When a criminal defendant is incompetent to stand trial or not guilty due to mental illness or mental defect, the court does not simply wish him luck and release him back into the community.

Instead, the court will likely order the defendant to be hospitalized for examination and/or committed to a mental health facility for a lengthy amount of time.

The applicable statute when dealing with incompetent or mentally ill defendants is M.G.L. c. 123, § 16.  It provides, in paragraph (a), that the judge may order such a defendant to be hospitalized at a mental health facility for “observation and examination.”  The period of hospitalization cannot exceed 40 days.  If the defendant is considered dangerous and “strict security” is justified, the defendant’s hospitalization will be at the Bridgewater state hospital.

Additionally, paragraph (b) of the statute allows prosecutors and hospital superintendents to petition the court for the defendant’s commitment (i.e., compulsory, in-patient treatment).  Such a petition must be made (1) within 60 days of the date the defendant is deemed incompetent or not guilty due to mental illness or defect or (2) during the period of his hospitalization/examination, if it is order by the court.

After a petition for commitment is filed, the matter will be heard by the court.  The judge may, if he deems it necessary, order the defendant’s commitment for up to six months.

This six-month commitment can be extended for an additional year, if the defendant is considered a danger to himself or the community under M.G.L. c. 123, § 7 and §8.

During commitment the defendant will be

restricted in his movements to the buildings and grounds of the facility at which he is committed by the court which ordered the commitment.

These restrictions cannot be removed unless the mental health facility’s superintendent makes a written request to the court and, after a 30 day notice period, the judge allows the request.

Finally, if the defendant is found incompetent to stand trial, the court shall ask the department of corrections to compute

the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted.


On the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period.