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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-725
- --------
- SALVADOR GODINEZ, WARDEN, PETITIONER v.
- RICHARD ALLAN MORAN
- on writ of certiorari to the united states court
- of appeals for the ninth circuit
- [June 24, 1993]
-
- Justice Kennedy, with whom Justice Scalia joins,
- concurring in part and concurring in the judgment.
- I am in full agreement with the Court's decision that
- the competency standard for pleading guilty and waiving
- the right to counsel is the same as the test of competency
- to stand trial. As I have some reservations about one
- part of the Court's opinion and take a somewhat different
- path to reach my conclusion, it is appropriate to make
- some further observations.
- The Court compares the types of decisions made by one
- who goes to trial with the decisions required to plead
- guilty and waive the right to counsel. This comparison
- seems to suggest that there may have been a heightened
- standard of competency required by the Due Process
- Clause if the decisions were not equivalent. I have
- serious doubts about that proposition. In discussing the
- standard for a criminal defendant's competency to make
- decisions affecting his case, we should not confuse the
- content of the standard with the occasions for its applica-
- tion.
- We must leave aside in this case any question of
- whether a defendant is absolved of criminal responsibility
- due to his mental state at the time he committed criminal
- acts and any later question about whether the defendant
- has the minimum competence necessary to undergo his
- sentence. What is at issue here is whether the defendant
- has sufficient competence to take part in a criminal
- proceeding and to make the decisions throughout its
- course. This is not to imply that mental competence is
- the only aspect of a defendant's state of mind that is
- relevant during criminal proceedings. Whether the
- defendant has made a knowing, intelligent, and voluntary
- decision to make certain fundamental choices during the
- course of criminal proceedings is another subject of
- judicial inquiry. That both questions might be implicated
- at any given point, however, does not mean that the
- inquiries cease to be discrete. And as it comes to us, this
- case involves only the standard for determining
- competency.
- This Court set forth the standard for competency to
- stand trial in Dusky v. United States, 362 U. S. 402
- (1960) (per curiam): -[T]he `test must be whether [the
- defendant] has sufficient present ability to consult with
- his lawyer with a reasonable degree of rational under-
- standing-and whether he has a rational as well as
- factual understanding of the proceedings against him.'-
- Ibid. In my view, both the Court of Appeals and respond-
- ent read -competency to stand trial- in too narrow a
- fashion. We have not suggested that the Dusky compe-
- tency standard applies during the course of but not before
- trial. Instead, that standard is applicable from the time
- of arraignment through the return of a verdict. Although
- the Dusky standard refers to -ability to consult with [a]
- lawyer,- the crucial component of the inquiry is the
- defendant's possession of -a reasonable degree of rational
- understanding.- In other words, the focus of the Dusky
- formulation is on a particular level of mental functioning,
- which the ability to consult counsel helps identify. The
- possibility that consultation will occur is not required for
- the standard to serve its purpose. If a defendant elects
- to stand trial and to take the foolish course of acting as
- his own counsel, the law does not for that reason require
- any added degree of competence. See ante, at 10, n. 9.
- The Due Process Clause does not mandate different
- standards of competency at various stages of or for
- different decisions made during the criminal proceedings.
- That was never the rule at common law, and it would
- take some extraordinary showing of the inadequacy of a
- single standard of competency for us to require States to
- employ heightened standards. See Medina v. California,
- 505 U. S. ___, ___ (1992) (slip op., at 8). Indeed, we
- should only overturn Nevada's use of a single standard if
- it -`offends some principle of justice so rooted in the
- traditions and conscience of our people as to be ranked as
- fundamental.'- Ibid. (quoting Patterson v. New York, 432
- U. S. 197, 202 (1977)).
- The historical treatment of competency that supports
- Nevada's single standard has its roots in English common
- law. Writing in the 18th century, Blackstone described
- the effect of a defendant's incompetence on criminal
- proceedings:
- -[I]f a man in his sound memory commits a capital
- offence, and before arraignment for it, he becomes
- mad, he ought not to be arraigned for it; because he
- is not able to plead to it with that advice and caution
- that he ought. And if, after he has pleaded, the
- prisoner becomes mad, he shall not be tried; for how
- can he make his defence?'' 4 W. Blackstone, Com-
- mentaries *24; accord, 1 M. Hale, Pleas of the Crown
- *34-*35.
- Blackstone drew no distinction between madness for
- purposes of pleading and madness for purposes of going
- to trial. An English case arising in the Crown Court in
- 1865 indicates that a single standard was applied to
- assess competency at the time of arraignment, the time
- of pleading, and throughout the course of trial. See
- Regina v. Southey, 4 Fos. & Fin. 864, 872, n. a, 176 Eng.
- Rep. 825, 828, n. a (N. P. 1865) (-Assuming the prisoner
- to be insane at the time of arraignment, he cannot be
- tried at all, with or without counsel, for, even assuming
- that he has appointed counsel at a time when he was
- sane, it is not fit that he should be tried, as he cannot
- understand the evidence, nor the proceedings, and so is
- unable to instruct counsel, or to withdraw his authority
- if he acts improperly, as a prisoner may always do-); id.,
- at 877, n. a, 176 Eng. Rep., at 831, n. a (-if [the defend-
- ant] be so insane as not to understand the nature of the
- proceedings, he cannot plead-).
- A number of 19th century American cases also referred
- to insanity in a manner that suggested there was a single
- standard by which competency was to be assessed
- throughout legal proceedings. See, e.g., Underwood v.
- People, 32 Mich. 1, 3 (1875) (-insanity, when discovered,
- was held at common law to bar any further steps against
- a prisoner, at whatever stage of the proceedings''); Crocker
- v. State, 60 Wis. 553, 556, 19 N.W. 435, 436 (1884) (-At
- common law, if a person, after committing a crime,
- became insane, he was not arraigned during his insanity,
- but was remitted to prison until such incapacity was
- removed. The same was true where he became insane
- after his plea of not guilty and before trial-); State v.
- Reed, 41 La. 581, 582, 7 So. 132 (1889) (-It is elementary
- that a man cannot plead, or be tried, or convicted, or
- sentenced, while in a state of insanity-). See also 2 J.
- Bishop, Commentaries on Law of Criminal Procedure
- 664, 667 (2d ed. 1872) (-a prisoner cannot be tried,
- sentenced, or punished- unless he is -mentally competent
- to make a rational defense-).
- Other American cases describe the standard by which
- competency is to be measured in a way that supports the
- idea that a single standard, parallel to that articulated in
- Dusky, is applied no matter what point during legal
- proceedings a competency question should arise. For
- example, in Freeman v. People, 4 Denio 2 (N. Y. 1847), it
- was held, -If . . . a person arraigned for a crime, is
- capable of understanding the nature and object of the
- proceedings going on against him; if he rightly compre-
- hends his own condition in reference to such proceedings,
- and can conduct his defence in a rational manner, he is,
- for the purpose of being tried, to be deemed sane.- Id.,
- at 24-25. Because the competency question was posed in
- Freeman at the time the defendant was to be arraigned,
- id., at 19, the Freeman court's conception of competency
- to stand trial was that of a single standard to be applied
- throughout.
- An even more explicit recitation of this common law
- principle is found in Hunt v. State, 27 So. 2d 186 (Ala.
- 1946). In the course of the opinion in that case, there
- was a discussion of the common law rule regarding a
- defendant's competency to take part in legal proceedings:
- -The rule at common law . . . is that if at any time
- while criminal proceedings are pending against a
- person accused of a crime, the trial court either from
- observation or upon suggestion of counsel has facts
- brought to his attention which raise a doubt of the
- sanity of defendant, the question should be settled
- before further steps are taken. . . . The broad ques-
- tion to be determined then is whether the defendant
- is capable of understanding the proceedings and of
- making his defense, and whether he may have a full,
- fair and impartial trial.- Id., at 191 (citation omit-
- ted).
- At common law, therefore, no attempt was made to apply
- different competency standards to different stages of
- criminal proceedings or to the variety of decisions that a
- defendant must make during the course of those proceed-
- ings. See Commonwealth v. Woelfel, 88 S. W. 1061, 1062
- (Ky. 1905); Jordan v. State, 135 S. W. 327, 328-329
- (Tenn. 1911); State v. Seminary, 115 So. 370, 371-372
- (La. 1927); State ex. rel. Townsend v. Bushong, 146 Ohio
- St. 271, 272, 65 N. E. 2d 407, 408 (1946) (per curiam);
- Moss v. Hunter, 167 F. 2d 683, 684-685 (CA10 1948).
- Commentators have agreed that the common law standard
- of competency to stand trial, which parallels the Dusky
- standard, has been applied throughout criminal proceed-
- ings, not just to the formal trial. See H. Weihofen,
- Mental Disorder as a Criminal Defense 428-429, 431
- (1954) (-It has long been the rule of the common law that
- a person cannot be required to plead to an indictment or
- be tried for a crime while he is so mentally disordered as
- to be incapable of making a rational defense-); B. Weiner,
- Mental Disability and the Criminal Law, in The Mentally
- Disabled and the Law 695-696 (3d ed. 1985) (-It has
- traditionally been presumed that competency to stand trial
- means competency to participate in all phases of the trial
- process, including such pretrial activities as deciding how
- to plead, participating in plea bargaining, and deciding
- whether to assert or waive the right to counsel-).
- That the common law did not adopt heightened compe-
- tency standards is readily understood when one considers
- the difficulties that would be associated with more than
- one standard. The standard applicable at a given point
- in a trial could be difficult to ascertain. For instance, if
- a defendant decides to change his plea to guilty after a
- trial has commenced, one court might apply the compe-
- tency standard for undergoing trial while another court
- might use the standard for pleading guilty. In addition,
- the subtle nuances among different standards are likely
- to be difficult to differentiate, as evidenced by the lack of
- any clear distinction between a -rational understanding-
- and a -reasoned choice- in this case. See ante, at 8.
- It is true, of course, that if a defendant stands trial
- instead of pleading guilty, there will be more occasions for
- the trial court to observe the condition of the defendant
- to determine his mental competence. Trial courts have
- the obligation of conducting a hearing whenever there is
- sufficient doubt concerning a defendant's competence. See
- Drope v. Missouri, 420 U. S. 162, 180-181 (1975). The
- standard by which competency is assessed, however, does
- not change. Respondent's counsel conceded as much
- during oral argument, making no attempt to defend the
- contrary position of the Court of Appeals. See, e.g., Tr.
- of Oral Arg. 22 (-This is not a case of heightened stand-
- ards-); id., at 31 (-We didn't argue a heightened standard.
- We did not argue a heightened standard to the Ninth Cir-
- cuit, nor did we necessarily argue a heightened standard
- at any juncture in this case-); id., at 33 (-Due process
- does not require this higher standard, but requires a
- separate inquiry-).
- A single standard of competency to be applied through-
- out criminal proceedings does not offend any -`principle
- of justice so rooted in the traditions and conscience of our
- people as to be ranked as fundamental.'- Medina, 505
- U. S., at ___ (slip op., at 8). Nothing in our case law
- compels a contrary conclusion, and adoption of a rule
- setting out varying competency standards for each decision
- and stage of a criminal proceeding would disrupt the
- orderly course of trial and, from the standpoint of all
- parties, prove unworkable both at trial and on appellate
- review.
- I would avoid the difficult comparisons engaged in by
- the Court. In my view, due process does not preclude
- Nevada's use of a single competency standard for all
- aspects of the criminal proceeding. Respondent's decision
- to plead guilty and his decision to waive counsel were
- grave choices for him to make, but as the Court demon-
- strates in Part II-B, there is a heightened standard, albeit
- not one concerned with competence, that must be met
- before a defendant is allowed to make those decisions.
- With these observations, I concur in the judgment and
- in Parts I, II-B, and III of the Court's opinion.
-