Milwaukee County starts new court for competency cases

​By Alexandria Staubach

Milwaukee County Circuit Court has a new mental health docket, which its creators hope will streamline the civil and criminal aspects of cases where competency is at issue.

Sanders

Judge Mark A. Sanders will preside over the new docket, which started accepting cases this month.

The docket is designed to address a significant backlog of cases that deal with competency and to incorporate and possibly expand the capacity of the current mental health treatment court.

Legal competency is the ability of someone who has been charged with a crime to appreciate the charges and consequences and to participate in their defense.

The new court got its start through the Milwaukee Community Justice Council (CJC), which comprises Milwaukee-area criminal justice agencies and local governments working collaboratively to “ensure a fair, efficient, and effective justice system that enhance(s) public safety and quality of life in our community,” according to its website.

WJI recently discussed the new court with Chief Judge Carl Ashley, who chairs the CJC; Milwaukee County Chief Deputy District Attorney Kent Lovern, who co-chairs the CJC’s Mental Health Committee (and is running unopposed for district attorney in November’s election); and Tom Reed, vice-chair of the CJC and regional attorney manager of the Wisconsin State Public Defender’s Office.

“It is not possible to overemphasize that the mental health docket is a reflection of deep concern at every level that individuals with mental health issues end up with the police and in jails, in situations that are not equipped to deal with these issues,” said Reed.

“We envision phases,” said Ashley. He told WJI that he hoped the new docket will grow to further address the significant needs of those charged with criminal offenses and simultaneously dealing with mental disease.

The COVID-19 pandemic resulted in a significant backlog of cases, said Ashley. He told WJI, he believed the court could improve outcomes and efficiencies, especially in competency cases.

Ashley, Reed, and Lovern all told WJI that mental health is a significant issue in court efficiency. Each noted the desire for individuals with significant mental health issues to achieve just outcomes, while acknowledging that arriving at those outcomes requires significant time and resources from the court.

Apart from improving efficiency for individuals that have been charged, the new docket will have a “corollary benefit,” said Lovern. He said the new docket will let other courts move at an improved pace.

Ashley, who others indicate led the effort in engineering the new docket, said the court will initially deal only with cases in which competency, not guilty by reason of mental defect, or restoration to competency is an issue. Sexual assault and homicide cases will be excluded from the new docket; those cases will remain in other specific courts.

The new docket is distinct from the mental health treatment court. The circuit court has had a mental health treatment court for more than 10 years, deemed “the longest pilot project ever” by Lovern.

The current mental health treatment court program is small and voluntary. “It’s really not the fit for every case” Lovern told WJI. It is designed to connect participants with mental health treatment, community services, and “appropriate dispositions” to criminal charges relative to the seriousness of the participant’s mental illness and severity of the offense, Lovern said.

Reed said the treatment court is designed to deal with individuals who display a significant mental illness and could benefit and improve with long-term intensive work and supervision.

The new docket is also designed to help the whole court system run more efficiently, said Ashley.

If an individual is found not competent, it may be that they can be restored through treatment either out of custody (conditional release) or in custody at Mendota, a state-run mental health facility.

In cases where competency is an issue the court must first establish a lack of competency by hearing, which often requires the testimony of medical professionals, and then act upon that fact.

One objective for the new court is to give the civil system, plus service providers and medical professionals, a dedicated court to deal with, Ashley said.

“There are significant delays in just the competency path; some of those delays have to do with the state hospital not having enough beds,” Reed told WJI. However, “other problems arise,” too. “Every criminal court has to deal with competency, and the result is ‘yes,’ time tied up in hospitalization, but a lot of time is also tied up in the process,” he said.

“If felony courts can move faster to other cases, it can free up other court time,” said Lovern.

Reed highlighted that a single docket for competency cases may result in a single team of people—court providers, district attorneys and public defenders—who are better positioned to think upstream, “to understand the familiar faces, see who is cycling through and trapped in unproductive cycles.”

“We have to get in there, then see what we can do,” said Ashley.

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