Reconceptualizing Competence: An Appeal

This article builds on contemporary critiques of the justice system's treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed in legal scholarship - the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of the concept of competence to account of all phases of criminal proceedings - trials, appeals, and beyond. Specifically it urges the American Bar Association (ABA), in the wake of the Supreme Court's decision earlier this year in Indiana v. Edwards, to provide more coherent, contextualized, and client-centered Criminal Justice Mental Health Standards to guide courts and practitioners dealing with impaired defendants at all stages of the criminal process. By redrafting its Guidelines in their entirety, the ABA can begin to untangle the mess that has become the United States system of criminal mental health law and policy, and ensure that impaired defendants are provided with their day in appellate court.