Commentary: Training for competence--form or substance?

In this issue of the Journal, Wall et al. describe a program designed to restore to competency mentally retarded defendants who have been found incompetent to stand trial (IST). Clearly, individuals with mental retardation vary in their ability to engage in life activities and cognitive processes. For the sake of this discussion, however, I will refer to mentally retarded individuals as if they were fairly uniform in their level of ability. Wall et al. describe a detailed training program that uses a variety of strategies to improve the organizational and cognitive skills of mentally retarded defendants in order that the latter may return to the criminal justice process and have their charges adjudicated. With this population of IST defendants, the issue usually is less often “restoration” of competency and more commonly creation of competency where none existed before because of cognitive and behavioral deficits. Wall et al. clearly describe theirs as a training, rather than an education or restoration, program. I am concerned that competency training for individuals with mental retardation, even with attention to specific elements of competency as described by Wall et al., may lead to apparent attainment of the technical standard for competency to stand trial (CST) without developing the level of understanding necessary to be an informed participant in the trial process. As a result, there is a risk that the competency attained may be more form than substance, and the goal of ensuring that criminal defendants can meaningfully participate in their own defense will not be attained. The principle that trial of an incompetent individual violates the constitutional guarantee of due process is well established. Requiring that a criminal defendant be competent to stand trial serves several purposes. First, the dignity of the criminal justice system is preserved by trying only those individuals who are fit for prosecution and punishment by virtue of being morally accountable. Second, the reliability of the proceedings is enhanced when the defendant can participate in a meaningful manner, such as by recalling critical facts and events. Finally, our legal system is premised on the notion that the defendant will play a key role in making specific decisions regarding the proceedings. Thus, there is an expectation that the defendant will possess some decisionmaking capacity rather than being entirely passive. Like many legal concepts, CST is reasonably clear in its definition but more vague in its application. At times, it bears a resemblance to Justice Stewart’s definition of pornography: “. . .I know it when I see it. . . .” This remains the case despite efforts by many researchers to objectify the assessment of CST through various instruments and rating scales. In the United States, the standard for competency to stand trial was established in Dusky v. U.S. Whether the defendant “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 a factual understanding of the proceedings against him.” The standard of proof for establishing incompetence is “preponderance of the evidence.” In Godinez v. Moran, the Supreme Court described some of the complex decisions that a criminal defendant is asked to make during the course of a trial: