ST. PAUL — Senator Jim Abeler (R-Anoka) today joined Senators Karla Bigham (D-Cottage Grove) and Karin Housley (R-Stillwater) in announcing that they are tackling the thorny issue of competency restoration. They previewed a bill to address loopholes that free violent offenders when they are deemed not competent to stand trial. Most would agree that a person who is deemed incompetent should not be convicted, but they also agree that protecting the safety of the public is one of the most important roles of government. 

In Minnesota, someone is deemed incompetent when they are incapable of fully understanding the charges brought against them due to a mental illness or cognitive impairment. No state statute mandates competency restoration, but the process is currently voluntary. 

Until November of 2018, the Minnesota Department of Human Services (DHS) held individuals until they were deemed competent. However, as costs to the state, courts, and counties for competency restoration continued to rise between 2013 and 2018, this resulted in this policy being ended. Individuals deemed not competent, but who did not meet the civil commitment criteria, started to be released back into society. These are called ‘gap’ cases. Right now, there are estimated to be nearly 700 individuals across the state that fall into such competency restoration gaps. As dictated by state statue, they have been released without demonstrating competency. This has the potential of putting the public at risk if they happen to reoffend.  

In addition, misdemeanor charges against a person who is deemed incompetent are not pursued. 

“Of all of the many public safety threats facing our state, this is a huge loophole,” Abeler said. “My question is, ‘Who oversees these individuals and their competency restoration?’ This must be resolved for families to feel safe in their communities. Therefore, the solution we are seeking must answer this key question. At the same time, we must ensure these individuals get help they need and no longer pose a risk to themselves or our communities.” 

“First and foremost, our sympathies to the victims that have been tragically murdered. This is horrific and needs to be fixed,” Bigham said.“Counties should be front and center and a part of the solution in closing this gap. Therefore, my goal is to make sure that counties are partners in this ⁠— whether that be county attorneys or community corrections. I look forward to continuing these important discussions.” 

Housley will also bring forward an amendment to create a juvenile community competency restoration task force. Housley shared that, “The proposal legislation we are talking about today for adults creates a clear process. Adding a statute for juveniles would create consistency in how the system treats incompetent defendants. Legislation from this task force will provide a process for juveniles, and reduce the impact on child protection departments, who are right now tasked with providing support and treatment for juveniles.” 

The bill authors’ concerns are shared by Mark Metz, Carver County attorney, president of the Minnesota County Attorneys Association (MCAA); and Janet Reiter, Chisago County attorney, past president of the MCAA. The MCAA created a committee in April 2017 to address deficiencies in the current system of treating defendants who are found incompetent. And there was another comprehensive task force that also proposed a solution. Reiter noted that,“Currently, there are some cases when the person is found incompetent to stand trial, but the court loses jurisdiction over these individuals. That is the problem. That is a significant problem that allows these people to go unchecked, unmonitored, and creates that public safety issue that we are concerned about.” 

“This bill is critically important to pass. The Minnesota County Attorneys Association is ready to do all we can to ensure this bill becomes law,” Metz said.“It’s critical to restore them to competency because these individuals are going to get out. And they are going to live in the community, so we have to treat them.” 

As a result, there are two versions of legislation that are being brought forward. S.F. 3395 is the Task Force bill, which focuses on restoration and treatment, and is authored by Senator David Senjem (R-Rochester).“Working to restore competency among those who have been deemed incompetent by our court system is essential to those affected but also to the betterment of our society,” Senjem said. S.F. 3728, authored by Abeler, Bigham, Housley, is the product of the MCAA efforts, and puts more focus on public safety as well as addressing restoration.  

Both bills are being heard in the Senate Human Services Finance and Policy Committee today. Following the hearing it is expected that both bills will be referred to the Senate Judiciary Committee for further work. The companions of both bills are authored in the House by Representatives Heather Edelson and Tony Albright and are scheduled to be heard. 

The goal of the authors is to address what should happen in situations where:  

• Someone is charged with a crime, found incompetent to stand trial, but is not committed to prison as a danger to themselves or others; 
• Someone is charged with a crime, found incompetent, is committed, but then DHS ‘provisionally discharges’ that person back to the community after the person is found to ‘no longer need a hospital level of care;’ and 
• An individual does not meet the criteria for civil commitment, and they must seek treatment voluntarily.