Reforming incompetency to stand trial and plead guilty: a restated proposal and a response to Professor Bonnie.

• Author: Winick, Bruce J.
• Position: Response to Richard Bonnie, University of Miami Law Review, vol. 47, p. 539, 1993

1. Introduction

   In the past several years, the Supreme Court has given increasing attention to the often misunderstood area of the law dealing with the competency of criminal defendants to stand trial and plead guilty.(1) As a court dealing exclusively with cases and controversies, the Supreme Court has addressed these issues in the usual piecemeal fashion. Although it has considered such issues as the standard of competency that courts should apply,(2) the procedures for its determination,(3) and the use of psychotropic medication in maintaining competency,(4) it has not examined the premises underlying the incompetency doctrine or the need for broad reform in this area.

   The incompetency doctrine exists primarily to protect criminal defendants who are severely impaired by mental illness. Yet, existing practices are costly, burdensome to defendants, and, therefore, often inconsistent with the doctrine's stated objectives. Thus, substantial reforms are needed.

   Ten years ago I proposed a radical restructuring of the incompetency doctrine.(5) This Article reviews that proposal and refines and expands the thesis. It also responds to recent criticisms of the initial proposal made by Professor Richard Bonnie.(6) In addition, it comments on Professor Bonnie's approach and compares it to the initial proposal. Indeed, by proposing essentially similar changes in the way the law should define and evaluate competency, both approaches attempt to reshape the existing doctrine and eliminate its most objectionable features.

   Section II reviews the historical origins of the incompetency doctrine and its modern justifications and describes existing practices and the costs and burdens, they impose. Section III offers several proposals for a broad restructuring of the incompetency doctrine: A central feature of the overall proposal is that the law should distinguish between cases in which defendants seek an incompetency determination and its resulting postponement of the criminal proceedings; and cases in which defendants object to an incompetency determination, preferring to proceed to trial or to accept a guilty plea notwithstanding their impairment. For defendants who assert their incompetency as a bar to trial, courts should substitute a system of trial continuances for the formal incompetency process. For those who object to an incompetency determination, courts can and should permit them to waive the "benefits" of the incompetency doctrine in cases in which counsel either recommends such waiver or concurs with the defendant's expressed preference. Section III also analyzes the constitutionality of permitting this waiver by a defendant whose decision making and communicative abilities are reduced by mental illness, and argues that this waiver can be both constitutional and consistent with the purposes of the incompetency doctrine.

   Section III next suggests that courts should apply a lower standard of competency in cases in which the defendant seeks an incompetency determination than in cases in which the defendant objects to an incompetency determination. Next, it proposes the adoption of a procedural presumption in favor of competency in cases in which the defendant's lawyer recommends waiver of the protections of the competency doctrine or concurs with the defendant's choice to waive this protection. In addition, it compares this approach with Professor Bonnie's approach and attempts to reconcile the two approaches, concluding that the approaches are essentially consistent and that their adoption would harmonize the incompetency doctrine with its underlying purposes.

   This Article analyzes problems of incompetency to stand trial resulting only from mental illness. Sometimes defendants are found incompetent as a result of mental retardation. The issues raised by mental retardation are distinct from those raised by mental illness. Unlike mental illness, mental retardation is congenital, untreatable, and unchangeable. Moreover, individuals with mental retardation are always of sub-average intelligence and are often extremely vulnerable to suggestive influences, making waiver issues problematic. For these and other reasons, the discussion in this Article is limited to incompetency produced by mental illness.(7)

2. Incompetency in the Criminal Process: Historical Origins

   and Present Practices

   1. HISTORICAL ORIGINS OF THE INCOMPETENCY DOCTRINE

      The common law origins of the incompetency doctrine date back to mid-seventeenth century England. Blackstone wrote that a defendant who becomes "mad" after the commission of an offense should not be arraigned "because he is not able to plead . . . with the advice and caution that he ought," and should not be tried, for "how can he make his defense?"(8) The ban on trial of an incompetent defendant stems from the common law prohibition on trials in absentia,(9) and from the difficulties the English courts encountered when defendants frustrated the ritual of the common law trial by remaining mute instead of pleading to charges.(10) Without a plea, the trial could not go forward. In such cases, English courts were obliged to determine whether a defendant was "mute by visitation of God" or "mute of malice." If "mute of malice," the defendant was subjected to a form of medieval torture, the peine forte et dure, in which increasingly heavier weights were placed upon the defendant's chest in an effort to compel a plea. If mute by visitation of God," the defendant was spared this painful ritual. The category "mute by visitation of God" originally encompassed the "deaf and dumb," but its scope gradually expanded to include "lunatics."

      At this early stage in the development of the incompetency doctrine in England, self-representation rather than representation by counsel was the common practice.(11) Indeed, in serious criminal cases, counsel was prohibited,-and the law required the defendant to "appear before the court in his own person and conduct his own defense in his own words."(12) The prohibition against the assistance of counsel continued for centuries in felony and treason cases.(13) As a result, during the formative period of the incompetency doctrine, in many cases, the defendant stood alone before the court, and trial was merely "a long argument between the prisoner and the counsel for the Crown."(14) Thus, it was imperative that defendants be competent because they were required to conduct their own defense.

      The common law rationale for the incompetency doctrine has become largely obsolete.(15) Today, the assistance of counsel is available as a matter of constitutional right.(16) As a result, in the modern criminal case, it is counsel that must be competent, and the competence of the defendant, although still required, takes on a secondary importance.

   2. MODERN JUSTIFICATIONS FOR THE INCOMPETENCY DOCTRINE

      Although the common law justifications for the doctrine have been largely eclipsed, a number of justifications remain for the modern doctrine. In part, parents patriae considerations - the desire to prevent unfairness to the defendant and an erroneous conviction that could result from requiring the defendant to stand trial while significantly impaired by mental illness - justify it. Counsel makes many of the strategic decisions in the modern criminal trial, and the defendant, if impaired, may be unable or unwilling to communicate critical facts to counsel or the court.(17) This concern has led the Supreme Court to deem the bar against trying an incompetent defendant "fundamental to an adversary system of justice."(18) Avoiding inaccuracy in criminal adjudication serves not only the individual's interests in avoiding unjust conviction, but also the societal interest in the reliability of the criminal process.(19)

      The incompetency doctrine also preserves the dignity of the criminal process. This process would be threatened by trying defendants who lack a meaningful understanding of the nature of the criminal proceedings.(20) This justification relates to the need to insure public respect and confidence in the criminal process, considerations that are basic to the legitimacy of the criminal justice System.(21)

      The incompetency doctrine also protects criminal defendants' interest in autonomous decision making concerning their defense.(22) Although counsel decides many issues of strategy and tactics, defendants must make certain key decisions,(23) such as decisions whether to plead guilty, whether to waive jury trial, whether to be present during trial, and whether to testify.(24) The importance of these decisions makes it imperative that the defendant is competent to make them.

      A final justification for the incompetency doctrine is the need to preserve the courtroom decorum and the resulting dignity of the trial process that permitting the trial of mentally impaired defendants unable to control their courtroom conduct could threaten.(25) However in light of alternative measures for dealing with this problem, it alone should not serve to justify barring the trial of an otherwise competent defendant.(26)

   3. THE MODERN PRACTICE

      All American jurisdictions deem criminal defendants incompetent to stand trial if, as a result of mental illness, they are unable to understand the nature of the proceedings or to assist counsel in making a defense.(27) Courts order virtually all criminals defendants who appear to be mentally ill at any time in the criminal trial process to be evaluated for competency.(28) Usually, defense counsel raises the competency issue by filing a motion requesting a competency evaluation. The prosecution may also raise the issue by motion. In addition, the judge may, sua sponte, request a competency evaluation when the evidence presents a bona fide doubt as to the defendant's competency.(29) When there are reasonable grounds to question a defendant's competency, a court's failure to order a competency evaluation violates the defendant's right to due process, requiring...