This Article suggests that a coherent theory and practice of sentencing jurisdiction requires a firmly articulated concept of the underlying rationality expected of criminal defendants. As the next section shows, such decision-making is integral to Dusky. Decision-making ability as a component of decision-making ability The roots of the decision-making ability construct can be found in “rational.
Decisional Competence as a Component of Adjudicative Competence The roots of the decisional competence construct may be found in the "rational
The MacArthur team, of which Bonnie was a part, agreed with Bonnie's pre-Godinez theory that decision-making capacity only becomes of independent significance in cases in which the defendant is competent to assist counsel, and that decision-making deficits can be overcome with surrogate decision-making. Expert assessments, which form the sole basis for almost all judicial determinations of judicial competence, "tend to pay little, if any, attention to decisional competence. Decisional competence must be recognized as the core of the ``rational understanding'' component of judicial competence.
A Theoretical Model of Competence-Relevant Decision-Making Having shown that rational decision-making capacity is key to Dusky rational
See Saks & Behnke, supra note 38, at 114 (noting that competence to consent to medical treatment requires . . . "understanding relevant information; evaluating the evidence and forming appropriate beliefs about it; reasoning about the evidence with a intact degree; and the communication of a choice "); Appelbaum, supra note 33, at 379 (defining that ``decisional competence'' consists of ``the ability: to express a choice; to understand relevant information; to evaluate the relevance of that information to one's situation; and to reason relevant information in order to engage in a logical process of weighing options") (citing Jessica W. Thought Pattern Disorder" describes a "disorganization of basic thought processes indicated by abnormal speech," for example, the highly tangential speech (sometimes called the “flight of ideas”) or the confusing jumble of loose associations sometimes called “word salad.” Bachman & Cannon, supra, at 495-96, in F]ew reported cases all ten have given meaning to the phraseology 'rational understanding' used by the Dark Court.").
See also Saks & Behnke, supra note 38, at 113 ("Pure understanding" is necessary but not sufficient; "[b]ecause making a decision in the best interests requires an assessment of how those interests are likely to be harmed, the patient able to form adequate beliefs to be a competent decision maker."). Like Dusky, Lafferty "physically knew the nature of the proceedings against him and its possible consequences." ID card. Saks & Behnke, supra note 38, at 113 (arguing that to be competent, one "must also be able to reason with some degree of intactness. Reasoning allows one to piece together the relevant information that one has purely understood and, after assessment, formed beliefs about it.").
34;It is no longer appropriate to equate performance on deductive reasoning tasks with rationality or to assume that logic provides an appropriate normative account of everyday, real-world reasoning. ,” or “the strict conception that requires the agent's entire system of beliefs and preferences to be internally consistent and immune to effects of frame and context.” Daniel Kahneman & Shane Frederick, A Model of Heuristic Judgment, in THE CAMBRIDGE HANDBOOK OF THINKING AND REASON, supra note 92, at 267,277, 34;irrationality."'37 In the case of psychosis, the most threatened sites appear to be perception and understanding, although deficits in those stages will also frustrate flexible reasoning and potentially choice destabilize
34; "Accurate beliefs about the world are essential to competence because decisions take effect in the world." Id.
The Role of Emotion in Decision-Making
See Isen & Labroo, supra note 143, at 366 (discussing the increasing interest in affect); Svenson, supra note 143, at D]ecision researchers are becoming increasingly interested in the effects of emotion and affect on human decision-making processes.”) Izard, Cognition Is One of Four Types of Emotion-Activating Systems, in THE NATURE OF EMOTION, supra note 146, at Emotion is about motivation, cognition about knowledge."); Daniel M.T. LeDoux, Cognitive-Emotional Interactions in the Brain, in THE NATURE OF EMOTION, supra note 146, at 216 (arguing that cognition is "nothing more than a word we use to describe a group of related but diverse information processing functions, including sensory processing, perception, imagery, attention, memory, reasoning, and problem solving"); Pheobe C.
Cosmides & Tooby, supra note 142, at 107 (arguing that certain events "trigger emotion programs in which the desire to attempt certain actions must be overwhelming, to the point where the actions are experienced as obligatory," and that phenomenon gains cultural recognition in the law of "crimes of passion") (citation omitted). See e.g. Isen & Labroo, supra note 143, at 367 (arguing that the "realization that affect is a regular part of thought processes and motivation or processing of goals" prompts more "realistic and complex" science). See Svenson, supra note 143, at 297 (explaining that emotion's influence on decision making can be procedural or representational).
See, e.g., Cosmides & Tooby, supra note 142, at 104 (discussing perceptual mechanisms and how fear alters them). Tory Higgins, Motivated Thinking, in THE CAMBRmGE HANDBOOK OF THINKING AND REASONING, supra note 92, at 295, 311. may affect momentary evaluation of outcomes and choice).
See Clore, supra note 150, at 1152 (arguing that emotions are both operational tools that contribute to rationality and feedback mechanisms that "tell us whether we have chosen rationally");
Emotional Disorder and Rational Decision-Making
Mood Disorder and Dusky-Relevant Emotional Dysfunction
195 Depression may also be accompanied by manic episodes, periods of unusually elevated mood (such as euphoria), psychomotor agitation, an inflated sense of self-esteem and grandiosity, pressured speech, and poor judgment.196 A person who major depressive episodes and manic Alternating episodes are generally diagnosed as suffering from 'bipolar' disorder, or what is colloquially called 'manic depression'. 197 Some manifestations of these disorders are relatively short-lived or may have only minor consequences on functioning.'9 8 Although such manifestations may have some influence on rational decision-making, for example, a defendant would have to make a very consistent choice while in the midst of a severe but short-lived depressive or manic episode, competence in general may only be seriously threatened by more severe and persistent manifestations, especially when room is allowed for postponing choices until a short-term episode has passed. over.'99. An extremely rapid and temporally compressed switch between depressive and manic symptoms can be characterized as a 'mixed episode'. ID card. The existing models 'for assessing such competence' tend to emphasize cognitive processes as the only elements of competence. The role of affect and affective disorders in hindering competence is scarce.").
See e.g. Bonnie, supra note 18, at 575 (explaining that a decision may not be delusional but nevertheless "strongly influenced by delusional beliefs or pathological emotions. Organic deficits, retardation, psychotic thought disorder, delirium and dementia, extreme phobia or panic, anxiety, euphoria, and depression may impair the defendant's ability to weigh information in order to make rational decisions consistent with the underlying premises and assigned values."); see also Welsh S. An expert witness testified in a previous remand that Holland "'suffered from a mental illness known as bipolar disorder with mixed features,'" or "manic depressive illness," and that he was unaccountable "due to" impulsivity, poor judgment and suicidal [sic] that he expressed at the time." Id. But he also held that he counted because his depression was not "so severe as to compromise his ability to participate in the proceedings or understand the legal ramifications of the proceedings.'' Id.
No medication to end the patient's life in a humane and dignified manner shall be prescribed until the person conducting the counseling determines that the patient does not suffer from a psychiatric or psychological disorder or depression that causes impairment of judgment."). 34; logically.”22 6 The Fifth Circuit, while accepting the challenge to define what “rational” might mean under such circumstances, noted that Rumbaugh had filed. Ross for years sought the death penalty—indeed, after his original death sentence was overturned, he unsuccessfully sought a death sentence, which was then reinstated after a new hearing—but a number of supposed future friends argued that his desire to die was caused by depression associated with "death penalty syndrome". A District Court initially credited expert testimony that Ross' decision was "driven by suicidal despair, rather than an exercise of free will." Ross v.
The court refused to conclude "as a matter of law that a person who finds his life situation intolerable and who welcomes an end to the life experience is necessarily legally incompetent to abandon further legal action which would end that experience can extend." Id.
Brain Damage and Dusky-Relevant Emotional Dysfunction
Although this issue is not discussed in detail by Damasio, it points to another area of the law to which such emotional dysfunction may be relevant: that of the right to disability benefits. Therefore, one of the requests made by Beardslee's lawyers was that the execution be stayed in order to obtain actual brain scans. In contrast, in Jane's case, the defense's ability to access sophisticated brain-scanning technology and neuropsychological testing produced compelling evidence of her brain damage, its precise location, and its behavioral impact.
This juxtaposition, paralleled by the differing treatment of depression by courts and examiners, indicates that current theory and practice do not reflect a consistent and sophisticated understanding of the influence of emotion on rational decision-making. Such neglect is entirely consistent with and reflects the historical disregard for emotional considerations that exists now. Even when considering only cognitive function, this is often far from an easy call, as the discussion of the thought disorder cases reveals.
Our knowledge of the pervasive irrationality that drives decision-making—indeed, that governs all human activity—serves as a reason for extreme caution. However, the encouragement of close articulation of the necessary decision-making steps, including the use of MacCAT-CA, should not be read to imply that each step must be executed ideally for the entire process to be considered minimally rational. However, the structural features of the delimitation of powers largely protect against any serious threats to autonomy and public safety.
Furthermore, relapses are not always at the same level of intensity as the original episodes, and chronic depressives are not usually those who exhibit the most extreme forms of the illness. Therefore, relapse and remission rates are not good predictors of the number of defendants who will be so permanently disabled as to present the dilemma I describe. This does not mean that the conundrum of judgmental competence can be resolved once and for all by invoking the findings of the sciences of the mind.319 Despite considerable progress in our understanding of human decision-making, neither should we.
