Friday, August 6, 2010

Legal Trac:Excerpts from the reference manual-Competency and death penalty

"Excerpts from the reference manual. " Mental and Physical Disability Law Reporter 31.2 (March-April 2007): 140(5). LegalTrac. Gale. University of Minnesota. 6 Aug. 2010

Full Text:COPYRIGHT 2007 American Bar Association

Competency to Be Executed

(a) Law and Standards

(I) Sentencing Generally

Ford v. Wainwright (1) established competency requirements in death penalty cases that are now used in all sentencing matters: whether defendants are able to understand a sentence is being imposed and the reason for the specific punishment. In addition, some courts (2) consider whether defendants are able to speak for themselves and to convey information that may be needed to mitigate their punishment. Moreover, at least one commentator has suggested that the ability to communicate effectively with counsel is part of the competency requirement. (3)

Competency in sentencing is distinguishable from the insanity standard, which in most jurisdictions assesses whether defendants know right from wrong or appreciate the wrongfulness of their conduct, and from mitigation, in which defendants' sentences can be reduced based on diminished responsibility. (4)

(II) Death Penalty

Ford v. Wainwright was decided in the context of a death penalty case. Normally, any bar against executing defendants who are found incompetent only lasts until their competency is restored. The Fourth Circuit, in a 2006 case quoting from Justice Powell's concurrence in Ford, ruled that inmates are competent to be executed if they are aware of the punishment "'they are about to suffer and why they are about to suffer it.'" Despite a vigorous dissent, the appeals court refused to conclude that the first prong of that test should be interpreted to prohibit the execution of a man who understood that his life would end, but still was convinced due to a religious delusion that he would be returning to Earth after he had died. (5)

The ABA Criminal Justice Mental Health Standards recommends that jurisdictions exceed the constitutional minimum in determining who should not be executed because they are mentally incompetent. (6) The first prong of that standard would prohibit executing convicts who, because of mental illness or mental retardation, cannot understand the nature of the proceedings, what they were tried for, or the reason for or nature of their punishment. The second prong adds that convicts, who lack capacity to recognize or understand any fact that would make their punishment unjust or unlawful or lack the ability to convey such information to counsel or to the court, also should be incompetent to be executed. (7) Currently, only 36 states have the death penalty. Of those, 29 have specified an incompetency to be executed standard either in their statutes or their case law. (8) Fourteen jurisdictions closely reflect the Ford v. Wainwright standard. Arizona, Colorado, and Maryland adopt the first Ford prong. Nevada follows Ford, but adds that the defendant must have the capacity to appreciate his or her position and make a rational choice to continue or abandon further litigation. Five states--Alabama, Arkansas, Idaho, Montana, and North Carolina--still reflect the traditional incompetency to stand trial standard, which focuses on defendants' understanding of the nature of the proceedings and ability to provide assistance to counsel. South Carolina and Washington have formulations that require both an understanding of the punishment and an ability to assist the defense. Mississippi, Missouri, and Oklahoma follow the ABA Criminal Justice Mental Health Standards. California adopts an insanity standard. Finally, seven jurisdictions do not provide for any statutory standard. (9)

Utah's statute reflects the majority view in this area of the law, covering inmates who, due to a mental condition, are unaware that they are going to be executed or why they are being executed. (10) In Utah, inmates are presumed to be competent unless the court, by a preponderance of the evidence, finds otherwise. If the inmate is found incompetent, the execution is stayed while the inmate receives appropriate treatment, which may not include involuntary psychoactive medication administered solely for the purpose of restoring competency. In Maryland, however, any such ban is permanent, and the defendant's sentence is commuted to life in prison without the possibility of parole. (11)

The Fifth Circuit established a particularly low constitutional threshold for demonstrating that defendants are aware of the reasons for their execution. Because a defendant understood that he had been found guilty of a capital crime, this was considered sufficient to establish that he knew the reason for his execution, even though he continued to entertain delusions that the reason he was being executed was a conspiracy led against him by "Asians, Jews, Blacks, homosexuals and the Mafia." (12)

(b) Expert Evidence and Testimony

(I) The Nature of the Evidence, Generally

Closely related to trial fitness is the sentencing standard, which involves the ability to comprehend that a sentence is being imposed, why this particular sentence, and the consequences of that punishment. Collectively, criminal competency includes two different types of cognitive processes. (13) One focuses on the degree of understanding required for a defendant to consult with and assist counsel. The other addresses the defendant's capacity to make and understand various trial or sentencing-related decisions in conjunction with counsel. Professor Richard Bonnie has argued that these two types of competencies, while interrelated, are different constructs. (14) Moreover, it is logical, if not required under Godinez, for defense counsel, experts, and the courts to consider the relative complexity of the case or task at hand in assessing whether a defendant is competent to carry out that task or set of tasks. (15)

Competence to assist counsel may invoke a number of evidentiary elements. According to the authors of the MacArthur Adjudicative Competence Study, three cognitive abilities are essential if a defendant is to properly assist counsel: (1) a basic understanding of the adversary system and its elements, (2) an ability to communicate "pertinent information to counsel concerning the facts of the case," and (3) an ability to appreciate "one's situation as a defendant in a criminal prosecution." (16)

In addition, although competence to make decisions at trial may invoke other evidentiary elements, (17) four capacities were identified by the MacArthur researchers as being essential: (1) "to weigh and consider information relevant to the specific decision at issue," (2) "to weigh and consider information to reach a decision," (3) "to appreciate one's situation as a defendant confronted with a specific legal decision," and (4) "to express a choice among alternatives." (18)

While under Godinez both the abilities to assist counsel and make decisions at trial are related to trial competency per se, from a clinical perspective it is clear that certain trial-related decisions require greater abilities and others less abilities.... If a capital crime is involved, the complexities of the case normally will increase substantially, particularly during sentencing.

Although expert forensic testimony may be relevant to any determination about a defendant's competency to stand trial, courts have a natural tendency to focus primarily on the defendant's behavior in the courtroom, particularly as displayed on the witness stand. However, it has been argued that these court observations may be fueled by false assumptions and biases, leading to systematically erroneous decisions, (19) Moreover, persons with severe mental conditions, such as brain damage and schizophrenia, can appear to be normal at times or may try to control or inhibit their behaviors in the courtroom. Thus, if judges rely only on court observations, it is quite possible to miss important factors that should be considered in determining incompetency, particularly if the defendant is asked only leading and/or "yes or no" questions.

Also, courts may find relevant defense counsel's own assertions about a defendant's ability to participate in the legal proceedings, particularly the ability to communicate with defense counsel. Often, counsel is in the best position to understand the defendant's degree of impairment and capacities in light of the particular defense strategy that is to be employed. Thus, one law professor has suggested that defense counsel's representations about the client's ability to participate should be entitled to a high degree of deference. (20) Yet, such an opinion could be misleading because counsel's primary duty is to provide the best defense to a criminal charge, more so than ensuring that the competency assessment is accurate.

Mental disorders and impairments certainly can negatively affect a defendant's ability to understand the trial process and proceedings or effectively communicate and cooperate with counsel. However, courts should be aware of the fallacy of equating even severe mental disorders and disabilities with being incompetent to stand trial. Many persons with severe disorders such as schizophrenia, mood disorders, and mental retardation may be found competent to stand trial, although if they have mental retardation they may not be subject to execution. Competency in this legal context requires rather low cognitive and functional capacities, as compared to making decisions about antipsychotic medication or representing oneself at trial, which often require higher abilities, (21) and where there is no defense counsel present to assist the client to understand and make the necessary decisions.

(II) Bases for the Evidence, Generally

Legal determinations about competency to stand trial or to be sentenced are typically based on (1) observations by the judge, which can include direct examination of the defendant in court; (2) testimony of defense counsel; (3) lay testimony; and (4) mental disability expert testimony. One scholar has argued that expert evidence may be "unnecessary" in determining trial fitness because lay evidence can resolve the issue adequately. (22) The rationale for this argument is that because competency criteria are so heavily based on simple cognitive understanding and skills linked to clear and specific legal criteria, judges can conduct these evaluations on their own through direct examination of the defendant and other relevant lay testimony. (23)

This viewpoint may have merit in clear-cut cases, but in practice judges at trial and during sentencing rely a great deal on expert evidence, particularly to identify malingering. (24) Understandably, most judges believe expert testimony on serious mental disorders or impairments is relevant to such decision-making; the caveat comes in recognizing when such disorders may or may not contribute to an incompetency finding.

Typically, expert evidence is derived in substantial part from an examination and assessment arranged by the court, defense counsel, and/or the state. Mental health professionals who have examined defendants while they are in jail awaiting trial or sentencing, or in a secure facility being treated for a mental disorder or to restore competency, also may be called on to provide psychiatric or psychological evidence on the competency question.

Experts generally base their opinions on both functional and cognitive assessments. However, in this context the distinction may not be obvious because even the functional aspects of competency to stand trial and sentencing also are cognitive in nature. Functional assessments evaluate the defendant's ability to carry out certain legal activities such as communicating with counsel and understanding information provided by counsel, the court, and the state. With sentencing, the functional assessment involves the ability to comprehend the nature of and reasons for the proposed punishment. Cognitive assessments, on the other hand, focus on the defendant's ability to make decisions about trial strategies, waivers, or guilty pleas, for example, and, if a trial is imminent, to understand and communicate with counsel about the elements of the trial process. (25)

Where trial fitness is not at issue, the competency assessment tools employed are likely to change. Competency to be sentenced generally is a lower threshold than trial fitness because it focuses on one specific part of the trial proceedings, which depends more on the defendant's understanding and less on his or her ability to consult with counsel. Typically, if defendants are competent to stand trial and retain that same degree of competency thereafter, they will be found competent to be sentenced. Usually, incompetency to be sentenced, particularly executed, is based on a deterioration of the defendant's condition.

Whatever the merits and utility of a particular competency test or measure may be, the American Psychological Association Code of Ethics emphasizes the need to place all psychological tests and assessment scales in their proper context, considering the various psychosocial factors that could affect test validity. (26) Beyond deficiencies in the tests themselves, all such tests are subject to both an error range and different environmental factors that could affect performance, making clinical judgments and interpretation of results essential to understanding them. Moreover, many clinicians still conduct structured interviews of legal competency without relying on these aforementioned instruments.

As stressed by the MacArthur researchers, the competencies needed for a defendant to consult with and assist counsel in criminal matters are substantially different from competencies required for understanding criminal trial proceedings per se (or for waiving constitutional rights or making pleas). Thus, in conceptualizing competency in criminal trial proceedings, these researchers distinguished competence to stand trial from competence to participate in trial proceedings generally, which they termed "adjudicative competence." (27) Nevertheless, due to the extreme importance of defense counsel's role in trial matters, the researchers acknowledged that "competence-to-assist-counsel ... is a foundational component of adjudicative competence." (28)

Proving incompetency to assist counsel involves the assessment of several specific capacities, including understanding trial-related information, appreciating one's situation, and being able to discuss the facts of the case with counsel. (29) At the same time, an impairment of one such ability does not necessarily mean that a defendant has an inability with respect to the other abilities being measured. (30) As with most civil and criminal competencies in general, each construct typically should be measured and assessed separately, even though technically this is not a legal requirement.

Similarly, the MacArthur researchers also urged that those who are making criminal competency determinations "disaggregate" the decisional abilities related to understanding trial proceedings from those related to assisting counsel, even though the abilities for each may overlap. These researchers identified four abilities that contribute to decisional competence related to defendants being able to participate at trial: understanding, appreciation, reasoning, and choice. (31)

The understanding and appreciation abilities will of course pertain, in different ways, to all types of competencies, including guilty pleas and trial fitness. What defense counsel does to support the client's understanding and appreciation is an important consideration. The greater the defendant's role in making decisions, such as choosing a lawyer or making a guilty plea, the better the defendant's reasoning capacity needs to be and the more involved the judge should be in making sure the defendant is able to carry out those tasks competently. Conversely, if defense counsel plays a greater role in making such decisions, defendant's reasoning capacity may not need to be as developed. (32) Also, defense counsel, assuming it is in the client's interest, may be able to tutor the defendant to make better trial-related decisions or to increase the defendant's understanding. Whatever the clinical benefits, however, the role of counsel in trying to improve a client's competency raises important ethical and strategic questions for counsel and the courts, since restoring a defendant's competency may promote the interests of the courts and government, but be contrary to the client's legal interests.

Ultimately, the weight courts give to forensic evidence and testimony should depend on the totality of the information that is used to form that opinion. Certainly, multiple psychosocial factors and test scores may be relevant to assessing a defendant's functioning and placing cognitively based competency scales in an appropriate context. (33) However, criminal competency, as opposed to criminal responsibility, normally is a here-and-now determination, and this status may fluctuate even on a daily basis. Whether assessed using specialized scales or not, criminal competency will be based on a finite set of cognitive questions about the defendant's current understanding of the trial proceedings and his or her abilities to assist counsel and to make decisions. (34)


(1.) 477 U.S. 399 (1986), 10 MPDLR 278.

(2.) Saddler v. United States, 531 F.2d 83 (2d Cir. 1976). See also Fed. R. Crim. P. 32(c)(3)(C); United States v. Gigante, 982 F. Supp. 140 (E.D.N.Y. 1997), 21 MPDLR 719, aff'd, 166 F.3d 75 (2d Cir. 1999), 23 MPDLR 183; 18 U.S.C. [section] 4244(a).

(3.) Brace J. Winick, Therapeutic Jurisprudence Applied: Essays on Mental Health Law (1997).

(4.) John Parry, "Mental Health Law" in Treatise on Health Care Law 20:448 (A.M. Capron & I.M. Birnbaum eds., 2005).

(5.) Walton v. Johnson, 440 F.3d 160, 170 (4th Cir. 2006), 30 MPDLR 372.

(6.) ABA Criminal Justice Mental Health Standards 7-5.6 (American Bar Association 2d ed. 1989).

(7.) Id.

(8.) Incompetency to Be Executed: State-by-State Chart Plus Commentary (American Bar Association, Commission on Mental and Physical Disability Law 2006) (available upon request).

(9.) Id.

(10.) Utah Code Ann. [section] 77-19-201 et seq., 28 MPDLR 482. See also Michael L. Radelet & Kent S. Miller, "The Aftermath of Ford v. Wainwright," 10 Behav. Sci. & L. 339 (1992).

(11.) Md. Code Corr. Servs. [section] 3-904 (h)(2).

(12.) Barnard v. Collins, 13 F.3d 871,876 (5th Cir. 1994), 18 MPDLR 253.

(13.) Richard J. Bonnie, "The Competence of Criminal Defendants: Beyond Dusky and Drope," 47 U. Miami L. Rev. 539 (1993). See also Thomas Litwack, "The Competency of Criminal Defendants to Refuse, for Delusional Reasons, a Viable Insanity Defense Recommended by Counsel," 21 Behav. Sci. & L., 135 (2003).

(14.) Richard J. Bonnie, "The Competence of Criminal Defendants: A Theoretical Reformulation," 10 Behav. Sci. & L 291,294 (1992).

(15.) Jason R. Marshall, "Two Standards of Competency Are Better Than One: Why Some Defendants Who Are Not Competent to Stand Trial Should Be Permitted to Plead Guilty," 37 U. Mich. J.L. Reform 1181, 1193 (2004).

(16.) Steven K. Hoge et al., "The MacArthur Adjudication Competence Study: Development and Validation of a Research Instrument," 21 Law & Hum. Behav. 141, 146 (1997).

(17.) See Gary B. Melton et al., Psychological Evaluations for the Courts 124 for a list of 21 abilities provided by The Group for the Advancement of Psychiatry. See also Virginia G. Cooper & Patricia A. Zapf, "Predictor Variables in Competency to Stand Trial Decisions," 27 Law & Hum. Behav. 423 (2003).

(18.) Hoge et al., supra note 16, at 153.

(19.) Michael L. Perlin, "Pretexts and Mental Disability Law: The Case of Competency," 47 U. Miami L. Rev. 625 (1993). See also Stewart Plotnick et al., "Is There Bias in the Evaluation of Fitness to Stand Trial?" 21 Int'l J.L. & Psychiatry 291 (1998).

(20.) Winick, supra note 3, at 277-78.

(21.) See Daniel Marson et al., "Assessing the Competency of Patients with Alzheimer's Disease under Different Legal Standards," 52 Archives Neurology 949 (1995); Karen Whittemore & James Ogloff, "Fitness and Competency Issues in Canadian Criminal Courts: Elucidating the Standards for Mental Health Professionals," 39 Canadian J. Psychiatry 198 (1994).

(22.) Daniel W. Shuman, Psychiatric and Psychological Evidence [section] 11-10 (2d ed. 1994). See also Lei Chang et al., "Does a Standard Reflect Minimal Competency of Examinees or Judge Competency?" 9 Applied Measurement in Educ. 161 (1996); Patricia A. Zapf et al., "Have the Courts Abdicated Their Responsibility for Determination of Competency to Stand Trial to Clinicians," 4 J. Forensic Psychol. Prac. 27 (2004).

(23.)See Harold Bursztajn et al., "Beyond the Black Letter of the Law: An Empirical Study of an Individual Judge's Decision Process for Civil Commitment Hearings," 25 J. Am. Acad. Psychiatry L. 79 (1997); Douglas Mossman & Marshall B. Kapp, "Attorneys' and Judges' Needs for Continuing Legal Education on Mental Disability Law: Findings from a Survey," 25 J. Psychiatry L. 327 (1997).

(24.) Shuman, supra note 22, at [section] 11-11. See also Kevin Colwell & Eric R. Sjerven, "The 'Coin-in-Hand' Stratagem for the Forensic Assessment of Malingering," 23 Am. J. Forensic Psychol. 83 (2005); Eric Y. Drogin, "When I Said That I Was Lying, I Might Have Been Lying: The Phenomenon of Psychological Malingering," 25 MPDLR 711 (2001).

(25.) See Lawrence C. Hartlage, "Clinical Aspects and Issues in Assessing Premorbid I.Q. and Cognitive Function," 12 Archives Clinical Neuropsychol. 763 (1997); Mark R. Kebbell et al., "The Cognitive Interview: A Survey of Its Forensic Effectiveness," 5 Psychol. Crime & L. 101 (1999).

(26.) American Psychological Association, "Ethical Principles of Psychologists and Code of Conduct," 57 Am. Psychol. 1060 (2002).

(27.) Hoge et al., supra note 16, at 145.

(28.) Id. at 146.

(29.) Id. at 149.

(30.) Id.

(31.) Id. at 153.

(32.) Winick, supra note 3, at Chapter 7. See also Alan R. Felthous, "The Right to Represent Oneself Incompetently: Competency to Waive Counsel and Conduct One's Own Defense Before and After Godinez," 18 MPDLR 105, 108.

(33.) Shuman, supra note 22, at [section] 11-11.

(34.) See Richard J. Bonnie, "The Competence of Criminal Defendants: Beyond Dusky and Drope," 47 U. Miami L. Rev. 539 (1993); Sandra J. Catty, "Examinations of Competency to Stand Trial," 32 J. Am. Acad. Psychiatry & L. 343 (2004); David Sweet, "Examinations of Competency to Stand Trial: Foundations in Mental Health Case Law," 32 J. Psychiatry & L. 405 (2004).

Gale Document Number:A163703423