Recognizing and handling problems of incompetent deaf defendants charged with serious offenses

International Journal of Law and Psychiatry

Volumn 20, Issue 3, 1997, Pages 373-387

  Vernon, McCay ^a,c   Raifman, Lawrence J ^b  

^a WESTERN MARYLAND COLLEGE   (United States)

^b Springfield Hospital Center   (United States)

^c NONE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; COGNITIVE DEFECT; CRIMINAL JUSTICE; HEARING IMPAIRMENT; HUMAN; LEGAL LIABILITY; OFFENDER;

ADULT; AGE OF ONSET; CIVIL RIGHTS; COMMUNICATION BARRIERS; DEAFNESS; FORENSIC PSYCHIATRY; HEARING IMPAIRED PERSONS; HOMICIDE; HUMANS; LANGUAGE DISORDERS; MALE; MENTAL COMPETENCY; MENTAL RETARDATION; PERSONALITY DISORDERS; SOCIALIZATION; UNITED STATES;

EID: 0030822379     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(97)00010-1     Document Type: Article

References (28)

1. The standard for competence to stand trial was defined by the U.S. Supreme Court in 1960 as "whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and he has a rational as well as a factual understanding of the proceedings against him." Dusky v. U.S. U.S. 403 (1960). Dusky had been prescribed Thorazine prior to trial. He remained at Springfield Hospital, a federal forensic hospital, for 4 months undergoing pretrial competence assessment. Initially, the trial court concluded that he was competent to stand trial because he was "oriented to time and place." He was found guilty of kidnaping and attempted rape and sentenced to 45 years in prison. On appeal, the Supreme Court rejected the lower court's definition of competence to stand trial and remanded the case, offering its own definition. Dusky was eventually found competent to stand trial and was found guilty, though the second time he was sentenced to 20 years with possibility of parole in 5 years.
2. The competence decision is determined by the trial court judge, who in his or her discretion can hold a pretrial court hearing on the matter. The standard that the court employs is the "beyond a reasonable doubt" criterion. The court judge, prosecutor, or defense attorney can raise the issue of a defendant's fitness for trial. However, there needs to be a bona fide doubt, such as prior history of mental hospitalization, prior traumatization, or prior diagnosis of a mental disorder; see Drope v. Missouri, 420 U.S. 162 (1975). A competence hearing is not prosecutorial; it is protective of the trial process. A defendant must comply with the competency assessment. A defendant's attorney's obligation to investigate "implausible" and possibly delusional alibi can wait for the results of a fitness assessment. Finally, in some cases psychotropic medication can restore and maintain a defendant's competence, i.e., being on medication is not a bar to competence to stand trial.
3. Jackson v. Indiana, 406 U.S. 715 (1972). In its opinion, the Supreme Court ruled that "Indiana cannot constitutionally commit the Petitioner for an indefinite period simply on account of his incompetency." The Court was unanimous in its belief that he was committed inappropriately without expectation of release. The Court held that the nature and duration of the commitment bear some reasonable relation to the purpose for which the individual is committed." The mere finding of criminal charges is not enough. The implications of this opinion were twofold: (1) a referral to a state hospital facility for those adjudicated not competent for trial may be set aside if an outpatient community placement for treatment can restore a defendant's competence without risk to the community at large; and (2) persons suffering irreversible incompetence for trial may not be permanently committed as incompetent. Alternatives such as civil commitment and/or dropping charges must be considered.
4. In that case, the Court was faced with Mr. Theon Jackson, a 27-year-old deaf man whose only means of communication was very limited sign language. Mr. Jackson was accused of two separate counts of robbery. He was found not competent to stand trial on the basis of his essentially nonexistent communication skills resulting from his lack of hearing and his cognitive deficiency. Mr. Jackson was committed to the Department of Mental Health for treatment to restore him to competence. Mr. Jackson was recognized by mental health professionals to be unlikely that he would develop communications skills sufficient to be found competent to stand trial. In essence, according to the law of the day, Mr. Jackson faced a life sentence in a state mental hospital without being found guilty of stealing $9. The U.S. Supreme Court agreed with the uneasy mental health practitioners who indicated that Mr. Jackson should not be indefinitely committed to a mental hospital. The Court held that unless it could be shown that the probability existed that he could regain his competence for trial with treatment, Mr. Jackson should be released from confinement in a mental hospital.
5. M. Vernon et al., The Miranda Warnings and the Deaf Suspect, 14 Behav. Sci. & L. 121-35 (1996).
6. S. Dubow & S. Geer, Legal Rights: The Guide for Deaf and Hard of Hearing People 15-45 (1992).
7. M. Vernon & J. F. Andrews, The Psychology of Deafness: Understanding Deaf and Hard of Hearing People 138-39 (1990).
8. B. Haskins & L. J. Raifman, Primitive Personality Disorder. Paper presented at the Breakout IV Conference, Chicago, IL (May 2, 1996).
9. See supra note 7, at 138-39.
10. Id.
11. Research in the United States, England, and Scandinavia has identified a type of deaf patient who has extreme educational deprivation, very little understanding of language or sign language, inadequate socialization, and a generally psychologically barren life. The result is gross cognitive immaturity and severe cognitive deprivation. See T. Basilier, Surdophrenia: The Psychic Consequences of Congenital or Early Acquired Deafness. Some Theoretical and Clinical Considerations. 40 Acta Psychiatrics Scandinavica Supplementum 362-74 (1974); Roy R. Grinker, Sr., Psychiatric Diagnosis, Therapy, and Research on the Psychotic Deaf: Final Report, Grant no. RD 2407 S, Social and Rehabilitation Service, Department of Health, Education, and Welfare (1969). The report is available from Dr. Grinker, Michael Reese Hospital, E. S. Levine & E. E. Wagner, Personality Patterns of Deaf Persons: An Interpretation Based upon Research with the Hand Test, 4 Perceptual & Motor Skills Monograph Suppl. 39 (1974); J. D. Rainer et al. eds., Family and Mental Health Problems in a Deaf Population (1963); and M. Vernon & J. F. Andrews, supra note 7, at 137-38.
12. Research in the United States, England, and Scandinavia has identified a type of deaf patient who has extreme educational deprivation, very little understanding of language or sign language, inadequate socialization, and a generally psychologically barren life. The result is gross cognitive immaturity and severe cognitive deprivation. See T. Basilier, Surdophrenia: The Psychic Consequences of Congenital or Early Acquired Deafness. Some Theoretical and Clinical Considerations. 40 Acta Psychiatrics Scandinavica Supplementum 362-74 (1974); Roy R. Grinker, Sr., Psychiatric Diagnosis, Therapy, and Research on the Psychotic Deaf: Final Report, Grant no. RD 2407 S, Social and Rehabilitation Service, Department of Health, Education, and Welfare (1969). The report is available from Dr. Grinker, Michael Reese Hospital, E. S. Levine & E. E. Wagner, Personality Patterns of Deaf Persons: An Interpretation Based upon Research with the Hand Test, 4 Perceptual & Motor Skills Monograph Suppl. 39 (1974); J. D. Rainer et al. eds., Family and Mental Health Problems in a Deaf Population (1963); and M. Vernon & J. F. Andrews, supra note 7, at 137-38.
13. Research in the United States, England, and Scandinavia has identified a type of deaf patient who has extreme educational deprivation, very little understanding of language or sign language, inadequate socialization, and a generally psychologically barren life. The result is gross cognitive immaturity and severe cognitive deprivation. See T. Basilier, Surdophrenia: The Psychic Consequences of Congenital or Early Acquired Deafness. Some Theoretical and Clinical Considerations. 40 Acta Psychiatrics Scandinavica Supplementum 362-74 (1974); Roy R. Grinker, Sr., Psychiatric Diagnosis, Therapy, and Research on the Psychotic Deaf: Final Report, Grant no. RD 2407 S, Social and Rehabilitation Service, Department of Health, Education, and Welfare (1969). The report is available from Dr. Grinker, Michael Reese Hospital, E. S. Levine & E. E. Wagner, Personality Patterns of Deaf Persons: An Interpretation Based upon Research with the Hand Test, 4 Perceptual & Motor Skills Monograph Suppl. 39 (1974); J. D. Rainer et al. eds., Family and Mental Health Problems in a Deaf Population (1963); and M. Vernon & J. F. Andrews, supra note 7, at 137-38.
14. Research in the United States, England, and Scandinavia has identified a type of deaf patient who has extreme educational deprivation, very little understanding of language or sign language, inadequate socialization, and a generally psychologically barren life. The result is gross cognitive immaturity and severe cognitive deprivation. See T. Basilier, Surdophrenia: The Psychic Consequences of Congenital or Early Acquired Deafness. Some Theoretical and Clinical Considerations. 40 Acta Psychiatrics Scandinavica Supplementum 362-74 (1974); Roy R. Grinker, Sr., Psychiatric Diagnosis, Therapy, and Research on the Psychotic Deaf: Final Report, Grant no. RD 2407 S, Social and Rehabilitation Service, Department of Health, Education, and Welfare (1969). The report is available from Dr. Grinker, Michael Reese Hospital, E. S. Levine & E. E. Wagner, Personality Patterns of Deaf Persons: An Interpretation Based upon Research with the Hand Test, 4 Perceptual & Motor Skills Monograph Suppl. 39 (1974); J. D. Rainer et al. eds., Family and Mental Health Problems in a Deaf Population (1963); and M. Vernon & J. F. Andrews, supra note 7, at 137-38.
15. Rainer et al. id. Rainer et al. labeled these persons Primitive Personalities. A Norwegian psychiatrist, T. Basilier, independently described the same condition, calling it Surdophrenia. See, Basilier, supra note 11.
16. See supra note 5, at 000.
17. People v. Lang, 26 Ill. App. 3rd 648 (1975) 325 N.E. 2d 305 (1975); People v. Lang, 62 Ill App. 3rd 688 (1978) 378 N.E. 2d 1106 (1978).
18. See supra note 6, at 123-24.
19. E. Tidyman, Dummy 135 (1974).
20. See, Jackson v. Indiana, 406 U.S. 715 (1972), at 740-41. The American Bar Association Criminal Justice Mental Health Standards review noted that the judicial response to permitting legal proceedings for a defendant considered to be incompetent to stand trial varied. The Model Penal Code noted, "The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to the trial and without the personal participation of the defendant." Section 406 (1962). In some jurisdictions the finding of incompetence suspends all proceedings both against and by the defendant.
21. Id.
22. Id.
23. Gobert, Competency to Stand Trial: A pre- and post-Jackson Analysis, 40 Tenn. L. Rev. 659 (1973) cited in ABA Criminal Justice Mental Health Standards, at 7-233.
24. See, American Bar Association Standards for Criminal Justice, First Tentative Draft, Criminal Justice Mental Health Standards (Washington, DC, 1983). The ABA Criminal Justice Mental Health Standards reviewed a case decrying the failure of the court to continue proceedings for a defendant found not competent. Four defendants were charged with murder of a fellow military prisoner 10 years after the occurrence of the event. The court dismissed the indictment of three of the defendants on the grounds that their constitutional right to a speedy trial had been compromised. The fourth defendant had been found incompetent to stand trial. Applying the rule that all proceedings had to be suspended, the fourth defendant was committed to a hospital as incompetent, and charges were not dropped. See, U.S. v. Barnes, 175 F. Supp. 60 (S.D. Cal. 1959), at 7-226.
25. Albert Spikes, Competence to stand trial and the low functioning deaf defendant. Paper presented at the Breakout IV Conference, Chicago, IL (May 3, 1996).
26. Annie G. Steinberg, Comment made during presentation of Competence to stand trial and the low functioning deaf defendant. Presented at the Breakout IV Conference, Chicago, IL (May 3, 1996).
27. See American Bar Association Standards for Criminal Justice, supra note 21, at 7-231-32. Most commentators agree that the present system of dealing with permanent incompetents as apparently mandated by Jackson is unacceptable; 7-232-33.
28. Steven Holmes, Appellant v. State of Florida, Appellee 83-1055 District Court of Appeals of Florida, Third District (August 12, 1986).