Milton Dusky was 33 years old and suffering from Schizophrenia. He was experiencing visual hallucinations, depression and alcoholism. He was under the influence of alcohol and drugs when he accompanied two teenage boys across state lines and raped a young girl.

He was arrested and charged with a federal crime. He had an evaluation that found he was "oriented to time, place, and person," and competent to stand trial. In 1958, he was convicted and appealed.

In 1960, Dusky's case made it to the U.S. Supreme Court. The High Court made a significant ruling regarding competency to stand trial. The court moved away from an analysis that considered whether an accused is "oriented to time and place and (has) some recollection of events" to a finding that an accused has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceeding against him."

Competency is often confused with insanity. Competency is a determination of whether an accused can be tried for a crime. Insanity is a determination of whether an accused is responsible for a crime.

The M'Naghten Rule is the legal standard to determine a defendant's legal insanity and criminal responsibility at the time an offense was committed. It is not a clinical assessment of a person's basic awareness. It asks two central questions, based on the defendant's mental state at the time of the crime:

— Did the defendant know the nature and quality of the act they were doing?

— If they did, did they know that what they were doing was wrong?

Although the standards for competency and insanity are different, the impact on the accused can often be very similar and equally troubling. The Marshall Project recently examined what happens to an accused who is suspected of being incompetent. Some people can languish in jail for months and months waiting for a competency evaluation.

As The Marshall Project pointed out, "In the most severe cases, a court can issue a permanent finding of incompetence. Numerous states have long backlogs of criminal defendants waiting for 'competency restoration' before they can be tried in court."

Competency restoration is a term of art in the criminal justice system. An accused who is deemed incompetent is entitled to treatment that can stabilize the individual and enable that person, with medication and therapy, to aid in their defense and stand trial. Ideally, the treatment is provided at a forensic hospital. Unfortunately, those beds are scarce in most states, and individuals suffering from mental illness stay in jail until a bed is available.

One of the states with a waitlist for competency restoration is Pennsylvania. According to an investigation by Spotlight PA, "The (Pennsylvania) Department of Corrections and county jails have unintentionally become the largest providers of behavioral health services in the Commonwealth and are not sufficiently prepared and resourced to meet this population's needs."

To back up the findings, Spotlight PA teamed up with PrimeCare, a private contractor that provides healthcare to 37 jails across Pennsylvania, and the Lehigh Valley Justice Institute to review 10 years of mental healthcare data.

An analysis found that more than 60% of inmates screened for mental health problems needed services while incarcerated.

The nationwide shift away from civil commitment treatment beds toward forensic treatment is a huge part of the problem, Jerri Clark, a research and advocacy manager for the Treatment Advocacy Center, told The Marshal Project. "Punishment is never going to magically create insight for someone who is deeply unwell," Clark said. "You cannot punish someone out of their delusional thinking."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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