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If at any time in the criminal proceedings the defendant appears to be suffering from a mental illness, the issue of competence to proceed may be raised. This may occur when the defendant seeks to plead guilty or to stand trial. It may occur when the defendant seeks to waive certain constitutional rights, such as the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966), or the Sixth Amendment right to counsel or to a jury trial. Even after conviction, the issue may be raised at a sentencing hearing, or when the government seeks to administer punishment, including capital punishment. The issue usually is raised by defense counsel by oral or written motion, but also may be raised by the prosecution or by the court itself, even over the objection of the defendant, who may prefer to proceed despite the existence of mental illness.
Several studies conclude that the vast majority of defendants are referred inappropriately for competency evaluation and have suggested that the competency process often is invoked for strategic purposes. The issue may be raised by both sides to obtain delay, by prosecutors to avoid bail or an expected insanity acquittal, or to bring about hospitalization that might not otherwise be available under the state’s civil commitment statute, or by defense attorneys to obtain mental health recommendations for use in making an insanity defense, in plea bargaining, or in sentencing.
Under Drope v. Missouri, 420 U.S. 162 (1975), and Pate v. Robinson, 383 U.S. 375 (1966), the court must conduct an inquiry into competence whenever a bona fide doubt is raised concerning the issue. Even after the criminal trial has commenced, the court must order a competency evaluation when reasonable grounds emerge to question the defendant’s competence. If this does not occur even though a bona fide question of competence exists, any resulting conviction will violate due process.
When is such a bona fide doubt raised? According to Drope v. Missouri, ‘‘[e]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . . even one of these factors standing alone may, in some circumstances, be sufficient.’’ The Court noted that there are ‘‘no fixed or immutable signs which invariably indicate the need for further inquiry;’’ instead, ‘‘the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated’’ (p. 180). As a result of Drope and the rule of Pate that due process is violated if an incompetent defendant is subjected to trial, courts typically order a formal competency evaluation in virtually every case in which doubt about the issue is raised.
What happens when the court fails to order a competency determination when the evidence raises a bona fide question concerning the issue? When the defendant is subjected to trial in the absence of such a determination, any ensuing conviction would violate due process and must be reversed under Pate v. Robinson. Can a court retrospectively conduct the needed inquiry into competence after the trial has occurred? Although Pate seemed to indicate that an automatic reversal of such a conviction would be required, lower courts have sometimes permitted such a retrospective competency assessment when such a determination is thought to be feasible in the circumstances.
The Competency Standard and Its Application
Mental illness alone, even a diagnosis of schizophrenia, will not automatically result in a finding of incompetence. The question is the degree of functional impairment produced by such illness. To be found incompetent, such mental illness must prevent the defendant from understanding the nature of the proceedings or from assisting counsel in the making of the defense. This standard focuses upon the defendant’s mental state at the time of trial. By contrast, the legal insanity defense focuses upon the defendant’s mental state at the time when the criminal act occurred, and seeks to ascertain whether he or she should be relieved of criminal responsibility as a result. The Supreme Court’s classic formulation of the standard for incompetency in the criminal process was adopted in the case of Dusky v. United States, 362 U.S. 402 (1960). The Court held that a court was required to determine whether a defendant ‘‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him’’ (p. 402). Although some courts had applied a more demanding standard of competency when the defendant attempted to plead guilty or waive counsel, requiring the ability to make a reasoned choice, in Godinez v. Maran, 509 U.S. 389 (1993), the Supreme Court rejected such a higher standard. Instead, the Court found that the Dusky formulation was the appropriate test of competency throughout the criminal process, at least as a constitutional minimum. The Dusky standard emphasized the cognitive ability to understand and the behavioral ability to consult with counsel, not necessarily the ability to engage in rational decision-making. In Godinez, the Court distinguished between competency and the knowledge and voluntariness requirement for the waiver of certain fundamental rights. The competency inquiry, the Court noted, focuses on the defendant’s mental capacity. The question is whether he or she has the ability to understand the proceedings. In contrast, the Court noted, the inquiry into ‘‘knowing’’ and ‘‘voluntary’’ is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. Although the Court thus clarified that its competency standard was not as broad as some courts had thought, the standard is still broad, open-textured, and vague, permitting clinical evaluators substantial latitude in interpreting and applying the test. The clinical instruments available for competency assessment compound the problem. These instruments typically list the many potentially relevant capacities that a defendant may need without prescribing scoring criteria for how these capacities should be rated. Moreover, because clinical evaluators rarely consult with counsel to ascertain the particular skills the defendant will need to have to function effectively in the case, the assessment instruments encourage clinical evaluators to apply a generalized, abstract standard of competency, rather than following a more appropriate contextualized approach to competency assessment. By simply relying upon clinical judgment based on all the circumstances, these instruments make competency assessment a highly discretionary exercise in clinical judgment. Many clinical evaluators are paternalistically oriented, and without more concrete guidance, tend to classify marginally mentally ill patients as incompetent. The literature documents the tendency of clinical evaluators in the criminal courts to misunderstand the legal issues involved in incompetency, frequently confusing it with legal insanity or with the clinical definition of psychosis.
This discretion is both increased and made more troubling by the fact that appellate courts rarely review and almost never reverse trial court competency determinations, and that trial judges almost always defer to clinical evaluators. Vesting broad and unreviewable decision-making discretion in clinical evaluators tends to obscure the distinction between the clinical and legal components of incompetency in the criminal process, and allows clinicians to regard a competency assessment as largely an exercise in clinical description. The question of who is competent to stand trial, however, is more legal than clinical. Courts and legislatures thus should define the concept of competency with greater precision. Bonnie’s efforts to delineate in detail the various components of competency to stand trial are helpful in this connection. Bonnie (1992) suggests that competency is best viewed as containing two related but separable constructs—a foundational concept of competence to assist counsel, and a contextualized concept of decisional competence. Bonnie persuasively argues that while the first should be required, the second should not always be necessary for a defendant to be considered competent. Also useful in this connection are the efforts of Bonnie’s coresearchers in the MacArthur Network on Mental Health and the Law to develop detailed assessment instruments and to conduct empirical research on the decision-making abilities of mentally ill defendants (Hoge et at., 1997). The MacArthur group developed the MacSAC-CD (MacArthur Structured Assessment of the Competencies of Criminal Defendants), a structured, standardized psychometric instrument that can be used by clinicians in their assessment of competence and which has been validated for inter-rater reliability and validity.
The Competency Assessment Process
When the competency issue is raised, the court typically will appoint several clinical evaluators to conduct a formal assessment of the defendant’s competence. These evaluators, usually psychiatrists or psychologists, will examine the defendant and then submit written reports to the court. The evaluation may be performed on an inpatient basis, but increasingly is done outpatient, in a court clinic or the jail. The court then decides the issue, sometimes following a hearing at which the examiners testify and are subject to cross-examination. When both parties stipulate to the findings made in the reports, a hearing will be unnecessary. When the issue is contested, state law will allocate the burden of persuasion, and under Medina v. California, 505 U.S. 437 (1992), it will not violate due process to place the burden on the party asserting incompetence, even if that party is the defendant. Under Medina, such a burden may be required by statute to be carried by a preponderance of the evidence, but the Supreme Court held in Cooper v. Oklahoma, 517 U.S. 348 (1996) that due process would be violated if the burden is required to be carried by clear and convincing evidence.
Disposition Following Competency Determination
If the court finds the defendant competent, the trial proceedings will resume; if not, they will be suspended and the defendant will be ordered into treatment, typically on an inpatient basis. Treatment is designed not to cure the defendant, but to restore competence. If such restoration is thought to have been achieved, a new round of evaluations and hearings will occur, and if the court is satisfied concerning the defendant’s competence, the criminal proceedings will be resumed.
In excess of thirty-six thousand defendants are evaluated for competency each year and the number appears to be increasing. The vast majority (as high as 96 percent in some jurisdictions and probably 75 percent in most) are found competent. Nearly all of those found incompetent are hospitalized for treatment, where they are treated with psychotropic drugs and typically returned to court within several months as restored to competence. Some are hospitalized for longer periods, and some are never restored to competence.
Although designed largely based on considerations of paternalism and fairness to the defendant, the competency doctrine frequently imposes heavy burdens on the defendant and considerable costs upon the criminal justice system. Prior to the Supreme Court’s decision in Jackson v. Indiana (406 U.S. 715(1972)), defendants hospitalized for incompetency to stand trial received what amounted to an indeterminate sentence of confinement in a mental hospital, typically exceeding many years and often the maximum period authorized as a sentence for the crime charged, and sometimes lasting a lifetime. In Jackson, the Court recognized a constitutional limit on the duration of incompetency commitment, holding that a defendant committed solely based upon trial incompetence could not be held more than a reasonable period of time necessary to determine whether there is a substantial probability that he will obtain capacity in the foreseeable future. Any continued confinement, the Court held, must be based upon the probability that the defendant will be restored to competence within a reasonable time. If the treatment provided does not succeed in advancing the defendant toward that goal, then the state must either commence customary civil commitment proceedings or release the defendant. Although Jackson marked an end to the most egregious cases of incompetency commitment, many states have responded insufficiently to the Court’s decision and abuses persist. The delay often imposed by the incompetency process, much of it unnecessary, frequently produces unneeded and unnecessarily restrictive hospitalization and undermines the defendant’s Sixth Amendment right to a speedy trial.
Psychotropic Medication in The Incompetency Process
Psychotropic medication is the principal treatment technique used in the restoration to trial competence. Although some courts and hospitals had once followed an approach that precluded a defendant from being considered competent when competency was maintained by ongoing medication, this practice has now been rejected.
The reverse problem is raised when a defendant seeks to refuse psychotropic medication. This occurred in Riggins v. Nevada (504 U.S. 127 (1992)), in which the defendant had been receiving antipsychotic medication in the jail, but sought to refuse the continuation of such medication during his trial. The trial judge refused, and he was convicted. The Supreme Court reversed, finding that the defendant’s trial while on a heavy dose of unwanted antipsychotic medication violated due process because the trial court had failed to make findings sufficient to justify such forced medication. The Court’s holding was a narrow one, but in important dicta it suggested the kinds of findings that would have justified involuntary medication during trial. Such medication would have been justified if the trial court had found it to be a medically appropriate and least intrusive alternative method of protecting the defendant’s own safety or the safety of others in the jail. In addition, the Court noted that the state might have been able to justify such medication if medically appropriate and the least intrusive means of restoring him to competence and maintaining his competency.
Although Riggins does not resolve the question of whether the state’s interest in competency restoration would outweigh a defendant’s assertion of a right to refuse psychotropic medication, this dicta suggests that the Court would find such a state interest sufficient, and most lower courts have so held. Riggins leaves open many issues concerning when psychotropic medication can be authorized in the criminal trial process and the disposition of those for whom it may not that the lower courts must face. Riggins also alerts the courts to the need to insure that the side effects of psychotropic medication do not impair the defendant’s demeanor and trial performance in ways that would be prejudicial, and should lead to increased judicial attention to drug administration practices in the competency to stand trial process.
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