By Libby Skarin, Policy Director
Imagine you’ve been charged with a crime. You’re sitting in jail and you’re anxious, nervous, and hoping your case moves forward quickly. You can’t get out of jail to work or to see your family. Now, imagine that you’ve been sitting in jail like this for four, six, or even eleven months and while you haven’t been convicted of any crime, you can’t leave. Even worse? Your case isn’t moving forward at all.
It may sound like a nightmare scenario but it’s exactly what’s happening to some mentally ill defendants in South Dakota.
At the bedrock of our criminal justice system are a few uncompromising principles: that a defendant is innocent until proven guilty, that a defendant must be mentally competent to stand trial, and that the government cannot deny defendants due process of law. It’s principles like these that the Constitution guarantees and that are critical to ensuring our justice system operates fairly.
In order to be competent to stand trial, a defendant has to be able to do a few basic things. They must be able to understand what their legal proceedings are about, they need to be capable of understanding the potential consequences of their criminal case, and they need to be able to assist in their own defense. In South Dakota, if the attorneys or the court has concerns as to whether a defendant is competent to stand trial they can ask that an evaluation be done to assess that person’s mental health.
Often, the defendant in question will be forced to remain in jail while he or she waits for the state to conduct a competency evaluation. During this time, the defendant’s case won’t move forward – they’ll just wait for an evaluation to be done. While a few days wait may be reasonable, defendants in South Dakota have been forced to wait an average of four months (and up to 11 months in at least one case) for the state to conduct an evaluation.
Beginning in November 2015, the Sioux Falls Argus Leader began publishing a series of stories about defendants in South Dakota jails facing these wait times. The Argus Investigation revealed these months-long wait times, and showed that the number of competency evaluations ordered tripled in the last few years. It also showed that despite the fact that 147 evaluations were ordered in FY 2015, the state mental hospital would only conduct 36 evaluations per year.
The release of this information led to the formation of a state task force to tackle the issue. The task force formed to survey the problem in South Dakota and come up with policy solutions. The task force sought public comments, and the ACLU of South Dakota sent a letter explaining our concerns with the current system.
Simply put, we believe that the current system in South Dakota of forcing criminal defendants to wait for months at a time to be evaluated for competency is a violation of the constitutional right to due process. In fact, the ACLU litigated a case in Washington on the very same issue. In that case, a federal court found that forcing defendants to wait in jail for seven days for an evaluation violates the Constitution. Compare that seven day waiting period with an 11 month wait in South Dakota and you can see we have a problem.
The ACLU of South Dakota is advocating that the task force come up with concrete solutions to this constitutional violation happening in South Dakota right now. We know that solving this problem might be costly and complicated, but the task force cannot let this problem go unsolved. It is the responsibility of our state to take action to protect the rights of mentally ill defendants languishing in our jails.
To read our public comment to the task force, download the PDF below.
