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The same all-or-nothing standard is used to determine whether a defendant is
competent to plead guilty as well as competent to waive the right to an attorney
(Godinez v. Moran, 1993; Perlin, 2000a). If a person is found not competent to
stand trial, he or she would also be considered to be not competent to plead guilty
or to waive the right to an attorney. Someone who is found not competent is re-
ferred for mental health treatment (Dusky v. United States, 1960). Some scholars
have proposed an alternative term to address the mental competency of all defen-
dants who are nearing legal proceedings: adjudicative competence (MacArthur Re-
search Network on Mental Health and the Law, 2001b). Case 16.2 examines the
issue of competency to stand trial and waive counsel.The MacArthur Foundation has funded a number of research projects investi-
gating legal issues relevant to the mentally ill. For example, The MacArthur Adjudi-
cative Competence Study (Hoge et al., 1992, 1997; MacArthur Research Network
on Mental Health and the Law, 2001a) found that criminal defense attorneys viewed
15% of their clients as possibly having impaired competence (among 122 randomly
selected felony cases). Those defendants most likely to have diminished competence
were much less helpful to their attorneys than were those who were clearly compe-
tent: They were less actively involved in making decisions and in establishing the
facts of the case. Nevertheless, the attorneys didn’t
always request that possibly impaired clients be
referred for an offi cial mental health evaluation,
although the more serious the crime—and more
severe the penalty—the more likely the attorneys
were to seek an evaluation.
When defendants are found not competent
to stand trial, they sometimes are medicated to
reduce the symptoms of their mental illness and
make them able to stand trial. Occasionally, de-
fendants do not want to take the medication but
are given it against their will, perhaps by injec-
tion. However, the Supreme Court ruled that
mentally ill patients accused of nonviolent crimes
could not be forced to take medication in order
to become competent to stand trial (Sell v. United
States, 2003). If it appears unlikely that a person
will become competent to stand trial, he or she
may be released—but may be civilly committed
to a psychiatric facility if deemed a danger to self
or others.CASE 16.2 • FROM THE OUTSIDE: Competent to Stand Trial and Waive
CounselOn December 7, 1993, Colin Ferguson intentionally killed 6 people and injured 19 others
on a New York commuter train. After his arrest, Ferguson was diagnosed with paranoid
personality disorder. Because he was assessed as rational and not delusional, he was
deemed competent to stand trial; he fi red his attorney when the attorney stated that
he would propose an insanity defense. Ferguson then chose to represent himself but
did not use the insanity defense. The legal system allowed a mentally ill man to be his
own legal counsel, although he did not defend himself adequately. Those following
the trial witnessed an intelligent but clearly mentally ill man state that he would call as
a witness an exorcist who would testify that a microchip—supposedly planted by the
governor of New York—had been lasered out of Ferguson’s head by a remote control
device (McQuiston, 1995; Perlin, 2000a). That witness was never called to the stand.
Ferguson was convicted on 6 counts of murder and 19 counts of attempted murder.In 2002, while suffering from delusions,
Brian David Mitchell kidnapped young
Elizabeth Smart (see the discussion of the
Smart case in Chapter 12). He was appre-
hended 9 months later (Smart was found
alive and returned to her parents) and
continues to have delusions. In 2009, he
had yet to be found competent to stand
trial. A judge had ruled against forcing
Mitchell to take medication in order to be
competent to stand trial because the judge
did not believe that the treatment would
succeed (Carlisle, 2009).
AP Photo/George Frey, pool