Key Information

Relevant Statutes and Rules

Ark. Code Ann. § 5-2-301 et seq.

What proceedings can occur while the defendant is incompetent

Motions allowed based on grounds that "indictment is insufficient," "statute of limitations has run," "prosecution is barred by a former prosecution," or "[a]ny other ground the court deems susceptible of fair determination prior to trial." Ark. Code Ann. § 5-2-311. 

Number of examiners required

1

§ 5-2-327(a)(5)

Qualifications of examiners

"Expert" means "qualified psychiatrist or psychologist"

§ 5-2-301(4)

“'Qualified psychiatrist' means a licensed psychiatrist who has successfully completed or is currently participating in a post-residency fellowship in forensic psychiatry accredited by the American Board of Psychiatry and Neurology, Inc., or has successfully completed a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;" § 5-2-301(9)

“'Qualified psychologist' means a licensed psychologist who has successfully completed or is currently participating in a formal postdoctoral fellowship training program in forensic psychology or has successfully completed a forensic certification course approved by the department, and who is currently approved by the department to administer a forensic examination as defined in this subchapter;"  § 5-2-301(10)

What must the evaluation report contain

Report must: 
(A) Contain an opinion as to whether or not the defendant is fit to proceed and the basis for the opinion;
(B) Contain an opinion as to whether the defendant has a mental disease or defect;
(C) Contain a substantiated diagnosis in the terminology of the American Psychiatric Association's most current edition of the Diagnostic and Statistical Manual of Mental Disorders;
(D) Document that the examiner explained to the defendant:
(i) The purpose of the examination;
(ii) The persons to whom the examination report is provided; and
(iii) The limits on rules of confidentiality applying to the relationship between the examiner and the defendant; and
(E) Describe, in specific terms:
(i) The procedures, techniques, and tests used in the examination;
(ii) The purpose of each procedure, technique, or test; 
(iii) The conclusions reached.  § 5-2-327

In report, examiner "shall" consider:
"(i) The capacity of the defendant during criminal proceedings to:
(a) Rationally understand the charges against him or her and the potential consequences of the pending criminal proceedings;
(b) Disclose to the defendant's attorney pertinent facts, events, and states of mind;
(c) Engage in a reasoned choice of legal strategies and options;
(d) Understand the adversarial nature of criminal proceedings;
(e) Exhibit appropriate courtroom behavior; and
(f) Testify;
(ii) As supported by current indications and the defendant's personal history, whether the defendant is a person with:
(a) A mental disease or defect; or
(b) An intellectual disability; and
(iii) The degree of impairment resulting from the mental disease or defect or intellectual disability, if existent, and the specific impact on the defendant's capacity to engage with the defendant's attorney in an effective manner." 

§ 5-2-327

(4) If the examiner concludes that the defendant lacks fitness to proceed, the report shall contain:
(A) An opinion of the condition causing the lack of fitness to proceed;
(B) An opinion of the treatment necessary for the defendant to obtain fitness to proceed; and
(C) An opinion on the likelihood of the defendant attaining fitness to proceed under treatment.

§ 5-2-327

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

If the court is satisfied that the defendant may be released without danger to himself or herself or to the person or property of another, the court may order the defendant's release and the release shall continue at the discretion of the court on conditions the court determines necessary.

Ark. Code Ann. § 5-2-310(a)(1)(C)

What is the test for restorability

[t]he defendant's mental disease or defect is of a nature precluding restoration of fitness to proceed or it does not appear that the defendant will become fit to proceed within the reasonably foreseeable future

§ 5-2-310(b)(1)

What is the procedure after restoration

On the court's own motion or upon application of the department, the prosecuting attorney, or the defendant, and after a hearing if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.
(2) If the defendant has been receiving and responding well to treatment, including medication, the court may make appropriate orders for the continued treatment or administration of medication, or both to maintain the fitness of the defendant throughout the remainder of the proceedings.
(3) However, if the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would be unjust to resume the criminal proceeding, the court may dismiss the charge regardless of whether the defendant has regained fitness to proceed.

§ 5-2-310(c)

What is the procedure if there is a finding of unrestorability

If defendant does not present danger to themselves/others or to property of another, "court may release defendant on conditions the court determines to be proper."

"If the defendant lacks fitness to proceed and presents a danger to himself or herself or the person or property of another, the court shall order the department to petition for an involuntary admission."

 § 5-2-310(b)(2)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

(C) If the defendant lacks fitness to proceed but does not present a danger to himself or herself or to the person or property of another, the court may release the defendant on conditions the court determines to be proper.
(D) If the defendant lacks fitness to proceed and presents a danger to himself or herself or the person or property of another, the court shall order the department to petition for an involuntary commitment.

§ 5-2-310(b)(2)

(4)(A) On either the motion of the court or the state, a hearing shall be held to determine whether the charges against a defendant who lacks fitness to proceed due to mental disease or defect may be dismissed if the defendant remains without fitness to proceed for five (5) continuous years from the date of determination of lack of fitness.
(B) If the charges are dismissed, the dismissal shall be without prejudice to the state.

§ 5-2-310(c)(4)

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

Eight months

§ 5-2-310(b)(2)(A)