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Citation: 43 Am. Crim. L. Rev. 1375 2006
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EMOTIONAL COMPETENCE, "RATIONAL^ UNDERSTANDING,"
AND THE CRIMINAL DEFENDANT
Terry A. Maroney*
ABSTRACT
Adjudicative competence, more commonly referred to as competence to stand
trial, is a highly under-theorizedarea of law. Though it is well established that, to
be competent, a^ criminal^ defendant^ must^ have^ a^ "rational"^ as^ well^ as^ 'factual"
understandingof her situation, the meaning of such "rationalunderstanding" has
gone largely undefined. Given the large number of criminalprosecutions in^ which
competence is at issue, the doctrine's instability stands in^ stark contrast^ to^ its
importance.
This Article^ argues^ that^ adjudicative^ competence,^ properly understood, asks
whether a criminal^ defendant^ has capacity^ to^ participatemeaningfully^ in^ the^ host
of decisionspotentiallyrequired^ of^ her^ Further,sound^ assessmentof^ such^ capacity
requires attention to both the cognitive and emotional influences on rational
decision-making in situations of personal relevance and risk. The role of emotion
has been neglected, both in traditional accounts of decision-making and in
assessments of adjudicative competence, and merits particular attention. This
Article explores two^ examples^ of^ potentially^ competence-threatening^ emotional
dysfunction-severe psychiatric mood disorderand organic brain damage-either
of which may interfere unreasonablywith decision-relevantemotionalperception,
processing, and expression. Existing legal theory and forensic testing methods,
which reflect a predominantly cognitive approach, do not account adequatelyfor
such dysfunction. Shifting the adjudicative competence inquiry away from a
general searchfor^ "rationality"^ and^ toward^ a^ morefinely^ grained^ examination^ of
the cognitive and emotional influences on rational decision-making^ processes
offers our best hope for giving meaning to "rationalunderstanding."
- Assistant Professor, Vanderbilt University Law School. The author is grateful to Oren Bar-Gill, Rachel Barkow, Louis Charland, Barry Friedman, Ron Garet, David Garland, Thomas Grisso, Larry Heifer, Maggie Lemos, Tom Lyon, John Monahan, Liam Murphy, Liz Phelps, Elyn Saks, Dan Simon, and Stephen Schulhofer for thoughtful commentary. Thanks are due as well to Li-Ling Wang, Hazel Lord, and Deborah Paulus-Jagric^ for excellent research assistance, and to New York University School of^ Law^ and^ the^ University^ of^ Southern California Gould School of Law for sponsoring the fellowships during which^ this^ Article^ was^ developed.^ For^ Kim Barry and Tim Maroney, ever present.
EMOTIONAL COMPETENCE
criteria, generally that of insanity; courts historically have done little better.^6 The
two doctrines also meet with the same generally disdainful attitude, as incompe-
tence, like insanity, appears to many to^ be^ a^ mechanism^ by^ which^ perpetrators^ of
criminal acts can escape accountability. 7 But legal insanity and^ adjudicative
competence are importantly distinct: the former looks to whether a person is able
to understand the nature and quality of her acts, so as to justify attachment of
criminal consequences, while the latter looks^ to^ whether^ a^ defendant^ is^ possessed
of sufficient capacity to defend her own interests within the various stages^ of^ an
ensuing prosecution. 8
Though the insanity defense claims the lion's share of attention, adjudicative
competence is far more important.^ Certainly,^ it^ has^ a^ much^ deeper^ reach^ into^ the
defendant population. Indeed, one^ commentator^ has^ asserted^ that^ "[v]irtually
every criminal defendant who appears to be mentally ill at any time within^ the
criminal trial process is examined for competency,"
9 as compared with the
extremely small number of defendants who mount an insanity defense.'o Actual or
suspected adjudicative incompetence^ affects^ a^ consistently^ significant^ percentage
- RONALD ROESCH & STEPHEN L. GOLDING, COMPETENCY TO STAND TRIAL 16,51 (1980); see Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. REv. 921, 982 (1985) ("Clinicians, particularly psychiatrists, historically have misunderstood the legal issues involved with incompetency, frequently confusing it with legal insanity or with the clinical definition of psychosis."). 7. See, e.g., United States v. Gigante, 166 F.3d 75, 79, 84 (2d Cir. 1999) (recounting multiple competency determinations in case against Vinny "Chin" Gigante). Gigante, who was widely believed to be malingering, inspired a storyline in The Sopranos in which Uncle Junior feigns incompetence (but later develops^ symptoms^ of incompetence). See^ The^ Sopranos:^ Whoever^ Did^ This^ (HBO^ television^ broadcast^ Nov.^ 10,^ 2002),^ http:// www.hbo.com/sopranos/episode/season4/episode48.shtml. 8. See, e.g., Godinez, 509 U.S. at^403 (Kennedy,^ J.,^ concurring)^ (stating that^ legal^ standards^ attending^ insanity and competence are procedurally and substantively distinct); Jackson v. Indiana, 406 U.S. 715, 739 (1972) (distinguishing insanity and incompetence). Persons are presumed to be both competent at the time of criminal proceedings and sane at the time of the offense, but may be found both incompetent and^ insane^ (presumably^ in^ a forensic inquiry before trial, for incompetence will bar trial); competent and insane (which must be the case whenever a defendant goes to trial but prevails on^ the^ insanity defense);^ or incompetent^ and^ sane^ (in^ which^ case we attempt to^ restore^ competence^ so^ imposition^ of^ criminal^ consequences^ may^ be^ determined^ on^ the^ merits). Conflating the two inquiries creates potential for serious injustice, for^ example, by subjecting^ the^ incompetent^ but sane person to trial because she understands right from wrong, despite the fact that she is not in a position adequately to protect her own interests. See Cooper, 517 U.S. at 364 (stating that the consequences of being tried while incompetent are "dire").
- Winick, supra note 6, at 924.
- 'The insanity defense is raised in only about 1% of felony cases in the United States, and although success rates vary widely across jurisdictions, it is successful only in 26% of the cases where it is raised." David R. Kamer, Raising Mental Health Issues-Other than Insanity-In Juvenile Delinquency Defense, 28 AM.^ J.^ CRIM.^ L.^ 73, 73^ n.^1 (2000) (quoting Marnie E. Rice & Grant T. Harris, The Treatment of^ Mentally^ DisorderedOffenders,^^3 PsYCHOL. PUB. POL'Y & L. 126, 127 (1997)). See generally Lisa A. Callahan et al., The Volume and Characteristicsof Insanity Defense Pleas: An Eight State^ Study,^^19 BULL. AM.^ AcAD.PSYcHIATRY^ &^ L.^331 (1991)^ (citing^ similar data regarding percentages^ of^ the^ usage^ and^ success^ of^ the^ insanity^ defense);^ Eric^ Silver^ et^ al.,^ Demythologizing InaccuratePerceptions of the Insanity Defense, 18 LAW & HUM. BEHAV. 63 (1994) (comparing public perceptions on the usage of the insanity defense to the actual usage of the defense).
AMERICAN CRIMINAL LAW REVIEW [Vol. 43:
of misdemeanor and felony defendants:"' it is implicated in as many of 8% of
cases, t^2 accounts for tens of thousands of forensic examinations and admissions to
inpatient medical facilities every year,' 3 and easily is the most common subject of
mental health testimony in criminal cases. 14 The consequences of an incompetence
adjudication are, from a defendant's perspective, grave: such a finding may well
translate into long-term confinement, particularly for those defendants deemed
dangerous to themselves or others, without opportunity for a finding of guilt or
innocence.^15
Indeed, among inpatients with criminal-justice-system involvement, those with
questioned competence or who have been adjudicated incompetent far outnumber
those for whom insanity at the time of the offense is the issue-perhaps by a
margin as^ great^ as^^100 to^ 1.
Despite the evident importance of adjudicative competence, and despite its solid
historical pedigree, 1 7 it remains a surprisingly neglected and ill-defined area of
law.' 8 This is despite the fact that the governing legal standards appear straightfor-
- A surprisingly (^) large number of defendants accused of low-level crimes are referred for competence evaluation, despite the relatively lenient possible punishment as compared to the potentially long-term nature of an incompetence commitment, whether for evaluation, treatment, or both. See ROESCH & GOLDING, supra note 6, at 56 (stating 30% of the committed defendants in 1978 study were charged with disturbing the peace); Robert A. Burt & Norval Morris, A Proposalfor Abolition of the Incompetency Plea, 40 U. CHI.L. REv. 66, 79 n.54 (1972) (referring to a 1950s-era study that indicated that within the questioned-competence population accused misdemeanants far outnumbered felons). But see ROESCH & GOLDING, supra note 6, at 52-53 (reporting finding from a 1975 study that those accused of violent interpersonal crimes were disproportionately represented in the "incompetent population").
- See PoYTHREss Er AL., supra note 2, at 9 (claiming 8.2% are referred); Patricia A. Zapf & Ronald Roesch, Mental Competency Evaluations: Guidelinesfor Judges and Attorneys, COURT REV. Summer 2000, at 28 (stating that between 2 and 8% of felony defendants are referred). But see Winick, supra note 6, at 928 n.21 (discussing a 1973 study of Manhattan cases which showed 0.87% of defendants referred).
- See THOMAS GRisso, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 69 (2d ed.
- (estimating 25,000 competency evaluations annually in the 1980s in the United States); Patricia A. Zapf & Jodi L. Viljoen, Issues and ConsiderationsRegarding the Use of Assessment Instruments in the Evaluation of Competency to Stand Trial, 21 BEHAV. Sci. & L. 351, 352 (2003) (discussing a recent estimate of 60, evaluations each year); Zapf & Roesch, supra note 12, at 28 (estimating between 25,000 and 39,000 evaluations in United States annually).
- "In 1994, the American Bar Association's Criminal Justice Mental Health Standards noted that 'the issue of present mental incompetence, quantitatively speaking, is the single most important issue in the criminal mental health field."' MAcARTHUR STUDY, ExEcutrvE SUMMARY, supra note 2.
- See, e.g., Jackson v. Indiana, 406 U.S. 715, 719 (1972). 16. Winick, supra note 6, at 923 n.3; see also Burt & Morris, (^) supra note 11, at 66 n. 1 (discussing a 1967 study that found over half of criminal offenders in surveyed hospitals were admitted for incompetence while insanity acquittees accounted for 4%) (citing P. SCHEIDEMANDEL & C. KANNO, THE MENTALLY ILL OFFENDER 20 (1969)).
- E.g., Medina v. California, 505 U.S. 437, 446 (1992) ("The rule that a criminal defendant who is incompetent should not be required to stand trial has deep roots in our common-law heritage."); Cooper, 517 U.S. at 356-357 (citing King v. Frith, (1790) 22 How. St. Tr. 307, 311, Queen v. Goode, (1837) 112 Eng. Rep. 572 (K.B.), and King v. Pritchard, (1836) 173 Eng. Rep. 135); Youtsey v. United States, 97 F. 937 (6th Cir. 1899); United States v. Lawrence, 26 F. Cas. 887 (D.C. Cir. 1835); Guagando v. State, 41 Tex. 626 (Tex. 1874); Freeman v. People, 4 Denio 9 (N.Y. Sup. Ct. 1847).
- See Richard J. Bonnie, The Competence of CriminalDefendants: Beyond Dusky and Drope, 47 U. MIAMI L. REv. 539, 540-41 (1993) (arguing that there exists little research on the meaning of incompetence and that case
AMERICAN CRIMINAL LAW REVIEW
sions in the same case.^24 Forensic experts and legal theorists have collaborated,
particularly in very recent years, to formulate standardized mechanisms for
defining and measuring competence-relevant facts, but these tests are not yet
widely used,^ despite their promise^ of^ promoting^ some^ measure^ of^ uniformity.^
In short, adjudicative competence, despite its enormous importance, is on whole
a surprisingly ramshackle affair. 26 It is poorly understood, under-theorized, and
inconsistently implemented.
This Article proposes that a coherent theory and practice of adjudicative
competence requires a robustly articulated concept of the baseline rationality we
expect of criminal defendants. The first step in such an articulation is recognition
that the Dusky standard embraces a requirement of "decisional competence," that
is, the ability to make, communicate, and implement minimally rational and
self-protective choices within the unique context of the criminal case. 27 The
crucial, yet to date entirely unexplored, next step is to recognize that both
cognition and emotion-colloquially, thinking and feeling-make important con-
tributions to such rational decision-making capacity. The role of emotion in
adjudicative competence therefore is the primary focus of this Article.
Part L.A situates adjudicative competence within a family of law-relevant
competencies and briefly outlines the decision points at which it may affect any
given criminal proceeding. Part I.B demonstrates that decisional competence is
inherent in the "rational understanding" component of the Dusky standard. Part I.C
then articulates the necessary components of the rational decision-making on
which a criminal defendant's decisional competence depends. Drawing on certain
courts' analysis of the disruptive effects of psychotic thought disorder, this Section
models how an appropriately fine-grained analysis of competence will seek to
articulate precisely where in the decision-making process the defendant has gone
astray and explain why those defects implicate her ability to represent her own
interests within a criminal proceeding.
Part II then argues that the role of emotion is wrongly neglected in the traditional
account of decision-making, including its application to adjudicative competence,
and that attention to emotion's role illuminates certain threats to competence that
are not perceptible with a solely cognitive view. The historical privileging of
cognition within adjudicative competence mirrors the traditional, if of late largely
discredited, disparagement and neglect of emotion within both law and the mind
- See, e.g., Riggins v. Nevada, 504 U.S. 127, 130-31 (1992) (explaining that four experts expressed a range of opinions and conclusions); Morris et al., supra note 22, at 215-16 (estimating that psychiatrists would agree (^) on the outcome of a Dusky standard evaluation (^) at most 80% of the time).
- See generally PoYTHRss ET AL., supra note 2; see also Grisso, supra note 13, at 80-81 (explaining how researchers have attempted to standardize evaluation mechanisms).
- See Winick, supra note 6, at 922 (arguing that adjudicative competency has a "status in the criminal mental health system that is perhaps the most frequently misunderstood by attorneys, judges, and mental health professionals, as well as by the public"). 27. The term was coined by Richard J. Bonnie. Bonnie, supra note 18, at 567; see also infra Part I.B.
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EMOTIONAL COMPETENCE
sciences. Part II.A therefore calls special attention to emotion's role in decision-
making. Part II.B then explores two illustrative contexts in which a focus on
emotion will yield results that a cognitive inquiry likely will not: cases in which a
defendant suffers from a severe psychiatric mood disorder or from organic brain
damage, where such condition unreasonably interferes with decision-relevant
emotional perception, processing, and expression. Existing legal theory and
forensic testing methods do not account explicitly for competence-relevant emo-
tional dysfunction, and a predominantly cognitive approach is likely to miss or
discount its impact.
Part III addresses weighty issues of implementation and policy, asking how a
focus on the thinking-and-feeling elements of rational decision-making might be
applied and whether such an application would further the goals of the adjudicative
competence doctrine without unduly threatening other valuable societal goals.
This Part argues that the transparency benefits of this approach are substantial and,
further, that it could be implemented with an acceptable level of reliability and
consistency. Part III proposes further that while this approach may generate
tensions with other social goods-such as promoting defendant autonomy and
protecting public safety-it will not add appreciably to those tensions already
attending the adjudicative competence inquiry.
This Article concludes that a proper view of the Dusky standard requires that,
when judging whether a defendant is competent to decide for herself how to
navigate the shoals of criminal prosecution, we look to both her thought processes
and emotional functioning.
I. "RATIONAL UNDERSTANDING" AND RATIONAL DECISION-MAKING
Adjudicative competence doctrine, like all law-relevant competencies, tradition-
ally has sought to balance competing interests. On the side of finding competence
wherever possible are respect for a defendant's autonomy and the state's interest in
enforcing its criminal law; the countervailing interest is, fundamentally, that of
protecting those who cannot protect themselves. 28 Significantly, the common-law
doctrine of competence is thought to have developed "'as a by-product of the ban
against trials in absentia; the mentally incompetent defendant, though physically
present in the courtroom, is in reality afforded no opportunity to defend him-
self."' 29 Prosecution of an incompetent defendant is thought to be an unfair fight of
the worst kind, one that threatens grave harm to the individual, endangers
reliability of outcome, and erodes the dignity of the process. Adjudicative
- (^) See, e.g., Medina v. California, 505 U.S. 437, 457 (1992) (Blackmun, J., dissenting) (arguing (^) that the Due Process Clause prevents trying a person (^) who is incompetent); Bonnie, supra note 18, at 551-53 (arguing that a defendant who does not understand the nature of the criminal proceedings cannot be tried).
- Drope v. Missouri, 420 U.S. 162, 171 (1975) (quoting Caleb Foote, A Comment on Pre-TrialCommitment of Criminal Defendants, 108 U. PA. L. REV. (^) 832, 834 (1960)).
2006] 1381
EMOTIONAL (^) COMPETENCE
fully reduced to a set of concrete operations and observationaltens. ' ' 3 4^ Because
competence "is an abstraction" that "retains the elusive quality of an idea," law
provides "broad discretion in determining whether a set of case facts satisfies the
criteria., 35 Second, connecting all legal competencies is the recognition that "some
individuals may not have the capacities to make important decisions in their lives"
and that these "incapacities may jeopardize their welfare or that of others." 3 6^ Law
therefore provides a mechanism for identifying such individuals and in such cases
authorizes (and sometimes obligates) the state to curtail their rights. Courts make
these decisions with deliberately heavy reliance on mental health professionals.^37
Third, because determinations of legal incompetence are by nature profoundly
paternalistic, 38 the objective is not to ensure that an individual has the highest
possible level of decision-making capacity, but rather to avoid state intervention if
she has the bare minimum required. 39
Moreover, the relevant decision-making capacity is utterly context-dependent;
"[n]o single legal criterion or test applies across all legal competencies," and the
law does not presume that (in)competence in one arena will imply or affect
(in)competence in another. 40 The consequence of incompetence also will vary: in
some situations, such as inability to handle one's financial affairs, surrogate
decision-making may be permitted; in others, the subject will be unable to access a
good, such as dangerous medical treatment to which she is incompetent to consent;
and in others, such as inability to provide for the basics of one's survival, the
person may be institutionalized.
As part of the universe of legal competencies, adjudicative competence, broadly
defined, includes competence to waive Miranda rights; plead guilty; dismiss
counsel; stand trial and make the various decisions required during trial; pursue or
abandon appeals and other avenues for post-conviction relief; and be executed.'a
- ROESCH & GOLDING, supra note 6, at 12-13 (stating that "no absolute set of (^) facts is ever dispositive of competency," though the "'rationally consult, assist, and comprehend' standard of Dusky (and (^) the surrounding cases) is an attempt, albeit (^) rather vague, to set forth the theoretical terms of the competency construct").
- GRISSO, supra note 13, at 22.
- Id. at 2.
- See id. (explaining the long history of relying on mental health professionals (^) for assessment of "human abilities, emotions, and potentials").
- See, e.g., Elyn R. Saks & Stephen (^) H. Behnke, Competency to Decide on Treatment and Research: MacArthur and Beyond, 10 J. CONTEMP. LEGAL ISSUEs 103, 104 (1999) ("[T]he tension between autonomy and paternalism remains central to the assessment of competency.").
- Burt & Morris, supra note 11, at 85; see also Appelbaum, supra note 33, at 378 (arguing that the (^) standards of competence (^) should be such that only a small number of people are not "permitted to make decisions on their own").
- GRISSO, supra note (^) 13, at 9; see Sell v. United States, 539 U.S. 166, 183 (2003) (noting that a defendant may be incompetent to be tried but competent to refuse medical treatment).
- GRISSO, supra note 13, at 3. Because Miranda competence and the (^) competence of juveniles both are the subject of an extensive and generally separate jurisprudence, neither is addressed in (^) this Article. However, some of the arguments herein may well apply with equal force to juveniles. See, e.g., MENTAL HEALTH SCREENING AND AssEssMENT INJUVENILE JUSTICE (^357) (Thomas Grisso et al. eds., 2005) (discussing juveniles' ability to appreciate
AMERICAN CRIMINAL LAW REVIEW
Within any given criminal case, then, the issue of competence may be raised at
multiple junctures." After a defendant is arrested and charged, any party (or the
trial judge) may raise the issue of possible incompetence. The court will then
determine whether there is a bona fide doubt as to competence. 4 3^ If not, the case
proceeds (though the process may well begin again if incompetence is argued at a
later point). If so, the court will order an inquiry in conformance with the law of the
jurisdiction, which will almost certainly entail examination by a mental health
professional (and likely more than one) in an inpatient or outpatient setting. A
clinical expert (or experts) will likely submit a written report and testify at a
hearing, and probably will proffer a recommendation as to the ultimate issue of
legal competence. 44 The trial court is overwhelmingly likely to agree with the
expert recommendation.4 5^ If multiple experts give differing testimony, the court is
likely to side with the prosecution's expert, as the burden of proof as to
incompetence generally will rest with the defendant.^46
If the defendant is found competent, the trial will continue (again, with the same
caveat as to new evidence of incompetence, which may take the form of
increasingly erratic behavior at trial). If, however, the defendant is found incompe-
tent, she will be subjected to a period of continued evaluation and treatment-
potentially including involuntary medication should certain stringent requirements
be met47 -in accordance with jurisdiction-specific timelines, bounded by an
outside requirement of "reasonableness. '4 8^ Should competence at any point be
restored, proceedings will resume; but should the defendant be deemed unlikely to
their Miranda rights); Thomas Grisso et al., Juveniles'Competenceto Stand Trial:A Comparison ofAdolescents' and Adults' Capacities as Trial Defendants, 27 LAW & HuM. BEHAV. 333 (2003) (evaluating a study comparing competence in juveniles with that of adults).
- See RoEscH & GOLDING, supra note 6, at 131-38 & Figure 5-1 (outlining the potential junctures requiring determinations of defendant competency and including a graphical rendering of this process).
- See, e.g., Drope v. Missouri, 420 U.S. 162, 178-81 (1975) (determining that the evidence presented created a sufficient doubt of the defendant's competence and requiring further inquiry by the lower court); Pate v. Robinson, 383 U.S. 375, 378-86 (1966) (holding that the evidence presented raised a sufficient doubt as to the defendant's competence such that he was deprived of due process when the trial court failed to give him an adequate hearing). 44. See Bonnie, supra note 18, at 550 ("[Jludges practically insist on ultimate issue opinion in reports (^) and testimony on competence to stand trial."); RoEscH & GOLDING, supra note 6, at 18 (stating that experts "typically testify in conclusory terms, often parroting the (^) statutory language"). There is a substantial debate as to whether a competence examiner ever should proffer an opinion as to the ultimate issue of adjudicative incompetence. See generally Christopher Slobogin, The "Ultimate Issue" Issue, 7 BEHAv. Sc. & L. 259 (1989).
- See supra note 22 and accompanying text (explaining that agreement rates are near 100%).
- See Medina v. California, 505 U.S. 437, 451-52 (1992) (holding that a state may place the burden on a defendant to show incompetence by a preponderance of the evidence); cf. Cooper v. Oklahoma, 517 U.S. 348, 355-56 (1996) (holding that a state may not impose a clear and convincing evidence burden on a defendant).
- See Sell v. United States, 539 U.S. 166, 179 (2003); Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210, 227 (1990).
- See Jackson v. Indiana, 406 U.S. 715, 738 (1972) (holding that it is unconstitutional to confine the defendant indefinitely solely on the basis of adjudicative incompetence; confinement may continue only for a reasonable period to determine likelihood of competence restoration and be justified by progress toward that goal).
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AMERICAN CRIMINAL LAW REVIEW
could furnish at least some relevant historical information with substantial accu-
racy.^55 His incompetence, they testified, stemmed not from his inability to grasp
factual concepts but, rather, from the "confused thinking" caused by his mental
illness, which they asserted had rendered him unable to "interpret reality from
unreality."'56^ Nonetheless, the district court found Dusky competent to proceed to
trial.^57
In a brief per curiam opinion, the Court accepted verbatim the Solicitor
General's proposed definition of competence:
[Ilt is not enough for the district judge to find that "the defendant [is] oriented
to time and place and [has] some recollection of events"... the "test must be
whether he 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."^
Thus, the factual understanding displayed by Dusky was necessary but not
sufficient for competence. What was also required was some sort of rational
understanding, which, though apparently crucial, remained undefined.
Subsequent cases attempting to define what evidence would raise a bona fide
doubt as to Dusky incompetence have yielded some additional hints as to what
types of irrationality might be relevant. The Court, while resisting any attempt to
define "a general standard" for such evidence,5 9^ has delineated certain facts that
generally warrant further inquiry-such as a "history of pronounced irrational
behavior ' '6°^ or a recent suicide attemptt-and others that are insufficient to
foreclose the inquiry even if relevant to the ultimate determination-such as lucid
speech and behavior in the courtroom.6 2^ Despite these clues, the value added by a
requirement of "rational" as well as "factual" understanding has remained unclear.
- Dusky v. United States, 271 F.2d 385, 388, 389-92 (8th Cir. 1959), rev'd, 362 U.S. 402 (1960) (per curiam).
- Id. at 389.
- Id. at 389-90. 58. Dusky, 362 U.S. at 402 (quoting the Solicitor General's brief). The experts defined "orient[ation] to time, place, and person" thus: This means that he is able to know the day of the week, the hour, the place in which he finds himself geographically, and the circumstances of his present situation. He knows he is in a courtroom; he knows the day of the week and the day of the year, and he knows that you are his attorney and Judge Smith is the judge. Dusky, 271 F.2d at 389. Though Dusky pertained only to the proper interpretation of the federal competence statute, 18 U.S.C. § 4244 (2006), some version of the Dusky test now has been adopted in virtually every jurisdiction. See Winick, supra note 6, at 923 n.4; see also MODEL PENAL CODE § 4.04 (1962).
- Drope v. Missouri, 420 U.S. 162, 172 (1975).
- Pate v. Robinson, 383 U.S. 375, 385-86 (1966).
- Drope, 420 U.S. at 179.
- See Pate, 383 U.S. at 385-86 (holding that the defendant's alertness at trial was not in and of itself enough to conclude that the defendant was competent).
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EMOTIONAL COMPETENCE
That situation changed somewhat with Godinez v. Moran,^63 in which the Court
read a decision-making focus into the standard for Dusky rationality. Godinez
answered a brewing debate among the lower courts and commentators as to
whether different substantive standards of competency applied to different aspects,
or at different stages, of a criminal proceeding. 64 The short answer, the Court held,
was no.
Richard Allen Moran, charged with killing the owner and a patron of a bar as
well as his former wife, was found competent not only to stand trial but also to
waive his rights to an attorney and trial; after a colloquy, the trial court accepted his
waiver of counsel and plea; and he was convicted and sentenced to death. 65 Moran
later argued that he had been "mentally incompetent to represent himself.' '66^ The
Ninth Circuit agreed, reasoning that while Moran might have been Dusky-
competent for purposes of standing trial with counsel, he should have been found
competent to waive counsel and plead guilty only if determined also to have "the
capacity for 'reasoned choice' among the alternatives available to him.",6 7^ The
Ninth Circuit interpreted such capacity for "reasoned choice" as articulating a
different (and more stringent) standard than that outlined in Dusky.^68
The Court rejected the notion that there was a substantive difference between
"reasoned choice" and "rational understanding. ' 69^ Listing the wide array of
choices required of defendants whether they go to trial or plead guilty, the Court
held that the same standard applied to both universes of decision-making. 70 The
only sense in which a higher standard applied is that certain decisions-such as
those made by Moran to discharge counsel and plead guilty-additionally require
a separate determination that they were made knowingly, intelligently, and
63. 509 U.S. 389 (1993).
- The chief proponent of a "Dusky-plus" standard for certain critical decisions was Bonnie. See Bonnie, supra note 18.
- Godinez, 509 U.S. at 392-93.
- Id. at 393.
- Id. at 394. This "reasoned choice" standard was drawn from Rees v. Peyton, in which the Court held that a death-row inmate was competent to waive appeals only if he were shown to have "capacity (^) to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." 384 U.S. 312, 314 (1966) (per curiam); see also Godinez, 509 U.S. at 415 (Blackmun, J., dissenting) ("The standard applied by the Ninth Circuit in this case-the 'reasoned choice' standard-closely approximates the 'rational choice' standard set forth in Rees.").
- Similarly, Bonnie had argued that decision-making capacity was not required in every case. Rather, he explicitly "unhingefed] decisional competence from the Dusky formula," with the former coming into play only after Dusky competence is established and certain decisions are faced by the defendant. Bonnie, supra note 18, at 577-600.
- Godinez, 509 U.S. (^) at 397-98 (finding that how the standards might differ "is not readily apparent," and noting that even respondent argued that the distinction was "merely one of 'terminology"'); id. at 407 (Kennedy, J., concurring) (pointing to "the lack of any clear distinction between a 'rational understanding' and a 'reasoned choice' in this case").
- Id. at 398-400.
2006] 1387
EMOTIONAL COMPETENCE
And while the decision to plead guilty is undeniably a profound one, it is no
more complicated than the sum total of decisions that a defendant may be
called upon to make during the course of a trial. 79
That the Dusky standard must be understood to revolve around ability to make
rational decisions pertaining to one's status as a criminal defendant was reinforced
by Justice Kennedy, who in concurrence stated flatly that "[w]hat is at issue here is
whether the defendant has sufficient competence to take part in a criminal
proceeding and to make the decisions throughout its course."^8
Accordingly, in very recent years a number of forensic theorists have embraced
the notion that decisional competence not only survived Godinez but was in fact
promoted to a protected position within the Dusky standard. 81 Significantly, a
panel of theorists and practitioners who collaborated on a comprehensive, long-
term MacArthur Foundation adjudicative competence study defined decisional
competence as a discrete domain and designed a forensic assessment instrument
specifically to measure such competence.^82 The MacArthur study also revealed
that discrete measurement of decisional competence might catch some defendants
who otherwise would be deemed competent.8 3^ And far from being controversial,
- Id. at 398-99 (holding that "[i]f the Dusky standard is adequate for defendants who plead not (^) guilty, it is necessarily adequate for those who plead guilty").
- Id. at 403 (Kennedy, J., concurring); see also id. at 406-07 (discussing single standard applicable to "the variety of decisions that a defendant must make"). Moreover, the primacy of decision-making abilities was reaffirmed in Cooper, in which a unanimous Court cited Godinez for the proposition that the fundamental unfairness of trying an incompetent defendant stems from his inability to make the myriad of decisions, both large and small, concerning the course of his defense. Cooper v. Oklahoma, 517 U.S. 348, 364 (1996).
- See GRisso, (^) supra note 13, at 73; Steven K. Hoge et al., The MacArthur Adjudicative Competence Study: Development & Validation of a Research Instrument, 21 LAW & HUM. BEHAv. 141, 144 (1997) (noting that at the heart of competence is the ability "to make rational, self-interested decisions").
- See POYTHRESS Er AL., supra note 2, at 38 (discussing why the study findings led to a two-part test for competence). The MacArthur Competence Assessment Tool-Criminal Adjudication ("MacCAT-CA") is the first competence (^) assessment instrument to seek to measure decision-making capacity directly.
The MacCAT-CA and the F1T-R come closer than earlier instruments to providing information that goes beyond 'factual understanding' to begin to address questions of defendants' decision making capacities. (^) This is an important advance, and instruments that do not provide such information are not in step with (^) the evolution of the legal construct of competence in recent years.
GRusso, supra note 13, at 146. The MacArthur team, of which Bonnie was a part, agreed with Bonnie's pre-Godinez theory that decisional competence becomes of independent significance only (^) in cases in which the defendant is competent to assist counsel, and that decisional deficits might be overcome with surrogate decision-making. These particular aspects of their decisional competence formulation are not necessarily supported by Godinez.
- Although one quarter of the defendants studied were found to be competent to assist counsel, half of that "competent" group were impaired on a least one decisional competence measure. See PoYTHREss (^) Er AL., supra
note 2, at 103-04. The sample from which this data (^) was obtained was persons who had been deemed incompetent, implying that perhaps no discrete measurement is necessary because decisionally (^) incompetent persons are already being captured adequately. This is not necessarily so. The data simply show that among those adjudicated incompetent there are persons with serious decisional deficits, and we do not know how such persons' incompetence was captured. It remains possible that where courts and examiners are focusing solely on non-decisional capacities such persons may be wrongly deemed competent.
2006] 1389
AMERICAN CRIMINAL LAW^ REVIEW
the centrality of decisional competence is widely accepted in the field of compe-
tence to consent to medical treatment.^84
The extent to which a focus on decisional capacity is being implemented in the
criminal-law context, however, unquestionably is hindered by the lack of transpar-
ency in the case law, in which "rational understanding," not rational decision-
making, remains the operative term. Expert assessments, which form the sole basis
for nearly all judicial determinations of adjudicative competence, "tend to give
little, if any, attention to decisional competence. 8 5^ Even those most prominently
advocating a decisional competence approach concede that its precise meaning
within the well-established Dusky formula is not clear at present. 86 This confusion
should be put to rest. Decisional competence should be recognized as the core of
the "rational understanding" component of adjudicative competence.
C. A TheoreticalModel of Competence-RelevantDecision-Making
Having shown that rational decision-making capacity is key to Dusky rational
understanding, it is essential to define more precisely the decisions at issue. Some
decisions facing criminal defendants-for example, strategic calls as to whether to
waive indictment or demand certain forms of discovery-routinely are entrusted to
the attorney, while others plainly are the province of the defendant.
8 7 These
defendant-driven decisions are whether to demand a jury trial, represent oneself,
testify on one's own behalf, be present at trial, or plead guilty. 88 More broadly, the
defendant is thought also to have the right to make global decisions as to the theory
of her defense-for example, whether to pursue an insanity defense-and the
objectives to be pursued by counsel.8 9^ When we speak of decisional competence,
then, it is the competence to make these choices, and not a more general
decision-making ability, about which the law should care. And construing the
requirement of rational decision-making^ capacity^ in^ light^ of^ the^ goals^ sought^ to^ be
- See, e.g., Louis C. Charland, Appreciation and Emotion: Theoretical Reflections on the MacArthur Treatment Competence Study, 8 KENNEDY INST. OF ETHics J. 359, 360 (1999) (defining competence to consent to treatment as "decision-making capacity").
- POYTHRESS ET AL., supra note 2, at 11. A 1998 study concluded that examiners^ "primarily^ paid attention^ to understanding and appreciation abilities and neglected the defendant's capacity to make decisions in a large majority of the reports." Zapf& Viljoen, supra note 13, at 364 (citing Jennifer Skeem et al., Logic andReliability of Evaluationsof Competence to Stand Trial, 22 LAW & HUM. BEHAV. 519 (1998)). This trend might shift should the MacCAT-CA come to be more widely used.
- See Bonnie, supra note 18, at 593-94 (arguing there are many unanswered questions about the competence doctrine).
- Id. at 546, 559, 568.
- See id. at 553 & nn.57-58, 568-69 & nn.102-05, 109; see also Taylor v. Illinois, 484 U.S. 400, 418 n. (1988); Boykin v. Alabama, 395 U.S. 238, 242 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 278-81 (1942); United States v. Teague, 953 F.2d 1525, 1531-1534 (11 th Cir. 1992). 89. See Bonnie, supra note 18, at 553 n.58; see also ABA STANDARDS FOR CRIMINAL JUSTICE § 4-5.2 (1986) (listing certain decisions that are to be made by the accused and explaining, in commentary, that certain decisions are entrusted to the lawyer).
1390 [Vol.^ 43:
AMERICAN CRIMINAL^ LAW^ REVIEW^ [Vol.^ 43:
process, but it is to that process that the search for rationality should be directed.9 6
Decision-making processes^ generally may^ be^ described^ as^ consisting^ of^ percep-
tion, understanding, reasoning, and choice.^
97 One making a "rational" decision
should have at least minimally intact ability^ to:^ (1)^ perceive^ the^ world^ accurately;
(2) think coherently^ about those^ perceptions^ and^ thereby^ form valid understand-
ings; (3) run those understandings^ through^ a^ sound^ reasoning^ process^ guided^ by
personally relevant goals; and (4) imagine a conclusion logically^ flowing^ from^ that
process, express that conclusion to others, and^ formulate^ and execute^ a^ course^ of
action flowing logically from^ the^ preceding^ steps.^
9 8 Each of these steps is both
theoretically and practically complex (and a potential site for a finding that a
defendant lacks decisional competence).
The extent to which courts have examined defendants' competence with
reference to^ a^ decision-making^ model^ is^ quite limited.^ However,^ certain helpful
clues as to^ such^ a^ model's^ utility^ may^ be^ found^ in^ the^ treatment^ of^ defendants^ with
severe thought disorder.^
- See Bonnie, supra note 18, at 575 (noting the^ importance^ of^ the^ decisional^ process, rather^ than^ the^ outcome of that process).
- In the competence context, these abilities generally are grouped under the headings of^ understanding, appreciation, reasoning, and choice. See PoYTHREss ET At., supra note 2, at 48 ('Taken together, these four criteria operationalize the^ 'rationality'^ requirement^ to^ which^ the^ Supreme^ Court^ referred^ in^ Godinez^ v.^ Moran^ (1993)."). The MacCAT-CA, designed to reflect this theory of competence, measures only the first three. See id. at 59- (evaluating factual understanding,^ reasoning,^ and^ appreciation).^ Because^ I^ consider appreciation^ to^ be^ an^ aspect of understanding,^ see^ infra^ Part^ II.A., and^ believe^ it^ important to^ consider^ the^ threshold^ role^ of^ perception,^ I^ prefer the formulation of perception, understanding, reasoning, and choice.
- See Saks & Behnke, supra note 38, at 114 (noting competence to consent to medical treatment requires "understanding relevant information; assessing the evidence and forming (^) appropriate beliefs about it; reasoning
about the evidence with a degree of intactness; and communicating a choice"); Appelbaum, supra note 33, at 379 (determining that "competence for decision making" consists of "the abilities: to express a choice;^ to^ understand relevant information; to appreciate the significance of that information for one's^ own^ situation;^ and to^ reason^ with relevant information so as to engage in a logical process of weighing options") (citing Jessica W. Berg et al., Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions,^^48 RUTGERS L. REv. 345 (1996)); Stephen J. Morse, Uncontrollable Urges and IrrationalPeople,^^88 VA.^ L.^ REv. 1025, 1067 (2002) (discussing the requirements of accurate perception, instrumental reasoning, evaluation of actions, and weighing of decisions).
- To simplify a somewhat confusing nomenclature,^ "thought disorder"^ refers herein^ to^ dysfunction^ in cognitive thought processes that^ is^ identified by its^ effect^ on^ either^ the^ content or^ form^ of^ speech.^ See^ Peter Bachman & Tyrone D. Cannon, Cognitive and Neuroscience Aspects of Thought Disorder, in^ THE^ CAMBRIDGE HANDBOOK OF THINKING AND REASONING, supra note 92, at 494 (noting that thought disorder,^ thus^ defined,^ is^ a type of dysfunction generally occurring "within^ the^ context^ of^ a more^ extensive^ psychopathology,^ including diagnoses as diverse as schizophrenia, mood disorders, certain personality disorders, and autism") (citations omitted). This definition is not entirely consistent with that of "formal thought disorder," which historically has been defined as the speech impairment^ itself^ rather^ than^ the underlying^ cause.^ The Diagnostic^ and^ Statistical Manual of Mental Disorders acknowledges the "difficulty inherent^ in developing^ an^ objective^ definition^ of 'thought disorder"'^ and therefore^ focuses^ in^ its^ description^ of^ schizophrenia^ on^ the^ concept^ of^ "disorganized speech." DIAGNOSTIC AND STATISTICAL MANUAL^ OF^ MENTAL^ DISORDERS^ TExT^ REvIsIoN^300 (4th^ ed.^ 2000) [hereinafter DSM-1V-TR]. However,^ the^ speech^ disorders^ typical^ of^ thought^ disorder^ are^ best regarded^ as symptoms of underlying defects in cognitive processing. See Bachman & Cannon, supra, at 493, 495, 498 (discussing examples of patients with thought disorders and problems with cognitive processing).^ A^ disorder^ of "thought content" generally will include hallucinations (sensory perceptions^ not based^ in^ reality,^ for example,
EMOTIONAL COMPETENCE
Persons with severe thought disorder, particularly those diagnosed with schizo-
phrenia, often are labeled "psychotic,"' 0 0^ and psychosis is very strongly associated
with findings of adjudicative incompetence.'0°^ Indeed, it appears that many
examiners regard psychosis as the sine qua non of incompetence, starting and
ending their analysis with that diagnosis.1^0 2 Unfortunately, the underlying ratio-
nale as to why the thought disorder associated with psychosis is thought to disrupt
Dusky rationality seldom is made plain. Indeed, few courts have attempted to
define Dusky rational understanding at all, let alone by reference to decision-
making processes.^103 There are, however, several prominent exceptions.
hearing voices or seeing visions) or delusions (understandings and^ beliefs^ similarly^ unrelated to reality).^ See DSM-IV-TR, supra, at^299 (defining delusions^ as^ disorders^ of^ thought content,^ while^ characterizing^ hallucina- tions as disorders of perception). 'Thought form" disorder describes a "disorganization of underlying thought processes indicated by abnormal speech," for example, highly tangential speech (sometimes called a "flight of ideas") or the confusing jumble of loose associations sometimes called "word salad." Bachman & Cannon, supra, at 495-96. Cases that explicitly discuss the "disordered thought form" manifestation are scarce. However, it is not unusual to see embedded within cases descriptions of bizarre speech that suggest the presence of disordered thought form. For example, the defendant in Strickland v. Francis, 738 F.2d 1542, 1544-45 n.3 (1^ th^ Cir.^ 1984), exhibited various forms of nonsensical speech, including repeated and^ acontextual^ use^ of^ the^ word^ "'supplemen- tal,"' evidencing "'a certain disorganization of thought process."' See also United States v. Hemsi, 901 F.2d 293, 294-95 (2d^ Cir.^ 1990)^ (noting that^ the^ incompetent^ defendant's^ testimony was^ "rambling, confused,^ irrelevant,^ or incomprehensible," at one point devolving into "a profane and scatological barrage"); State v. Haycock, 766 A.2d 720, 722 (N.H. 2001) (defendant "tend[ed] to^ 'ramble'^ and^ his^ 'thoughts'^ [were]^ 'tangential'^ and^ 'paranoid"');^ cf Gov't of^ Virgin^ Islands^ v.^ Charles,^72 F.3d^ 401,405-09^ &^ n.2 (3d Cir.^ 1995)^ (finding the^ paranoid^ schizophrenic defendant's record colloquies were "rambling" but not entirely "incoherent"; he was deemed competent to represent himself and reject an insanity defense); United States v. Housh, 89 F Supp. 2d 1227, 1230 (D.^ Kan.
- (noting, in support of competency finding, that defendant's "speech was normal in content and form"). Though the cases do not make this^ clear,^ a^ thought-form disorder^ could^ impair^ the^ communication^ with^ counsel prong of Dusky as well as the rational understanding of the proceedings prong.
- See DSM-IV-TR, supra note 99, at 297-98 (offering varied definitions of psychosis and psychotic symptoms, all of which include delusions or hallucinations, some of which include disorganized speech and behavior). Note that what this Article defines as "thought disorder" may also be found in non-psychotic mental illnesses, such as amnesia, delirium, and dementia. See DSM-IV-TR, supra^ note^ 99, at^ 135-80.^ These phenomena^ also^ may be highly relevant to an adjudicative competence determination. See, e.g., United States v. Rinchack, 820 F.2d 1557, 1569 (11th Cir. 1987) (discussing standards by^ which to evaluate^ defendant's^ amnesia);^ United States^ v. Borum, 464 F.2d 896, 900 (10th Cir. 1972) (holding that defendant must show prejudice from having amnesia in that he cannot provide the necessary facts to his attorney); Wilson v. United States, 391 F.2d 460, 463-64 (D.C. Cir. 1968) (discussing the standards for evaluating the^ competence^ of^ an^ amnesia^ patient).^ While^ these issues^ go beyond the purview of^ this^ Article,^ the^ methodological approach^ advocated^ in^ this^ Part^ applies^ equally to^ such mental disorders.
- See Jodi L. Viljoen et al., Diagnosis, Current Symptomatology, and the Ability to Stand Trial, 3 J. FoP,ENsic PSYCHOL. PRAc. 23, 23-25, 30 (2003) (noting that no non-psychotic individual in the sample was deemed incompetent, while nearly 20% of the psychotic defendants were; "research has consistently found that defendants with psychotic disorders are more likely to be judged unfit than those with non-psychotic disorders," and "hallucinations and delusions" are particularly associated with such judgments).
- See, e.g., Liles v. Saffle, 945 F2d 333, 339 (10th Cir. 1991) (disapproving of an examiner who "was of the belief that only psychotic individuals could be considered incompetent, and any individual who was non- psychotic was therefore competent").
- See, e.g., Housh, 89 F Supp. 2d at 1229 ("[F]ew reported^ Tenth^ Circuit^ cases^ have^ given^ meaning to^ the 'rational understanding' (^) phraseology used by the Dusky (^) Court.").
