Competency to Stand Trial

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.