Studies of incompetent defendants:

Research and social policy implications

Stephen L. Golding, Ph.D.

Department of Psychology

University of Utah

Salt Lake City, Utah

ABSTRACT

In the context of reviewing several studies of incompetent defendants, a variety of conceptual, research design and social policy issues are discussed including a) the asymmetry of incompetency and psychosis, b) the desirability of multistage assessment and screening strategies, and c) difficulties in predicting the response of incompetent defendants to various treatment modalities.

Within the broad range of clinical and scholarly issues that are of concern to the discipline of forensic psychology, the capacity of criminal defendants to make decisions at various stages of the adjudicatory process ("competency") remains at center stage. Within forensic psychology's involvement in the criminal justice system, more defendants are evaluated for competency and more financial resources are expended for their evaluation, adjudication and treatment than for any other class of forensic activities. The two papers in this section address a sub-set of issues within this area.

Hart and Hare's paper (reference, this volume) concerns the relative discriminatory power of clinical diagnosis and sociodemographic variables, respectively, in predicting judicial decisions as to fitness. Within a relatively small and homogeneous sample of defendants from one jurisdiction, they confirmed the result modally found in the research literature, namely that diagnostic status (principally "psychosis") accounts for the lion's share of the criterion variance. While this finding adds breadth to the research data base, it does not directly address the more important issue that the authors raise in their discussion section. Namely, if most of the variance in fitness decision making, in a cohort of defendants remanded for evaluation, is associated with a clinical finding of current psychosis, then psychometric theory suggests that a multi-stage decision tree would be both more efficient and less costly than the current procedure of relatively lengthy in-hospital evaluations for all defendants in the cohort. That is, one would use clinical screening for psychosis at the first stage (relative quick, efficient and inexpensive), and divert those clearly not psychotic back into the normal adjudicatory process at that point. Unfortunately, the data upon which this paper are based do not pertain directly to the validity, utility or social policy acceptance of this "screening alternative," and much of the research and policy literature which does address this issue (e.g., Beran & Toomey, 1979; Golding & Roesch, 1988; Melton, Weithorn & Slobogin, 1985; Winick, 1985) is not discussed. Moreover, Hart and Hare's discussion of the competency-psychosis relationship and "screening" strategies alludes to, but does not develop, serious conceptual and pragmatic problems related to these issues.

The empirical finding that the vast majority of incompetent defendants are either diagnostically psychotic or significantly disabled by organic mental disorder or severe mental retardation is often misunderstood by mental health and legal professionals as implying the equation of psychosis or severe mental retardation with incompetency. As Hart and Hare acknowledge, this is both a legal and an empirical mistake. It is legally erroneous because the Dusky standard (and its equivalents in other Western judicial systems) "is a functional and context-dependent one in which mere presence of severe disturbance (a psychopathological criterion) is only a threshold issue -- it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome " (Golding & Roesch, 1988, p. 79).

Data related to this issue are also frequently misunderstood as implying that the conditional probability that a defendant who is incompetent is also psychotic is the same as the conditional probability that a defendant who is psychotic is also incompetent. This is absolutely erroneous (Golding, Roesch & Schreiber, 1984) and has important pragmatic implications for screening strategies. The proportion of psychotic pre-trial defendants who are also incompetent depends upon a series of "systems factors" that need to be more clearly studied and understood. Among the most important ones are a) the availability of pre-trial mental health services in jails (Steadman, McCarty & Morrissey, 1989); b) the nature of the referral system, including the training of personnel and the nature of inter-agency agreements; c) the extent to which financial resource restrictions in the civil mental health system result in inadequate discharge and supervision of chronic mental patients; and d) the extent to which judges in a particular jurisdiction require evidence that there is bone fide doubt as to a psychotic defendant's competency before issuing a referral order.

Thus, research and scholarly debate about the validity, usefulness and feasibility of "screening" strategies needs to take place in a context that acknowledges these systems factors and the asymmetry of the "incompetency-psychosis" relationship. A jail or community-based screening system that "cleans out" clearly non-psychotic defendants from the referral stream⁽¹⁾ is a first step. The second stage of the jail-based screening should then be a focus on the assessment of functional capacities of defendants. Thus, within the cohort of pre-trial defendants who have serious mental disturbance (a substantial large portion), screening procedures should then seek to identify those individuals who, in spite of their mental difficulties, are clearly competent to proceed. A number of authors have shown the reliability, validity and feasibility of such screening procedures (Golding et al., 1984; Lipsitt, Lelos & McGarry, 1971; Melton et al., 1987; Roesch & Golding, 1980). These studies have demonstrated repeatedly that, within the referral stream, the vast majority of defendants can be determined, on functional grounds, to be either clearly competent or clearly incompetent. Said somewhat differently, screening procedures can be utilized effectively to target the small group of individuals whose competency is truly questionable (so-called "grey-area" cases).

In an ideal system, a relatively low cost assessment procedure first eliminates those who clearly do not have significant mental disturbance; the second stage utilizes a brief screening interview to further eliminate those who, while disturbed, are also clearly competent; and the third stage reserves the more expensive and cumbersome evaluation procedures for those who are known to be both disturbed and questionably competent. Note that such a system differs dramatically from one which (erroneously) equates severe mental disturbance with incompetency.

The second paper, by Carbonelll, Heilbrun & Friedman (reference, this volume), concerns a largely uncharted area, namely our ability to predict treatment response within a cohort of defendants adjudicated as incompetent to stand trial. As is well known, the Supreme Court, in Jackson v. Indiana (1972), held that incompetent defendants "cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future" (p.738). The Court did not specify how long a period of time would be "reasonable," nor did it indicate how predictions about treatment response or progress toward that goal should be assessed. As a result of Jackson, jurisdictions have adopted statutes which place wildly varying limits on Jackson commitments (see Golding & Roesch, 1988; Roesch & Golding, 1979); many states also require the court and forensic examiners to make predictions as to probability of treatment response at the time of a finding of incompetency.

Carbonelll, Heilbrun & Friedman (reference, this volume) attempted to address this problem by applying sophisticated multivariate statistical analyses to a data set that included demographic, diagnostic and psychological test scores as predictors and clinical and court judgements of competency restoration as criteria. While they discovered a number of primarily intellective, cognitive and diagnostic predictors of competency restoration in their derivation sample, these predictors did not cross-validate. The authors appropriately conclude that forensic evaluators ought to view their ability to predict competency with great caution.

These results raise a number of clinical and research design issues that also relate to the "psychosis-incompetency" problem. As the authors themselves suggest, studies of this sort are difficult because the functional criteria for competency are confounded with the defendant's psychosis, and they did not have a means of separating these two sources of criterion variance. Closer examination of the problem reveals an even deeper problem. Almost all forensic treatment programs, in the authors words, "rely primarily on psychotropic medication in treating incompetent defendants (p. reference this volume)." To the extent this is true, and to the extent that the criterion for competency is minimally the absence of overt psychotic symptomatology, then one really has to address the prediction of neuroleptic treatment outcome. Inspite of the widespread belief in the clinical community that psychotropic medication is effective in the treatment of severe mental disorder, the scientific evidence produces two disturbing conclusions. First, approximately 10-20% of all schizophrenics are treatment "non-responders," 20-30% of treatment "responders" show significant relapse, even while on appropriate levels of medication, and approximately 70% of treatment "non-responders" do not show clinically significant improvement, even when treated with the apparent drug of choice (clozapine) for treatment resistant schizophrenics (Kane et al., 1988). Because the forensic and psychiatric drug effectiveness literatures have virtually no overlap, it is unclear whether or not the modal incompetent defendant falls into the "treatment resistant" category, but clinical experience suggests that a substantial percentage of such defendants probably do. Secondly, within the psychiatric literature, prediction of treatment response to psychotropic medication has proved to be an elusive goal (Awad, 1989; Lydiard & Laird, 1988; Moller, Scharl & von Zerssen, 1985). Those predictors that have shown some promise, albeit at a low level, were not generally present in the set used by Carbonell and her colleagues. Thus, poor premorbid social functioning, insidious onset, negative symptoms, age of onset, prior psychiatric history, and history of response to treatment appear to be the most promising of the predictors. In reality, this predictor set reads very much like the traditional assessment maxim, "The best predictor of future behavior is past behavior." Translated into the present context, this may imply that the best predictor of treatment response for incompetent defendants may be their response during initial phases of treatment. Perhaps this is why Cuneo and Brelje (1984) were able to show better global prediction of competency restoration -- their evaluators had the benefit of observing the defendant's response within the first two weeks of hospitalization.

Some state jurisdictions, in fact, provide for just this sequence of events. In Illinois, for example, if a court finds a defendant unfit, but is unsure that there is a "substantial probability" of competency restoration within one year, then the court can commit the defendant for treatment and require that the issue of competency restoration be addressed following a 30 day period of treatment. While a 30 day period may not be sufficient, it is commonly understood that if a defendant is a medication responder, then he or she is likely to respond, if at all, within a relatively short period of time. My colleagues and I (Golding, Eaves & Rogow, 1989) discovered just such a pattern in a similar forensic population. Thus, instead of requiring vague predictions of treatment response in a difficult-to-predict subclass of defendants, judicial procedures, within the framework of Jackson, could easily be modified to allow for medication trials before making decisions about future restorability.

The problem of prediction of restorability also raises complex issues of right to refuse treatment, risk for the development of untoward side-effects (e.g., tardive dyskinesia), ways in which "psychotropic restoration" may disadvantage defendants who susequently may wish to plead not guilty by reason of insanity, and the lack of alternative psychological or psychosocial treatments in most forensic facilities (see Golding & Roesch, 1988; Winick, 1985). As forensic psychologists, we can make important contributions to the larger mental health service delivery system by examining the wider impact of near exclusive reliance on psychotropic medication for competency restoration.

The research papers in this section raise important issues about research design, clinical treatment considerations, and mental health policy implications. Forensic populations provide a unique opportunity to examine theories of psychopathology and methods for treatment in an applied context where significant mental health and social policy considerations are readily apparent. This accounts, in part, for the growing and deserved prominence of the scientific discipline which we call forensic psychology.

Awad, A. G. (1989). Drug therapy in schizophrenia: Variability of outcome and prediction of response. Canadian Journal of Psychiatry, 34, 711-720.

Beran, N. J., & Toomey, B. G. (Eds.). (1979). Mentally ill offenders and the criminal justice system: Issues in forensic services. New York: Praeger.

Cuneo, D. J., & Brelje, T. B.. (1984). Predicting probability of attaining fitness to stand trial. PsychologicalReports, 55, 35-39.

Golding, S. L., Eaves, D., & Kowaz, A. (1989). The assessment,treatment and community outcome of insanity acquittees: Forensic history and response to treatment. International Journal of Law and Psychiatry, 12, 149-179

. Golding, S. L., & Roesch, R. (1988). Competency for adjudication: An international analysis. In D. Weisstub (Ed.), Law and Mental Health: International Perspectives, Volume 4 (pp. 73-109). New York: Pergamon Press.

Golding, S. L., Roesch, R., & Schreiber, J. . (1984). Assessment and conceptualization of competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Lawand Human Behavior, 8, 321-334.

Jackson v. Indiana. 406 US. 715 (1972).

Kane, J., Honigfeld, G., Singer, J., & Meltzer, H. (1988). Clozapine for the treatment-resistant schizophrenic. Archives of General Psychiatry, 45, 789-796.

Lipsitt, P., Lelos, D., & McGarry, A. (1971). Competency for trial: A screening instrument. American Journal of Psychiatry, 12, 105-109.

Lydiard, R.B., & Laird, L. K. (1988). Prediction of response to antipsychotics. Journal of Clinical Psychopharmacology, 8, 3-13.

Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1987). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers New York : Guilford Press.

Melton, G. B., Weithorn, L. A., & Slobogin, C. (1985). Community mental health centers and the courts: An evaluation ofcommunity-based forensic services. Lincoln: University of Nebraska Press

Moller, H., Scharl, W., & von Zerssen, D. (1985). Vorhersage des Therapieererfolges unter neuroleptischer Akutbehandlung: Ergebnisse einer empirischen Untersuchung an 243 stationar behandelten schizophrenen Patienten. [Prediction of therapeutic response under acute neuroleptic treatment conditions: Results of an empirical study on 243 schizophrenic inpatients]. Fortschritte der Neurologie, Psychiatrie, 53, 370-383.

Roesch, R., & Golding, S. L. (1980). Competency to stand trial Urbana, Ill: University of Illinois Press.

Roesch, R., & Golding, S. (1979). Treatment and disposition ofdefendents found incompetent to stand trial: a review and a proposal. International Journal of Law and Psychiatry, 2, 349-370.

Steadman, H. J., McCarty, D. W., & Morrissey, J. P. (1989). The mentally ill in jail: Planning for essential services New York: Guilford.

Winick, B. J. (1985). Restructuring competency to stand trial. U. C. L. A. Law Review, 32, 921-985.

1. In decision theory terms, this is known as a two-stage pre-reject strategy.