The Competence of Criminal Defendants: Beyond Dusky and Drope
Over the last twenty years, a sophisticated legal literature on treatment decisionmaking and patient competence has emerged.' Specific analyses of proper criteria of incompetence, and mechanisms of surrogate decisionmaking, are rooted in rich theoretical discussions of autonomy, paternalism, and informed consent. This literature has exposed puzzling questions at the intersection of clinical reality and moral theory, such as whether the operational meaning of competence varies, and ought to vary, in relation to the risks and benefits of proposed treatments, and whether different "competence" standards are and should be applied according to whether patients accept or refuse recommended treatment. Commentators have explored these issues extensively in relation to psychotropic medication and, more recently, admission to psychiatric hospitals.
In contrast to this rich theoretical literature on competence and treatment decisionmaking, the literature on competence of criminal defendants has been almost exclusively "applied." The social science literature is largely descriptive, depicting characteristics of persons found incompetent, factors associated with findings of incompetence by clinicians and courts, and the consequences of being found incompetent. A twenty-year effort to apply scientific techniques to competence assessment has yielded little. Most surprisingly, little research exists on fundamental empirical issues relating to the meaning of incompetence. These issues include the functional abilities and disabilities of criminal defendants-with and without mental disorders-as they bear on the tasks required of criminal defendants, and the needs and expectations of criminal defense attorneys.