When Mental Illness & the Law Collide

Part 2: Competence/Fitness to Stand Trial

My last installment in this series addressed the issue of how law enforcement and correctional facilities are confronted with mental health issues (see Part 1 to catch up). Correctional systems can be burdened with additional complications when mentally ill inmates are referred into the forensic system for evaluation of their appropriateness to proceed in their legal case. Each jurisdiction (State, county, etc.) has laws which specify how a person must have some basic understanding of their legal situation and be able to cooperate with their attorney in some minimally effective way. Unsurprisingly, when severe mental illness is present, it can interfere with these abilities. Most jurisdictions call this competence or fitness to stand trial.

Competence or fitness to stand trial is a common issue – perhaps the most frequent mental health issue – raised in criminal proceedings [1]. It is unlike the concept of guardianship or conservatorship, which addresses a more general inability to manage one’s own affairs. Instead, competence to stand trial is matter of jurisprudence pertaining to whether a defendant has a rudimentary understanding of the trial process, court personnel and the ability to cooperate in their own defense in a meaningful way. Competence is essential to assuring the defendant receives a fair and dignified trial in a court of law. When determined incompetent, legal proceedings are postponed while an attempt at restoration is undertaken [2].

The concept of competence dates back to a time when defendants were entitled to be physically present in court versus being tried in absentia. Through time and legal cases, the concept was expanded to include one’s right to be mentally, as well as physically present for trial. In United States law, competence is drawn from one’s 6th Amendment rights, which guarantee a person to be informed of the nature of the accusation, to confront one’s accuser and to the assistance of counsel. More specifically, the landmark case of Dusky v. United States in 1960 established the legal standard that is now widespread and used by forensic and legal professionals to determine competence.

The Missouri Revised Statutes [3] follow Dusky closely, stating, “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” The Illinois Compiled Statutes outline a somewhat scaled down approach, noting, “A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” [6]

Mental illness and intellectual disabilities are largely implicated in questions about competence [1] [2], although a defendant can be incompetent for other reasons as well. Part of what makes competence/fitness a confusing issue is that it considers only the defendant’s present state of mind. It is often confused with sanity (discussed in Part 3), which is a retrospective analysis of the defendant’s state of mind and seeks to answer a very different question. Instead, competence seeks to determine what the defendant’s current status is. In other words, do they possess the requisite knowledge and ability to proceed right now? If the answer is no, they are incompetent (or unfit) to stand trial.

A bona fide doubt about competence can be raised at any point in the legal process, by either attorney or the judge, for several reasons, any one of which requires the court to take formal steps to address the matter. For example, a client may not understand what is happening to them, why, where they are or how they have arrived there. Having a basic understanding of the charges, possible consequences, available plea and other options, court personnel and their roles/functions and their rights are fundamental aspects of competence. If the defendant does not grasp these basic concepts and if routine education from their attorney does not seem to result in a substantive improvement to the knowledge deficit, competence to proceed may be a concern.

One element of competence that can become very complex has to do with the type of knowledge a defendant possesses. There is a difference between having factual vs. rational knowledge. The former, as the name implies, requires the defendant to know facts about their case. Examples include their charges, the classification (e.g. felony, misdemeanor), their attorney’s name, etc. Rational knowledge requires them to apply their factual knowledge in a meaningful way. For example, if a defendant knows they are charged with 3 counts of jaywalking (factual), but surmises that they are facing the death penalty if convicted, they lack rational knowledge. Both factual and rational knowledge are usually required to be competent/fit to stand trial.

Additionally, if a client is unable to cooperate with their attorney in a meaningful, productive and self-advocating way, competence may be lacking. While the Constitution guarantees the right to be represented by council, competence to stand trial means the interaction between the two is fundamentally reasonable and that the client can advocate in their own self-interest. Ability to cooperate with one’s attorney is not the same as simply agreeing with a proposed legal strategy, however. Instead, it must be rational, meaningful and in the interest of one’s defense, which may include challenging or disagreeing with the attorney’s advice in a rational manner.

Understandably, many mental illnesses can interfere with this ability. For example, a defendant may be experiencing delusions (false beliefs) that their attorney is working against them by colluding with the prosecution, leaving them unwilling to cooperate. If a defendant is not able to have rational, meaningful conversation about the charges, facts of the case, outcomes and options, a bona fide doubt about competence may need to be raised and a formal evaluation to opine on their present capacities ordered.

Although less common, questions of competence or fitness can be raised at other points in the legal proceedings as well. For example, questions of competence to plead or be sentenced also arise. One of the most unique, controversial and rarely raised competence issues is competence to be executed. In Ford v. Wainwright, the Supreme Court of the United States ruled that the 8th amendment prohibited the execution of a delusional death row inmate. Competence in this context focuses on post-sentencing mental state and concerns questions of whether the defendant understands their sentence, that they will die, and the reasons why [4]. While the notion of competence to be executed raises many moral and ethical dilemmas, the legal construct is the same as competence to stand trial, plead or be sentenced. As with any competence doubt, defendants may need to be formally examined prior to execution if their competence is questioned [5].

Because the legal system is built on the premise of fair and absolute justice, thoroughly resolving any question of competence or fitness is paramount.

Attorneys suspect their clients are incompetent more often than they raise the doubt and/or request a formal competency evaluation [1]. The purpose of a competence evaluation is to determine if the defendant has sufficient, present ability as outlined above, and to offer assistance to the court in making a decision about how to proceed. If the outcome of the evaluation and subsequent hearing is the defendant is not competent, they are provided with competence restoration treatment in an appropriate facility. When and if they are restored to competence, the defendant will resume the legal process wherever they left off and adjudication continues to its appropriate end.

1 Huss, M. T. (2014). Criminal and Civil Competence. In Forensic Psychology: Research, Clinical Practice, and Applications (2nd Ed.) 167-214.

2 Beltrani, A.M., Zapf, P.A., and Brown, J. (2014) Competency to Stand Trial: What Forensic Psychologists Need to Know. Forensic Scholars Today, 1(2). 1-5.

3 Mo. Rev. Stat. §552.020 (2018)

4 Adams, D.A. (1989). Belief and Death: Capital Punishment and the Competence-for-Execution Requirement. 10(1) Criminal Law and Philosophy 10(1). 17–30.

5 Mo. Rev. Stat. §552.060 (1989)

6 Code of Criminal Procedure, 725 ILCS 5/104 (1963)

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