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Abstract

Defense attorneys have long struggled with the ethical obligation to raise competency concerns about a client to the court when doing so would prolong the client’s time in detention. This dilemma, well-documented in legal ethics scholarship, relies on an assumption that detention is a necessary component of competency restoration. As this Article shows, that assumption is wrong.

This Article uncovers how the practice of mandatory detention for competency restoration was left undisturbed for decades, even as policymakers and courts increasingly recognized the constitutional concerns with automatic detention of individuals with severe mental illness in other arenas. After exposing the unconstitutionality of mandatory detention during competency restoration, the Article proposes reforms that would modernize the outdated competency detention system, alleviate the dilemma defense attorneys face, and contribute to the broader discussion on curbing mass incarceration.

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