University of Arkansas at Little Rock Law Review

Document Type



A mentally-impaired accused who cannot comprehend the nature of the proceedings or assist his counsel in presenting his defense to the criminal charge cannot be tried as a matter of due process of law. In Jackson v. Indiana, 1 the United States Supreme Court held that due process concerns also bar the never-ending jeopardy resulting from an inability to restore an impaired accused to competence for purposes of proceeding to trial. When an Arkansas circuit court ordered the dismissal of pending criminal charges against an impaired accused who could not be restored to fitness for trial, the Arkansas Supreme Court, in State v. Thomas, reversed the dismissal order, returning the defendant to a potential state of unending jeopardy. In failing to implement the Court’s directive in Jackson, the decision in Thomas leaves the state’s trial courts without a clear remedy for addressing the problems posed by mentally-impaired defendants who will never recover, and also leaves those defendants in the abyss of never-ending jeopardy. The focus of this article is the Thomas court’s failure to address the proper remedy when the trial court finds that an impaired defendant cannot be restored to fitness to proceed within a reasonable period of time.

During its 2017 session, the Arkansas General Assembly adopted new procedures for conduct of mental evaluations relating to an accused’s fitness for trial or criminal responsibility in commission of the offense. The amendments bear on issues addressed in this article and are discussed briefly in the Legislative Update which follows.