top of page
Search

Competency vs. Incompetency

  • mhowden6
  • Feb 26
  • 3 min read


ree

The recent special legislative session held interest for me and my office for its emphasis on public safety issues. Since the session only lasted five hours, in the end there was not much to see.


I did notice in much of the reporting the issue of competency/incompetency which my staff faces daily. It was stated repeatedly and incorrectly that if a defendant is found incompetent then the case is dismissed.


To be found incompetent to stand trial a defendant must not know right from wrong, not be able to contribute to his/her own defense by aiding his/her defense attorney, nor be able to understand the court process. In these situations, the case is stayed, and the defendant is sent for evaluation professionally by a psychologist or psychiatrist pending agreement by all parties- the Judge, the Defense Attorney and my office.  It is up to the judge to determine if the defendant is to be held in custody or not during this process.


If in this situation and after the evaluation a defendant is deemed not competent to proceed in a criminal trial, and the court finds that the defendant is not dangerous the “court may dismiss the case…in the interests of justice.” (NMSA Section 31-9-1.2, 1978)

If a defendant has been found incompetent but has been charged with a murder, rape, aggravated arson or a crime involving the use of a deadly weapon then my office will proceed with a “dangerousness hearing”.  If the court finds by clear and convincing evidence that the defendant did commit the crime charged (a lower standard than beyond a reasonable doubt) then the court will order the defendant be sent to the State Hospital in Las Vegas, NM to receive treatment to aid in returning to competency. If the defendant’s condition is such that s/he cannot be brought back to competency the court may order the defendant to remain in the State Hospital, a locked secured facility for as long as the crime charged allows.


Some people believe that a person who is mentally incompetent will always be and cannot be treated. There are occasions for example, when someone is found to be incompetent because of drug use, and/or because they are not taking the drugs for a mental illness which would facilitate their competency. Within 30 days the facility is required to submit an evaluation of an assessment and treatment plan and report on the cooperation of the defendant to receive and participate in treatment designed to return them to competency. The timeline for this is usually 9 months. If, however, after 30 days the facility (through the department of health) the defendant has been sent to says they don’t have the capacity to meet the medical needs of him/her they may refuse the defendant.  In these cases, then a motion is made for a hearing to determine dangerousness. If the defendant is determined not to be dangerous then it is likely the case will then be dismissed. If after 9 months the defendant is still not deemed competent but is making good progress, then it is possible to amend the treatment order for more time.


In the case of Senate Bill 10 relating to competency proceedings which in the end was not taken up by the legislature in the special session, the bill was intended to fill some of the gaps in the current law. For example, to provide the opportunity for a defendant to opt for treatment voluntarily in which case all the parties must agree. For non-violent cases that would ordinarily result in a dismissal if the defendant was found incompetent. One of the missing links in this case would be the question of capacity. Do we have the facilities necessary to provide such treatment?  The other question has to do with the ethical responsibility of a defense lawyer. They cannot agree to their defendant opting voluntarily for treatment if they have already been deemed incompetent which means they do not have the capacity to voluntarily agree.


Perhaps, as has been stated, the bills weren’t quite ready, I am not the qualified judge of that. I just know that there is an entire world that needs to be considered in order to meet the intended goals of what on the surface is a good idea to increase the safety of our communities.  On more than one occasion a piece of legislation that looks good on paper has come down to the District Attorneys to execute without consideration for our budgets and staff capacity. We step up to the challenge always understanding that nothing is ever going to be perfect, and we have to start the necessary change somewhere.

 

 

 
 
 

6 Comments


Free Geoguessr
Free Geoguessr
Oct 15

GeoGuessr Free turns geography into a thrilling guessing game. You’ll be transported to unknown parts of the world — from deserts to busy cities — and must figure out your location using only visual hints. A perfect blend of travel and trivia!


Like

Kavya Arora
Kavya Arora
Oct 04

Celebrating a momentous occasion or just want to make your night that much more memorable? You can make it a truly unforgettable time with our Call Girls in Chakkarpur. Our gorgeous girls will make it a fun night in the capital.

Like

Siya Koli
Siya Koli
Sep 24

If you want to experience unforgettable fun, then spending time with Escort in Model Town is the best choice. They blend beauty, romance, and sensuality in a way that feels truly magical.

Like

mike
mike
Sep 05

Competence is they are good at what they are doing and do better, incompetence is you are not doing and have no solution. run 3

Like

soradat
Aug 25

I’m Olivia, 33 years old, and I worked as a nurse in London. My job was fulfilling but left me emotionally and physically drained — hospitals, night shifts, and constant pressure made me forget about my own health.

A trip to Chiang Mai changed everything. I fell in love with the temples, the gentle pace of life, and the sense of community. For the first time in years, I felt truly calm.

Soon after, I found a cozy house with a garden through https://thailand-real.estate/. Today, I work part-time at a private clinic, and in my free time, I volunteer teaching English to local children. I’ve rediscovered balance and purpose, not just as a nurse, but as a person.

Thailand didn’t…

Like
bottom of page