Reforming Incompetency To Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie

• NCJ Number: 155580
• Journal: Journal of Criminal Law and Criminology Volume: 85 Issue: 3 Dated: (Winter 1995) Pages: 571-624
• Author(s): B J Winick
• Date Published: 1995
• Length: 54 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article reviews the author's previous proposal for a radical restructuring of the incompetency doctrine and refines and expands the thesis; it also responds to Professor Richard Bonnie's recent criticisms of the initial proposal and compares Professor Bonnie's approach to the author's approach.

Abstract

Section II reviews the historical origins of the incompetency doctrine and its modern justifications; it describes existing practices, along with the costs and burdens they impose. Section III offers several proposals for a broad restructuring of the incompetency doctrine. A central feature of the overall proposal is that the law should distinguish between cases in which defendants seek an incompetency determination and its resulting postponement of the criminal proceedings and cases in which defendants object to an incompetency determination, preferring to proceed to trial or to accept a guilty plea, notwithstanding their mental impairment. For defendants who assert their incompetency as a bar to trial, courts should substitute a system of trial continuances for the formal incompetency process. For those who object to an incompetency determination, courts can and should permit them to waiver the "benefits" of the incompetency doctrine in cases in which counsel either recommends such waiver or concurs with the defendant's preference. Section III also analyzes the constitutionality of permitting this waiver by a defendant whose decisionmaking and communicative abilities are reduced by mental illness; this waiver can be both constitutional and consistent with the purposes of the incompetency doctrine. The author also suggests that courts should apply a lower standard of competency in cases in which the defendant seeks an incompetency determination than in cases in which the defendant objects to an incompetency determination. The author proposes the adoption of a procedural presumption in favor of competency in cases in which the defendant's lawyer recommends waiver of the protections of the competency doctrine or concurs with the defendant's choice to waiver this protection. The article concludes that Professor Bonnie's approach and the author's approach are essentially consistent and that their adoption would harmonize the incompetency doctrine with its underlying purposes. 233 footnotes