As forensic psychiatrists, one of our main roles is to apply the Dusky standard to assess competency. In this regard, multiple times a week, we see pretrial defendants who wait weeks, sometimes months, in jail, for their competency evaluations. Will they be permitted to attend court and continue with their legal proceedings, or will a judge remand them into an involuntary treatment unit to restore their competency? The number of defendants referred for competency evaluation is formally not measured, but estimates suggest it almost doubled from 19731 till 2000.2
The intent of ensuring the competency of the accused is fundamentally fair. While all would agree that only those who are convicted of committing crimes be found guilty, not every culture has paid attention to the question of whether those found guilty understand how and why that happened.
Dr. Sanjay Rao
The Dusky standards come from the landmark U.S. Supreme Court case of Dusky v. United States in 1960. Milton Dusky faced charges of kidnapping an underage female across state lines and raping her. Despite psychiatric testimony that the defendant could not “properly assist” his counsel because of a delusion that he was framed, the court found him competent and convicted him to a 45-year sentence. The case was appealed all the way to the Supreme Court, which held that the fact that Dusky was oriented and remembered the events was not enough to establish competency. The Supreme Court stated that the test for competency was the ability to consult with a lawyer with “a reasonable degree of rational understanding” and a “factual as well as rational understanding of the proceedings.” The Dusky ruling did not comment on what conditions may make a person incompetent to stand trial.3
With the increase in referrals for competency, we have noted an expansion in the kind of referrals we receive. In a hospital setting, physicians often comment that referrals for capacity evaluations stem from the patient’s disagreement with her/his attending physician about treatment, not a lack of understanding of the treatment options. Similarly, many referrals we receive for evaluation of competency to stand trial seem generated by interpersonal difficulties rather than insufficient rational and factual knowledge. In this article, we will review a case seen in our clinic five times over a period of 7 years. Over that time frame, the defendant was incarcerated 10 times and referred 5 times for a competency evaluation. We have changed key facts about the defendant and his case to protect his confidentiality.
Defendant’s background
The defendant is a 40-something-year-old man who vacillates between homelessness and living with friends who partake in his penchant for alcohol. He has committed various crimes, including thefts, disorderly conduct, and possession of controlled substances. He went to prison once for selling narcotics but quickly retorts: “I don’t sell … . This [expletive] cop came and asked if I had any. She was hot. What did you want me to say? It was entrapment.”
Dr. Nico Badre
However, to get this defendant to have a conversation is no simple task. On his way to the professional visit area, he was livid with a deputy about not receiving an entire breakfast tray earlier in the morning. When he sat down for the interview, he initially yelled for 10 minutes without interruption. His speech was full of profanities and demeaning comments about our ethnic background, education, and expertise. After about 15 minutes and numerous attempts at inserting a question or a comment, I said: “I do not think that you have evidenced a lack of competency, and you are not engaging with me. I am leaving. Thank you for your time.” He shouted two more times, then stopped, smiled, and said: “I was just testing you. Relax, doc.” He subsequently answered all of my questions with his usual jokes and a calm demeanor.
Once he engaged in the interview, he was able to provide a factual and rational description of his charge, which was, “criminal threat.” “I was at the bus station with my knife; I was playing with it; I was not threatening anyone. Then this [racial expletive] cop comes and tells me that I am under arrest.”