Criminal Court's Disability

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides. Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the accused is typically institutionalized until a mental health expert finds them restored. Criminal court judges and examiners systematically deny recognition to one group of diagnoses--personality disorders (PDs). Even when defense attorneys argue that symptoms of the accused’s PD impede their ability to collaborate, courts and some forensic experts insist that such defendants are competent. Examiners and courts reframe these difficulties as deliberate acts of subversion and conclude that defendants with PDs choose to be uncooperative. PDs receive an exceptional and paradoxical status: they are considered psychiatric conditions, yet their expressions are deemed volitional. This Essay argues that CST outcomes reveal court actors’ primary preoccupation with determining responsibility rather than due process. As a result of this preoccupation, courts selectively apply the competency standard, discounting its inter-personal dimensions and prioritizing the accused’s cognitive capacities. Forensic examiners are the protagonists of this story. Courts defer to experts’ decisions, but they cede too much. To reach their findings, examiners step outside their clinical role and make normative, rather than descriptive claims about responsibility, disability and deviance. Thus, although competency is a procedural protection, substantive concerns, rooted in criminal law and about responsibility intrude on court actors’ decision-making. Competency proceedings illustrate that it may not be possible for criminal courts to both embrace and adapt themselves to the reality of neurodivergence while also pursuing criminalization. Furthermore, evidence from competency proceedings suggests that mental health expertise is neither an antidote to criminalization, nor sufficient for disability justice.