Competency to be executed: A therapeutic jurisprudence perspective

This Article analyzes the concept of competency to be executed. It examines the Supreme Court's 1986 decision in Ford v. Wainwright, discussing both its Eighth Amendment and procedural due process determinations. It then considers the standard that should be applied in determining competency in this context and the procedures that the states should utilize to insure a fair determination consistent with due process. The article then considers the perplexing problem of whether an incompetent death row prisoner may assert a constitutional or statutory right to refuse treatment designed to restore him to competency for execution, examining both the constitutional and therapeutic implications of involuntary treatment in this context.     

Involuntary competence

This article addresses whether the state has the right to medicate involuntarily a defendant who is incompetent either to plead guilty or to stand trial for the purpose of restoring legal competence. It first presents the constitutional background concerning incompetence and the right of prisoners generally to refuse psychotropic medication. Then the article examines the individual and state interests that must be considered to decide specifically whether the state may involuntarily medicate a criminal defendant solely for the purpose of restoring competence. Although the individual interests are strong, the article contends that the state does have a right to medicate involuntarily defendants charged with most crimes to restore trial competence, and that adequate remedies are available to ensure that medicated defendants receive a fair trial.     

Ethical care for infants with conditions not curable with intensive care

Offering intensive care to neonates who have conditions that carry extremely poor prognoses is a source of great contention amongst neonatologists. The concept of best interests is commonly used as a rationale for refusing such care, despite the fact that parents of these infants often have a different view of what best interests means. This article takes up the question of what best interests should incorporate for infants with lethal conditions not curable with intensive care, and how and who should decide which treatment options should be implemented. Based on our recommendation that parents be apprised of the basis upon which physicians are evaluating treatment options, we offer a framework that allows all relevant parties to approach the issue of what is appropriate treatment from a similar place. We maintain that this approach will increase transparency, dialogue, understanding, and trust, which, in turn, may result in greater consensus.     

Hospitalization of criminal defendants for evaluation of competence to stand trial or for restoration of competence: clinical and legal issues

The clinical and legal literature abounds with articles dealing with competence to stand trial; while most agree that criminal defendants must be capable of defending themselves before the state can bring them to trial, a number of articles are quite critical of the procedures by which these concepts are operationalized, some even going so far as to suggest abolishing the requirement for competence altogether. One of the major problems leading to the criticisms is the unnecessary loss of liberty involved. Although the length of incarceration has decreased significantly since the 1970s, the majority of states still permit, or require, hospitalization for evaluation of competence, and even more so for treatment to restore competence.The author reviews case law and presents data from his survey of current state statutes and responses from state forensic mental health program directors, to demonstrate the rarity of outpatient treatment to restore competence. He argues that outpatient treatment for defendants who do not require hospitalization on clinical or public safety grounds should be available, on both clinical and legal grounds, and provides recommendations for establishing such programs in the community.     

Linguistic competence and expertise

Questions about the relationship between linguistic competence and expertise will be examined in the paper. Harry Collins and others distinguish between ubiquitous and esoteric expertise. Collins places considerable weight on the argument that ordinary linguistic competence and related phenomena exhibit a high degree of expertise. His position and ones which share close affinities are methodologically problematic. These difficulties matter because there is continued and systematic disagreement over appropriate methodologies for the empirical study of expertise. Against Collins, it will be argued that the term ‘expertise’ should be reserved for expertise (esoteric experts) and exclude everyday performance (ubiquitous experts). Wittgensteinian ideas will be employed to maintain that it is mistaken and misleading to derive substantive conclusions about the epistemology of expertise from ordinary linguistic competence and vice versa. Significant attention will be devoted to the notion of following a rule with particular reference to the intelligibility of tacit rule following. A satisfactory theoretical approach to expertise should not involve making important claims about ordinary linguistic competence.     

WAGE SURVEYS: DISPELLING SOME MYTHS ABOUT THE "MARKET WAGE"

The comparable worth controversy has generated much discussion about the appropriate valuation of job worth. To date, academic inquiries into the measurement of job worth have focused primarily on job evaluation; however, recent court decisions suggest that market wages are a more compelling indicator of job worth than are job evaluation results. This paper examines the construct of "market wage" and the process by which it is measured (wage surveys). It is argued that both the construct and the measurement of the market wage have not been sufficiently examined by either academics or the courts. Implications for pay administration and future research are noted.     

Involuntary sterilization of persons with mental retardation: an ethical analysis

Legitimate concerns on the part of parents and guardians may lead to requests for sterilization of a mentally retarded person in their care. At the same time, mentally retarded persons must be protected from actions that do not serve their best interests. This paper will review the history of involuntary sterilization in the United States and evaluate the ethical arguments that are relevant to decisions about involuntary sterilization. While other, less permanent forms of contraception might be acceptable, involuntary sterilization ought not be performed on mentally retarded persons who retain the capacity for reproductive decision-making, the ability to raise a child, or the capacity to provide valid consent to marriage. Mentally retarded persons who lack capacity in those three areas should be considered for involuntary sterilization only when the procedure is necessary, sterilization would serve the best interests of the mentally retarded person, less intrusive and temporary methods of contraception or control of menstruation are not acceptable alternatives, and procedural safeguards have been implemented to assure a fair decision-making process.     

Is there a causal link from phonological awareness to success in learning to read?

In this review, we re-assess the evidence that phonological awareness represents a skill specific to spoken language that precedes and directly influences the process of reading acquisition. Longitudinal and experimental training studies are examined in detail, as these are considered most appropriate for exploring a causal hypothesis of this nature. A particular focus of our analysis is the degree to which studies to date have controlled for existing literacy skills in their participants and the influence that these skills might have on performance on phonological awareness tasks. We conclude that no study has provided unequivocal evidence that there is a causal link from competence in phonological awareness to success in reading and spelling acquisition. However, we believe that such a study is possible and outline some ideas for its design and implementation.     

Hasidism in Tsarist Russia: Historical and Social Aspects

It is difficult to ascribe to Hasidism sets of distinctive regional characteristics, because Hasidism transcended both communal and national boundaries. Aware of this problem, the authors of this article seek to characterize Hasidism in Russia, while eschewing the essentialist assumption that Hasidism in Russia had a Russian character. The article describes Hasidism in Tsarist Russia from several perspectives. From an internal Jewish perspective, it discusses features of dynasties of hasidic leaders and the courts they lived in. This is followed by a discussion of relations between hasidic centers (the courts) and hasidic peripheries (the local communities). Relations between Hasidism and the Russian administration are also analyzed, as are the various ways in which hasidim in Russia adapted to the challenges of modernity, while hasidic leaders in Galicia and Hungary were usually more hostile towards modernization. Finally, the article describes the consequences of the upheavals of the First World War, Bolshevik Revolution, and the Civil Wars that followed. During these dramatic events and in their aftermath, the majority of the hasidic leaders in Russia moved to other places in Europe, America, and Palestine, and only some of them remained under the Soviet regime.     

The role of competency to stand trial in mental health courts

Concerns have been raised in the literature about the competency to stand trial and competency to make treatment decisions of defendants referred to mental health courts. However, there is little information reported about the evaluation and prevalence of incompetence, characteristics of incompetent mental health court defendants, and disposition of mentally ill defendants too disturbed to be diverted from the criminal justice system through mental health courts. This study reports on the 85 potential mental health court defendants referred for trial competency evaluations during the first three years of operation of the Akron Ohio Mental Health Court. Of the 80 defendants who could be located for evaluation, 77.5% were found incompetent, and 53% of the incompetent defendants were not restored to competence even after an average of 49 days of treatment in a state psychiatric hospital. The implications of these findings in terms of the diversion potential of mental health courts for the severely mentally ill are discussed.     

The prediction of violent behavior and the duty to protect third parties

A considerable theoretical, empirical, and clinical literature has accumulated on the prediction of dangerous and violent behavior. Despite the pleas of mental health professionals that the prediction of violent behavior is not clinically feasible, courts upholding a therapist's duty to protect third parties have created a legal duty to do so. The first generation of research studies of the clinical prediction of violent behavior focused on long-term predictions in offender populations, of little direct relevance to the setting of outpatient therapy with nonoffenders. More recent clinical research has centered on predictions of imminent violence in noncriminal populations, particularly in the process of involuntary hospitalization, but this reveals relatively low levels of predictive accuracy. Methodologic and ethical factors also limit the generalizability of such work. Given the likelihood that significant numbers of false positive predictions will result, especially in the low base rate population of outpatient treatment, it is suggested that therapists attempt to minimize the antitherapeutic influence of any breach of confidentiality.     

Opinion formation in evaluating the adjudicative competence and restorability of criminal defendants: a review of 8,000 evaluations

Evaluations of competence to stand trial (CST) are the most common type of criminal forensic evaluation conducted, and courts tend to defer to clinician opinions regarding a defendant's competence. Thus, it is important to study the ways in which clinicians arrive at opinions regarding adjudicative competence and the data they consider in forming their opinions. We reviewed 8,416 evaluations conducted by forensic evaluators in Virginia over a 12 year period, and examined (a) the clinical, demographic, and criminal characteristics of a defendant as related to opinions regarding competence, predicted restorability, and impairment on "prongs" of the Dusky standard, (b) process and outcome differences in evaluations conducted by psychiatrists versus psychologists and inpatient versus outpatient evaluators, and (c) the consistency of incompetence base rates over a 10 year period. Overall, clinicians opined that 19% of defendants were incompetent and considered 23% of these unlikely to be restored to competence. Not surprisingly, psychotic and organic/intellectual disorders were most strongly associated with findings of incompetence. However, there were some notable differences between evaluations by psychologists versus psychiatrists and between evaluations conducted in inpatient versus outpatient settings.     

Competence to be executed: An ethical analysis post Panetti

Competence to be executed evaluations in effect can prevent an execution or remove the last meaningful impediment to it. Forensic psychiatrists have primary duties to the legal system and truth and honesty, but like all other areas of medical consultation also should balance conflicting secondary traditional medical ethical duties. Participation in a legally authorized execution so violates medical roles, that it is ethically prohibited by the American Medical Association and American Psychiatric Association. This prohibition includes treatment intended to restore competence to be executed. However, despite the primary treatment intent otherwise being appropriate ethically, like relieving suffering or fostering prison safety, if competence to be executed almost predictably would be a treatment result, at least the risk of this result should be considered ethically as if it were intended. In contrast, competence to be executed assessments can be ethical. Diamond's approach of performing honest evaluations only for the defense is an ethical option for such assessments. However, it is challenging to persuade judges and juries of the objectivity of such honest legitimate assessments. Most practitioners therefore likely would consider assessing competence to be executed for either side. This ethically hazardous position necessitates sensitivity to potentially seriously conflicting duties and roles. Copyright © 2010 John Wiley & Sons, Ltd.     

An evaluative study of the role of the grandparent in the best interests of the child

Abstract

Most custody decisions are made in courts hewing to the concept “the best interests of the child. “Most professionals agree that children suffer from a fractured family situation; they disagree on the degree to which children suffer at various stages of growth and development. There is a lack of agreement as to what constitutes a child's best interests. Recent research suggests that grandparents may play a very significant role in the entire life cycle of children. The legal position of grandparents in custodial matters remains somewhat ambiguous. Recently legislation has granted grandparents the right to seek visitation. This represents an awareness on the part of the court that grandparents and grandparenting may be a significant factor in actualizing the best interests of the child.     

Generational and age-based differences in attitudes towards jury service

Analysis of surveys of jurors, potential jurors, and the general public show significant differences in attitudes towards jury service by the age of the respondent. This study analyzes the degree to which these differences are the result of generational effects, in which younger citizens are likely to continue in their beliefs about jury service as they age, and the degree to which they are a result of a respondent's life circumstances-income, employment status, or family status-and are thus not likely to be carried with jurors as they age. The article shows that, while there are differences in confidence in the courts by age group, younger jurors are more confident in their own abilities to serve well as jurors but more skeptical of the court as a whole; most differences in attitudes towards jury service are linked to life-cycle phenomena. As such, courts should work to provide assistance to particular age groups within the jury pool, including child care and appropriate compensation, if they are to attract jurors who are representative by age of the general public.     

Philosophy, self-knowledge, and personality in Iranian teachers and students of philosophy

Like psychology, philosophy apparently operates from a commitment to the belief that self-knowledge should be a goal of disciplinary and personal development. Iranian teachers and students of philosophy responded to a Philosophical Orientations Scale created for this study that assessed the possible content of a high school philosophy course, along with instruments measuring self-knowledge, need for cognition, the five-factor model, anxiety, depression, and perceived stress. As the authors hypothesized, self-knowledge predicted higher levels of a philosophical orientation, even after controlling for the variance explained by need for cognition and openness to experience. Philosophical orientations and self-knowledge were also correlated with psychological adjustment, and teachers scored higher than students on these two sets of constructs. These data supported the hypothesis that personal and disciplinary interests in an adaptive self-knowledge converge in philosophy.     

Occupational knowledge and career development in adolescence

In an effort to extend our knowledge of career development, two indices of career maturity were investigated in a sample of 6029 high school seniors sampled from 57 Texas public school districts. The study investigated both the degree to which late adolescents choose occupations whose educational requirements match their stated educational goals and the degree to which students' vocational interests are compatible with their occupational choices. The correlations between educational plans and educational requirements of the chosen occupations were .41 or less. Of the subjects who claimed to have at least considerable understanding of their first choice career, only about half planned to achieve the amount of education appropriate to enter that occupation. Subjects' perceptions of how well they understood their occupational choices were also negligibly related to the compatibility of their vocational interests and their career choices. Although educational understanding and interest compatibility both contribute to realism of occupational choices, the correlation between these two indices of career maturity accounted for less than 1% of the variance.     

Practicing what we know: Multicultural counseling competence among clinical psychology trainees and experienced multicultural psychologists

Multicultural (MC) competence is considered a necessary skill for clinical and counseling psychologists; however, there is little to no research on the assessment of demonstrated multicultural counseling competence (DMCCC) of clinical psychology graduate students. In this study, we developed a MC assessment instrument to assess DMCCC of clinical psychology graduate students compared with MC-experienced psychologists. In addition, we assessed for differences between the endorsement of MC-appropriate strategies and actual use of these strategies in clinical practice, both by MC-experienced psychologists and clinical psychology students. Results revealed significant differences between the DMCCC of clinical psychology graduate students and MC-experienced psychologists. Significant differences also emerged between endorsement of strategies as multiculturally appropriate and likelihood of actual use of these strategies. Findings suggest that future training and competence models should incorporate participants' ability to not only identify multiculturally appropriate strategies but also use these strategies in therapy.     

‘The witness who saw, /he left little doubt’: a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence—especially when mental disability is an issue—raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context—in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.     

Goal striving, need satisfaction, and longitudinal well-being: the self-concordance model

An integrative model of the conative process, which has important ramifications for psychological need satisfaction and hence for individuals' well-being, is presented. The self-concordance of goals (i.e., their consistency with the person's developing interests and core values) plays a dual role in the model. First, those pursuing self-concordant goals put more sustained effort into achieving those goals and thus are more likely to attain them. Second, those who attain self-concordant goals reap greater well-being benefits from their attainment. Attainment-to-well-being effects are mediated by need satisfaction, i.e., daily activity-based experiences of autonomy, competence, and relatedness that accumulate during the period of striving. The model is shown to provide a satisfactory fit to 3 longitudinal data sets and to be independent of the effects of self-efficacy, implementation intentions, avoidance framing, and life skills.