Who's Competent Now?


The US Supreme Court heard oral arguments in early October in two cases relating to death row inmates. The cases —Tibbals v. Carter (from Ohio) and Ryan v. Gonzalez (from Arizona)—focus on the issue of how long habeas appeals should be stayed if the death row inmate is incompetent to proceed.

Gonzalez was sentenced to death in 1992, and Carter in 1997.

These appeals proceedings are “on the record” only, meaning that there is no new testimony, no new trial. Rather, the appeal focuses only on the record generated in lower courts.

As such, the role of the participant is, presumably, limited.

In the oral arguments, there was some discussion about the amicus brief filed by the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL).

The only point made in this brief that was cited in the oral arguments was the assertion that most criminal defendants who are incompetent can be rendered competent in a relatively short period of time—perhaps six to nine months.

For example, data cited by the APA/AAPL brief indicates that 78.5% of defendants found incompetent to stand trial become competent within 6 months, and 87.3% become competent within 9 months.

I have done hundreds of criminal competency assessments, and I have overseen the treatment and management of hundreds of defendants found incompetent to stand trial and committed to the state hospital where I have worked for over 11 years.

At our hospital, the average length of commitment for an IST defendant is about 80 days.

It is certainly true that a large majority of defendants accept treatment and become competent in a relatively short period of time: weeks to months.

However, a plurality of individuals refuse treatment and cannot be forced to accept it (see Sell v US).

In addition, there is a group of individuals who have illnesses that do not improve despite treatment, or who have severe cognitive impairments from dementia or mental retardation, and who therefore can never become competent.

We do not yet know how the Supreme Court will rule in these cases.

The states made strong arguments that any stays of proceedings must be limited in order to meet the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to speed up death penalty executions.

One must wonder: if the Supreme Court limits the length of such a stay, what will happen to those defendants who do not become competent during the period allowed?

Will their cases proceed without their participation?

Where is the justice here?

One hopes that the Supreme Court follows the recommendation of my colleagues at APA and AAPL.

More to follow when the ruling comes down. Stay tuned.

Erik Roskes, a regular blogger for The Crime Report, is a forensic psychiatrist and serves on the teaching faculty in the Psychiatry Department at the University of Maryland School of Medicine. The opinions expressed are those of the author only, and do not represent those of any of Dr. Roskes' employers or consultees, including the Maryland Department of Health and Mental Hygiene. He welcomes readers' comments. Dr. Roskes' website is http://mysite.verizon.net/eroskes.

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