Wisconsin courts face surge in people unfit for trial due to mental illness

Listen to this article

In Brief

• Competency orders in Wisconsin nearly tripled from 2013 to 2025.
• Department of Health Services struggles with competency treatment demand.
• Advocates call backlog a civil rights issue for defendants in jail.

Over the last decade, Wisconsin has seen an alarming rise in people who are unable to stand trial due to mental illness or developmental disability, causing cases to be delayed and people to languish in jail while they await treatment.

From 2013 to 2025, the number of times someone has been deemed “not competent to stand trial” increased almost threefold, according to a Milwaukee Journal Sentinel analysis of data from the Wisconsin Department of Health Services.

“It’s a significant problem for the state, and for the criminal justice system generally,” said Milwaukee County Circuit Judge Mark Sanders, who oversees the Mental Health Treatment Court, established in 2024.

Sanders specifically deals with cases where a defendant’s competency is in question or a defendant is not guilty by mental illness.

Competency is “the most foundational thing” in criminal cases, Sanders said. If a defendant is not competent to stand trial — meaning they cannot understand the charges against them, assist in their own defense, or understand their own decisions — the case cannot proceed.

If a defense attorney suspects their client is not competent, they must ask for an evaluation by a psychiatrist. Those who are found not competent must then undergo a competency restoration program with the Wisconsin Department of Health Services.

Their cases are suspended until they are found competent.

The Department of Health Services has struggled to keep up with the growing demand, the Journal Sentinel previously reported.

From 2013 to 2025, the number of orders for competency evaluation statewide has doubled from around 1,200 to more than 2,500, according to health department data.

Over the same period, the number of orders for competency treatment has risen from 300 to 900, the data shows.

A Department of Health Services spokesperson said Milwaukee, which is the most populous county in Wisconsin, accounts for the largest share of competency orders.

“The justice system does not exist in a vacuum,” the spokesperson said in an email. “It is directly impacted by what is happening in our communities, including the mental health crisis facing our state and our country.”

To respond to the surge in people needing services, the department has started using beds at state-run facilities not traditionally meant for competency restoration and expanded alternative programs, such as jail-based competency treatment and outpatient options.

People who are waiting to start competency services often have to wait for weeks or months in jail.

Sanders said it’s not a good environment for those who are acutely ill. He said he’s seen people become aggravated with cellmates or staff, sometimes stacking up other charges, such as assaulting an officer, while their case is paused.

“It’s got to be psychologically very uncomfortable,” he said.

Jeremy Perri, the trial director at the Wisconsin Public Defender’s Office, blamed a trend of criminalizing mentally ill people.

Research shows that people living with mental illnesses are more likely to be victims rather than perpetrators of crimes.

However, many face low-level charges like disorderly conduct as a result of their mental health crises. Sometimes, a well-meaning mental health call can escalate into a criminal charge if the person acts out, like if they spit at an officer, Perri said.

“I think it’s common where you have people in mental health crises and you have police involvement,” Perri said. “And then there are options of treating it like a health issue or routing it to where charges get issued.”

Even the state’s competency treatment program, Perri said, is a short-term program designed to get someone to understand court proceedings, instead of holistic mental health treatment.

He said there is a need for more community-based treatment options.

“There needs to be a lot of effort across the state in a lot of communities,” Perri said.

Jeff Altenburg, Milwaukee’s Chief Deputy District Attorney, said a lack of community-based resources is the reason why more people are criminalized.

“Law enforcement and the criminal justice system becomes the unfortunate and reluctant backstop that is too often asked to intervene when those in mental health crisis threaten themselves or others,” Altenburg said in a statement.

Sanders said he is working with a group of “dedicated” people in the criminal justice and mental health systems to address the backlog.

Some of the potential solutions the group has discussed include using the outpatient competency restoration program more often and improving communication to monitor who requires a higher level of care and who is ready to transition to outpatient programs.

Sanders said it is a complex system, with limited bed spaces and higher-than-ever needs.

Others advocate for more inpatient and hospital-based resources, which the county has spent years dismantling in an effort to improve community-based care.

Mary Madden, executive director of NAMI Southeast Wisconsin, said there seems to be a correlation between decreasing inpatient psychiatric beds in the community and the number of people needing care in the criminal system.

Beyond that, delays in receiving Social Security or disability benefits can push people further into financial instability, causing them to get progressively sicker, she said.

Madden said the backlog of people waiting to be restored to competency is a civil rights issue.

“They’ve been ordered to be released to a state hospital to see if they can regain competency and they’re sitting in jail waiting for a bed to open up,” Madden said. “Which in my opinion, quite frankly, is a violation of their rights.”