The competence of criminal defendants: A theoretical reformulation

“Competence” of criminal defendants is best viewed not as an open-textured single construct but rather as two related but separable constructs-a foundational concept of competence to assist counsel, and a contextualized concept of decisional competence. This approach has several advantages. First, it provides a useful explanatory framework for the settled features of existing law. Second, it helps to clarify the issues in areas where the law is unsettled or controversial, such as the circumstances under which incompetence bars adjudication and the abilities required for decisional competence. Third, it exposes the similarities between competencies in criminal defense and competencies in other legal contexts, and thereby helps to link what have been discrete literatures in both law and behavioral science. Fourth, because this approach is derived from a theoretical analysis of the purposes of the pertinent legal rules, it provides a framework for defining the “psycho-legal abilities” that are encompassed by each of the two competence constructs. In this respect, a relatively simple reconceptualization has surprisingly concrete implications for designing a program of empirical research and, eventually, for improving the scientific basis of competence assessments in criminal cases.     

Describing our “humanness”: Can genetic science alter what it means to be “human”?

Over the past several decades, geneticists have succeeded in identifying the genetic mutations associated with disease. New strategies for treatment, including gene transfer and gene therapy, are under development. Although genetic science has been welcomed for its potential to predict and treat disease, interventions may become ethically objectionable if they threaten to alter characteristics that are distinctively human. Before we can determine whether or not a genetic technique carries this risk, we must clarify what it means to be “human”. This paper inquires how “humanness” has been defined within various academic fields. The views of several legal theoreists, scientists, bioethicists, psychologists, philosophers and anthropologists whose works seem to best reflect how “humanness” is understood in their respective fields of study are considered. Our survey attempts to chart a path for a more detailed study on the meaning of “humanness” in the future. We assess four traits commonly identified in the literature as defining what it means to be human: cognition, biological or physiological composition, social interaction with other “human” beings, and spirituality. The nature of the relationship between these characteristics, in our view, is symbiotic: genetic intervention which alters one of them could have repercussions on one or more of the others. In conclusion, we offer guidance to those participating in genetic research and treatment regarding the parameters within which they may proceed without threatening the preservation of what is distinctively human.