Friday, June 27, 2008

SCOTUS worried about wrong 'spectacle' when prosecuting mentally ill defendants

Having focused so much on the Rothgery and Kennedy cases in recent days, I failed to update readers on the outcome of another SCOTUS case I've been waiting on, Indiana v. Edwards. The US Supreme Court last week declared by a 7-2 majority (see the opinion) that mentally ill defendants can be denied the right to represent themselves in court.

Essentially SCOTUS said that just because someone is "competent" to stand trial doesn't mean they're competent to exercise their other rights as a free person under the US Constitution. In other words, it's possible to be competent enough to have your liberty curtailed, but simultaneously incompetent to be the person who explains why that shouldn't happen.

According to the New York Times, Justice Stephen Breyer's decision emphasized the "spectacle" of letting mentally ill people pontificate on their own behalf in open court:
Noting that the court has referred to the right to self-representation as an aspect of individual dignity, Justice Breyer said dignity was lacking in the “spectacle that could well result” from a mentally ill defendant’s efforts, which he said were “at least as likely to prove humiliating as ennobling.”
Well, Justice Breyer - what about the "spectacle" of filling up our prisons with mentally ill people so deranged that merely allowing them to articulate their own defense to charges against them is too "humiliating" for the courts to bear?

Is it any less a spectacle if we just lock up mentally ill people in prison en masse without the trial judge having to listen to them personally? Why aren't you humilated by the fact that we've all but criminalized mental illness among the indigent and treat medical conditions with prison time?

In Texas, three of ten inmates in state prisons are prior clients of the state's indigent mental health system, and defendants declared incompetent routinely sit in jail for weeks or months waiting for state hospital beds to open up to do "competency restoration." I consider that unhappy circumstance a more egregious "spectacle" than the efforts (even pitiful ones) by a mentally challenged person to defend themselves in court.

Justice Scalia's retort to Breyer was more philosophical, declaring that the dignity at stake is not whether a defendant makes "a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being a master of one's fate rather than a ward of the state -- the dignity of individual choice." There is a difference, in other words, between "dignity" and "decorum."

This was an activist decision by judges for judges to make their jobs and lives easier, leaving for some other day any latent concern for either the rights of mentally ill people or the righteousness and public policy consequences of using the criminal justice system as de facto asylums. To that extent, as Justice Alito said in his dissent, “the court’s opinion does not even have the questionable virtue of being politically correct.” Again from the Times:

The decision, Indiana v. Edwards, No. 07-208, drew a vigorous dissenting opinion from Justice Antonin Scalia, joined by Justice Clarence Thomas. Justice Scalia said the treatment Mr. Edwards received in being denied to present the defense of his choice “seems to me the epitome of both actual and apparent unfairness.”

The only reason the court has previously accepted as valid for denying self-representation, Justice Scalia said, was a threat to the orderliness of the trial. But Mr. Edwards was “respectful and compliant” and did not even have the chance to try representing himself ...

Justice Scalia said that “trial judges will have every incentive to make their lives easier” by appointing lawyers rather than giving mentally ill defendants a chance to proceed on their own.

Finally, this is another instance where the court declined to decide the case in a way that's meaningful for practitioners, ensuring, as the Times put it, there will be "sequels." Again from Scalia:
Today’s holding is extraordinarily vague. The Court does not accept Indiana’s position that self-representation can be denied ‘where the defendant cannot communicate coherently with the court or a jury.'…It does not even hold that Edwards was properly denied his right to represent himself. It holds only that lack of mental competence can under some circumstances form a basis for denying the right to proceed pro se…We will probably give some meaning to this holding in the future, but the indeterminancy makes a bad holding worse.
So SCOTUS has said the standard for competency is NOT the standard for self representation, but declined to articulate a new standard for how to determine when someone can't self-represent. That's decidedly unhelpful - or rather, it's helpful only to trial judges annoyed by pro se defendants who now can choose any reason they like to deny mentally ill defendants' self representation.

Via Prevention Not Punishment. See prior Grits coverage and also commentary from Simple Justice and SCOTUSBlog.


Anonymous said...

I'm sure it has not escaped your notice that a 16-almost-17 year old, mentally competent, intelligent, articulate young lady is, in Texas, considered to be in the same category as Mr. Edwards, incompetent to represent herself or to choose to dismiss her attorney ad litem. This is a hold-over from the days when it was common to find references in Texas law to "lunatics, persons non compos mentis, and minors."

What is even more peculiar is that the minor, asserted to be incompetent to make decisions about her legal representative, is simultaneously considered competent enough to appear as a witness before a grand jury (without her attorney present) and to waive her constitutional rights.

Why shouldn't the converse of the Court's reasoning be applicable: If you are not mentally ill, if you are articulate and well-spoken, if you are competent to make an intelligent, knowing waiver of Constitutional rights, then you are also competent to demand your attorney follow your instructions, without regard to your age.

This opinion has the potential to cause all kinds of problems for judges and attorneys. There are many kinds of mental illnesses, and of course, varying degrees of intensity of each. Medications can alleviate some of the worst aspects of some of those conditions, allowing a mentally ill person to function just as well as someone who is not. Under this opinion, though, medications and degree of illness may have no bearing on a court's decision to disallow a mentally ill defendant to represent himself.

How strange: A defendant in perfect mental health, but stupid as a brick and articulate as a horse apple can represent himself, while a mentally ill but articulate genius, who functions normally while medicated, could be prohibited for defending himself.

Anonymous said...

The "Science" of mental health care is not at all scientific. It is all art. No one can truly measure mental health. About all that can be done is observe.

As with eye witness identification, the accuracy of the mental health evaluation/identification is completely dependent upon the observer and just as prone to error.

Mental Health workers employed by the State of Texas are biased in their decisions. For example: In the extreme, if they find no mental illness, they're out of a job.

SCOTUS has really opened up a can of worms that current knowledge about mental health cannot close. The best possible outcome of this decision is that prison stops being the treatment for mental illness.

Of course that will take many many years to benefit anyone.

Anonymous said...

Saw your post on this subject at Prof Berman's blog; in case you don't go back to the comments section, here was my reply:

Grits, speaking as a public defender with 5 years experience, I agree with you on Edwards. It seems that Edwards was as much about the judiciary's problems with difficult pro se defendants as it was with the defendants' "dignity." I hate to agree with Scalia, but if it really wanted to respect a defendant's dignity, the criminal justice system would respect the decisions they make (after making sure they are competent and fully advised of the consequences).

The effect of the decision is to sweep the problem of mentally ill defendants under the rug, by forcing an attorney to deal with them in private rather than have a judge deal with them in public.

I discussed the issue at my own blog last week if you'd like to check it out.