Schehr & French on Mental Competency Law and Plea Bargaining

Thursday, August 23, 2018

 

It is our contention that for a host of reasons the approach to determination of mental competency established by the United States Supreme Court, and later by Congress in Federal Rule 11, is too limited to be of any real value when attempting to discern whether a defendant truly understands and appreciates the gravity of plea-bargaining. Parsing and deconstructing the concepts – “knowing” and “voluntary” – constitutes a far more complex and integrated set of subjective intrapersonal and objective structural relationships that make attempts to discern either via application of Federal Rule 11 too simplistic and factually discordant with social science. Our analysis applies insights from cognitive and neuropsychology, and is embedded in a far more complex theoretical construct, one that integrates all levels of conscious awareness. This is because human beings do not operate solely on one plane of awareness and cognition.

We adopt Wilber’s sophisticated representation of consciousness as a complex interaction between four validity claims comprising overlapping but distinctive modes of awareness – interior-individual (hermeneutic), exterior-individual (positivist physiological), interior-collective (cultural), and exterior-collective (social). Each of the quadrants in Wilber’s matrix signifies the subjective and collective ways that human beings come to consciousness about themselves as embedded in complex webs of association. The schemata representing decision making about any one subject, but especially something as complex as one’s role as a defendant in the criminal justice system, is here represented by Wilber’s typology as vastly more nuanced and comprehensive than any one theoretical paradigm alone can capture, and far more sophisticated than the Court has applied in either Brady v. United States 397 U.S. 742 (1970) or Godinez v. Moran 509 U.S. 389 (1993). Our specific emphasis in this paper will be the hermeneutic and physiological quadrants. These quadrants focus attention on subjective meaning-making through symbolic processing that is intimately associated with a subject’s ability to properly cognate cultural stimuli. Insights drawn from cognitive and neuropsychology make it clear that comprehension of, and culturally appropriate responses to, normative behavioral expectations is a far more nuanced and complex process than criminal due process provides for. As such, the minimal threshold necessary to establish mental competency to plea via affirmation of the knowing and voluntary criteria applied during plea colloquy is far too superficial to adequately assess subject constitution and a defendant’s true comprehension of his or her “intentional relinquishment of a known right or privilege”. In this paper we juxtapose cognitive and neuropsychological insights relating to proper comprehension of the plea process with contemporary case law guiding the affirmation of the knowing and voluntary criteria established in Brady and its progeny. We conclude by arguing that application of the plea colloquy as currently established by case law and in Federal Rule 11 fails to adequately assess subject constitution and mental competency, and is in dire need of revision based upon insights drawn from cognitive and neuropsychology. Implications for the future of plea-bargaining due process, especially as it pertains to the actually innocent, are discussed.

http://lawprofessors.typepad.com/crimprof_blog/2018/08/schehr-french-on-mental-competency-law-and-plea-bargaining.html

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Schehr & French on Mental Competency Law and Plea Bargaining curated from CrimProf Blog