Technical issue: Does 46B.024 raise the bar for competency determinations?

This is a technical issue which can be raised only on a day when the weather prohibits dealing with more concrete matters. (These reflections refer to no known case presently under review.) And while I may have raised it earlier, the notion still plagues me.

Art. 46B.024 operationalizes the meaning of competency, i.e. having a rational and factual knowledge of the proceedings and having sufficient present ability to engage one�s attorney with a reasonable degree of rational understanding. Perhaps some person who served on the workgroup can comment, but this appears to be me to be an incorporation of the concept of �functional competencies�, long described by Richard Bonnie, et al of the U. of Virginia Law and Psychiatry and Public Policy Institute.

Section .024 requires that examiners consider:
1. The capacity of the defendant during criminal proceedings to:
a) rationally understand the charges and the potential consequences of the pending criminal prosecution,
b) disclose to counsel pertinent facts, events and states of mind,
c) engage in a reasoned choice of legal strategies and options,
d) understand the adversarial nature of criminal proceedings,
e) exhibit appropriate courtroom behavior and testify
2. Whether the defendant has a diagnosable mental illness or is a person with mental retardation and the impact of same on the his/her capacity to engage with counsel in a reasonable and rational manner.
3. If the defendant is taking psychoactive or other medications. Whether same is necessary to maintain competency and the effect of the medication on the defendant�s appearance, demeanor or ability to participate in the proceedings.

My concern is whether Sec. 024 does not create a higher bar for the determination of competency than has heretofore been acknowledged by the courts. A defendant may understand that he is charged with a crime, be able to disclose in a rudimentary fashion his/her behaviors but have no or limited understanding of �legal strategies and options.� I have less of a problem with being able to offer intelligible testimony, or comport oneself in a courtroom setting (other than for volitional misconduct). Godinez v. Moran, 113 Sup. Crt. 2680 (1993) rejects the notion that a higher standard for competency exists for pleading guilty as to stand trial but, it simply sounds like a higher standard when functional competencies must be assessed�.

I was just a fly on the wall, but my recollection was that they considered 46B to be an overall improvement of the system, not a revision of the standards. I would think there are some reports from the group that drafted 46B that would state whether they intended a different standard.

For example, the HRO report for HB 2014, the companion to SB 1057, states that the standard for competency was not changed by the bill. HB2014 HRO report

The actual definition of competency was carried through from Article 46.02, I believe.

The language from .024 doesn't seem to me to change the definition. Seems like the sort of things an examiner would consider pre- or post- Article 46B.

[This message was edited by JohnR on 01-15-07 at .]

Dr. FLJ's theory was discussed during behind-doors brainstorming sessions on that legislation. My recollection is that the supporters of that language proffered it to give guidance to examiners on how to conduct their examinations. It was in response to many anecdotal stories of poor technique and haphazard work by some.

There should be plenty of legislative intent in the record to establish that the actual legal standard did not change, literally or functionally.

46B.024 should be a means to the end, not the end itself, IMO.

Thanks to both, for it is nice to have those with personal knowledge of what the legislative intent might have been.

Certainly having seen hundreds of competency/sanity reports over the years, the quality of many leaves much to be desired. Before Brett Gray, Ph.D. left Vernon for the colder climes of Colorado, his group had intended to do a survey of competency and sanity reports after the institution of 46B/46C to ascertain the extent to which those reports, which are seen in Vernon, actually do comport with the statutory standard. I don't know if that research was completed. But things would be tightened up if every moveant were to demand of their expert that the report which was produced did meet the statutory requirements -- which also fits the TACOOMI template.

Shannon got to cling to different walls than I did!