Competency for Trial

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has held that it is a denial of due process to try or sentence a defendant who is “insane” or incompetent to stand trial.1 When it becomes evident during the trial that a defendant is or has become “insane” or incompetent, the court on its own initiative must conduct a hearing on the issue.2 There is no constitutional requirement that the state assume the burden of proving a defendant competent, though the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.3

A person found incompetent for trial may be committed to a psychiatric institution, but a state cannot indefinitely commit a person charged with a criminal offense based on a finding of incompetence to stand trial. Rather, a court has the power to commit the accused for a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, the state must either release the defendant or institute the ordinary civil commitment proceeding that would be required to commit any other citizen.4

When a defendant is found competent to stand trial, the state has significant discretion in how it takes account of any mental illness or defect that affected the defendant at the time of the offense in determining criminal responsibility.5 The Court has identified several tests that states use in varying combinations to assess insanity defenses: the M’Naghten test (cognitive incapacity or moral incapacity),6 volitional incapacity,7 and the irresistible-impulse test.8 Based on these varying tests, the Court has opined that “it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.” 9 To illustrate, in the 2020 case Kahler v. Kansas, the Court held that the Due Process Clause does not require a state to adopt M’Naghten's moral-incapacity test as a complete insanity defense resulting in an acquittal.10 The Court stated that “[d]efining the precise relationship between criminal culpability and mental illness,” because it involves “hard choices” among competing values and evolving understandings of mental health, “is a project for state governance, not constitutional law.” 11

Despite the requirement that states prove each element of a criminal offense,12 criminal trials generally proceed with a presumption that the defendant does not have a severe mental illness, and states may limit the evidence that a defendant may present to challenge that presumption. In Clark v. Arizona, the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense.13 The Clark Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to “the controversial character of some categories of mental disease,” the “potential of mental disease evidence to mislead,” and the “danger of according greater certainty to such evidence than experts claim for it.” 14

If a criminal defendant is acquitted by reason of insanity, due process does not bar commitment of the defendant to a mental hospital, and the period of confinement may extend beyond the period for which he could have been sentenced to prison if convicted.15 The Court has explained that the purpose of confinement is not punishment, but treatment, and therefore the length of a possible criminal sentence is “irrelevant to the purposes of . . . commitment.” 16 Thus, a defendant acquitted by reason of insanity may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.” 17 However, a state may not indefinitely confine an insanity defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.18

Substantive due process issues may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper, the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs.19 In Sell v. United States, the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial.20 First, however, the government must engage in a fact-specific inquiry as to whether that interest is important in a particular case.21 Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.22

1: Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). The standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Edwards, 128 S. Ct. 2379.
2: Pate, 383 U.S. at 378; see also Drope v. Missouri, 420 U.S. 162, 180 (1975) (noting the relevant circumstances that may require a trial court to inquire into the mental competency of the defendant). In Ake v. Oklahoma, the Court established that, when an indigent defendant’s mental condition is both relevant to the punishment and seriously in question, the state must provide the defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985). While the Court has not decided whether Ake requires that the state provide a qualified mental health expert who is available exclusively to the defense team, see McWilliams v. Dunn, 137 S. Ct. 1790, 1799 (2017), a state nevertheless deprives an indigent defendant of due process when it provides a competent psychiatrist only to examine the defendant without also requiring that an expert provide the defense with help in evaluating, preparing, and presenting its case, id. at 1800.
3: Medina v. California, 505 U.S. 437 (1992). It is a violation of due process, however, for a state to require that a defendant prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996).
4: Jackson v. Indiana, 406 U.S. 715 (1972).
5: Clark v. Arizona, 548 U.S. 735 (2006).
6: M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722.
7: See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) ( “If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible.” ).
8: See State v. Jones, 50 N.H. 369 (1871) ( “If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product of mental disease in him—he is not guilty; he is innocent—as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance.” ).
9: Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute, based on M’Naghten, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove the remaining moral incapacity test. Id. at 753.
10: 140 S. Ct. 1021, 1027, 1037 (2020).
11: Id. at 1037. Cf. Atkins v. Virginia, 536 U.S. 304, 317 (2002) (holding that the Eighth Amendment prohibits the states from executing certain persons with an intellectual disability, but “leav[ing] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” ).
12: See Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt.
13: 548 U.S. 735 (2006).
14: 548 U.S. at 770, 774.
15: Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere “idiosyncratic behavior.” Id. at 367.
16: 463 U.S. at 368.
17: 463 U.S. at 370.
18: Foucha v. Louisiana, 504 U.S. 71 (1992).
19: 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others).
20: 539 U.S. 166 (2003).
21: For instance, if the defendant is likely to remain civilly committed absent medication, this diminishes the government’s interest in prosecution. 539 U.S. at 180.
22: 539 U.S. at 181.