Mental Incompetence: Adjusting to Modern Forms of Civility

Abstract

In 2004, the Louisiana Legislature amended its Code of Criminal Procedure to alleviate its violation of the U.S. Constitution’s Due Process Clause. In compliance with the requirements of the Due Process Clause, the Louisiana Code of Criminal Procedure prohibits the state from trying a mentally incompetent defendant for a criminal offense. However, prior to the Legislature’s amending its Code of Criminal Procedure, criminal defendants whose competence would not be restored in the foreseeable future, and who were not a danger to themselves or others could be placed on supervised probation, despite the absence of a conviction, due to their incompetence. The effect of this law allowed the criminal punishment of defendants who had never been convicted of any crime. The Legislature acted in response to the Louisiana Supreme Court’s finding that this law was an unconstitutional violation of Due Process, and subsequently repealed the law altogether.Consequently, the Legislature’s solution to this problem, in repealing the law, has left an uncertainty in the law as to what will happen to these defendants once they are released due to their condition. This article traces the history of treatment of mentally incompetent defendants in the criminal justice system and the development of the law regarding mental incompetence. This change in the law will impair the efficiency of the criminal justice system, especially in the wake of the new national drug crisis concerning the use of bath salts and other synthetic drugs that have an effect on mental health. The use of these drugs will likely increase the number of defendants who are permanently incompetent and who may not present a danger to themselves or others under the current standard. This article poses a solution to the issue and suggests a revision of the current standard under which incompetent defendants are evaluated or in the alternative, turning to the option of civil involuntary outpatient commitment. Without a solution, there is no way to deter these incompetent defendants from committing criminal acts nor to provide justice for their acts.