Mental Competency for Trial: Brennan vs. Scalia Perspectives

Introduction

Although the specific laws involved vary from jurisdiction to jurisdiction, this paper assumes the existence of a state law that permits police to hold mentally ill suspects for a lengthy period of time while determining their fitness for trial. Although this law is consistent with the laws of some other states, similar laws have been overturned in the United Kingdom and Europe. This paper reviews the relevant literature to develop two opinions concerning the constitutionality of this law from the perspectives of Justices Brennan and Scalia, followed by an assessment of how two other justices would likely have responded to these opinions.

The Need for Mental Competency Assessments

Defendants who are deemed mentally ill and unfit for trial require careful disposition by criminal justice authorities. Beyond any specific jurisdictional requirements for determining mental fitness for trial, there is a pragmatic perspective involved: it makes good practical sense to divert these individuals from the normal criminal justice system to more appropriate settings where mental healthcare services can be provided. The need for a thoughtful and informed approach to processing defendants who are claimed by any stakeholder to be incompetent for trial is therefore clear. However, the human capacity for guise, deception, misdirection, and prevarication — particularly when the stakes are high — complicates the picture considerably. Distinguishing the legitimately mentally ill from those who are feigning illness represents a vital element in the initial adjudication of these cases, yet the amount of time that should be allowed to make this determination remains unclear.

The need for an informed and evidence-based approach to diagnosing mental illness as part of the criminal justice process is well documented, because the adverse economic and social consequences of incarcerating mentally ill individuals extend beyond those individuals themselves to the entire population that funds and administers the prison system (Larrabee, 2005). For instance, Quinn (2009) reports that "the poor treatment of California's mentally ill prisoners burdens the judicial system, drains the state's budget, and causes needless inmate suffering" (p. 261).

Healthcare practitioners have several established assessment tools available to establish competence for trial, and such assessments are routinely performed in many healthcare facilities in a cost-effective and efficient fashion to distinguish legitimate mental health problems from malingering (Larrabee, 2005). In this regard, Kertzman, Grinspan, Birger, and Shliapnikov (2006) report that "malingering is not considered a mental disorder, but rather a state that may become the focus of clinical attention, especially in forensic settings. People trying to avoid responsibility or punishment for criminal behavior often feign psychosis or severe cognitive impairment" (p. 113).

Justice Brennan's Constitutional Perspective

The amount of time needed to complete a careful and thorough evaluation of fitness for trial will inevitably vary from individual to individual. Other factors can introduce further delays, including a lack of resources and bureaucratic obstacles. Despite these constraints, mental health evaluations for competency purposes are clearly necessary given the high prevalence of malingering identified among criminal defendants. Kertzman et al. (2006) emphasize that "in criminal defendants referred for pretrial evaluation, malingering of cognitive impairments and psychosis was found in 12.1% of cases" (p. 113). While several assessment instruments with known reliability and validity are available, a thorough evaluation may require a multidisciplinary effort that can take considerable time to complete. As Kertzman et al. note, "mental health professionals must employ the same degree of thoroughness in the assessment of malingering as they would in the establishment of any other diagnosis. To do this, psychiatrists base their expert conclusions on clinical interviews and on collateral sources such as psychological tests" (p. 113).

From the perspective of Justice Brennan, the fairness of a trial may be threatened in pro se cases as a result of a defendant's mental state — an issue addressed in Indiana v. Edwards, USSC No. 07-208 (June 19, 2008). In that case, "the defendant's uncertain mental state [and] a defendant's lack of capacity threatens an improper conviction or sentence [and] undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial" (Mathias, 2008, para. 2). In 2008, the Supreme Court ruled in Indiana v. Edwards on the issue of competency in a pro se trial. Based on Justice Brennan's holding in this case, it is reasonable to suggest that he would focus on the due process and right-to-a-speedy-trial aspects of unreasonably prolonged competency assessments. As Justice Brennan articulated, "[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes" (Mathias, 2008, para. 2).

In sum, Justice Brennan would likely emphasize the necessity of competency assessments before trial, while insisting that the state be restricted in the time allowed to complete such evaluations — lest the delay itself constitute a violation of the defendant's constitutional rights under due process and speedy trial requirements. Justice Brennan would also make a case for establishing fitness for trial before proceeding in criminal court, in order to protect other constitutional rights as well. As Willis (2010) explains, "any court proceeding must both be fair and 'appear fair.' Thus, the protections in the Sixth Amendment are designed to ensure not only a fair trial, but also the appearance of a fair trial. Further, ensuring that a defendant is competent to stand trial serves the purpose of having a fair trial" (p. 321).

Conclusion

The research showed that in the United States, the Constitution provides a number of protections that require proof of mental competency to stand trial as part of due process provisions, and that such evaluations must be accomplished in a timely fashion in response to the right to a speedy trial. The need for mental competency was most recently addressed by the Supreme Court in Indiana v. Edwards, a case that helped reinforce these fundamental constitutional rights for mentally ill defendants.