Emotional competence, "rational understanding," and the criminal defendant.

AuthorMaroney, Terry A.


Adjudicative competence, more commonly referred to as competence to stand trial, is a highly under-theorized area of law. Though it is well established that, to be competent, a criminal defendant must have a "rational" as well as "factual" understanding of her situation, the meaning of such "rational understanding" has gone largely undefined. Given the large number of criminal prosecutions 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 participate meaningfully in the host of decisions potentially required of her. Further, sound assessment of 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 disorder and organic brain damage--either of which may interfere unreasonably with decision-relevant emotional perception, processing, and expression. Existing legal theory and forensic testing methods, which reflect a predominantly cognitive approach, do not account adequately for such dysfunction. Shifting the adjudicative competence inquiry away from a general search for "rationality" and toward a more finely grained examination of the cognitive and emotional influences on rational decision-making processes offers our best hope for giving meaning to "rational understanding."


[C]ognition is not as logical as it was once thought and emotions are not always so illogical. (1)

The legal standard for adjudicative competence (2) appears simple: as the Supreme Court declared in Dusky v. United States, the test is whether a criminal 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." (3) This surface clarity, however, disguises a fundamental lack of transparent meaning. A robust conception of adjudicative competence that gives meaning to the Dusky standard must ask whether a criminal defendant has the capacity to participate meaningfully in the host of decisions potentially required of her, and sound assessment of such capacity requires careful attention to both the cognitive and emotional influences on rational decision-making. To date, no such theory of Dusky rationality has been adequately articulated, and implementation of the adjudicative competence construct is commensurately unstable. A decision-making approach, one that overtly concerns itself with both emotion and cognition, offers a path to both legitimate and stabilize a confused area of criminal law.

Adjudicative competence is, in many respects, the neglected younger sibling of the insanity defense, a secondary status that may explain its instability and relatively low profile. Its jurisprudence has grown up in insanity's shadow, to the extent that it until recently was referred to as "present insanity." (4) Indeed, in the execution context the language of insanity and competence continues to be confusingly intertwined. (5) Forensic experts often undertake to examine both competence and legal insanity at the same time and--unfortunately--by the same criteria, generally that of insanity; courts historically have done little better. (6) The two doctrines also meet with the same generally disdainful attitude, as incompetence, 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. (10) Actual or suspected adjudicative incompetence affects a consistently significant percentage of misdemeanor and felony defendants: (11) it is implicated in as many of 8% of cases, (12) accounts for tens of thousands of forensic examinations and admissions to inpatient medical facilities every year, (13) 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. (16)

Despite the evident importance of adjudicative competence, and despite its solid historical pedigree, (17) it remains a surprisingly neglected and ill-defined area of law. (18) This is despite the fact that the governing legal standards appear straightforward. The law is clear, for example, that a criminal defendant has a fundamental constitutional right not to be tried, convicted, sentenced, or executed while incompetent. (19) The substantive meaning of "incompetence" might appear similarly clear, but in fact is theoretically slippery. (20) The meaning of each term embedded within the Dusky standard--notably the distinction between a "rational" and a "factual" understanding--has escaped significant elaboration by courts and theorists. (21) It is also highly unpredictable in application, in large part because the task of implementing Dusky generally falls to forensic experts, to whom courts defer heavily but to whom firm guidance as to the legal standard is seldom given. (22) These experts--typically psychologists and psychiatrists, but sometimes specialists in other areas of medicine and the mind sciences (23)--may differ wildly in approach, theoretical framework, understanding of the relevant legal constructs, and conclusions. Factually similar cases therefore may meet different outcomes; indeed, it is common for different experts to reach diametrically opposed conclusions 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. (25)

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 contributions to such rational decision-making capacity. The role of emotion in adjudicative competence therefore is the primary focus of this Article.

Part I.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 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...

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