One advancement in legal civil rights is the requirement for defendants to be deemed competent before standing trial.

Milton Dusky was charged with kidnapping and rape and despite being diagnosed with schizophrenia, he was convicted.¹ A writ of certiorari filed with the U.S. Supreme Court argued for a reversal of his conviction on the grounds that he was not competent to stand trial.² In 1960, the Court granted the writ, ruling that a defendant must have sufficient ability to consult rationally with a lawyer and have a logical and factual understanding of the proceedings.³

This ruling was incorporated into the Michigan Health Code in 1974.⁴ It states that:

[a] defendant to a criminal charge shall be presumed competent to stand trial [and] determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or assisting his defense in a rational manner.⁵

Michigan has a unique system regarding competency evaluations. Whenever a prosecuting attorney or court wishes to question competency, defendants are referred to a state facility, the Center for Forensic Psychiatry.⁶ There, a competency evaluation is conducted, and the center issues a written opinion.⁷ Subsequently, a defense attorney may retain an independent psychiatrist or psychologist to render a second opinion.⁸ If the independent psychologist disagrees with the center’s opinion, a competency hearing is held.⁹ Each side presents its data and conclusions, and the presiding judge determines the outcome.¹⁰ Defendants ruled incompetent may be ordered to participate in a restoration of competency procedure if the court determines there is reasonable probability for restoration.¹¹

The state has several facilities housing these individuals where medication and coaching are used to treat mental health disorders and restore competency, which is defined by the courts in terms of cognitive abilities or acquisition of thinking through senses, thought, and experience.¹² Skills necessary to pass a competency exam are attainable for most with low- or average cognition.

Two classes of defendants may be found incompetent to stand trial.¹³ The first are those going through psychotic episodes which present as scrambled thoughts, distortions of reality, and uncontrollable moods.¹⁴ Often, such individuals are prescribed medications that lessen the thought disorder, enable clear thinking, and facilitate competency restoration. The second are the developmentally disabled who have severe deficits in thinking ability caused by a lack of brain development.¹⁵ Unlike psychoses, which are transient abnormalities, developmental disabilities are not treatable.

A developmentally disabled person is defined as someone with an IQ of 70 or less.¹⁶ Most of us are familiar with the bell curve of intelligence¹⁷ that plots the distribution of intelligence in the general population. It includes four classes of developmentally disabled persons ranging from mild (IQs from 55 to 70) and moderate (40 to 55) to severe and, finally, profound, both of which describe individuals who rarely acquire language, often have major physical disabilities, and are incapacitated and require constant care. Mild to moderate individuals are mobile, participate in the community, and may be accused of crimes.

EVALUATING COMPETENCY IN THE DEVELOPMENTALLY DISABLED

Adequate psychological evaluation requires standardized tests and objective measures to determine who passes or fails. This principle will be illustrated through my history of competency evaluations as an independent examiner in opposition to the state and my critique of their procedures. I will also review adequate corrective procedures.

Center reports do not follow statutory guidelines

Forensic psychological reports are based on operational definitions of legal statutes and concepts, meaning that the forensic psychologist takes statutory concepts and translates them into quantifiable psychological parameters. The Center for Forensic Psychiatry follows this paradigm in its criminal responsibility evaluations by citing the statute and presenting organized data relevant to the statutory requirements. By contrast, their competency evaluations do not cite elements of the statute, and the presenting data does not operationalize around the two statutory prongs of competency.

Furthermore, there is no uniformity in the way data is presented — some seems anecdotal or fragmented, and some is germane to the specific statute. The center also uses a freeform question-and-answer method and there doesn’t appear to be a uniform standard regarding questions, sequencing, or data organization.

Reports for competency restoration procedures are worse; they are a hodgepodge of anecdotes and rationalizations that lack organization or presentation. Defendants must achieve competency within 15 months or be released;¹⁸ I have seen defendants “magically” restored to competence as the deadline nears. The criteria are often sketchy and not relevant to the standard. Furthermore, the examiner who initially found the individual incompetent does not participate in the reevaluation.

I have never examined a developmentally disabled individual who was found incompetent and later passed an objective competency exam after the restoration procedure was completed. In fact, given that such disabilities are fixed and unchangeable, one cannot restore that which never existed. The lack of systematic procedures means individuals may be given different exams and standards can be adjusted so anyone can be found competent.

Supporting data leading to conclusions is not presented

Scientific studies put forth conclusions, but the authors include the raw data that support them.

Reports from the center do not contain competency data. For instance, if a question-and-answer format was used to create the report, I have seen no record of the questions or answers. Without data to review, no one can effectively cross-examine or question the conclusions.

Many standardized competency evaluations exist.¹⁹ All good psychological tests contain standardized questions, offer the same time frame for completion, and include a uniform scoring system to ensure reliability and allow for comparisons among individuals who take it. For example, the Wechsler Adult Intelligence Scales include the same questions and amount of time to complete the evaluation is the same across the board.²⁰ Answers are scored using a uniform procedure, allowing individuals to be assessed based on how they compare to an average score.

Center exams do not address necessary cognitive skills

Two cognitive elements are central to competency: understanding and reasoning.

“Understanding” refers to comprehension or the ability to know something and label it.²¹ When we ask someone if they understand English, we refer to that individual’s ability to recognize words and what they mean. The quality of understanding is most germane to the first prong of competency, which refers to a factual and rational understanding of the proceedings.

It also refers primarily to sense data — data accessible through the senses like sight and sound. Most relevant is the defendant’s ability to explain what he did or didn’t do. Another function of understanding is recognizing the names and simple functions of court personnel, such as the judge.

Many developmentally disabled persons have simple understanding functions. Sense data is processed by a level of the brain that is less impaired; therefore, simple recognitory functioning and knowing, for example, that “a jury decides if I did it or not” are within the ability of many of these individuals.

“Reasoning” refers to the ability to think about ideas and make choices about contrasting ideas.²² Reasoning is a higher-level skill than understanding because it requires the ability to contemplate thoughts or abstractions not available through the senses. It is most germane to the ability to assist counsel in a reasonable and rational manner with options like plea bargains, witness selection or alibis, and charges that are not concrete and often require the ability to weigh alternatives and make choices between two courses of action.

Reasoning is the highest level of cognitive functioning. It emanates from the layer of the brain impaired or missing in the developmentally disabled. The capacity to reason is necessary to assist counsel, yet it is what the developmentally disabled lack. Defense attorneys receive no guidance and, thus, must make those decisions for them. In essence, attorneys no longer represent the defendant and instead function as guardians.

In my experience, the center's reports do not address reasoning. They only measure understanding. Both skills are necessary to truly participate in legal proceedings.

Legal contextual issues bear on competency

In numerous decisions, the U. S. Supreme Court ruled that an IQ of 70 is the threshold for competence.²³ Therefore, those suspected of developmental disability should be tested psychometrically. An IQ of 70 or below should be considered a major element in arguing permanent incompetence.

The Supreme Court in 1993 implied a uniform competency standard when it ruled that competency in one area presumes competency in all.²⁴ Many developmentally disabled defendants have been deemed civilly incompetent and have a guardian handle their legal and financial affairs and make decisions for them. A defendant with a preappointed guardian has already been adjudicated as incompetent by the state, which should factor in deeming one criminally incompetent.

CONCLUSION

Establishing a competency standard was a milestone for civil rights because it set conceptual criteria applicable to all defendants. Clinical evaluations of competence take those legal standards and convert the conceptual definitions of the law into understandable and measurable yardsticks. To be effective, however, all defendants must be tested with instruments meeting the scientific criteria of reliability and validity so objective judgments can be made. Procedures that vary from one examination to the next essentially set different competency benchmarks for each defendant, violating the spirit and substance of the statute.