Publication Date

1-1-2025

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Criminal law, Competency to stand trial, Dementia, Due Process, Competency Evaluation, Dusky v. United States

Abstract

Although competency to stand trial holds a vaunted position among the due-process rights in our criminal justice system, its current application is a mere shadow of the original promise articulated in Dusky v. United States. The competency-to-stand-trial requirement is supposed to protect the mentally ill and the mentally impaired from criminal trial, but the requirement has been continually chipped away, both doctrinally and practically. As a result, it no longer protects the most vulnerable. People with dementia, most often elderly with cognitive impairments, face a perilous ordeal when caught in the criminal justice system. And, as dementia rates increase, more people with dementia are clashing with the law. The criminal justice system, however, has little experience with this kind of cognitive decline. Dementia itself has significant differences from mental illness, which is more commonly the subject of competency evaluation proceedings. These differences make it more likely that people with dementia will be misunderstood, misdiagnosed, and disbelieved, ultimately leading to their being found competent to stand trial when the requisite abilities are lacking. The impact of this finding on people with dementia can be especially devastating, speeding their deterioration and leaving them much worse off than when they entered the system. This turns a constitutional protection, the right to be shielded from trial when incompetent, into a weapon against the most fragile. In the end, our application of Dusky and our treatment of people with dementia in the competency evaluation process represent a jurisprudential, practical, and moral failure.

Publication Title

Nevada Law Journal

Volume

25

First Page

203

Last Page

256

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