What Happens When a Defendant Is Found “Incompetent” or "Incapable" To Proceed in a Criminal Case?

By: Dr. Paige D. Schultz

Recently, courts have found several defendants in high-profile criminal cases incapable of proceeding. Media coverage of these cases inevitably drives high social media engagement. With that, comes a flood of comments like: “He was competent when he did it” or “He was competent the last 14 times he was released.”

That’s not how this works.

“Capacity to proceed” (also called competency to stand trial) is defined in Dusky v. United States (1960) and is very specific: In plain terms, the question of capacity is about whether the defendant can currently understand the court process, their situation, and rationally work with their attorney.

Capacity is not about the defendant's functioning at the time of the offense. It is not about their prior charges. It is not a personality trait or a fixed-state. Capacity can fluctuate due to things such as severe mental illness, medication changes, acute stress, or psychological decompensation. Neither past events nor functioning at the time of the alleged crime answer the question of capacity to proceed.

It is possible for someone to:

• Commit a crime and later lose capacity

• Be competent in prior cases and not be competent today

• Not be competent now, but later be restored to competency

In North Carolina, the standard for adult capacity to proceed is set out in N.C.G.S. 15A-1001(a). A defendant is considered incompetent if, due to mental illness or defect, they are unable to:

• Understand the nature and object of the proceedings

• Comprehend their situation in relation to the proceedings

• Assist in their defense in a rational or reasonable manner

For juveniles (for alleged offenses committed on or after January 1, 2025), N.C.G.S. 7B-2401.3(e) applies. The legal test is the same, but it includes additional potential causes of incapacity, such as intellectual disability, neurological disorder, traumatic or acquired brain injury, and developmental immaturity.

Importantly, a person must have a qualifying condition and be unable to meet one or more of these functional criteria. Many individuals may have a qualifying diagnosis and still be fully capable of proceeding.

So what happens if someone is not capable?

In most cases, the charges are not dismissed. Instead, the court orders treatment, often referred to as capacity restoration, to help the defendant regain the ability to understand the proceedings, comprehend their situation, and assist in their defense. If capacity is restored, the case moves forward.

This is not about “letting someone off the hook.” It’s about ensuring the process is fair and legally valid. A person cannot be tried if they cannot understand the proceedings or meaningfully participate in their own defense.

Case Citation:

Dusky v. United States, 362 U.S. 402 (1960)