Mental competency law and plea bargaining: a neurophenomenological critique.

• Author: Schehr, Robert
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

1. INTRODUCTION

   They talked of cause and effect, as if they believed it possible to isolate an event and hold it up to scrutiny in a pure, timeless space, outside the mad swirl of things. They would speak of whole peoples as if they were speaking of a single individual, while to speak even of an individual with any show of certainty seemed to me foolhardy. (1) Perhaps it is most fitting that we begin with our thesis: the knowing and voluntary prong establishing the constitutionality of plea-bargaining is woefully incapable of doing so. This is because the jurisprudential assumption that human beings are rational actors capable of making decisions that maximize their interests is, when exposed to social and natural science, flawed. There are three themes addressed in this article. First, we deliver an assessment of the existing case law guiding determinations of mental competency to plea. Second, we apply the current science of neuropsychology and cognitive psychology to an understanding of how human beings cognate. The third theme addressed in this article demonstrates the extent to which human beings are, in combination with biology, constituted by their political, economic, and cultural locations.

   In a collateral sense our thesis bears some resemblance to the United States Supreme Court's "death is different" jurisprudence. (2) To state the obvious, a death eligible criminal trial ought to be as close to procedurally pristine as possible given the plausibility of conviction and execution. Following reintroduction of the death penalty in Gregg v. Georgia (3) where, incidentally, the majority acknowledged that, "the penalty of death is different in kind from any other punishment ..." (4) there were numerous Supreme Court opinions where the Court made clear its concern over what Scott E. Sundby has called the "unreliability principle". (5) Specifically, the unreliability principle states: "fl]f too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied." (6) Sundby inaugurates the unreliability principle based upon textual analysis of the Eighth Amendment's emphasis on "individualized consideration," and a slew of cases beginning with Woodson v. North Carolina (1976), (7) where "Justice Stewart's ... opinion laid out the Eighth Amendment principle of individualized consideration." (8) In fact, "Woodson ... required as a constitutional rule the consideration of 'the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind'." (9) In Lockett v. Ohio (1978), (10) the Court held that a "sentencer must be allowed to consider 'any aspect of a defendant's character or record...."'n Because death is different, argued the Court in Lockett, full consideration of mitigating evidence and enhanced reliability is mandatory. (12) In Skipper v. South Carolina (1986), (13) the Court held that "it is 'now well established' that the defendant has the constitutional right to have 'any relevant mitigating evidence' considered." (14) Penry v. Lynaugh (1989) (15) provides perhaps the most important language with Justice O'Connor writing for the majority:

   [I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.... Only then can we be sure that the sentencer has treated the defendant as a "uniquely individual human being" and has made a reliable determination that death is the appropriate sentence. 'Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime."' (16) The unreliability principle articulated in these cases paved the way for two opinions that significantly changed American death penalty jurisprudence. In 2002, the United States Supreme Court held in Atkins v. Virginia (17) that execution of the mentally ill was unconstitutional. (18) In 2005, the Court held in Roper v. Simmons (19) that execution of youth was unconstitutional. (20) In each case the Court considered the defendant's mental state as providing significant mitigation since the sentencer would not be able to properly comprehend and account for the mitigation. (21)

   To sum up, the Supreme Court of the United States has created what we believe to be an enlightened unreliability principle when considering mitigation in capital cases where:

   * Individualized consideration (8th Amendment), (22) because of

   * The "diverse frailties of humankind" (Woodson) (23), requires consideration of

   * The defendant's background, character, and crime (Lockett), (24) which should then lead to

   * Full consideration of mitigating evidence and enhanced reliability (Penry) (25)

   The combined effect of each factor led the Court to declare execution of the mentally ill and youth to be unconstitutional. (26) But here's what we don't quite understand. We get the fact that "death is different" because it's the ultimate sentence. What we do not understand is why the unreliability principle articulated by the Court isn't afforded to all criminal defendants. Specifically, if the unreliability principle is reasonably premised on solid jurisprudential and social scientific footing, and we believe that it is, why is it that the supremely prudent criteria established by the Court to make absolutely certain that all mitigation is properly introduced and understood in order to guarantee as much as humanly possible a safe conviction and fair sentence isn't constitutive of all criminal prosecutions and sentences? It seems to us that the gestalt of the unreliability principle is equally applicable to, for example, plea-bargaining. And since plea-bargaining accounts for the greatest proportion of felony convictions in the United States, (27) shouldn't it be incumbent upon those administering justice to adhere to the four criteria of the unreliability principle cited in the case law above? In the interest of fair and equitable due process we think that it should, and the remainder of this Article will be dedicated to arguing strongly for application of just such a principle to plea jurisprudence.

   In this paper we seek to address one aspect of plea-bargaining--the knowing and voluntary criteria necessary for establishing mental competency to plea. When we speak of mental competency we are not suggesting that the knowing and voluntary criteria only applies to those with a designated mental illness (as in Atkins), but rather, that the competency to plea-bargain as established by the knowing and voluntary criteria assumes a free thinking, free acting, reasonable, rational actor under the law. As we will demonstrate, this is a legal fiction. A more accurate reflection of the relevance of the consciousness of criminal defendants for guilt and sentencing determinations is found in the Supreme Court's death penalty jurisprudence. As such, there is legal precedent for the case that we are going to make, but as far as we know there has been no court of criminal appeal to adopt in total the four aspects of the unreliability principle and require its application to plea-bargains. For the reasons that we outline in this Article, we think that should change.

   This Article proceeds in the following way. First, in Part II we introduce the case law establishing the knowing and voluntary criteria of plea-bargaining. Next, we present case law relating to cases where mental competency claims have been raised consistent with the knowing and voluntary criteria. We then compare and contrast the "understand and assist" and "reasoned choice" options as they relate to the most efficacious mental competency criteria. In Part III we provide a brief overview of mental competency law beginning with European Common Law, followed by its evolution in the United States. Part IV introduces what we call, "A Different Air to Breathe," an alternate theoretical lens through which to consider mental competency and the constitution of the knowing and voluntary prongs. We do this by introducing critical inquiry through application of the sociological imagination as applied to deconstruction of the essentialism that fetishizes reason in the law.

   We conclude Part IV by introducing a theoretical taxonomy based upon the work of Ken Wilber. Wilber's full spectrum consciousness taxonomy provides for a comprehensive explication of human consciousness, one that is capable of embracing multivariate macrostructural and micro-level influences. Wilber's taxonomy will provide the theoretical framework capable of capturing the complexity of the argument we will be making in this Article. In Part V we get into the substantive assessment of consciousness. We begin with a discussion of the human creation of categories and heuristics as habitual shorthand ways to guide decision-making. This specifically requires an understanding of cognitive psychology. Moving more deeply into the neurological aspects of decisionmaking, we introduce neurophenomenology. We do this by first providing readers with a lay overview of brain composition and function. This is important because human decision-making is a profoundly complex manifestation of brain structure and chemistry. In Part VI we directly tackle the question of free will through application of neuropsychology. The final substantive section of our Article is Part VII and it moves away from neuropsychology and cognitive psychology to focus attention on the significance of subject constitution within contemporary neoliberal cultures. This is important because the positioning of human beings consistent with homo economicus isolates humans and emphasizes the contractual nature of virtually all aspects of existence. Since plea-bargaining is premised on the making of contracts between...