A recent piece in the Star (“‘Not competent’ loophole frees some offenders,” Sept. 28) characterized the constitutional right not to be tried while mentally incompetent as some kind of “loophole.” Contrary to a “hole” that needs to be closed, this is a feature of our legal system.
The rule that an incompetent person shall not be brought to trial was explained in the Commentaries on the Laws of England by Judge William Blackstone, which was written before the American Revolution and was used as the foundation for the American legal system. For generations the U.S. Supreme Court has repeated this rule. Arizona law attempts to give meaning to this principle. Calling it a “loophole” denigrates a legal system that aspires to protect our most cherished and fundamental rights.
We hear in the news of people in other countries being held in jail on charges they cannot understand and being tried without being allowed to attend the proceedings or defend themselves. In this country, the Sixth Amendment guarantees that a person should not be put on trial without having the charges announced and without having the opportunity to appear personally and present a defense with the assistance of counsel. These are among our core values.
But what kind of opportunity to present a defense does a person have when incompetent? While we now recognize that every person charged with serious crimes should be afforded the assistance of counsel, that right is meaningless unless the defendant can participate. Such a defendant cannot make an intelligent decision whether to testify, cannot identify favorable witnesses or assist counsel in challenging the government’s evidence.
In Arizona criminal law, Rule 11 provides the procedural mechanism for ensuring that incompetent persons are not tried while in that state. When the issue of the defendant’s competency is raised, the court appoints two doctors to conduct evaluations, and the system will make every effort to find that a person who is presently incompetent is restored to competency within 21 months.
The restoration program is not ideal. It focuses on rote memorization of basic concepts such as “what is the role of the lawyers, judge, and jury,” without regard for the defendant’s actual ability to assist counsel and contribute to the defense. But many are properly restored, particularly after diagnosis and treatment of mental illness. Such a person may be able to plead “guilty but insane” at trial, but a trial will occur.
Many with permanent traumatic brain damage are perpetually incompetent, and undoubtedly the community wants recourse for harm done to victims by such persons. But remedies already exist in law, such as the court appointing a conservator or guardian ad litem, which could be the public fiduciary, to oversee an individual’s care, and the County Attorney’s Office can pursue an involuntary commitment.
A bill that would have allowed the state to hold people who’ve been declared incompetent beyond the current 21-month limit failed in the Legislature earlier this year. It was not a viable solution to the problem it sought to address. It may have failed because of funding issues, but it should have failed because warehousing the mentally ill indefinitely is not the purpose of the criminal-justice system. The job of the criminal-justice system is to bring defendants to trial. It is impossible to create a system in which no one could possibly “fall through the cracks,” but that does not mean the current system is flawed.
Ultimately, the community needs to decide whether an investment in mental-health services on the front end is worth avoiding costs on the back end related to the revolving door of the criminal-justice system. Every shooting rampage had huge red flags for mental illness that went untreated. The current practice of ignoring mental-health problems of our fellow citizens until it is too late needs to be reversed.