COMPETENCE TO PLEAD GUILTY

More than 90% of all criminal cases are resolved through a guilty plea rather than through a verdict reached after a trial.106 As is true with confessions, such pleas must be “knowing” and “intelligent,” as well as “voluntary.”107 According to the Supreme Court, to make a “knowing” plea, a defendant must understand at least three aspects of the criminal process: (1) the nature of the charge pled to;108 (2) the penalties associated with the charge;109 and (3) the rights waived by the plea of guilt, including the right to remain silent, the right to confront one’s accusers, the right to a jury trial, and the right to trial counsel.110 This determination must be made by a judge, on the record, at a plea hearing (often called the “arraignment” [see § 2.04(a)(1)]). At the same time, the typical plea-taking process is short; it consists of a series of questions directed at the defendant, who usually answers in monosyllables, as directed by the defense attorney. The assumption is that the attorney has determined that the plea is in the defendant’s best interest and has explained to the defendant the consequences of pleading guilty.111

Until the early 1990s, a crucial constitutional question in connection with guilty pleas was whether a person who pleaded guilty had to be “more” competent than a person who decided to go to trial. The rationale for so holding, endorsed by the Ninth Circuit in Sieling v. Eyman,112 was that a person who pleads guilty not only has to understand the charge and its consequences (as is true with a defendant undergoing trial), but also must be able, as indicated above, to understand and waive intelligently various constitutional rights. According to Sieling, because “the degree of competency required to waive a constitutional right is that degree which enables him to make decisions of very serious import” (emphasis added), the degree of competence necessary to make a guilty plea valid must be higher than that required for competence to stand trial.113 Thus, the Sieling court held, “[a] defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea.”114

However, in Godinez v. Moran115 (the facts of which are described in Case Study 7.1), the United States Supreme Court rejected this standard, holding with the majority of federal courts that a person who is competent to stand trial is also competent to plead guilty. The principal reason the Court gave for this conclusion was that, contrary to the insinuation in Sieling, a person who stands trial, like a person who pleads guilty, must also be able to decide whether to remain silent (when deciding whether to take the stand), confront accusers (when it comes time for their cross-examination), and waive the right to a jury trial. Justice Thomas wrote for seven members of the Court:

[All c]riminal defendants—not merely those who plead guilty—may be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial.116

As a practical matter, most defendants who go to trial do not consider waiving their rights to remain silent, confront accusers, or be heard by a jury, and therefore do not have to make the momentous decisions that a person pleading guilty must make; thus the Supreme Court’s justification for its holding in Moran is somewhat disingenuous. But there are other reasons to support its conclusion equating competence to stand trial with competence to plead guilty. As one commentator pointed out, the Sieling standard could “create a class of semi-competent defendants who are not protected from prosecution because they have been found competent to stand trial, but who are denied the leniency of the plea bargain process because they are not competent to plead guilty.”117 Moreover, as others have argued,118 the danger of inappropriate pleas by such “semi-competent” individuals is mitigated by the fact that counsel can be assumed to have already made “a reasoned choice among the alternatives,” even if the defendant is incapable of doing so.

In short, in those jurisdictions that follow Moran (i.e., all federal jurisdictions and most states), the clinician performing a pretrial evaluation of competence need not “adjust” the competence standard according to whether the defendant is likely to plead guilty or go to trial. As described in Chapter 6, the standard evaluation of a defendant’s competence to proceed requires assessment of his or her understanding of the charges and their consequences and of the nature of the process, including the trial rights that are waived through a plea, which are precisely the issues that need to be addressed with respect to competence to plead guilty as well. It is worth emphasizing, however, that to ensure that defendants are competent in the appropriate areas, all defendants should be questioned about their understanding of the rights they waive when they enter a plea of guilty or no contest. An instrument that was developed with this objective in mind is the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA), described in § 6.07(c)(1).

The MacCAT-CA also examines the reasons for a guilty plea and tries to differentiate between rational and irrational ones (e.g., “I’m pleading guilty because I signed a confession” vs. “I’m pleading guilty because I’m the worst sinner in the world”). Although one might assume that the rationality of a person’s decision to plead guilty is a crucial consideration, Moran does not explicitly require courts to assess this issue. Rather, it merely draws a distinction between the “competence” inquiry and the inquiry into whether a plea is “knowing” and “voluntary.” According to the Court, “[t]he focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.”119 The Court then quoted a previous Court decision, which required that a defendant must have “a full understanding of what the plea connotes and of its consequences.”120 Although an inquiry into a defendant’s “understanding of what the plea connotes and of its consequences” might include an investigation of the person’s reasons for pleading guilty, the Court affirmed Moran’s conviction without addressing that issue (or the effects of Moran’s depression).

Despite this ambiguity, an evaluator is well advised to elicit information about a person’s reasons for wanting to plead guilty or go to trial, as the MacCAT-CA does. The determination of whether a waiver is “knowing” goes beyond assessing competence to proceed; rather, it is a matter of decisional competence that requires an inquiry into whether the waiver of rights associated with a guilty plea reflects autonomous decisionmaking. The examiner should consider the defendant’s reasons for the decision, because evidence of irrational reasoning (e.g., a psychotic defendant who says “I’m pleading guilty because space aliens told me to,” or a clinically depressed defendant who says “I’m pleading guilty because I don’t care what happens to me”) suggests an individual whose autonomy is seriously impaired. If assessment of the reasons a defendant gives for pleading guilty is undertaken in connection with the usual competence-to-proceed evaluation, the examiner will have obtained sufficient information for the “knowing” prong of the guilty plea inquiry [see the Carl Bates report, § 19.03(a)].

It will then be for the judge to determine whether the person’s plea meets this requirement. Bonnie has argued that the court should vary its conclusion on this issue, depending on whether the defense attorney agrees with the defendant’s decision to plead guilty. If there is such agreement, the plea should be accepted as long as the defendant understands the process and the rights being waived (and thus, Bonnie asserts, no inquiry into his or her reasons for the plea is necessary in this scenario). When the defendant and attorney disagree, on the other hand, Bonnie would require the court to ascertain the defendant’s reasons for pleading guilty and would permit acceptance of the plea only if they evidence a “well-reasoned choice.”121 Slobogin and Mashburn, on the other hand, have argued that respect for the defendant’s autonomy requires that a plea recommended by the attorney be accepted only when the defendant understands the process and gives rational reasons for a plea after considering the alternatives; at the same time, they argue that if the defendant meets both of these criteria, the plea must be accepted regardless of the attorney’s views or of whether the defendant’s views are “well-reasoned.”122 The fact that either one of these approaches, or some third approach, might be taken by the courts argues for avoiding the ultimate issue of whether a plea is “knowing” in evaluation reports and testimony.

The evaluator must also consider the “voluntary” component of the inquiry. Most guilty pleas are reached through the plea-bargaining process, in which the prosecutor offers either a reduced charge or the promise of a favorable sentencing recommendation in exchange for a plea of guilty.123 In short, guilty pleas typically result in less aversive consequences than are risked by going to trial. Are such avoidance responses truly “voluntary”?

The Supreme Court has answered this question in the affirmative. In Bordenkircher v. Hayes,124 the prosecutor threatened to charge the defendant as a “habitual offender” (conviction of which would carry a mandatory life sentence) if he did not agree to plead guilty and accept a five-year sentence. The Court found nothing unconstitutional about the prosecutor’s action, because the “habitual offender” charge was legitimate under state law and the defendant was free to accept or reject the prosecution’s offer. According to the Court, “the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Similarly, in Brady v. United States,125 the Supreme Court refused to invalidate a guilty plea given in exchange for a life sentence, despite the defendant’s claim that he had pleaded guilty out of fear that he might receive the death penalty had he gone to trial and been convicted. The Court explained that although fear of the death penalty might have “caused” the plea, it did not coerce it; the latter would have been true only if the defendant had proven he “was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.”

This extreme construction of voluntariness may not be the last word. The Brady Court itself suggested that some types of government “threats” and “unfulfillable promises” might exert enough pressure on a defendant to invalidate any subsequent guilty plea, regardless of the person’s rationality at the time it was made.126 Furthermore, in contrast to the confession context [see discussion of Connelly in § 7.03(a)], the government may not even have to create this pressure for a plea to be invalid. Suppose, for instance, that a defendant with intellectual disability places so much trust in counsel that he or she immediately accepts the attorney’s suggestion to plea-bargain, without considering any of the options. Should not such a plea be considered “involuntary”? Similarly, a defendant like Moran who is so depressed that he appears to abdicate all decisionmaking authority might be said to have seriously compromised autonomy. As noted in the preceding section, there is no scientific basis for differentiating these cases on the basis of voluntariness, but courts might nonetheless consider such information important.

The implications for the mental health professional of this analysis of the voluntariness prong of the decision to plead guilty or no contest are straightforward. At the time of evaluation, the defendant usually will not yet have made a definitive decision about pleading guilty or no contest, so the evaluator can only point to personality traits that might make the person suggestible or prone to “irrational” fear. Occasionally a decision to plead has been made, and the evaluator will have more direct evidence about the defendant’s specific thought process. In either case, the examiner should describe the defendant’s reasoning about the decision and any susceptibility to internal or external pressures to accept an offer, and should leave to the judge determination of whether the choice was so hard as to render the plea involuntary.

Melton, Gary B.. Psychological Evaluations for the Courts, Fourth Edition (pp. 171-174). Guilford Publications.