University of San Diego Public Law and Legal Theory Research Paper Series

The Judge as a Fly on the Wall: Interpretive Lessons from the Positive Political Theory of Legislation

Daniel B. Rodriguez et al. — Thu, 02 Jun 2005 11:50:21 PDT

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises underlying the normative theory of interpretation; and, in particular, an unclear portrait of the theory of lawmaking supporting the theory of interpretation.

In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language.

Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies

Donald A. Dripps — Thu, 02 Jun 2005 11:39:33 PDT

In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its place in the sacred precincts of the first year curriculum. Criminal Law's cognate discipline is philosophy; the standard method of analysis is to measure general principles according to how well they track intuition's response to hypothetical cases. Criminal Procedure's cognate discipline is Constitutional Law; the standard method of analysis is to subject the operation of the criminal justice system to the same rhetoric of text, history, and precedent that frames the issues in separation of powers or freedom of speech cases. The philosophy mediated by doctrine is political, rather than moral theory.

In trial level courthouses, however, the distinction fades, as the defendant trades his procedural rights for reductions in his substantive liability. The substantive law endows the prosecution with the ability to charge the same conduct at many different levels of potential punishment. The procedural law also endows the defense with its stock in trade - the rights to suppression motions, discovery, elaborate jury selection procedures, confrontation of the victim, and so on.

These endowments are dynamic rather than static. A legislature that adopts a three-strikes law increases the prosecution's bargaining power. A court that reads the confrontation clause to bar excited utterances from the government's proof increases the defendant's bargaining power. In the trenches of criminal justice, these entitlements may well be traded off, erasing the distinction between substance and process.

Admirable scholarship has exposed this basic dynamic. Debate continues about two great issues. First, is this state of affairs normatively defensible or not? Second, if the present relationship between substance and procedure is undesirable, what, if anything, can be done about it?

In this paper I take up the second question, which seems to me to have drawn too little systematic attention (perhaps because it is so daunting). The literature has devoted considerable debate to alternatives to plea bargaining. But these discussions have been self-contained; they do not take account of the substance/procedure feedback loop already in place. The principal point against proposals to ban bargaining is not that we should not but that we cannot; self-interested, repeat-playing actors in the criminal justice process will find ways to bargain. The debate, naturally enough, has not gotten to the point of "what if we succeeded in banning plea bargaining?"

As things stand, the prohibition of bargaining would leave prosecutors with unregulated discretion to select charges from overbroad and draconian criminal codes. Prohibiting bargaining would mean that defendants could not trade their constitutional procedural entitlements off against the state's substantive criminal law entitlements. The new model would be one in which defendants, facing decades in prison for relatively modest crimes, would stand trials they have little chance of winning.

The discussions on plea bargaining have the same isolated quality as the discussions on individual bodies of criminal procedure doctrine. Of course they matter, in some cases; but the bigger picture is the relationship between substantive criminal law sentencing and the procedural rights of the defendant. So serious are the difficulties that I shall not - yet - defend any doctrinal reform on the ground that the relation between substance and procedure would be harmonized thereby. My task is one more modest, but I hope still useful. I aim to survey the possible strategies by which the system might escape the current impasse.

The possible strategies fall into five basic categories. First, we might continue what we seem to be doing now: increasing constitutional procedural entitlements in the hope of mitigating the excesses of the substantive criminal law. Second, we might give up on the constitutional distinction between substance and process by deconstitutionalizing procedure altogether, or at least to a dramatic degree. Responsible then for both substance and process, legislatures might strike a better balance than is produced by the current division of labor. Third, we might achieve the same sort of unification by constitutionalizing substance. Robust judicial review of substantive criminal legislation might curb overcriminalization, which might in turn lead the courts to develop a more rational body of procedural rights. Fourth, we might look for more rigorous restrictions on prosecutorial discretion, building on administrative law and experience with sentencing guidelines. Fifth, we might look for more rigorous restrictions on the defendants' right to waive procedural rights for substantive advantage.

What I hope to add to the scholarly conversation is a brief assessment of the promise and pitfalls that attend each of these strategies.

The Paradox of Omnipotence: Courts, Constitutions, and Commitments

David S. Law — Thu, 02 Jun 2005 11:35:06 PDT

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself has surmounted the problem of undercommitment but must then face the risk of hobbling itself to an unforeseen or undesirable extent, or overcommitting itself. Third, courts are well positioned to navigate a course between these matching perils and to optimize the extent of the sovereign's commitments, even in the face of constitutional barriers to commitment by the sovereign. In performing these functions, however, courts risk damage to the basis of their own power - namely, their reputation for rendering fair and efficacious judgments.

Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past

Steven D. Smith — Thu, 02 Jun 2005 11:26:38 PDT

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.

Dickerson v. United States: The Case That Disappointed Miranda's Critics--and Then Its Supporters

Yale Kamisar — Thu, 02 Jun 2005 11:23:07 PDT

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” or “compelled” but obtained merely in violation of Miranda’s “prophylactic rules.” This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then-Justice Rehnquist utilized this label to describe and to diminish Miranda – and he was the first Justice ever to do so – thirty-one years ago

Legal Scholarship as Resistance to 'Science'

Steven D. Smith — Thu, 02 Jun 2005 11:14:36 PDT

Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing “Why We Write?”, considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the “scientific” worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.

Pursuing Justice for the Mentally Disabled

Grant H. Morris — Thu, 02 Jun 2005 11:14:33 PDT

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision “proved” that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient’s doctor and should trump any patients’ rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept–or are coerced into accepting–medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future.

The Chief Prosecutor

Sai Prakash — Thu, 02 Jun 2005 11:09:06 PDT

Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite the lack of statutory authority over the district attorneys, early presidents directed the district attorneys in all sorts of prosecutorial matters. As authority for their superintendence, presidents cited their constitutional power over law execution. Moreover, there is no evidence that the statutes authorizing qui tams were meant to preclude presidential control over the qui tam suits. If English practice is any indication, the chief executive was understood to enjoy a great deal of control over popular prosecutors. Though there are many reasons to divorce the president from prosecution, this scheme does not have the imprimatur of early constitutional history. As a matter of the Constitution’s original understanding, constitutional text, structure, and history establish that the President is the constitutional prosecutor of all federal offenses whether prosecuted by official or popular prosecutors.

The Iceberg of Religious Freedom: Subsurface Levels of Nonestablishment Discourse

Steve D. Smith — Fri, 05 Nov 2004 11:57:12 PST

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface.

The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other way around. So then what determines which conclusions– and hence which premises– lawyers and judges and scholars select? The article suggests that our conclusions are largely dictated by commitments at the second level– commitments to what we take to be the essential meaning of America. Moreover, the historical and interpretive indeterminacy associated with these commitments further suggests that (contrary to liberal wisdom which urges that public or constitutional reasoning be detached from people’s various “comprehensive doctrines”), commitments at the second level are in turn influenced to a significant extent by what is believed or at least presupposed at the third level of basic philosophy or theology.

Hence the comparison of our establishment clause discourse to an iceberg: what we see is the most insubstantial part, and the real mass and force are largely out of sight. The article concludes that the valuable work in the area of religious freedom– the work that has a chance to be illuminating and not merely polemical– will be work that probes those deeper connections and presuppositions.

Straw Polls

Daniel B. Rodriguez — Thu, 23 Sep 2004 15:32:13 PDT

A key measure of the democratic quality of a political community is how its members vote. The design and implementation of voting arrangements can illuminate the nature, purposes, and even potential of a community of citizens. Voting is, at the very least, used to sort out and implement preferences. Voting processes help in sorting out winners from losers and thereby provide a presumptively fair method for the implementation of public policy. At the same time, voting in a democratic policy is a coercive act. Voters are not merely expressing preferences; they are acting in order to transform their preferences into policy. How ought we to think about this coercive aspect of voting? The subject of my essay is one narrow aspect of this larger puzzle, that is, the consideration of a particular voting device--the straw poll--and its potential impact upon democratic decision-making. The puzzle of voting as a democratic method of deciding in political communities that interests me here is this: How much difference does it make, and ought it to make, whether voters who make their views known in a particular decision-making episode know of the preferences of others? And from a practical political standpoint, the interdependence of decision-makers' preferences is a ubiquitous feature of politics, affecting logrolling, negotiations, and various aspects of political strategy. My basic normative claim is that to the extent that a political community ought to value the preferences, thoughts, and ideas of others, it ought to reflect upon community members' preferences before finally deciding. In discussions of participatory democracy, this other-regardingness is usually dealt with by some sort of "deliberation." Another way--more mechanical, but more realistic as a component of a decision-making process--is through the mechanism of a straw poll.

Of Gift Horses and Great Expectations: Remands Without Vacatur in Administrative Law

Daniel B. Rodriguez — Thu, 23 Sep 2004 15:32:03 PDT

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort of courts to shape agency decisionmaking through deliberate use of doctrine. One excellent example of this effort is the device of remand without vacatur. Remand without vacatur is a mechanism by which courts remand back to an agency a decision in circumstances in which the court believes the agency rationale is flawed, yet declines to vacate the agency decision. Thus, the agency decision stands during the period in which the agency scrambles to develop a rationale for the rule that will survive judicial scrutiny. The court retains all the power it has to vacate the rule eventually; however, it holds its fire while the agency goes back to the drawing board. Leading administrative law scholars have embraced this device as an eminently practical compromise arguing that the remand without vacatur devices strike the right balance between aggressive review and administrative discretion. My claim in this essay, however, is that this view misconstrues the complex relationship between courts and agencies. While the remand without vacatur device appears to limit the scope of judicial scrutiny, the conclusion that it results in an optimal state of the world in which judicial review is neither too hot, nor too cold, but just right, is naïve. Remand without vacatur does not exist in an administrative law vacuum. Courts carry out their role as judicial police officers in the shadow of the remedial strategies that are available to them as they conduct their activities. The judicially created strategy of remand without vacatur should be disfavored precisely because it facilitates the use of more aggressive judicial scrutiny of agencies' reasoning process. The rationale offered by leading commentators for the device is that it promotes agency flexibility--this is the heart of the argument, that it reduces agency ossification. My argument, however, is that it may do quite the opposite. By adding to the flexibility of judicial review, it promotes judicial activism. It does so, more specifically, by empowering the courts to intervene, rather than hold back, in the agency decisionmaking process. While it is fair to suggest that agencies may prefer remand without vacatur to the more apocalyptic step of simple vacatur, the choice between the two is truly an illusive one. What we want to know is how this practical strategy interacts with the central issue of judicial intervention.

The Tenuous Case for Conscience

Steven D. Smith — Wed, 22 Sep 2004 17:09:20 PDT

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it matters? This essay addresses two questions. The first is discussed briefly: what is “conscience”? What do we have in mind when we say that someone acted from “conscience”? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should “conscience” deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to “freedom of conscience,” so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

Prosecutorial Neutrality

Fred C. Zacharias et al. — Wed, 22 Sep 2004 17:09:18 PDT

This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The Article demonstrates that, standing alone, the notion of prosecutorial neutrality is unenlightening because the term potentially encompasses a series of norms that are uncertain in meaning. Commentators need to be more precise about what they expect of prosecutors and how particular prosecutors have fallen short of expectations. Yet the Article also concludes that the alternative conceptions of prosecutorial neutrality share a valid core premise: that prosecutors should make decisions based on articulable principles or sub-principles that command broad societal acceptance. This insight poses a challenge, for prosecutors have never, either individually or collectively, undertaken the task of identifying workable norms for the array of discretionary decisions that their offices make each day.

Appointing Federal Judges: The President, the Senate, and the Prisoner's Dilemma

David S. Law — Wed, 22 Sep 2004 17:09:17 PDT

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain.

Generic Constitutional Law

David S. Law — Wed, 22 Sep 2004 17:09:16 PDT

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development.

Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit

David S. Law — Wed, 22 Sep 2004 17:09:14 PDT

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience.

Understanding Recent Trends in Federal Regulation of Lawyers

Fred C. Zacharias — Wed, 22 Sep 2004 17:09:12 PDT

Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place their criticisms in context. Only by placing the federal reforms in the context of the broader analytic themes can we begin to evaluate their actual and potential significance. The article concludes that no single explanation for the reforms is possible. They do not neatly fit a uniform pattern that reflects an overarching change in regulatory approaches or in society’s attitudes towards the relative merits of state and federal regulation. They do, however, suggest a series of questions about traditional regulation that the federal actors have opened for discussion. The best view of recent events is that they have begun a process of negotiation with respect to particular substantive issues, potential new approaches, and the relative competence of different institutions to regulate different aspects of legal practice.

Lawyers as Gatekeepers

Fred C. Zacharias — Wed, 22 Sep 2004 17:09:09 PDT

Three recent legislative and regulatory initiatives -- the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative – all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers – which some of the opponents deem equivalent to operating like the “secret police in Eastern European countries.” This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one’s position on the merits of the specific reforms currently being proposed, it is important to avoid the misconception that lawyers have no role to play in preventing client misconduct. At its root, the gatekeeper rhetoric conflates several separate concepts. At one level, everyone will agree that lawyers are clients’ agents and that lawyers’ traditional role in the adversary system is to help clients pursue lawful goals through those lawful means that are available. That however, is quite different from saying that lawyers should do whatever clients want, that they should assist clients in achieving illegal pursuits, or that lawyers have no business shaping client ends. This Article canvasses four broad aspects of lawyers’ traditional role that necessarily involve lawyers in regulating client conduct: (1) advising clients, (2) screening cases and legal arguments, (3) avoiding personal participation in improper behavior, and (4) disclosing confidences, when permitted by rule, to serve interests that trump the client's.

Competency to Stand Trial on Trial

Grant H. Morris et al. — Wed, 22 Sep 2004 17:09:07 PDT

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a rational manner.” The second, adopted by the Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) as the Court’s interpretation of the federal competency statute, requires that the defendant have an ability to consult with counsel with a reasonable degree of “rational understanding.” The “rational manner” standard seemingly focuses on the defendant’s behavior; the “rational understanding” standard seemingly focuses on the defendant’s thinking. The Article reports on a survey we conducted of 273 forensic psychiatrists and psychologists who were asked to read two case study vignettes and assess the competency of each criminal defendant using the “rational manner” standard, the “rational understanding” standard, and the federal statutory standard that merely requires that the defendant be able to “assist properly” in his or her defense. In one vignette, the defendant’s thinking was irrational but his behavior was rational. In the other, the defendant’s thinking was rational, but her behavior was irrational. In responding to both vignettes, more than three-fourths of all respondents either found the defendant competent under all three standards or incompetent under all three standards. Surprisingly, in answering the first vignette, the respondents divided almost equally in deciding whether the defendant was competent. The Article analyzes the results of the study and concludes with specific proposals to improve competency to stand trial assessments. Fairness to the defendant requires that the competency standard be clearly defined and applied by those who assess and determine competency.

Mental Disorder and the Civil/Criminal Distinction

Grant H. Morris — Wed, 22 Sep 2004 17:09:03 PDT

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and then broken and forgotten. The essay discusses the shift in Supreme Court jurisprudence shift from the Warren Court’s liberal application of the Constitution to prohibit the special categorization of sentence-expiring prisoners and permanently incompetent criminal defendants for civil commitment, to the Burger and Rehnquist Court’s conservative application of the Constitution to permit the special categorization of persons acquitted of crime by reason of insanity and sexually violent predators for civil commitment, and to permit the coerced treatment of competent, though dangerous, criminal defendants. The essay begins by discussing Baxstrom v. Herold, 383 U.S. 107 (1966). A unanimous Supreme Court held that equal protection “demands” that sentence-expiring convicts receive the same procedural safeguards that all others receive in the civil commitment process; they cannot be specially classified to avoid the standard procedural roadblocks to civil commitment. Six years later, the promise of equal treatment was extended to criminal defendants found mentally incompetent to stand trial. In Jackson v. Indiana, 406 U.S. 715 (1972), a unanimous Supreme Court ruled that equal protection is denied when incompetent criminal defendants are subjected to a more lenient commitment standard and to a more stringent release standard than is applicable to all other persons who could only be detained under the state’s civil commitment laws. In 1983, the equal protection promise was broken, however, in Jones v. United States, 463 U.S. 354 (1983). In Jones, a narrowly divided Court held that persons acquitted of crime by reason of insanity constituted a special class who can be subjected to automatic, indeterminate commitment without first undergoing the civil commitment process. In 1997, the Supreme Court forgot its Baxstrom promise to sentence-expiring convicts. In Kansas v. Hendricks, 521 U.S. 346 (1997), the Court upheld the constitutionality of a statute creating a separate civil commitment process for a limited subclass of dangerous sentence-expiring convicts who could be identified as sexually violent predators. In 2003, the Supreme Court forgot its Jackson promise to mentally incompetent criminal defendants. In Sell v. United States, 539 U.S. 166 (2003), the Court ruled that incompetent criminal defendants do not have the same right to medical self-determination that other civilly committed patients possess. Relying heavily on a case involving a mentally ill, sentence-serving convict, the Court upheld the forced medication of dangerous criminal defendants, even if they are competent to understand the risks, benefits, and alternatives to the proposed treatment.