Psychiatric Annals

USE AND MISUSE OF PSYCHIATRY IN COMPETENCY EXAMINATION OF CRIMINAL DEFENDANTS

Abraham L Halpern, MD

Abstract

1. Holmes, O. W The palh ol the law Harv L. Rev 10 (1896). 457 In Foster, H. J., Jr. A 'Bill of Rights' for children. Bull. Amer. Acad. Psychiat and the Law 1: 3 (July, 1973), 199-237.

2. Chase. J Where have all the patients gone? Human Behavior 2 10 (Oct., 1973), 18, 19.

3. Group for the Advancement of Psychiatry. Misuse of Psychiatry in the Criminal Courts: Competency to Stand Trial, Vol. VIII, Report No 89, Feb., 1974, p 885

4. The Daily Times. Mamaroneck, N.Y., Aug 6, 1974, p. 10.

5. Suarez, J. M. Psychiatry and the criminal law system. Amer. J. Psychiat. 129:3 (Sept., 1972), 293-297.

6. Steinberg and Paulsen A conversation with defense counsel on problems of criminal defense. Prac. Law 7 (1961), 25, 26 In Paulsen M. G. , and Kadish, S. H. Criminal Law and Its Processes Boston: Little, Brown and Company, 1962, p. 993.

7. Forsythe, Hortensius, Third Edition, 1879, p. 389. In Jones, H. W. Materials for Legal Method Brooklyn: The Foundation Press, 1952, p. 225.

8. Pate v Robinson, 383 U.S. 375 (1966).

9. Pollack, S. Forensic psychiatry - A specialty Bull. Amer. Acad. Psychiat. and the Law 2. 1 (March, 1974), 2.

10. Pollack, S. The role of psychiatry in the rule of law. Psychiatric Annals 4: 8 (Aug., 1974), 22.

11. G.A.P. Report, op. cit.

12. Ibid., p. 883.

13. Slovenko, R. Psychiatry and Law Boston: Little, Brown and Company, 1973, p. 96

14. G.A.P. Report, op. cit., p. 883.

15. Ibid., p. 882.

16. Szasz, T. S. Law, Liberty and Psychiatry. New York: The Macmillan Company, 1963, p. 161.

17. G.A.P. Report, op cit., p. 883.

18. McGarry, A. L. The fate of psychotic offenders returned for trial. Amer. J. Psychiat. 127:9 (March, 1971), 1182.

19. G. A. P. Report, op. cit.. pp. 883, 884.

20. Ibid., p. 884.

21. Ibid.

22. Slovenko, op. cit., p. 95.

23. Ibid., p. 103.

24. Bukatman, B. A., Foy, J. L., and DeGrazia, E. What is competency to stand trial? Amer. J. Psychiat. 127:9 (March, 1971), 1225-1229.

25. Dusky v. United States, 362 U.S. 402 (1960).

26. G.A.P. Report, op cit., p. 891.

27. Ibid., p. 906.

28. Ibid., p. 891.

29. Jefferson, T. Letter to William Johnson, June 12, 1823. In J. Leg. Med. 2: 1 (Jan. / Feb.. 1974), 10.

30. People v. Francabandera, 33 N.Y. 2d 429 (1974).

31. Slovenko, op. cit., p. 95.

32. Ibid., p. 94.

33. Chayet, N. L. Editorial: The overturning of another landmark. Amer. J. Psychiat. 129:3 (Sept., 1972), 333.

34. Ennis, B. J., and Friedman, P. R. (eds.). Legal Rights of the Mentally Handicapped, Vol. 3. Practicing Law Institute, the Mental Health Law Project, 1973, p. 1472.

35. Wieter v. Settle, 193 F. Supp 318 (1961).

36. Ibid., p. 322.

37. Ibid. Quoting Burger. Cir. J.'s limited, concurring opinion in Blocker v United States, 288 F.2d 853 (D.C. Cir. 1961).

38. G.A.P. Report, op. cit.. p. 895.

39. Ibid., p. 894.

40. Hess, J. H., Jr., and Thomas, H. E. Incompetence to stand trial: Procedures, results, and problems. Amer. J. Psychiat. 7 79:8 (Feb., 1963), 713-720.

41. Ibid., p. 720.

42. G.A.P. Report, op. cit., p. 898.

43. Ibid., Appendix B. p. 916.

44. Bukatman, Foy, and DeGrazia, op. cit.

45. Robey, A. Criteria for competency to stand trial: A checklist for psychiatrists Amer. J. Psychiat 122:6 (Dec. 1965), 616-623.

46. McGarry, A. L. Competency to stand trial and mental illness In Crime and Delinquency Issues. NIMH Monograph Series, HEW Publication # (HSM) 73-9105 Rockville, Md.: HEW.

47. Lipsitt, P. D.,…

"It is revolting to have no better reason lor a rule of law than that so it was laid clown in the time ol Henry IV It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation ol the past "

- Oliver Wendell Holmes'

Recent developments in the administration of criminal justice give cause for alarm to those who have been concerned about the misuse of psychiatry bv the courts. In some parts of the country - for example, California and New York - where mental health laws have been redrawn to reflect Supreme Court decisions concerning involuntary mental patients' entitlement to due-process rights, there has been a strong trend to funnel such patients back into the mental health system by using the device of arrest on a trivial criminal charge and commitment for examination concerning fitness to stand trial. The situation in the more heavily populated areas is reflected in the following comment bv a senior officer of the Sheriff's Department of Santa Clara County, California: "Our jail population has at least tripled with the people who require hospitalization or antipsvchotic medication. We pick them up for loitering and mischievous mischief."-' The effect on the hospitals to which defendants are sent for competency determination is exemplified by the admission of such defendants from the Los Angeles County municipal courts to the Metropolitan Hospital, numbering 600 in 1970 as against only 20 in 1969. 3 That the charge is later dropped in many cases does not undo this gross subversion of the processes written into the mental health laws or the antitherapeutic manipulations of the patients in such instances.

Another development has been the increasing number of arrests, generally reflecting the country-wide upsurge in crime and the resultant overcrowding of already filled and unwholesome jail facilities. In New York City, for example, a United States District Court judge, frustrated and angered by the failure of city officials to make improvements previously ordered, directed that the main jail facility be closed unless the changes were made by a certain date.4 Given the laudable motive to "keep the criminal off the streets," one can readily understand the alacrity that might be shown to use the issue of competency to stand trial in order to effect continued detention of the defendant. Notwithstanding the question of inadequate facilities and understaffing, fear of public criticism over the release on bail of potentially dangerous defendants often leads to a denial of bail while they await psychiatric examination. In most jurisdictions denial of bail is the rule for defendants thought to be mentally disordered but in whom there is no basis to suspect the occurrence of dangerous behavior.

Furthermore, there has been an accentuation of the traditional tendency shown by the principals in the court world - judge, prosecutor, and defense attorney - to serve their individual and separate ends by involving the psychiatrist, who is sometimes quite readily available but almost always unsuspecting of his inappropriate use or blatant misuse. As pointed out by Suarez,5 the concept of competency to stand trial, originally developed as an aid to the defendant, has been clearly overused or frequently misused, extensive studies having shown that most defendants labeled incompetent did not really warrant such a determination and, worse, have been committed for indefinite and often lengthy periods to institutions and then forgotten.

My purpose here is to expose the factors facilitating the misuse of psychiatry under the existing criminal justice system and to describe methods that can be employed by psychiatrists to better serve the mentally disabled and, as well, to protect the profession from the increasing calumny emanating from its seeming willingness to lend itself to misuse. In addition, I present ? proposal for the total abandonment of the competency issue, setting forth the advantages to both the community and the defendant of such a drastic step and outlining the safeguards necessary to protect the rights of the accused, who could conceivably be tried in absentia - physically or mentally.

THE ADVERSARY SYSTEM

Our system of criminal justice, known as the adversary system, has been described as a system based on the idea that truth will emerge from the struggle between two contestants presenting their case to an impartial tribunal." Each party's lawyer does his best to establish a case for his client and to destroy the case that his opponent is trying to make. The system is a commitment to the notion that the right result will evolve out of conflict. Such a system works only if the two contesting parties are relatively equal. Obviously, if one side is stronger than the other, a just determination may not come out of the conflict, but only the answer that power can impose. It is fundamentally important to keep the sides in the criminal case equal if the system is to work - that is, if fairness is to prevail. Anything that tends to build up one side as opposed to the other, or anything that tends to weaken one side, is detrimental to the adversary system.

The following striking statement by Lord Brougham, in his defense of Queen Caroline before the House of Lords, has been held up to law students as the picture of the devotion that an advocate is supposed to owe his client:

"I once before took occasion to remind your lordships, which was unnecessary, but there are many whom it may be needful to remind, that an advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and none other. To save that client by all expethent means, to protect that client at all hazards and costs, to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection."7

A defense attorney so detennined to serve his client, or a prosecutor so dedicated to fulfill his mission,, is hardly likely to accept the psychiatric findings concerning the competency issue of even the most prestigious expert, unless the findings support an understanding already reached between the two adversaries.

When the question of the competency of a criminal defendant arises, the system cannot possibly work well, since not only are the contesting parties practically always relatively unequal but there is often a question as to whether the parties are in fact contesting and confusion as to who the contesting parties are; the judge himself frequently enters the arena as an adversary. Indeed, a 1966 decision8 of the United States Supreme Court has been widely interpreted as mandating that the judge invoke the competency determination on the flimsiest suspicion of mental unfitness. Needless to say, a careful reading of the Court's opinion will showthat an authorization of unrestricted exercise of discretionary power was not intended. To speak of the psvchiatrist's participation in this stage of the proceedings as "the application of psychiatry to legal issues for legal ends"" or "its application to the ends of legal justice"10 is the ultimate in self-deception. There are few places in the legal world where the psychiatrist is more vulnerable to misuse. It is a question not of whether there is misuse but of how much. Given the acknowledged imperfection of the adversan' system, without arguing that it is the best we can do in an imperfect world, it is no wonder that each of the principals in the system seeks to use (and misuse) the psychiatrist in the service not of "legal justice" but of his own interpretation of justice.

The literature on the subject of psychiatric examination for competency to stand trial is replete with examples of misuse. A recent report by the Committee on Psychiatry' and Law of the Group for the Advancement of Psychiatry" is particularly revealing. According to G. A. P., some judges "use the competency examination as a punitive measure or as a device to preclude the possibility of bail," apparently resorting to this maneuver more frequently "in states where competency examinations take place in maximum-security institutions over a long period of time under demeaning living conditions. "vl Slovenko13 stresses this point with even greater force. "Quite frequently," he says, "the prosecuting attorney or the judge raises the issue of the accused's unfitness to proceed so as to accomplish the goal of preventive or long-term detention, which otherwise would not be available under the criminal law process. The criminal charge serves as little more than a fictional jurisdictional excuse for indeterminate confinement. . . . More often than not, the court uses the psychiatric report to justify what it wants to do about the defendant. If it disagrees with the evaluation, the court may appoint a different commission to examine the defendant, and it is not unheard of for several commissions to be appointed within a span of a few weeks." Other judges demand competency examinations "for the sake of completeness in cases they expect to be controversial"14 - that is, to protect themselves from possible criticism at a later date. G. A. P. points out that practical and political issues, such as whether the cost of the psychiatric examination is borne by the county or the state, and not the defendant's competency, are the factors that determine whether the defendant is examined; much more frequent use is made of psychiatric facilities that are routinely available at no extra cost to the county.15 Szasz16 believes that establishing the defendant's incapacity to stand trial may be tempting to the judge, since it can save him the effort of conducting a trial that might be filled with distressing emotional and moral problems. If the defendant can be shown to be crazy, both he and the jury will be spared a taxing experience.

Prosecutors, too, may request determination of competency to ensure that the defendant will not be let out on bail, and, G. A. P. notes, he "will often request a competency hearing to get some clue both as to subsequent legal strategy and as to how he might best use his prosecutorial discretion."17 From a study of a group of men committed to a hospital for the criminally insane as incompetent and awaiting trial, McGarry1" notes that the charges against several of them had long ago been dropped by the courts, which had not troubled to inform the men or the hospital. These patients had been subjected to long-term hospitalization under criminal sanctions at the hospital for the criminally insane while awaiting trial for charges that no longer existed.

"Defense attorneys make use of the question of competency for a variety of reasons depending on tactical considerations and personal experience. Lawyers who feel strongly that the conditions of confinement involved are demeaning may conceal obvious problems, or, in ambiguous situations, lean in the direction of ignoring the question."19 The mental state of the defense attorney is obviously the issue in some cases, since, as G. A. P. notes, "different lawyers will have different standards and different tolerance levels for evaluating the ability of their client to consult with them."-" Further, defense attorneys will at times utilize the competency examination "as a device to delay trial, whether because they believe delay will help their case, or because delay offers the busy lawyer a welcome postponement of a potentially laborious trial."21 Slovenko notes that the competency examination "is used by defense attorneys to avoid a capital or life-imprisonment penalty, to delay a trial until the emotions of the prosecuting witnesses and the public have calmed, or until memories have faded, so that the prosecuting attorney cannot prove the case 'beyond a reasonable doubt.' "- He further reveals that, while the court ostensibly seeks a professional opinion that can throw light on the case, "the psychiatrist may find himself used as a cover behind which the court and prosecuting attorney do as they please." "The opinion of the psychiatrist," says Slovenko, "is irrelevant in cases where the judges or prosecutor believe that the accused is a nuisance or is dangerous and ought to be locked up."23

THE COMPETENCY STANDARD

Although the wording has varied from jurisdiction to jurisdiction, the basic rule of competency to stand trial in the Anglo-American system has for the past several hundred years revolved around the question: "Can the accused understand the nature of the proceedings against him and render effective assistance in his defense?"24 In an effort to emphasize that more is at issue than a finding that "the defendant is oriented to time and place and has some recollection of events," the Supreme Court of the United States, in Dusky v. United States, unanimously ruled that "the test must be whether he 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."-'5 In its report G. A. P. expressed criticism of this test because of its failure to define "a reasonable degree of rational understanding."-'1 G. A. P. did not suggest a definition. Instead, its criticism invites a reactivation and accentuation of ridiculous debates by adversaries in hearings held to controvert the findings of competence or incompetence. One expert will testify that the defendant does, and another that he does not, possess a reasonable degree of rational understanding. In a masterfully evasive maneuver G. A. P., which has called for "intelligent collaboration between courts of law and psychiatrists,"-7 insisted that, "because the law is vague and imprecise, the judges' decision may be difficult, but it is the courts' problem and they must wrestle with it themselves."28

It might be instructive to explore a number of alternatives that were open to G. A. P.:

1. It could have accepted the Dusky standard, using the words of Thomas Jefferson as a guide: "Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not be to sought for in metaphysical subtleties, which may make anything mean everything or nothing at pleasure."29 G. A. P. might well have been less cavalier could it have anticipated the unanimous decision of New York State's highest court, in People v. Francabandera, rendered but one month after the publication of the report. This held that in enacting Section 730.10 of the Criminal Procedure Law (in which an "incapacitated person" is defined as a defendant who/ as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense), the legislature did not have anything in mind "other than the situation where the defendant, because oí a current inability to comprehend, or at least a severe impairment to that existing mental state, cannot with a modicum of intelligence assist counsel" (emphasis added) and that this interpretation is in accordance with the Dusky standard.30 Dissatisfied with Dusky's "reasonable degree of rational understanding," G. A. P. would have been devastated by Francabandera's "modicum of intelligence."

2. It could have argued against the need for psychiatrists to be involved in the determination of competency, agreeing with Slovenko that "fitness to stand trial can be measured by an ordinary view" and that "psychiatric examination does not further the inquiry."31 Moreover, since the original intent of the test was to excuse only flagrantly psychotic and defective persons, "an unsophisticated layman or the custodial officer is able to apply the test; only a commonsense point of view is needed for a literal application of the test."32

3. It could have recommended, as will be done later in this article, that the issue of competency to stand trial be abandoned in criminal proceedings.

4. Aware of the unfortunate result of imprecise legal standards, no matter how laudable the goals,33 it could have attempted, as suggested by Ennis and Friedman,34 to concretize the Dusky standard by supporting the position taken by the United States District Court, W. D. Missouri, in Wieter v. Settle. According to this standard, a person should be considered mentally competent to stand trial when it is evidentially made to appear in a habeas corpus proceeding "(1) that he has mental capacity to appreciate his presence in relation to time, place and things; (2) that his elementary mental processes are such that he apprehends (i.e., seizes and grasps with what mind he has) that he is in a Court of Justice, charged with a criminal offense; (3) that there is judge on the Bench; (4) a Prosecutor present who will try to convict him of a criminal charge; (5) that he has a lawyer (self-employed or Court-appointed) who will undertake to defend him against that charge; (6) that he will be expected to tell his lawyer the circumstances, to the best of his mental ability (whether colored or not bv mental aberration), the facts surrounding him at the time and place where the law violation is alleged to have been committed; (7) that there is, or will be, a jury present to pass upon evidence adduced as to his guilt or innocence of such charges; and (8) he has memory sufficient to relate those things in his own personal manner."'1'

G. A. P. apparently failed to fully understand that the Dusky standard was laid down as a legal one as distinguished from a psychiatric one, and that it is distinctly possible that a defendant, found mentally competent under Dusky, "may, psvchiatricallv, be concluded as mentally unable to rationally understand the proceedings against him and cooperate with counsel in his own defense."3" In other words, "rational understanding" and its opposite can coexist! This logical contradiction can be eliminated, but only bv new legislation abolishing the competency issue per se. Certainly, as long as the competency issue remains a matter to be determined before criminal cases can proceed, psychiatrists will frequently be called to give testimony even though one can reasonably question the need for a psychiatrist to assess whether the defendant meets the eight criteria laid down in Wieter. The psychiatrist's contribution is presumably valued as "open testimony," which, according to Chief Justice Burger, "is one of those practical anomalies of the law of evidence devised to help [the finders of fact] understand technical subjects on which they [would be] required to speculate or guess without some expert explanation."37

Since the competency issue will remain with us for some time and since "reasonable degree" of rational understanding was not defined, it is all the more important to reduce the Dusky formulation to its simplest terms so that a single standard of incompetence can in fact exist. The alternative is to get lost in a mire of such complexities that proceedings will become interminably prolonged in debate over the relative weight of the variables. If the detailed requirements for competency to stand trial laid down by various authors (see below) were applied to all defendants as fundamental fairness and the equal-protection clause of the Constitution ask, it would soon become impossible for the courts to function. G. A. P. spells out a large number of specific psychiatric criteria that it considers relevant to the competency issue, stating: "This psychiatric information will in part be the product of interview data, which are affected by transference-countertransference reactions; by the value system of the psychiatrist; and by the role the patient thinks the physician has been assigned."38 The psychiatrist is asked by G. A. P. "to attempt to become more specific by asking himself how these impairments, if present, affect the defendant's capacity in relation to the various desiderata that must be taken into consideration." What G. A. P. is saying is that the psychiatrist should in fact possess enormous legal sophistication, despite G.A.P.'s assertion to the contrary.39

It is clear that G. A. P. ignored the findings of Hess and Thomas/" who analyzed the Michigan competency standard of 1963. These authors challenge the assumption that there exists a comprehensible test of competency to stand trial that can be applied to a human being, assessed within a human being, and communicated to other human beings. Further, they raise the question whether any person other than a lawyer is really capable of understanding the complex legal apparatus with which he is associated. Moreover, "it is hard for us to conceive how any individual, perhaps excepting certain deeply regressed mentally ill persons or severely damaged organically ill persons, could not be of assistance in his own defense. Again, if, however, we consider the individual's ability to assist in his defense from the legal viewpoint, which might include such things as specific recall of each event complete with times, places, persons, etc., and particularly if we rely on this individual to assist his counsel with regard to his motives and thoughts concerning the crime, then surely many defendants must be considered incompetent."41 Thus, they reach the conclusion that, depending on one's context and framework, almost all defendants can be considered either competent or incompetent. In any event, the failure to keep narrow the mandate of Dusky inevitably leads G. A. P. to such totally unimplementable recommendations for use of the psychiatrist as follows: "A responsible psychiatrist should attempt to remedy an ineffective defendant-attorney relationship by consultation either with the attorney, or conjointly with attorney and defendant."42

COMPETENCY CHECK LISTS FOR THE PSYCHIATRIST

Complexity was added to complication in G.A.P.'s recommendation of several check lists outlining a large number of criteria for competency to stand trial.43 All of them44"47 require a predictive ability on the part of the psychiatrist that he may not possess. One is reminded of Goldstein's reference to "instances where as many as eight different psychiatrists agreed that a particular defendant was incapacitated, only to have the defendant get through the proceedings adequately after insisting on having his day in court."48

The check lists also require the psychiatrist to determine the competency of a defendant in areas that would not be experienced by the defendant, since trials would in most cases not take place. For instance, the following items are listed: ability to testify if necessary and be cross-examined, ability to tolerate stress at the trial or while awaiting trial, ability to refrain from irrational behavior during the trial, ability to interpret witnesses' testimony, and susceptibility to decompensation while awaiting or standing trial. When we add to these such items as the ability to understand the possible dispositions, pleas, and penalties; to make decisions after advice; to follow testimony for contradictions or errors; to maintain consistency of defense; and to weigh self-defeating versus selfserving motivation (so defendant can protect himself using legal safeguards), we may well question, with Hess and Thomas, whether any defendant in criminal actions would ever be considered competent if the check lists were taken seriously.

Fortunately, the courts do not always accept the wide latitude given to the competency standard by some psychiatrists. For example, a United States District Court, in a prosecution for violation of the Internal Revenue Code, held that the mere fact that the defendant had lost his composure during the competency hearing, which had been instituted on petition of the government, and that doctors indicated that there would be outbursts that would interfere with the trial, during which the defendant would not be able to proceed rationally, did not establish incompetency to stand trial.49

In elaborating on the evaluation of 21 separate abilities, G. A. P. urges that the psychiatric report "should contain sufficient data to justify the conclusions reached and to indicate how they were reached.""*" G. A. P. then makes the astonishing statement that "these conclusions should not set forth an opinion as to whether the defendant is legally competent." Thus, the issue of the psychiatrist's role in determining competency has come full circle; the misuse of psychiatry is apparent when the expression of an opinion is prevented after the most intensive study has been made of the defendant for the precise purpose of reaching that opinion. This does not, however, alter the fact that the misuse of psychiatry occurs primarily during the processes leading to the psychiatric report and the actions taken as a consequence of the report, irrespective of whether the report sets forth an opinion about the defendant's competence. It is true that a minority opinion of G. A. P. held that the forensic psychiatrist should offer his views on the ultimate legal question. The same minority, however, stressed that "the psychiatrist is the agent of society in this setting," and his "primary responsibility is to apply his psychiatric material to the social ends of legal justice, rather than to the specific needs of the individual patient.""'1 It is not necessary to belabor the obvious: the minority view of the psychiatrist's role advocates both the abrogation of the psychiatrist's responsibility to his patient and the undermining of the quintessence of Anglo-American jurisprudence, the adversan' system of the criminal law.

THE AMICUS CURIAE ROLE OF THE PSYCHIATRIST

Psychiatrists, like most citizens in a democracy, have had a need to see judges as ideally unbiased, somehow capable of shedding their prejudices and political allegiances on appointment or election to the bench. A ready identification with the court's assumed impartiality has been the rule whenever a psychiatrist has been appointed (or "ordered") by the court to conduct an examination under any circumstances, rarely being cognizant of the special conditions surrounding the competency evaluation. Thus, the traditional court clinic - which reached its ideal in the clinic serving the Supreme Bench of Baltimore, self-characterized as having "the objective attitude of the judge himself""'-' - could only deceive itself in believing that it could present a position of complete freedom from bias at the adversary stage of criminal proceedings.

The dilemma posed by the indigent defendant was graphically described by the Philadelphia Bar Association in its statement that these persons had none of the psychiatric and attendant social services available to the more affluent accused, except for limited psychiatric examination by a court psychiatrist who also served the prosecuting attorney.53 In 1965 Temple University sought to resolve this dilemma by establishing the Forensic Psychiatry Clinic to serve the needs of the indigent and their attorneys exclusively. Closed reports (that is, confidential reports furnished to counsel under the umbrella of the attorney-client privilege, rather than the less protective physician-patient privilege) and "private" consultations were provided at the earliest stage of the legal problem, and almost half of the evaluations were performed in the pretrial phase. This was a laudable experiment but unfortunately was the result of neither a legislative nor a judicial mandate. The report of its demise after only two years came as no surprise.54

The forensic psychiatry literature has generally spoken favorably of the contributions that can be made by psychiatrists in the role of amicus curiae.55,56 Such psychiatrists, however, can be viewed as presenting an obstacle to the fair implementation of the competency issue. Gray,"'7 for example, draws attention to the court's observation, in United States v. Schappel,™ that "it is standard practice in this jurisdiction for the court to commit criminal defendants to Saint Elizabeths Hospital tor sixty days or more, for the purpose of a pretrial mental examination"; she points out that, while they are ostensibly participants in the adversary process, these psychiatrists, because of the lack of opposing experts, have often taken the position of adviser to the court and therefore have been able to make the decisive determinations in the vast majority of cases. One need only note the frequency with which trial judges depend on the government psychiatrist to determine whether an indigent's mental condition warrants the appointment of a defense psychiatrist to recognize the imbalance between the opposing forces. It is a sign of the naïveté (indeed, at times, malevolence) of some judges that the same court that would recoil in indignation at the suggestion that defense attorneys can be dispensed with (since prosecutors have frequently acted in favor of defendants) can render an opinion that defendants do not have a right to expert witnesses at public expense on the basis that "government psychiatrists, as a whole, generally turned out to be more favorable to defendants than to prosecutors in verdicts oí not guilty by reason oí insanity."59 Gray reports the widely espoused, although erroneous, opinion that these experts are more reliable than independent experts because they constantly observe the criminally insane, and are more impartial because they are public servants. She cites the work of David Chambers, who reviewed the pretrial practices at Saint Elizabeths Hospital; they refuted the notion that the government psychiatrists' decisions reflect a higher degree of accuracy and impartiality than those of their nongovernmental counterparts.

"His study documents a serious impairment of thorough, impartial psychiatric evaluation resulting from a lack of staff and an abundance of defendants. Even the United States Court of Appeals for the District of Columbia Circuit recognizes that a defendant committed to the hospital for sixty days or more ordinarily spends no more time being examined than a defendant who is simply interviewed at the cell block. As long as manpower and treatment facilities remain inadequate, both objectivity and technical accuracy will suffer. Saint Elizabeths Hospital psychiatrists, responsible for both pretrial examinations and post-trial treatment under the present system, can only feel exhausted at the prospect of admitting additional offenders to their overcrowded facilities. This unfortunate state of affairs is bound to cloud the judgment of the examiners, even if they make a good faith effort to be impartial."60

PLEA AND SENTENCE BARGAINING

No examination of the issue of competency to stand trial can be complete without a consideration of the complicated subject of plea and sentence bargaining. Slovenko"1 describes a 1972 New York Times report that revealed that courts and prosecutors allow a great deal of plea bargaining, in which a defendant is offered a reduced charge and a light sentence in return for a guilty plea. Also, a loss of faith in the prison system was clearly evident in some judges, resulting in "their refusal to send all but the most dangerous defendants to prison, and in cases where they do send a man to prison, they say, they do so unwillingly, because they are creating an even worse criminal." A recent review"- of plea bargaining and sentence bargaining did not give any reason to expect that our criminal justice system would divest itself of these practices. To deprive the defendant who is declared mentally incompetent to stand trial of the right to be included in what is now generally accepted as a due-process and equal-protection mechanism must surely border on the un-Constitutional.

Plea and sentence bargaining are here to stay, since they enable no less than 90 per cent (Slovenko says perhaps as many as 95 per cent) of criminal cases in the United States to be settled by guilty pleas - that is, "resolved not by a full presentation of the evidence at trial but by a private plea-bargaining process between the prosecutor and defense lawyer." The figures for Manhattan are even more startling: in ?973, there were 31,098 felony arrests, of which only 545 cases (1.75 per cent) went to trial on the original felony charges."3 It is obvious that if trials were to occur in even half of the cases, our criminal justice system would totally collapse. The fact that plea bargaining is inextricably tied to the system encourages police and prosecutors in the initial postarrest stage to puff charges in anticipation that this "overcharging" will induce defendants later to plead guilty to lesser charges."4 Few indeed are the psychiatrists who have been aware that many of the defendants they have examined and found mentally unfit to proceed went off to the hospital for the criminally insane, their criminality accepted by the institution staff as a foregone conclusion because of the grossly exaggerated charges against them. Norval Morris has described the situation succinctly: Prison authorities regard their inmates in facilities for the psychologically disturbed as both criminal and insane, bad and mad; mental hospital authorities regard their inmates who have been convicted - or only arrested and charged with crime - as both insane and criminal, mad and bad.65

In the absence of a viable alternative, highsounding criticism of the plea-bargaining process by leaders of the psychiatric profession as "not very morally or constitutionally inspiring"66,67 can only encourage the grossly inequitable exclusion of the mentally disordered offender from the escape hatch that benefits other defendants. Plea and sentence bargaining has been given the official imprimatur of the Court of Appeals of New York State, which held in a unanimous decision that the defendant in an amnesia case "may choose either to proceed to trial, after which he can move for evaluation of the fairness of the trial . . . or he may opt to plead guilty to the best terms he can get"68 (emphasis added).

SMALL REFORMS ARE THE ENEMIES OF LARGE ONES69

From the days of Isaac Ray to the present, renowned psychiatrists have called for improvements in the handling of persons accused of crime who are deemed unfit to stand trial. The reforms suggested have always fallen short of proposals for total abandonment of the incompetency plea. The G. A. P. report regrettably follows in this tradition. In spite of some noteworthy recommendations for reform, exploitation of psychiatric institutions, abuses of and by psychiatry, and the misuse of psychiatry, although possibly somewhat lessened, must therefore continue apace.

G. A. P. calls for new statutes that would require the screening of every defendant whose competency is questioned before he is transported to an institution for the criminally insane. For clearly nondangerous defendants the report recommends hospitalization or treatment "at the same hospitals and in the same manner as any other mental patient."7" G. A. P. maintains an optimistic position that new techniques and drugs can bring most persons initially found to be incompetent to a competent state well within six months after initiation of treatment; however, giving no consideration to the fact that the vast majority of such defendants would properly be tunneled out of the criminal justice system without a trial, G. A. P. asserts that this group of defendants, "of course, should stand trial."71

It should be observed that the bulk of G.A.P.'s recommendations have in the past few years become part of the criminal justice system in a number of states, particularly New York and Massachusetts. Although many highercourt decisions have already gone well beyond G.A.P.'s recommendations, rendering them obsolete, there is no sign whatever that, as a consequence of these innovations, the misuse of psychiatry has been diminished.

G. A. P. evinced an obsessive preoccupation with the frequent "lifetime sentence" issue,72 resulting from the finding of incompetency to stand trial, even though various appellate decisions since 1972 had been abrogating this practice; at least one state legislature (New York), at the time of preparation of the report, was considering a bill to discontinue the commitment of defendants to hospitals for the "criminally insane" and to transfer to civil state hospitals under regular certification procedures all persons detained as incompetent to stand trial.73

It is particularly disappointing to see G. A. P. offering the following alternative to its recommended procedure for dealing with incompetent defendants for whom it may not be clear, after six months' hospitalization, that they can never return to competency: "If the alleged crime is a serious felony, and the question of competency has not been resolved after one year, the court should have the discretion of retaining the criminal charges and its jurisdiction over the defendant, with the power to proceed to trial at some future time when and if the question of competency is resolved. The maximum length of the delay should bear a reasonable relationship to the jail tenn applicable as the criminal penalty for the crime alleged."74 Thus, not only would G. A. P. keep in custody in an institution whose living conditions (according to G. A. P.) are often worse than prison condirions persons whose guilt has not been proved, but it would also have them confined for a period bearing a "reasonable relationship" to the jail temi for the crime alleged. G. A. P. is apparently oblivious of the frequent "inflated charge" practice of police officials and prosecutors, and oblivious, also, of the increasingly frequent rulings by appellate courts that such confinement is un-Constitutional. The Supreme Court of Wisconsin, for example, has ruled that if incarceration in a mental institution for incompetency to stand trial continues beyond the time when it can be justified for the purpose of protecting the defendant's rights, it is, in effect, penal in nature and improper; that such incarceration may not be continued unless there is evidence in the record that the criminal incarceration will not continue indefinitely but will soon be terminated; that the maximum period in Wisconsin shall be 18 months; but that if at any earlier time it appears that the defendant has not regained his competency and is not making progress toward that goal, he must be discharged from the criminal commitment. (In that event, of course, he may be certified to a hospital under the civil commitment laws.75)

The United States Supreme Court, in its 1972 Jackson v. Indiana decision,7" discussed below, did not think it appropriate to prescribe arbitrary time limits in light of differing state facilities and procedures. The Supreme Court of Appeals of West Virginia, however, defined a "reasonable time" as "an unspecified time, rather short in duration, necessarily required to effectuate the overriding state interest," and held that a period of more than six months for the purpose of causing a defendant to regain his competency is prima facie unreasonable.77 The United States Court oí Appeals, Fifth Circuit, reviewed the case of a defendant committed to the Medical Center for Federal Prisoners after the district court had concluded that he was not capable of standing trial on a charge of interstate transportation of a stolen vehicle. The order of commitment required that he be given extensive treatment, and that progress reports be submitted to court periodically until the defendant became competent to stand trial or until the charges pending against him were disposed of according to law. The Court of Appeals held: "We believe that the district court erred in ordering appellant committed until he is in fact competent to stand trial. There was no finding ... as to whether appellant would probably endanger the officers, property, or other interests of the United States; and without such a finding, a prisoner committed under Section 4246 may be held only for a reasonable period of time necessary to determine whether there is a substantial chance of his attaining competency to stand trial in the foreseeable future. "78

G. A. P. speaks approvingly of one court's conclusion that a trial could be held of a defendant who suffered from retrograde amnesia that was the result of brain damage incurred in an auto accident as he left the scene of the crime. In such a case it was held that the trial judge should detennine at its conclusion whether the defendant had been competent.79,80 It has been suggested that this procedure would be the ideal one in all cases in which the defendant's competency is at issue;81 that is, the determination of the defendant's competency would be deferred until after the trial on the merits. Then, if the defendant were found incompetent, a guilty verdict would be set aside; if he were found competent, the verdict would stand. The practical objection, of course, is the enonnous cost to the already overburdened judicial system of conducting so many trials in which a guilty verdict would be of no effect. Certainly, it is naïve to think that, unless legislation is enacted permitting the trial of incompetent defendants, judges would allow trials of questionably fit persons to take place.

There is in fact a reluctance to try even those who are returned to court having been declared competent after a period of hospitalization. For example, in the case of a defendant who had been found "sufficiently improved to warrant his return to court to face the criminal charge pending against him," a county court judge ruled that a further mental examination, requested by the district attorney over the strenuous opposition of the counsel for the defendant, should be held. The court stated: "The taxpayers of this county should not be put to the expense of a prolonged trial, only to have a possible conviction reversed on appeal on the grounds that the defendant was not capable of making his defense thereof, nor should the public in general be subjected to the hazard of having a person, with this defendant's history of mental illness, released from custody upon an acquittal or dismissal of the indictment."82

It is clear that more sweeping changes must be made than those recommended by G. A. P. The evils described earlier and the gross abuse of a privilege originally intended to benefit a defendant can be eradicated only by eliminating the issue of fitness from the presentence stages of criminal proceedings. The problem that must be faced is which of two fundamental rights is to be protected, when a choice is unavoidable: the common-law right not to be tried on a criminal charge when one is mentally unfit to proceed or the Constitutional right to a speedy trial. The legal profession has so far been unable to resolve this dilemma. It is time for the psychiatric profession to offer a solution, as it is left with the burden of dealing with the problems created by the present system.

Since it is proposed that the common-law right be "denied" and the Constitutional right be observed, it may be well to review the practical implications of these rights, lest the proposal be considered merely a self-serving ploy on the part of psychiatry.

THE RIGHT TO A SPEEDY TRIAL

In a comprehensive brief on behalf of a defendant seeking transfer to a civil state hospital, Bruce Ennis8;i summarized the importance in Anglo-American jurisprudence of the right to a speedy trial. (The case was decided in favor of the defendant, the United States District Court ruling that incarceration for 20 years in a hospital for the criminally insane of an incompetent defendant who would probably never be brought to trial even if found competent violates protection against cruel and unusual punishment, due process, and right to a speedy trial/"1)

The first official recognition of the right to a speedy trial was issued bv Henry II in 1166, later to be embodied in the Magna Carta signed by King John in 1215. M The right was guaranteed by the colonial laws of New York in 1665 and was considered so fundamental that it was included without debate in the Bill of Rights amendment to the United States Constitution in 1791. The principles underlying the right to a speedy trial are equally applicable to incompetent defendants. All these principles stem from the commonsense notion that after a substantial period a defendant cannot possibly get a fair trial. In broad terms, the right to a speedy trial is an important safeguard against undue and oppressive incarceration before trial, anxiety and concern accompanying public accusation, and the possibility that long delay will impair the ability of an accused to defend himself.8'1 More specifically, the right to a speedy trial rests on the fact that memories fade, evidence is lost, and the burden of anxiety on any criminal defendant increases with the passing months and years. Other reasons are the death or unavailability of witnesses and the inability of a confined defendant to gather and preserve evidence for his defense. Each of these factors is as applicable to the defendant who is incompetent as to the defendant who is competent.

Ennis describes the effect of a delay in trial by citing the words of Judge Laws in United States v. McWilliams:87 "As in all long-delayed cases, the witnesses now are scattered; some are not accessible, more particularly to the defendants who are without funds; the memories of witnesses as to events occurring many years ago are not clear. ... I do not see how these defendants can now possibly obtain fair trials."88 Another judge has pointed out that after many years' delay, witnesses could not be said "to be testifying to what they remember; they would be recalling something as in a dream, a kind of phantasmagoria, rather than an independent recollection. The human mind is so constructed that remembrance of even the sharpest experience dulls with time. Witnesses, however honest, could not respond with any accuracy to cross-examination, and another important right would thus be lost to petitioner."8" The rulings in numerous cases make it clear that the Sixth Amendment right to a speedy trial was meant to protect competent and incompetent defendants alike.90

PARENS PATRIAE AND THE RIGHT NOT TO BE TRIED WHILE INCOMPETENT

The competency issue can best be understood in terms of the parens patriae doctrine, ostensibly an altruistic concept representing the State's sovereign power of guardianship over persons under disability (minors and psychotic and incompetent persons). It has taken centuries to bring to full view the doctrine's fundamentally unfair and despotic origins and the harm it has wrought against the verv citizens it was said to serve. Based on Roman law, it first took shape in the English law during the early years of Edward G s reign (1272-1307). Roman law provided that if a man by notorious prodigality were in danger of wasting his estate, he could be declared non compos mentis and committed to the care of curators or tutors by the praetor/" It is evident that the Roman law concerned itself primarily with persons of property and not with the general population. The same criticism exists with regard to medieval English law, where the early doctrine of parens patriae was no doubt conceived in avarice and executed without charity.92 The praises heaped on medieval law for its protection of the laboring classes are totally unwarranted; history well records the fact that until the first quarter of the 20th century the common man was but a cipher to the law, in spite of the hard work of social reformers. Early reported English law adjudicated disputes primarily among men of property, and the early development of parens patriae was more a State fiscal policy than a humanitarian doctrine.93

The king's rights (and only incidentally his responsibilities) with regard to lunatics were first codified in 1324, when it was provided that the king should have the custody of lunatics and would conserve their lands and the profits of the lands for their use until the lunatics recovered their faculties. The entire statute dealt at length with feudal fiscal policy and the king's revenue. For example, the custody of a born idiot was also in the hands of the king, but here the king was perni itted to take the profits of the lands, conditioned only upon his providing the idiot or fool with certain necessities of life. The king's wardship over natural fools was a device for augmenting the treasury, for it was a foregone conclusion that if the king did not assume jurisdiction over fools, their immediate temporal lords would do so, in the same way that immediate temporal lords were entitled to other wardships of persons under disability, such as orphaned minors and certain unmarried women.

The provision with regard to lunatics was apparently inserted by the propertied class for their own protection; much of the sovereign's revenue came from the feudal incidents resulting from the king's control of persons under disabilities. Under feudal law, heirs were established by birth and not by will; thus valuable life estates were frequently left in the hands of a fool, idiot, or lunatic. The royal wardships for lunatics, from which the king could take no profit, was evidently selected by Parliament because the king could be better controlled than the feudal magnates. If his agents were not perfect in their observance of high fiduciary standards, at least they were preferable to the various alternatives medieval society offered - namely, guardianship of either the lunatic's immediate temporal lord or his greedy relatives.

Thus, the inescapable conclusion follows that the early development oiparens patriae was in no way evidence of the sovereign's solicitude for the welfare of unfortunate subjects but, rather, was merely the natural result of the king's need for revenue. Clearly the doctrine oiparens patriae has been suspect from the earliest times. Well-meaning people may have attempted to operate under it for the benefit of their fellow men, but it has often been used as a justification for greedy actions on the part of relatives or for the removal of unwanted or troublesome persons. One example is the defendant who is considered to be dangerous; another is the defendant who is mentally ill or deviant and may thereby pose difficulties for the court in the processing of his case. Thus, under the parens patriae doctrine a presumably demented, helpless person could with ostensibly wellintentioned haste be protected by a court order admitting him to a hospital for assessment of his competency, held without bail for psychiatric examination, or sent to a treatment facility where he could theoretically be restored to reason, after which he would be given a fair trial or the charges against him properly and humanely disposed of.

It is in this context that one must see the Pate v. Robinson decision/'4 laid down by the United States Supreme Court in 1966, reaffirming the Bishop v. United States determination that the conviction of a legally incompetent defendant violates due process95 and holding that "where the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing. ..." The decision had immediate repercussions throughout the country, lower-court judges concluding that they were obligated to inquire into the competency of a defendant who the court had reason to believe might be incompetent and when the court, using its discretionary power, was simply "of the opinion that the defendant may be an incapacitated person. "m Even judges who had previously striven scrupulously to avoid commitment of defendants for determination of competency, except in the most flagrant cases, being keenly aware that advantage could be taken of the competency examination loophole to withhold bail and achieve preventive detention in sensitive cases, frequently resorted to the competency inquiry to avoid the criticism of appellate courts. An analysis of Supreme Court decisions, in a number of cases that followed, leads to the unavoidable conclusion that tight guidelines would have been propounded in Fate had the Court suspected that its decision would be so grossly distorted and widely abused.

Only two weeks after Fate, the Supreme Court decided, in Kent v. United States,''7 that the parens patriae doctrine could no longer suffice in juvenile court proceedings and that observance of Constitutional safeguards, rather than reliance on judicial good will, would better serve the juvenile's interest. Kent dealt with a very specific issue: What procedures are required in the juvenile court to waive jurisdiction of, or "certify" or "bind over," a juvenile "suspected of serious offenses" (generally acts that would be felonies if committed by an adult) to the adult criminal court for trial as an adult? Because the youngster had a statutory right to the exclusive jurisdiction of the juvenile court, the Supreme Court concluded that the following conditions should be observed for valid waiver: (1) a hearing must be held on the motion for a waiver, although it does not have to conform "with all of the requirements of a criminal trial or even of the usual administrative hearing; but ... it must measure up to the essentials of due process and fair treatment"; (2) a full investigation must be made and should include pertinent background information on the juvenile (i.e., social studies, evaluations, and probation reports or similar records) for consideration by the court; (3) the child is entitled to be represented by counsel, and his attorney is to have full access to all the records considered or relied on by the court, and also have the opportunity to cross-examine and refute any of the reports; (4) the court must accompany its waiver order with a statement of reasons or considerations sufficient to demonstrate that a full investigation has been made, and must set forth the basis for the order with sufficient specificity to permit meaningful review."98

The implications of Kent for the mentally ill, especially the adult defendant thought to be mentally unfit to proceed, become clear in the following comment by Justice Fortas, who wrote the opinion for the Court:

"While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of Constitutional guaranties applicable to adults. There is much evidence that some juvenile courts . . . lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children."99

There is much evidence indeed that the mentally incapacitated defendant receives the worst of both worlds: he gets neither the protections accorded other accused persons nor the solicitous care and regenerative treatment postulated for the mentally ill.

The significance oiKerit was not lost on appellate courts in decisions rendered over the next eight years, in which Constitutional rights were increasingly extended to mentally incompetent , defendants.100

A year after Kent, the Supreme Court ruled in a landmark decision, In re Gault,"" that the due-process clause of the Fourteenth Amendment applies to state juvenile court proceedings. The precise impact of the due-process requirement, when a juvenile has allegedly violated a criminal statute and may be committed to an institution in which his freedom may be curtailed, was specified as follows:

1. Fair notice. A right to written notice, "which could be deemed Constitutionally adequate in a civil or criminal proceeding." Logically, this would require notice of the charges and what specific rule of law has been violated; the delineation cannot be vague and indefinite.

2. Right to counsel. The juvenile is entitled to counsel at every stage of the proceedings, and if the parents or child cannot afford counsel, one must be appointed. Pretrial judicial hearings would be fairly interpreted to be a "critical stage."

3. Confrontation, self-incrimination, crossexamination. "The privilege against selfincrimination is applicable in such a hearing, and the juvenile must be advised that he does not have to testify or make a statement." Only competent and relevant evidence should be admitted, and the basic rule against the admission of hearsay evidence should be complied with. The Supreme Court said: "We now hold that, absent a valid confession, a detenriination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and Constitutional requirements." Note that the Court specified that any testimony should be made under oath. Obviously, without a confession, witnesses would have to be produced by the State and be subject to crossexamination. It went on to say, "If counsel is not present for some permissible reason when an admission is obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it has not been coerced or suggested, but also that it is not the product of ignorance of rights or of adolescent fantasy, fright or despair."

The Court made clear that the parens patriae theory, that the juvenile court stands in loco parentis to a juvenile who has the right not to personal libertv but only to parental custody and care, is inadequate to determine the appropriate procedures in the adjudicative hearing. While not altogether rejecting the parens patriae philosophy, the Court indicated that the doctrine's appropriate sphere of operation is in the dispositional phase and in shielding the juvenile against such prejudicial by-products of the juvenile process as broadside disclosure of his contacts with juvenile authorities.

The Court also gave minimal consideration to the notion that the "civil" label frequently attached by courts to juvenile proceedings justifies denying rights accorded in criminal proceedings, in view of the possible incarceration of the juvenile against his will.

The Court also rejected the quid pro quo theory sometimes advanced to justify denial of procedural rights to juveniles - that in return for denying the juvenile rights, the State gives him "treatment" and rehabilitation instead of punishment and retribution.102

Two years after Gault the Supreme Court ruled, in the Winship case,103 that proof beyond a reasonable doubt is as much required during the adjudicatory stage (when a juvenile is charged with an act that would constitute a crime if committed by an adult) as the other Constitutional safeguards already applied in Gault.

Notwithstanding Chief justice Burger's hope, expressed in his dissenting opinion, that the Winship decision "will not spell the end of a generously conceived program of compassionate treatment intended to mitigate the rigors and trauma of exposing youthful offenders to a traditional criminal court," the theory of unbridled parens patriae has clearly been rejected by the Supreme Court. This doctrine is no longer a basis for denial of Constitutional due-process protection, for the mentally ill as well as for juveniles.

Presence. A significant decision was handed down in 1970 by the United States Supreme Court in the case of Illinois v. Allen104 after several years of affirmation and reversal in lower appellate courts. The opinion was a unanimous one, a rare occurrence in recent years. It was held that a defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. This reversed the holding of the United States Court of Appeals, Seventh Circuit,1""' that no conditions may be imposed on the absolute right of a criminal defendant to be present at all stages of the proceeding.

The Supreme Court also held that a trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case and it is Constitutionally permissible to remove him from the courtroom while the trial continues, until he promises to conduct himself properly. Justice William J. Brennan, Jr., in his concurring opinion, commented: "The safeguards that the Constitution accords to criminal defendants presuppose that government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of "ordered liberty" and prerequisite to social justice and peace. "106 "Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all."107

While the Allen decision does not fall squarely on the issue of the mentally incompetent defendant, the following facts should be noted. 1. Allen had been found incompetent to stand trial in a 1956 pretrial sanity hearing, and his trial was postponed until after he was declared "sane and competent to stand trial" approximately a year later.108 2. Justice Douglas, in his concurring opinion, commented that "there is more than an intimation in the present record that the defendant was a mental case."1"" "It involves a defendant who was a sick person and who may or may not have been insane in the classical sense but who apparently had a diseased mind.""" 3. Justice Douglas more than hinted that the Supreme Court was ready to consider the issue of the right to a speedy trial versus the right not to be tried while mentally unfit when he stated: "The fact that a defendant has been found to understand 'the nature and the object of the proceedings against him' and thus competent to stand trial does not answer the difficult question as to what a trial judge should do with an otherwise mentally ill defendant who creates a courtroom disturbance. What a judge should do with a defendant whose courtroom antics may not be volitional is a perplexing problem which we should not reach except on a clear record."1" The following comment sharpens the issue further: "The question, how to proceed in a criminal case against a defendant who is a mental case, should be resolved only on a full and adequate record."112

Jackson. Another landmark decision was handed down in Jackson v. Indiana. Here the Supreme Court held that "indefinite commitment of a criminal defendant solely on account of his competency to stand trial does not square with the Fourteenth Amendment's guarantee of due process."114 On the other hand, it reaffirmed a previous holding"5 that if it is found specifically that an incompetent defendant would be dangerous if not committed, the indefinite commitment would be Constitutional. The Court further held that, "at the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."11" The Jackson decision is significant also in the Court's rather clearly inviting challenges to the parens patriae doctrine, reflected in the various forms of civil commitment and in the court-ordered psychiatric examinations and commitments considered by many judges to be mandated by the Pate v. Robinson decision. "Considering the number of persons affected, it is perhaps remarkable that the substantive Constitutional limitations on this power have not been more frequently litigated."117 Dissatisfaction with the effects of Pate seems to be expressed in the Jackson decision, and this may prove to have far more significance to the administration of criminal justice than the primary holdings. For example, the Court points out:

"The practice of automatic commitment with release conditioned solely upon attainment of competence has been decried on both policy and Constitutional grounds. Recommendations for changes made by commentators and study committees have included incorporation into pretrial commitment procedures of the equivalent of the federal 'rule of reason/ a requirement of a finding of dangerousness or full-scale civil commitment, periodic review by court or mental health administrative personnel of the defendant's condition and progress, and provisions for ultimately dropping charges if the defendant does not improve. One source of this criticism is undoubtedly the empirical data available, which tend to show that many defendants committed before trial are never tried, and that those defendants committed pursuant to ordinary civil proceedings are, on the average, released sooner than defendants automatically committed solely on account of their incapacity to stand trial. Related to these statistics are substantial doubts about whether the rationale for pretrial commitment - that care or treatment will aid the accused in attaining competency - is empirically valid given the state of most of our mental institutions."118 Again, the Supreme Court hints that these issues are ripe for litigation: "However, very few courts appear to have addressed the problem directly in the state context."119

Jackson opened the door to a substantial narrowing of the broad spread of Pate, manifested by the frequent use of the indefinite-commitment process for determination of defendant competency.

"We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal."120

Further, Jackson speaks approvingly of the desirability of permitting some proceedings to go forward despite the defendant's incompetency. Reference is made to the Model Penal Code's providing for an incompetent accused's attorney to contest any issue "susceptible on fair determination prior to trial and without the personal participation of the defendant." Indeed, this is precisely the language of the New York Criminal Procedure Law.1-1 An alternative draft of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Jackson points out that some states even allow the incompetent defendant a trial at which to establish his innocence, without permitting a conviction. This is reminiscent of the landmark 1953 English case of R. v. Roberts.1'" Here the judge required that a trial be held so that the defense might show that the prosecution witnesses could not make out a prima facie case or that the defense had other witnesses, not yet called, who, if believed, would destroy the case that the prosecution would otherwise have made out. As stated by Judge Devlin: "It cannot, I think, be our law that, by some formality of procedure, counsel for the defendant should be prevented from laying matters of that sort before the jury, and so achieving for his client, if he can, a verdict of Not Guilty."123 In Jackson the Supreme Court struck a forceful blow against judicial abuse of the Pate decision when it stated: "We do not read this Court's previous decisions [specifically referring to Pate and Bishop] to preclude the States from allowing, ata minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment or make certain pretrial motions through counsel"124 (emphasis added).

Amnesia. An examination of how amnesia and brain-injured cases are handled, in which the defendant can truly be said to fall short of the Dusky standard and yet in almost every case is indeed required to stand trial, reveals the utter absurdity of the law with respect to the competency issue. In one case a defendant killed his wife and then fired a bullet into his own head, sustaining what the neurosurgeon said was tantamount to a frontal lobotomy. He was convicted, and the conviction was upheld on appeal.12·' The portion of the opinion of the Supreme Judicial Court of Massachusetts relevant to the issue of competency reads:

"The defendant in his post-trial statement to the jury stated as he had earlier, when examined, that he had no memory of events 'after I brought my wife some oil.' He stated to the jury also that he brought the gun 'for my wife's purpose' as 'somebody tried to break in the house.' But the testimony of the confession was evidence, if accepted, that the defendant's memory had not been impaired.

"A possible conclusion may be that the brain injury had blunted the defendant's emotional awareness of the peril of his position; that he knew he might be found guilty but did not care. A person in such a state may not have the usual stimuli to fight for acquittal. But it does not follow that his life has lost all meaning; or that in relation to him punishment for a crime has lost all significance.

"There were of course no precise tests to determine just what had happened to the defendant's brain. Nothing in the testimony establishes that because a 'large portion' of the frontal lobe of the brain was shot away and he was very apathetic and withdrawn for fifteen days, after the operation, he had lost his personality. There was substantial evidence that he had not. He was in court and addressed the jury.

"We conclude that it was not error to decide that the defendant, notwithstanding his illnesses, weaknesses and injury, was sufficiently a human being to be brought to trial, with ability, although impaired, to cooperate in his own defense."126

In another case the defendant, having sustained a fractured skull and rupture of several blood vessels in his brain in an automobile accident while fleeing from the scene of a robbery, remained unconscious for three weeks and afterwards suffered from permanent retrograde amnesia. He had no recollection of any of the events alleged in the indictment. Although he continued to have a partial paralysis and a slight speech defect, he suffered from no mental disease or defect. He was unable, and almost certainly never would be able, to remember anything that happened from the afternoon of the robbery until he regained consciousness three weeks later. Nevertheless, after commitment to St. Elizabeths Hospital for a competency examination and a finding by the hospital that although he was of sound mental health his amnesia rendered him incompetent to stand trial, the court judge held a competency hearing, found him incompetent to stand trial, and recommitted him to the hospital. Fourteen months later the hospital re-examined its position and concluded that there were no grounds for further hospitalization. The amnesia persisted. Faced with the hospital's insistence that hospitalization was not necessary (the hospital can be criticized for admitting the defendant in the first place, and certainly for imprisoning him for 14 months, but also commended for finally refusing to be intimidated by the court), the court held a second competency hearing. In a memorandum opinion finding the appellant competent to stand trial, the judge stated:

"This Court holds that amnesia per se in a case where recollection was present during the time of the alleged offenses and where defendant has the ability to construct a knowledge of what happened from other sources and where he has the present ability to follow the course of the proceedings against him and discuss them rationally with his attorney does not constitute incompetency per se, and that a loss of memory should bar prosecution only when its presence would in fact be crucial to the construction and presentation of a defense and hence essential to the fairness and accuracy of the proceedings.

"The rule to be applied in this case is whether insufficient information concerning the events at the time of the commission of the crime and evidence relating thereto is available to the defense so that it can be said that the presence of such an amnesia as we have here precipitates a situation in which defendant's memory is indeed a faculty crucial to the construction and presentation of his defense."

The United States Court of Appeals, District of Columbia Circuit, in a split decision, essentially affirmed the conviction1-7 but required that the case be remanded for more extensive posttrial findings on the question whether the defendant's loss of memory deprived him of a fair trial and effective assistance of counsel. The following were to be the bases for reconsideration of the case:

1. The extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer.

2. The extent to which the amnesia affected the defendant's ability to testify in his own behalf.

3. The extent to which the evidence in suit could be extrinsically reconstructed, in view of the defendant's amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

4. The extent to which the government assisted the defendant and his counsel in that reconstruction.

5. The strength of the prosecution's case. Whether the government's case is such as to negate all reasonable hypotheses of innocence is most important. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.

6. Any other facts and circumstances that would indicate whether the defendant had a fair trial.128

In a case pertaining to legal proceedings spanning nine years, the United States District Court, D. Delaware,121' finally ruled that the defendant was not denied due process of law by being subjected to a trial when psychogenic amnesia had deprived him of substantial, independent recollection of events occurring on the evening of the crime. The reasoning of the court on the relevance of amnesia to the possibility of a fair trial has applicability to the whole question whether a defendant's mental unfitness should by itself ever preclude trial:

"The cases which have decided that amnesia per se does not establish lack of competence for trial have proceeded on two distinct theories. One is that while amnesia may be relevant as a symptom evidencing a present infirmity in the defendant's reasoning capacity, if the defendant has the present ability to understand the proceedings against him, to communicate with his lawyer and generally to conduct his defense in a rational manner, memory or the want thereof is irrelevant to the issues of competence. . . . The second line of cases proceeds on the theory that lack of memory is relevant to the question of whether the defendant can meaningfully consult with his lawyer and that, while a showing of amnesia is not alone enough, a conviction of an amnesiac cannot stand unless it appears that he was not substantially prejudiced by his impairment. ... I consider the first approach to be the sounder one."130

'The amnesiac's plight is not unique. We know, for example, that the memory of any defendant 'fades' to some degree. The innocent defendant who is arrested several months after the alleged crime and cannot recall where he was on the night in question is not in a dissimilar circumstance. Moreover, we know that defendants may be deprived of direct knowledge of crucial events by circumstances other than loss of memory. 'The plight of an amnesiac differs very little from an accused who was home alone, asleep in bed at the time of the crime.' Most importantly, we know that the defendant's recollection is only one of many sources of evidence which may permit the reconstruction of a past event and that extrinsic evidence far more valuable to the defense than the defendant's own testimony may be lost by reason of death, destruction or other fortuity prior to trial."131

The court quoted approvingly from "Amnesia: A Case Study in the Limits of Particular Justice":132

"Once it is recognized that amnesia is present to some degree in everyone and that its effects on the ability of an individual to assist in his own defense are often hard to distinguish from the disadvantages of many defendants to whom important facts are unavailable for reasons other than amnesia, it should be apparent that it is neither necessary nor appropriate to consider memory failure as a sufficient condition for the interruption of the adjudicatory process to minimize the danger of a miscarriage of justice . The special demands of extraordinary cases should, where possible, be met without losing sight of the fact that a generally effective system of criminal adjudication has been developed around rules of evidence and procedure calculated to insure a workable balance of the interests of the accused, the prosecution, and the court."133

When the State has played no role in the loss of evidence and the loss is permanent or irremediable, courts have been reluctant to find due-process infringement.'34 "... The test is solely whether the state gave the defendant the fairest trial possible under the circumstances. Under this test the petitioner's conviction would clearly be valid. It is undisputed here that the government had nothing to do with petitioner's amnesia and that a continuance would not have resolved the problem. All of the government's evidence was revealed to defendant in the first trial and both the prosecution and the court went out of their way during the second trial to assist the defense in every way possible."135

The Court of Appeals of Kentucky has decreed13" that "some lapse of memory" in the defendant would not rule out substantial capacity to participate rationally in his defense.

In a case in which the court was of the opinion that the defendant's amnesia may have affected his ability to testify, that the prosecution's case may not have been strong enough to guarantee his guilt beyond a reasonable doubt, and that he might be deprived of a fair trial, the prosecution was ordered to open all files to the defense counsel.137

The New York courts have made it clear that amnesia would be given little weight if advanced to support an incompetency plea. In a 1972 case the Nassau County Court stated:

"Unless an accused is legally insane, the law is not and should not be so unrealistic and foolish as to permanently free, without acquittal by a Judge or jury, a person against whom a prima facie case of murder is made out. The latter reasoning is based upon the serious question of whether a person, who is accused of a crime and who is accurately oriented in all respects except that he is suffering from amnesia, may be committed to a mental institution to await the day he can recall the facts and circumstances surrounding the alleged crime. It is this court's view that Article 730 of the Criminal Procedure Law of New York does not permit such a commitment unless a finding of mental disease or defect is made. The defendant herein is able to discuss the case with counsel. Evidence can be reconstructed extrinsically and by the assistance of the District Attorney. Based upon the psychiatric report, the testimony elicited at the hearing hereon and the foregoing discussion of the law, this court concludes that the defendant is fit to proceed to trial."138

In denying an order that declared the defendant to be an incapacitated person and unfit to stand trial, the Dutchess County Court stated:

"The test to be made in a case such as this is whether a defendant has possession of such mental facilities as to be able to understand the nature of the charge made against him and to make his defense. After considering the entire evidence in this matter, the Court concludes that an amnesic defendant such as we have in this case is not an incapacitated person defined in Criminal Procedure Law, 730.10, subdivision 1, and that he is fit to proceed to trial. By definition under the aforementioned section, this defendant does not lack capacity to understand the proceedings against him even though amnesia may prevent him from recalling facts immediately surrounding the alleged criminal act he is charged with committing. It is this Court's opinion the defendant is able to discuss the case with his attorney and that evidence can be reconstructed extrinsically and by the assistance of the District Attorney."139

The Court of Appeals of New York recently considered the case of a defendant who, apparently intoxicated, had fired a shotgun at bystanders and then fired a rifle at the police as they arrived. He was wounded in the head when the police returned the fire, leaving him with the inability to recall anything that occurred after he was cleaning a gun at home and before he woke up in the hospital. The court ruled that the defendant, suffering from retrograde amnesia to the extent that he was unable to recall the events surrounding the crimes with which he was charged, was not an incapacitated person within the meaning of the Criminal Procedure Law; i.e., he met the Dusky standard of competence, and was properly convicted.140

Koson and Robey141 have argued that there is a need for the psychiatrist to understand the nature of amnesia so that he may assist the court in its adjudication of competency to stand trial. They offer a sophisticated classification of amnesia and suggest treatment methods for the types associated with repression and reversible brain damage. They believe that temporary, treatable amnesia may warrant a finding of incompetency. They would divert the talents of psychiatrists to the task of dealing with amnesia per se, getting the defendant into good condition for the trial, rather than concentrating on treating the patient, if indeed he needed treatment. They point out that considerable diagnostic skill may be necessary to distinguish between functional and organic, temporary and permanent, genuine and feigned amnesia. The courts are not likely to make use of this expertise even if it were easily available. The Supreme Court of Alaska recently held that amnesia, be it partial or total, is not an adequate ground for a declaration of incompetency to stand trial.142 It was of the opinion that the potential for fraudulent allegations of memory loss is so great that it would for this reason alone be reluctant to allow amnesia as a ground for a finding of incompetency even if it were otherwise inclined to do so. As Koson and Robey themselves observe: "It of course can be mentioned that one of the most striking recall exercises is the actual trial itself. "143

The medicated defendant. The matter of treating a defendant with medication so that he can meet the competency requirements has by no means been settled as a result of the dicta applicable to the few cases that have been reviewed by appellate courts. Certainly, if the death penalty is restored, there will be a tendency to reverse convictions on appeal, using any reasonable loophole possible. This was quite evident in the 1960 case cited by G.A.P.,144 in which the Supreme Court of Washington unanimously ruled that "it reasonably appears that the attitude, appearance, and demeanor of the accused may have been influenced by the tranquilizer drugs, administered to him under at least a semblance of authority or approval from the public officers who had custody over him, and taken by the accused apparently without awareness of their probable effect upon him."145 "Each case of this type must be decided on its own facts," the court stated,146 and a defense attorney who loses his case could not be faulted were he to attempt to obtain a reversal of a conviction on the basis of the effects that tranquilizing medication exerted on the defendant.

Judges have refused to allow defendants to come to trial while under medication, because they are only "synthetically sane" even though psychiatrists have attested to their competence and the defendents have requested trial. Although the Supreme Court of Louisiana ruled against the trial judge in one such case,147 what frequently happens is that the judge sends the defendant back to the hospital that declared him competent. Sometimes a case will be remanded on appeal if a court fails to hold a hearing or trial on the competency issue after a period of hospitalization for incompetency,148 sometimes not.149 Not uncommonly a defendant requesting trial after a period of hospitalization will not be allowed to stand trial on the basis of a hearing in which a "battle of the experts" occurred.150

The above-described time-consuming, contradictory, often illogical practices can be avoided only by eliminating the competency issue entirely.

ABANDONMENT OF THE INCOMPETENCY ISSUE

Proposals for the elimination of the incompetency plea that have so far been made have fallen short of total abolition. Burt and Morris151 have urged that the maximum permissible commitment of those found incompetent to stand trial be set at six months. They propose that before trial is ever delayed solely on the ground of a defendant's incompetency, a court must specifically find that there is a "substantial probability" that the defendant will be competent to stand trial "within the foreseeable future." Thus, the proposal advanced by these authors would not eliminate the need to hold competency hearings in which psychiatric and psychologic manpower, instead of being liberated for helping patients, would be devoted to testifying about issues that are not really medical ones.

Similarly, the recommendations of the Committee on Federal Legislation of the New York Bar Assocation, while proposing significant advances, do not reach the needed reforms.152 The committee suggests that a defendant should have the right to insist on a trial, regardless of whether the court or other third parties consider him to be competent. If the defendant insisted on a trial and was convicted, a new trial would be ordered only in the event that an improvement in the defendant's mental condition led to grounds for belief that a different result might follow a second trial. The committee would not change present law in cases where the defendant or his counsel affirmatively asserted incompetency. In that event it is incorrectly assumed that such a defendant would automatically be incarcerated ("hospitalized") until he is competent. This clearly overlooks the mandate of Jackson v. Indiana, and it ignores the state's legitimate interest in public safety, requiring that some incompetent defendants be tried notwithstanding their trial disadvantage. As pointed out by Burt and Morris,153 "The conflicting interests of the state and mentally incompetent defendants cannot be reconciled by Solomonic devices: the community's needs to identify a harmful actor and protect itself against him is not diminished in urgency or in justice by the fact that he is mentally disabled."

Thus, the ineluctable conclusion is reached: Since both the individual and society have become the victims of a principle designed for their mutual protection,154 the interests of justice and humanity are best served by eliminating the issue of mental unfitness to stand trial.

The following safeguards proposed by Burt and Morris would be necessary, of course, to make such a conclusion morally and Constitutionally acceptable:

1. Before trial, the court shall review all the evidence that the prosecution intends to offer at trial and shall order pretrial disclosure of evidence that would materially assist the defendant in overcoming the mental disabilities under which he labors. Disclosure of evidence that may endanger the lives of witnesses, or in any way promote substantial injustice, shall not be ordered.

2. On motion for directed verdict, either before or after jury deliberation, the court shall demand from the prosecution a higher burden of proof than would obtain in an ordinary criminal prosecution, and the court shall insist on extensive corroboration of the prosecution's case with respect to issues on which the defendant is likely to be prevented by his disability from effective rebuttal.

3. If the trial is before a jury, the court shall instruct the jury that, in weighing the evidence against the defendant, it should take into account, in the defendant's favor, the disabilities under which he went to trial. (For example, if medication seriously interferes with his trial conduct or appearance, but the defendant is substantially impaired without such drugs, the jury should be given a cautionary instruction at the beginning of trial explaining that the defendant's odd appearance and his nonparticipation at trial are products of the tranquilizing drugs, thus mitigating the deleterious aspect of the drug's use.) If the trial is before the judge sitting alone, he shall take account of those disabilities.

4. Any conviction should be set aside if evidence that was not available for trial because of the defendant's incompetence subsequently becomes available and might have led at trial to a reasonable doubt regarding the defendant's guilt.155

Until now, it has been argued, even by those who would favor its elimination, that the issue of a person's ability to stand trial has a pragmatic appeal, since it provides the necessary flexible method to deal with troublesome persons who, for one reason or another, escape the ordinary criminal-law process and civilcommitment procedures.156 In measuring the test on the basis of whether the good results exceed the bad, however, the pendulum has swung well over to the side of abolishing the issue.

The following advantages of abolishing the denial of trial on the grounds of mental unfitness can be seen:

1. Bail will be available to mentally disordered defendants on the same basis as to those who are not mentally ill.

2. Treatment, when indicated, can be administered without regard to the legal procedures followed by the prosecutor or defense attorney; i.e., if a defendant is on bail and desires treatment, he can receive it in the community to the same degree as can other citizens. If he is not on bail, he can be treated either in the place of detention or in a hospital, in accordance with the prevailing civil-commitment statutes.

3. The defendant, if mentally disordered to the degree that would ordinarily prevent his participation in a trial, could be restored to competence in most cases by the time the prosecution and defense had completed their preparation for the trial and the backlog of court cases had been processed. Under the present system, the adversaries commence their preparation only after the defendant has been held (usually after a new court hearing) to be competent.

4. The defendant would be able to participate in the customary plea- and sentence-bargaining processes, denied him under the current system. This would be the avenue followed in the disposition of the vast majority of cases, as it is at the present time for competent defendants.

5. The time-consuming hearings or jury trials to determine incompetency would be eliminated.

6. The abuses whereby judges and prosecutors arrange for competency examinations, often requiring up to 60 days of hospitalization, over the objection of the defendant's attorney, would be eliminated.

7. The "battle of the experts" by psychiatrists and other professionals in the determination of competency to stand trial would end, and the man-hours thus saved would be spent in therapeutic activity.

Since adequate safeguards to protect the Constitutional rights of defendants can be developed, the interests of fairness and justice to the community and to the defendant cry out for abolition of the issue of ability to stand trial. It is proposed that the American Psychiatric Association, following the notable precedent of Federal Judge Frank M. Johnson of the United States District Court, M. D. Alabama,157 in connection with improving treatment resources in state mental institutions, put the legislatures on notice that its membership will be advised to withdraw from participation in competency examinations after a specific period - say, five years - unless the necessary statutory changes are enacted.

INTERIM GUIDELINES

In the meantime, the following guidelines, incorporating the recommendations of the G. A. P. Report,15* are suggested for psychiatrists who are requested or directed to examine defendants believed mentally unfit to proceed:

1. "They should, whenever possible, attempt to participate in the initial screening process when the issue of competency is first raised."

2. If such attempts are thwarted, the competency determination should not be undertaken unless the court makes available to the psychiatrist the "reasonable grounds" for its opinion that the defendant is an incapacitated person.

3. The psychiatrist should contact the defendant's attorney to learn whether the impending competency examination meets with the attorney's approval. He should be on guard against possible misuse if the defendant's attorney objects to the examination or if the examination was ordered without his knowledge. Notwithstanding the current legitimacy of the examination on the motion of the prosecutor or independent demand of the judge, a question of violation of medical ethics may well exist if the psychiatric examination is performed over the defense attorney's objection. (An incompetency determination and pretrial commitment made over a defendant's objection may bring grave costs for the accused. First, since he is denied an opportunity to prove his innocence or to show that the prosecution's case is defective, he may be confined for a crime that he did not commit or for which he could not be convicted. Second, the long delay in trial that often follows from a finding of incompetency may cause the loss of evidence essential to the question of the defendant's guilt. And while this hazard threatens both prosecution and defense evidence, the result is particularly serious if the defendant's ability to defend on the merits is impaired, as it is likely to be, since facilities for gathering and preserving evidence are not readily available to a committed person.159)

4. The psychiatrist may discover that no defense attorney is in fact involved. This is frequently the case, especially in minor misdemeanor charges, despite the right to "assistance of Counsel" embodied in the Constitution by the Sixth Amendment over 183 years ago and the increasing extension of this right to defendants in state courts over the past 10 vears. When a defendant in a criminal action is ordered to undergo a competency examination and no defense attorney has been employed or assigned, misuse of psychiatry should be automatically assumed. That such a practice is all too common may come as a shock to the uninitiated. Its occurrence in the San Diego area has led the local district branch of the American Psychiatric Association to draw its members' attention to the fact that suspected felons are brought to psychiatrists for examination before arraignment "and, therefore, of course, prior to the suspects having any defense attorney present or appointed." However, instead of pointing out that accused persons in such circumstances are inherently incapable of giving competent, knowledgeable, and voluntary (i.e., legally adequate) consent to such a psychiatric examination, the San Diego Psychiatric Society approved a position paper that sanctions a prearraignment examination under ostensibly useful, but clearly spurious, safeguards.100

5. Psychiatrists in receiving hospitals and hospitals for the criminally insane to which defendants are sent directly (i.e., without preliminary screening by psychiatrists) should examine the defendant "on the day of arrival, and if a decision of competency can be reached at that point," they should immediately return the defendant to the referring court. Such a step is authorized by the almost universal statutory provision calling for hospitalization of "no more than ? number of days" for the competency assessment. Hospital psychiatrists should be especially alert to their vulnerability to misuse, because accessibility to persons who can provide necessary information concerning the defendant is inversely proportional to the distance between the hospital and the referring court.

6. Before conducting the competency examination, psychiatrists should insist on being provided with a copy of the accusatory instrument relating to the defendant1"1 as well as a copy of the arresting police officer's report. This information could be invaluable to the psychiatrist in determining whether the defendant understands the charges against him.

7. If the defendant is judged incompetent after appropriate hearings or trial, the treating psychiatrist should work towards early return of the defendant to court, bearing in mind that competency to proceed, not cure of mental disorder, is the issue, and that prolonging hospitalization beyond the attainment of "a reasonable degree of rational understanding" is frequently "detrimental to the defendant's mental health" and denies him the right to a speedy trial.

8. Should the psychiatrist decide that the defendant is unlikely ever to acquire competency, the court and attorneys should be promptly notified so that appopriate further disposition of the defendant, who can now properly be called the patient, can be made. When warranted, this should include the dismissal of charges.

9. At whatever point in the psychiatric evaluation it is decided that the defendant is not dangerous, the judge and attorneys should be notified at once so that reasonable bail can be arranged. If the defendant has already been judged incompetent when nondangerousness has been determined and treatment to restore competency is still required, every effort should be made to provide outpatient treatment.

SUMMARY

The issue of a person's fitness to stand trial has resulted in an increasing misuse of psychiatry by the criminal courts. Its elimination would serve the best interests of justice, from the point of view both of the community and of the criminal defendant. In my opinion, legislatures should be put on notice that the American Psychiatric Association will encourage its members not to participate in competency examinations of defendants unless statutory changes abolishing the triability issue and establishing safeguards to protect the Constitutional rights of mentally disabled defendants are enacted by a specific date. In the interim, psychiatrists engaged in examination of defendants should be alert to the prevailing dangers of misuse of psychiatry in the pretrial phase of proceedings in the criminal justice system.

BIBLIOGRAPHY

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3. Group for the Advancement of Psychiatry. Misuse of Psychiatry in the Criminal Courts: Competency to Stand Trial, Vol. VIII, Report No 89, Feb., 1974, p 885

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8. Pate v Robinson, 383 U.S. 375 (1966).

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11. G.A.P. Report, op. cit.

12. Ibid., p. 883.

13. Slovenko, R. Psychiatry and Law Boston: Little, Brown and Company, 1973, p. 96

14. G.A.P. Report, op. cit., p. 883.

15. Ibid., p. 882.

16. Szasz, T. S. Law, Liberty and Psychiatry. New York: The Macmillan Company, 1963, p. 161.

17. G.A.P. Report, op cit., p. 883.

18. McGarry, A. L. The fate of psychotic offenders returned for trial. Amer. J. Psychiat. 127:9 (March, 1971), 1182.

19. G. A. P. Report, op. cit.. pp. 883, 884.

20. Ibid., p. 884.

21. Ibid.

22. Slovenko, op. cit., p. 95.

23. Ibid., p. 103.

24. Bukatman, B. A., Foy, J. L., and DeGrazia, E. What is competency to stand trial? Amer. J. Psychiat. 127:9 (March, 1971), 1225-1229.

25. Dusky v. United States, 362 U.S. 402 (1960).

26. G.A.P. Report, op cit., p. 891.

27. Ibid., p. 906.

28. Ibid., p. 891.

29. Jefferson, T. Letter to William Johnson, June 12, 1823. In J. Leg. Med. 2: 1 (Jan. / Feb.. 1974), 10.

30. People v. Francabandera, 33 N.Y. 2d 429 (1974).

31. Slovenko, op. cit., p. 95.

32. Ibid., p. 94.

33. Chayet, N. L. Editorial: The overturning of another landmark. Amer. J. Psychiat. 129:3 (Sept., 1972), 333.

34. Ennis, B. J., and Friedman, P. R. (eds.). Legal Rights of the Mentally Handicapped, Vol. 3. Practicing Law Institute, the Mental Health Law Project, 1973, p. 1472.

35. Wieter v. Settle, 193 F. Supp 318 (1961).

36. Ibid., p. 322.

37. Ibid. Quoting Burger. Cir. J.'s limited, concurring opinion in Blocker v United States, 288 F.2d 853 (D.C. Cir. 1961).

38. G.A.P. Report, op. cit.. p. 895.

39. Ibid., p. 894.

40. Hess, J. H., Jr., and Thomas, H. E. Incompetence to stand trial: Procedures, results, and problems. Amer. J. Psychiat. 7 79:8 (Feb., 1963), 713-720.

41. Ibid., p. 720.

42. G.A.P. Report, op. cit., p. 898.

43. Ibid., Appendix B. p. 916.

44. Bukatman, Foy, and DeGrazia, op. cit.

45. Robey, A. Criteria for competency to stand trial: A checklist for psychiatrists Amer. J. Psychiat 122:6 (Dec. 1965), 616-623.

46. McGarry, A. L. Competency to stand trial and mental illness In Crime and Delinquency Issues. NIMH Monograph Series, HEW Publication # (HSM) 73-9105 Rockville, Md.: HEW.

47. Lipsitt, P. D., Lelos, D., and McGarry, A. L. Competency for trial: A screening instrument. Amer. J Psychiat. 728:1 (July, 1971), 105-110.

48. Goldstein. N. The competency problem: Where are we going? Newsl. Amer. Acad. Psychiat. and the Law 3:4 (July, 1972), 26.

49. United States v. Horowitz, 360 F. Supp. 772 (1973).

50. G.A.P. Report, op cit., p. 898.

51. Ibid.

52. Sadoff, R.L., Polsky, S., and Heller, M.S. The forensic psychiatry clinic. Model for a new approach Amer. J. Psychiat. 723:11 (May, 1967), 1403.

53. Ibid., p. 1404.

54. Slovenko, op cit., p. 136.

55. Rosenberg, A. H. and McGarry, A. L. Competency for trial: The making of an expert. Amer. J. Psychiat. 128:9 (March, 1972), 1092-1096.

56. Balcanoff, E. J., and McGarry, A. L. Amicus curiae: The role of the psychiatrist in pretrial examinations. Amer. J. Psychiat. 126:3 (Sept., 1969), 342-345.

57. Gray, S. H. The insanity defense: Historical development and contemporary relevance. Amer. Crim. Law Rev. (Spring. 1972) In Hearings Before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, United States Senate, July 18, 19. 1973, Part VIII, pp 6491-6507.

58. United States v. Schappell, 445 F.2d 716 (1971).

59. Proctor v. Harris, 413 F.2d 383 (D. C. Cir. 1969).

60. Gray, op. cit , pp 6504, 6505.

61. Slovenko, op. cit., p. 138.

62. Goldstein, T. Bargaining with justice. New York Times, May 5, 1974, p. 21.

63. New York Times, Sept 19, 1974, p. 1.

64. Goldstein, op. cit.

65. Morris, N. Psychiatry and the dangerous criminal. S. Cal. L. Rev. 41: 514 (1968), 525.

66. Psychiatric News, July 17, 1974, p 3.

67. Stone, A. A. The right to treatment and the psychiatric establishment Psychiatric Annals 4. 9 (Sept., 1974), 23.

68. People v. Francabandera, op. cit.

69. Morley, J. In Senate Judiciary Committee Hearings, op cit., p. 6460.

70. G.A.P. Report, op cit , p. 907.

71. Ibid.

72. Ibid., pp 862, 886, 889, 902, 905, 908.

73. Amendments to New York State Correction Law and Criminal Procedure Law, Chapter 629, Laws of 1974.

74. G.A.P. Report, op. cit., pp. 908, 909.

75. Sfafe ex rel. Haskins v. County Court of Dodge County, 214 N.W. 2d 575 (1974).

76. Jackson v. Indiana, 406 U.S. 715 (1972).

77. Walker v. Jenkins, 203, SE.2d 353, 357 (1974).

78. United States v. Wood, 469 F.2d 676 (1972).

79. G.A.P. Report, op. cit., p. 899.

80. Wilson v. United States, 391 F.2d. 460 (1968).

81. Editorial Comment: Incompetency to stand trial. Harv. L. Rev. 81 (1967), 454, 469.

82. People v. Kurtz, 336 N.Y. S.2d 322 (1972).

83. Ennis, B.J., and Friedman, P.R. (eds.) Legal Rights of the Mentally Handicapped, Vol. 2. Excerpts from Defendant's Brief Practicing Law Institute, the Mental Health Law Project, 1973, pp. 1127-1141.

84. United States ex rei von Wolfersdorf v. Johnston, 317 F. Supp 66 (1970).

85. Ennis, op. cit., p. 1129.

86. Ibid., p. 1132.

87. United States v. McWilliams, 69 F. Supp 812 (1946).

88. Ennis, op. cit., p. 1136.

89. Ibid., pp. 1136, 1137.

90. Ibid., p. 1141.

91. State ex rel. Hawks v. Lazaro, 202 S.E. 2d 109 (1974).

92. Ibid., p. 118.

93. Ibid.

94. Pare v. Robinson, op. cit.

95. Bishop v. United States, 350 U.S. 961 (1956).

96. New York State Criminal Procedure Law, Sec. 730.30, Subdiv. 1.

97. Kent v. United States, 383 U.S. 541 (1966).

98. Handbook for New Juvenile Court Judges. Juvenile Court Journal 23:1 (Winter, 1972), 12, 13.

99. Kent v. United States, op cit., p. 555.

100. State ex rel. Walker v. Jenkins, 203 S.E.2d. 353 (1974).

101. In re Gault, 387 U.S. 1 (1967).

102. Handbook for New Juvenile Court Judges, op. cit., pp, 13, 14.

103. In the Matter of Samuel Winship, 397 U.S. 358 (1969).

104. Illinois v. Allen, 397 U.S. 337 (1970).

105. United States ex rel. Allen v. Illinois. 413 F.2d 232 (1969).

106. Illinois v. Allen, op cit., p. 347.

107. Ibid., p. 350.

108. People v. Allen, 226 N E 2d 1 (1967).

109. Illinois v. Allen, op. cit., p. 351.

110. Ibid., pp 356, 357.

111. Ibid., pp. 351, 352.

112. Ibid., p. 352.

113. Jackson v. Indiana, op. cit.

114. Ibid., p. 731.

115. Greenwood v. United States, 350 U.S. 366 (1956).

116. Jackson v. Indiana, op cit., p. 738.

117. Ibid., p. 737.

118. Ibid , P 734.

119. Ibid.

120. Ibid., p. 738.

121. New York Criminal Procedure Law, Sec 730.60. Subdiv. 5 (1971).

122. R. v. Roberts, 2 A 11 ER 340(1953). In Katz, J., Goldstein. J., and Dershowitz. A. M. Psychoanalysis, Psychiatry and Law. New York: The Free Press, 1967. p. 580.

123. Ibid., pp. 581, 582.

124. Jackson v. Indiana, op. cit., p. 741.

125. Commonwealth v. Harrison, 173 N.E.2d 87 (1961).

126. Ibid., p. 97.

127. Wilson v. United States, op. cit.

128. Ibid., pp 463, 464.

129. United States ex rei Parson v. Anderson, 354 F Supp 1060 (1972).

130. Ibid., p. 1071.

131. Ibid., p. 1072.

132. Editorial Comment: Amnesia: A case study in the limits of particular justice Yale, L.J 71 (1961), 109, 136.

133. United States ex rel. Parsons v. Anderson, op cit., pp. 1072, 1073.

134. Ibid., p. 1073.

135. Ibid., p. 1074.

136. Dye v. Commonwealth, 477 S W.2d 805 (1972).

137. United States v. Stubblefield, 325 F.Supp 485 (1971).

138. People v. Soto, 68 Misc. 2d 629 (1972).

139. People v. Pisco, 69 Misc. 2d 675 (1972).

140. People v. Francabandera, op. cit.

141. Koson, D., and Robey, A. Amnesia and competency to stand trial. Amer. J. Psychiat. 130:5 (May, 1973), 588-591.

142. Fajeriak v. State, 520 P.2d 795 (1974).

143. Koson and Robey, op. cit., p. 591.

144. G.A.P. Report, op. cit., p. 903.

145. State v. Murphy, 355 P.2d 323 (1960).

146. Ibid., p. 327.

147. State v. Hampton, 218 So.2d 311 (1969).

148. Parks v. State. 290 So.2d 562 (1974).

149. Brackett v. State, 181 SE 2d 380 (1971).

150. People ex rel. Melone v. Johnston, 323 N.Y.S.2d 246 (1971).

151. Burt, R A., and Morris, N. A proposal tor the abolition of the incompetency plea. U Chi. L Rev 40 (1972), 66.

152. The dilemma of mental issues in criminal trials. N.Y.S. Bar Journal 41 (Aug., 1969). 394.

153. Burt and Morris, op. cit., p. 81.

154. Hess and Thomas, op. cit., p. 713.

155. Burt and Morris, op. cit., pp 86, 94, 95.

156. Slovenko, op. cit., p. 107.

157. Wyatt v. Stickney, 344 F Supp. 373 (1972).

158. G.A.P. Report, op. cit., p. 909.

159. Editorial Comment: Incompetency to stand trial, op. cit., pp. 454, 456.

160. Goldzband, M.G. Baselines, guidelines and standards in forensic psychiatry in San Diego. Dicta 21:7 (July, 1974), 11-15.

161. Bill No. A11366 and Bill No A2113 - introduced in the 1971-72 and 1972-73 sessions respectively of the New York State Legislature by Assemblyman Herbert A Posner, amending the Criminal Procedure Law to require that the psychiatrist, before he makes the examination, be given a copy of the accusatory instrument relating to the defendant and a brief statement of the grounds on which the defendant's fitness to proceed is being questioned, along with the name, address, and telephone number of his counsel - were never voted out of the Codes Committee.

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