The law is contemptuous toward the implications of incompetency to stand trial.

Duejusticeproject will not tread lightly on this topic.  We charge that the law is willful and unjust in ignoring the implications of incompetence to stand trial.  The law does not concern itself about what predominantly causes incompetency to stand trial.  It simply rests upon underlying principles that have deep historical roots in the law, having faith in itself that in the observance of these principles by certain administrative procedures, that due process will be satisfied.

We claim to be an enlightened society but through the looking glass of our criminal justice system, we remain primitive in our legal adjudication of people who are afflicted with severe mental illness.  DJP has said that our society and the criminal justice system have spent many decades skillfully plying the brain diseases and disorders that we call mental illness from their most devastating behavioral consequences.   This pernicious dissociation is how we have created a society where many thousands of people afflicted with Schizophrenia, Delusional Disorder, Schizoaffective Disorder and psychosis in general have been successfully prosecuted, convicted, and incarcerated often under the cruelest of conditions – often for life, as juries and judges, in their lack of comprehension of psychosis, have been shown to regard mental illness as an aggravating factor, not as a mitigating factor.  

The introduction of antipsychotic medication has been credited in many historical retrospectives for the onset of deinstitutionalization of the mentally ill in the 1950s.  Scholars have documented that deinstitutionalization actually began in the lattermost part of the 1800’s, more than half a century earlier (Our links and references page links to a thesis on this account).  Indisputably, pharmaceutical treatment did accelerate the era of the grand social experiment the mid-20^th century that failed miserably on so many counts.  Nonetheless, many victims of psychotic illness experienced some relief from the cruel entrapment of consciousness disorder and certain distressing sensory and cognitive symptoms.  These pharmaceuticals often had some damaging side effects, but the choice was then as it is in the present between being lost in a neurologically detached state of consciousness with the grave dangers associated with untreated psychosis and the risks that attended treatment with these potent drugs.  It may be unlikely that treatment providers ever contemplated that these medications would eventually become tools used to churn the mechanics of the of the criminal justice system, preparing individuals afflicted with severe mental illness for prosecution.

Historically, virtually all defendants found incompetent to stand trial have been persons with severe mental illnesses or mental disabilities.  An individual whose medical condition has exacerbated to a state of psychosis so advanced , is the person most likely to have no capacity to self-audit and regulate their motor activities and utterings-  and so it should be expected that the accused should have an incapacity to understand charges against him/her or participate in his/her defense in this neurological state.   In the crossroads of psychosis and the criminal justice system, the reality is that there is no casual connection between the two, (despite the mantra of the well-intentioned but misguided advocacy community) , so there should be no justification for contrivance and abstraction – to dissociate incompetence from its principle cause, and to willfully ignore the implications of IST as it relates to criminal culpability.  The law does not have to be willfully blind, the advent of mental health courts, even felony mental health courts are a model of this concept. (Although, we should restate our position statement that we take issue with how these courts operate).  The existence of these courts represent evolving standards that the highest courts should consider in future challenges to matters pertaining to the adjudication of people with severe mental illness in our criminal justice system.

Due Process as we know it operates under the presumption of sanity principle.  This presumption in principle is believed to promote a fair and rarified forum for the administration of justice.  The substantial implications of IST at the time of arrest are to be ignored – not permitted to contaminate the sanitized due process of law.  Under this principle, the accused is presumed to have been sane at the time of commission of a crime.  Due justice perceives this principle operating in a dangerous, strange, multi-faceted sort of way.  The principle, in abstract, becomes a framework for the construction of the adjudicative process.   However, in a very disturbing and pernicious way, this presumption operates as a literal, deforming the system into one that is guaranteed to pervert justice at every juncture for people afflicted with severe mental illness.   

As a literal, the presumption of sanity reflects the mindset of the observer, where those who are unacquainted with the most overt manifestations of psychosis often misinterpret seemingly organized, intentioned behaviors and acts as being perpetrated out of lucid evilness.   This mindset that is present in the general public follows the accused into court proceedings where lack of understanding of psychosis is pervasive among legal practitioners.  To enter into a criminal proceeding under a presumption of sanity where the accused is known, in many cases to be diagnosed with a psychotic disorder, who was in a state of neurological detachment from a normal waking reality upon arrest, is to be willfully unjust, even malevolent.   The presumption of sanity provides an ample excuse for the law to egregiously ignore the implications of IST.

Moreover, in passing reference to the Sell and Drusky cases involving decisions of the Supreme Court, some of the justices’ concerns (about the need for the accused to be free from impairment in their participation in a court proceeding) were oblique to disjointed entirely with more substantive concerns.  Chief among those more substantive concerns is that pharmaceutical treatment conceals the defendant’s true medical condition from the eyes of the jury or judge in a court proceeding.  Anyone who has been in the presence of a person in the throes of a psychotic episode or who is afflicted with serious and persistent psychosis can appreciate the gravity of this concealment.  Schizophrenia in particular can cause emotional blunting, or can cause inappropriate reflexive facial expressions (such as laughing or smiling inappropriately where the subject is serious or horrific in nature) even under pharmaceutical treatment.  The legal system has demonstrated that it need not concern itself with these threats to the accused’s right to a fair trial.

The State’s rationale for permitting involuntarily administration of antipsychotic medication for competency services is addressed in the Sell case and we will take that rationale on later.  DJP charges that the medical personnel who participate in this conflicting role as both treatment provider and operator on behalf on the criminal justice system are ethically compromised and we strongly disapprove of their actions. 

There are subtexts to this preparatory process that strike at the heart of the cruelty of the “competency restoration” construct.  Individuals afflicted with the brain disorders that we call mental illness may struggle for years to comply with treatment, their families and supporters may plead with their loved ones to adhere to treatment, sometimes enduring years of crisis, often complicated by the realities of anosognosia.  These illnesses can be very difficult to treat.   One of the tragedies of severe mental illness is that treatment in the community or any other setting does not guarantee that someone will not become entangled in the criminal justice system due to symptomatic behaviors beyond the control of the afflicted person.  Now consider the patient under what the law terms “competency restoration”, who must resume the same medical treatment (voluntarily or involuntarily) for the express purpose of being prepared for prosecution, conviction, and punishment.   Imagine someone emerging from consciousness disorder only to slowly begin to understand what is happening. 

Conversely, given the very low and immoral standard that the law has set forth for adjudicative competency, there is no doubt that a vast number of individuals certified as competent, continue to suffer from severe impairment in their comprehension of what is happening to them.  The neurocognitive deficits and altered state of consciousness that attend psychotic illness often permanently deprive the individual of the capacity to have a rational understanding of reality.  DJP suspects that some “competency restoration” programs may perform Competency Training as an adjunct measure in an attempt to conceal this persistent state of cognitive impairment.  We suspect that justices of our highest courts have been mute about what may undergird their decisioning in permitting an operative standard to persist that is so threadbare.  We suspect that the law assures itself that the criminal defender can competently carry the defendant on his or her back, offsetting whatever incompetencies  may persist in the defendant.   We have recently examined what is most likely a fairly standard nolo contendere form and we strongly doubt that the defendant, a man afflicted with Schizophrenia, who acted on command hallucinations in the unlawful act, had any semblance of competency to have a rational understanding of this form.

We made reference to competency training, a method that we find to be even more contemptible than the use of pharmaceutical treatment in the administration of competency services.  At least in pharmaceutical treatment, the law is exploiting the “good” of treatment of a biological condition.  In the Sell case, the court accepted the advice of a prominent organization of professionals in the practice of psychiatric therapies, advice which asserted that the use of “less invasive” means of competency restoration was a sound approach in lieu of pharmaceutical treatment.   The incorporation of this advice into their decisioning by a panel of justices who retain a material incomprehension of psychosis to this day, led to the proliferation of competency training programs across this country.  We have read of cases where participants in these programs have been psychologically abused by these training methods.  We condemn this advice to the court by this troublesome, regressive, contingent of the psychology and psychiatry profession as a product of their persistent resistance to modern neuroscience on the biological root cause of psychosis.

DJP understands the need for society to be protected, and that the prosecution of law-breakers and violent offenders is necessary in a civilized society.  However, one must comprehend the nature of severe mental illness to understand how strict criminal liability is being imposed almost exclusively on this class of people.  We are critical of all of the ways in which society steadfastly refuses to proactively manage severe mental illness in the community in such a way that it could prove its sincerity in this mission to protect.   We will have more to say later on particular landmark cases decided by the courts.