The United States Constitution protects people from being deprived of life, liberty, or property without due process of law. The Supreme Court of the United States has held that: it is a denial of due process to try or sentence a defendant who is incompetent to stand trial.
If concerns about a defendant’s competency are raised, the defendant’s criminal case is transferred to Competency Court pursuant to NRS 178.405.
Once the transfer occurs, the Competency Court coordinator assigns two doctors to complete evaluations using standards provided by the United States Supreme Court in Dusky v US, 362 U.S. 402 (1960).
The two doctors are assigned to conduct independent evaluations using the Dusky standard which is codified in NRS 178.400
An incompetent person cannot be tried or adjudged to punishment for public offense.
1. A person may not be tried or adjudged to punishment for a public offense while incompetent.
2. For the purposes of this section, “incompetent” means that the person does not have the present ability to:
(a) Understand the nature of the criminal charges against them;
(b) Understand the nature and purpose of the court proceedings; or
(c) Aid and assist counsel in their own defense at any time during the proceedings with a reasonable degree of rational understanding.
What happens when a defendant is found incompetent to stand trial?
When a criminal defendant is found incompetent pursuant to Dusky, based on the doctors reports, the defendant is sent to a secure mental health facility for prompt restorative treatment within seven days after the court order is served and filed.* Nevada has two such facilities; Lake’s Crossing Center (in Northern Nevada) and Stein Forensic Hospital (in Southern Nevada). Both are maximum security psychiatric facilities, used for providing comprehensive forensic mental health services. Neither Clark County or the courts provide restorative treatment. The only two forensic treatment facilities are provided by the State of Nevada, Department of Health and Humans Services – the Division of Public and Behavioral Health. The facilities provide prompt restorative treatment for every incompetent defendant in the entire state.
NRS 178.399 defines “Treatment to competency” as treatment provided to a defendant to attempt to cause the defendant to attain competency to stand trial or receive pronouncement of judgment.
Upon successful treatment and restoration to competency, the defendant is returned to the Clark County Detention Center and their case proceeds in their originating courtroom on the original charges.
*With regard to the State of Nevada’s duty to provide prompt restorative treatment please see Nevada Disability Advocacy and Law Center, Inc. v. Carlos Brandenburg, U.S. District Court of Nevada Case No. CV-S-05-0782-RCJ (RJJ) (2005) and Eric Burnside v. Richard Whitley, U.S. District Court of Nevada Case No. 2:13-CV-01102-MMMD-GWF (2013).