Nevada Law Journal Volume 25 Issue 2 Article Abstracts and Notes
Issue 2
Not Demented Enough: Dementia and Competency to Stand Trial
Rashmi Goel, Professor at Sturm College of Law, University of Denver
Although competency to stand trial holds a vaunted position among the due process rights in our criminal justice system, this right has been continually eroded, both doctrinally and practically. Its current application is a shadow of its original promise. As a result, the competency to stand trial right no longer protects the most vulnerable among us.
In Dusky, the Supreme Court provided this two-prong standard to determine if a defendant is competent to stand trial: The question of competence 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 a factual understanding of the proceedings against him.” Jurisprudentially however, courts have given little attention to what these two prongs really entail. Subsequent case law applying the Dusky standard has not expounded on the meaning of “rational” or given any content to what is involved in consulting with counsel. Doctrinally, this has left a vacuum. Practically, competency assessments are performed by mental health professionals, but these professionals similarly do not apply the full Dusky standards. Instead, they focus almost exclusively on the “factual understanding of the proceedings” aspect, which tests only whether the defendant knows why he is being charged, the layout of the courtroom, and the roles of the people in the courtroom. Judges rely heavily on these assessments. As a result, the thousands of competency decisions made each year are being decided based only on one small portion of the Dusky standard, and not the two prongs envisioned which are both necessary to protect the due process interests involved.
The application of the diminished test has significant implications from a due process perspective. It has particularly painful implications for defendants with dementia. The number of people diagnosed with dementia is increasing every day. And more people with dementia are coming into contact with the law. The criminal justice system, however, has little experience with this kind of cognitive decline which has particular vulnerabilities. Dementia is different from the mental illnesses more commonly encountered in competency evaluation proceedings. These differences make it more likely that people with dementia will be misunderstood, misdiagnosed, and disbelieved, ultimately leading to their being found competent to stand trial when the requisite abilities to consult with counsel are actually lacking. This is because defendants with dementia will still likely factually understand the proceedings against them. In other words, they would be able to pass the second prong as applied, but not the first prong.
Because however the first prong is neither expounded upon or applied, defendants with dementia will be found competent to stand trial, even though they lack the capacity to consult with counsel. The impact of such a finding on this population can be especially devastating, speeding their deterioration, and leaving them much worse off cognitively than when they entered the system. This turns a constitutional protection, the right to be protected from trial when incompetent, into a weapon against the most vulnerable. In the end, our application of Dusky, and our treatment of people with dementia affected by Dusky, represent a jurisprudential, practical, and moral failure.
Digital Speech and Future Persecution
Liane M. Jarvis Cooper, Former Chief Regulatory Counsel/Associate General Counsel in the Executive Office for Immigration Review
Digital dissidents are afraid. Yet, U.S. federal circuit courts have repeatedly upheld federal agency decisions denying asylum to such individuals. Why? This article uncovers and examines courts’ evidentiary and policy reasons for upholding these denials. The article then proposes a more comprehensive approach to determining when digital dissidents’ speech requires asylum protection.
Participatory Defense and the Three Pillars of Criminal Injustice
Isis S. Misdary, Professor at Seton Hall Law School
Three separate but closely related factors have together produced this nation’s epidemic of mass incarceration. First, enforcement of criminal law has become wholly dominated by a caste of repeat players. The chasm between this grouping and outsiders has become far more impor-tant than the prosecution-defense duality that ostensibly dominates the system.
Second, the system’s design and policies have become dominated by central authorities sealed in a “tough-on-crime” echo chamber. This leaves local communities largely powerless to check the devastation being visited upon them.
And third, the system has ruthlessly suppressed the individuality of those facing charges. They are rarely seen, almost never heard, ignored if they try to contextualize events giving rise to the charges and punished severely if they attempt to assert their rights much less their innocence. Robbed of all that makes them human, their fates arouse little sympathy.
Devastated communities have mounted various responses to mass incarceration. None is more exciting than the participatory defense movement. This movement seeks to involve the person facing charges as well as that person’s family and community. Together, they meet regularly with defense counsel, gather evidence for the case, and in mitigation, prepare videos or other testimonials to influence prosecutors’ charging and plea-bargaining decisions, and undertake other efforts to support the person facing charges.
Yet for all its promise, participatory defense faces considerable challenges going forward in each of these areas. As a relatively new movement, it must both resolve significant design challenges and overcome formidable institutional and attitudinal buttresses the current system has erected.
Justice Kavanaugh's Tee: What is the Court Brewing?
Elijah Miller
Real Concerns for an Artificial Threat: Artists, A.I., and the Battle to Script Hollywood's Future
Evan Sommer
Issue 3: Symposium Issue
Shadows of Confinement: Illuminating Public Health Struggles Behind Bars