NCJ Number
86544
Journal
Syracuse Law Review Volume: 33 Issue: 2 Dated: (Spring 1982) Pages: 477-531
Date Published
1982
Length
55 pages
Annotation
Both the plea of incompetency to stand trial and the special defense of insanity to a criminal charge should be abolished. A special approach should be adopted for trying unrestorable incompetent defendants -- those who protractedly or permanently suffer serious psychological or physical (deaf-mutism) disadvantages.
Abstract
The cases of Jackson v. Indiana and Donald Lang, the subject of litigation in People ex rel. Myers v. Briggs, demonstrate that those accused of crime should be brought to trial, despite their mental illness or retardation. Special rules of court procedure dealing with pretrial disclosure, onus and burden of proof, corroboration, jury directions, and new trials appropriate to the particular circumstances must, however, be built into the system. The mentally ill or retarded must not be detained merely because they are charged with crimes. All States, the District of Columbia, and the Federal Government prohibit the trial of the incompetent and have broadly similar criteria of incompetency. The Jackson decision compelled these jurisdictions to confront the problem of the unrestorable incompetent. Most States have provided for the hearing of pretrial motions though the accused be unfit for trial if the defendant's presence is not essential to a fair determination of the issues. Three main approaches may be followed in handling the problem of the unrestorable incompetent defendant. These include civil commitment (the rule in Jackson), trial of the unrestorable incompetent (the Burt-Morris recommendation), and 'innocent only' trial. The article considers the advantages and disadvantages of each approach. In addition, the author recommends substituting a qualified defense of diminished responsibility for the special defense of insanity. He analyzes how the law would operate under the proposed abolition and under the alternative substitution of diminished responsibility and repudiates the main criticisms of the abolition proposal. The solution offered to the problem of the unrestorable incompetent is to require the State to pursue either civil commitment or to take the incompetent accused to trial under rules of court procedure designed to compensate so far as practicable for his incompetency. Michigan legislation, which allows juries to find defendants guilty but mentally ill is examined. A total of 189 citations are included.