16 beds primarily treating mental illness, blocks federal matching funds for most patients ages 21 to 64 in state psychiatric hospitals. As a result, restoration runs largely on state general funds, and the capacity states add tends to arrive through contracts with sheriffs, counties, community mental health centers, and private psychiatric hospitals.
California shows what that purchasing looks like at scale. Its Department of State Hospitals, funded primarily from the state General Fund, reported 1,953 people on its pending placement list for incompetent defendants in January 2022. In its May 2026 budget revision, the department put the list at 256, and 129 of those people were already receiving treatment through jail-based stabilization or other programs. According to a state Senate budget subcommittee analysis in April, the department contracts with county sheriffs for 433 jail-based competency treatment beds across 24 counties and with five community inpatient facilities for 197 beds. A 40-bed program in Fresno County opened in March, and a 198-bed program in San Bernardino County is expected by spring 2027. By November 2025, 21 counties had signed permanent contracts for community restoration and felony diversion programs able to serve up to 1,634 people a year.
California also attached a price to referrals. Under a 2022 growth cap, counties that send more felony competency referrals than their baseline pay a penalty, and the money goes back to them for upstream programs. Assessments totaled $22.4 million across 11 counties in 2022-23, $27.8 million across 20 counties in 2023-24, and an initial $26.0 million across 18 counties in 2024-25. Counties have mostly spent the money on diversion, in-jail clinical engagement, contingency management, and reentry planning, the department has reported.
Texas is doing both. Senate Bill 30, passed in 2023, appropriated $1.4 billion to replace and add state hospital beds, and the Commission told auditors it expected up to 536 contracted competency restoration beds by the end of fiscal 2027. Alabama, which has operated under a federal consent decree on competency waits since 2018, completed an expansion of its only maximum-security forensic hospital from 140 to 225 beds in the past year. The state reported 291 people waiting in jails in July, down from 327 in January, and Commissioner Kim Boswell said a telehealth restoration program inside county jails has restored 32 people since summer 2025, the Alabama Political Reporter reported.
What Competency Restoration Demand Means for Community Behavioral Health Providers
For community providers, the most durable opening may sit upstream of the hospital. Texas auditors found that 948 people, about 6 percent of everyone on the waitlist during the review period, regained competency through jail-based or outpatient programs before a bed opened, and roughly 12 percent were restored while in jail. Most Texas counties, the report noted, offered neither alternative.
Policy is moving in the same direction in several states. Indiana’s first Behavioral Health Committee report, released in April, included competency work group recommendations to speed the process and divert people to other resources. California’s SB 1323, which took effect in January 2025, allows judges to decide whether restoring competency serves the interests of justice and, if it does not, to route defendants toward diversion, assisted outpatient treatment, CARE Court, or conservatorship. The Department of State Hospitals reported that felony competency referrals fell 8 percent in 2024-25, a decline that coincided with the law, while Proposition 36, which reclassified some drug and theft offenses as felonies, could push referrals back up.
Diversion and outpatient restoration lean on the same county and state behavioral health budgets that Medicaid’s eligibility changes, including new work requirements, are already stretching, a pressure Acuity examined in its look at the new financing architecture for substance use and behavioral health integration. In California, jail-based units and leased forensic beds are paid through the Department of State Hospitals instead, a separate budget line that carries its own exposure for the operators holding those contracts.
Referral trends have started to diverge. Florida’s gap analysis, as cited in the complaint, assumes the state’s forensic waitlist will grow about 6 percent a year while its population grows about 1.5 percent, and Texas has four years to bring its waits down to three weeks. California’s department, by contrast, counted an average of 405 felony referrals a month so far in fiscal 2025-26, down from 490 two years earlier. It does not expect its list to shrink much further, but fewer people there are now waiting for a bed than are referred in a typical month.
