CRIMINAL COURT’S DISABILITY - Columbia Law Review

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial (CST) proceedings, criminal courts oﬀer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court under-mines even the meager accommodations that the competency framework provides.

CST proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them.

Criminal court judges and examiners systematically deny recognition to one group of diagnoses: personality disorders (PDs). Even when defense attorneys argue that defendants’ PD symptoms impede their ability to collaborate, courts and some forensic experts insist that the defendants are competent. Examiners and courts reframe these diﬃculties as deliberate acts of subversion and conclude that defendants with PDs choose to be uncooperative. In doing so, they give PDs an exceptional and paradoxical status: They are considered psychiatric conditions, yet their expressions are deemed volitional. This Essay argues that the outcomes of CST proceedings reveal court actors’ preoccupation with determining responsibility rather than advancing defendants’ trial rights. In the process, courts selectively apply the competency standard, discounting its interpersonal dimensions and prioritizing the accused person’s cognitive capacities.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor of Law, Boston University School of Law. I would like to express gratitude to the following people for providing feedback at various stages of this project: Aziza Ahmed, William Berry, Angélica Cházaro, Ryan Doerfler, Brittany Farr, Jonathan Feingold, Caitlin Glass, Jasmine Gonzales Rose, Sean Hill, Amy Kapczynski, Jamelia Morgan, Ngozi Okidegbe, K-Sue Park, Michael Perlin, Angelo Petrigh, Jocelyn Simonson, Christopher Slobogin, Kate Silbaugh, Jessica Silbey, Dean Spade, and Noah Zatz. At the University of Georgia, stellar student researchers Mia McKnight and Addi Cottone helped me launch this project. At Boston University, students Angel Yi, Laura Glaudel, Colin Fennelly, Alyssa Nadler, and Zoie Valencia provided invaluable assistance at a crucial time. Librarians Aaron Black and Stefanie Weigmann assisted me in the final stages. I presented this paper at the University of Mississippi, the University of Washington, Seattle University, and Boston University. I am indebted to the dedicated student editors of the Columbia Law Review, in particular Mohamed Camara and Emma Ziegler. All errors are my own.

Introduction

A national review of competency to stand trial (CST) proceedings reveals that criminal court actors persistently exclude one category of psychiatric conditions, namely personality disorders (PDs), from consideration. Their repeated exclusion betrays a central tension criminal court actors face between recognizing the reality of neurodiversity 1 Neurodiversity is a term that seeks to describe one of many aspects of human biodiversity, namely the diverse ways humans understand and relate to themselves and the world around them. Understanding Neurodiversity: Exploring Differences in Brain Function, Nw. Med. (Apr. 2024), https://www.nm.org/healthbeat/healthy-tips/Under
standing-Neurodiversity [https://perma.cc/VX7Q-WWMH]; see also Monique Botha, Robert Chapman, Morénike Giwa Onaiwu, Steven K. Kapp, Abs Stannard Ashley & Nick Walker, The Neurodiversity Concept Was Developed Collectively: An Overdue Correction on the Origins of Neurodiversity Theory, 28 Autism 1591, 1592–93 (2024) (discussing the origins and coinage of the term neurodiversity); Martijn Dekker, A Correction on the Origin of the Term ‘Neurodiversity’, Martijn “McDutchie” Dekker’s Blog (July 13, 2023), https://www.inlv.org/2023/07/13/neurodiversity-origin.html [https://perma.cc/7G8N-EWJV] (same). The word first emerged from the autistic community, intended to describe autism without pathologizing the condition. Botha et al., supra, at 1593. The term now refers to the full spectrum of mental, psychiatric, and intellectual differences that are reflected in the human species. See Understanding Neurodiversity: Exploring Differences in Brain Function, supra (“[Neurodivergence] refers to people who process information in a way that is not typical . . . .”). The terms “neurodivergent” or “neurodivergence” refer to someone whose emotional state or cognitive and adaptive functioning diverge from dominant norms, standards, and expectations. Id. The terms can apply to a person with autism, epilepsy, schizophrenia, or a personality disorder. See Kiera Lyons, Note, The Neurodiversity Paradigm and Abolition of Psychiatric Incarceration, 123 Colum. L. Rev. 1993, 1996 n.12 (2023) (listing common conditions associated with neurodivergence); Kassiane Asasumasu (@sherlocksflataffect), Tumblr, PSA From the Actual Coiner of “Neurodivergent” (2015), https://sherlocksflataffect.tumblr.com/post/121295972384/psa-from-the-actual-coiner-of-neurodivergent [https://perma.cc/GJR4-V4HS] (listing a vari-ety of conditions that fall under the umbrella of “neurodivergent”). and pursuing criminalization.

Any person facing criminal charges can assert that they are unfit to stand trial due to their mental or intellectual disability. 2 See Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (reversing and remanding a case due to insufficient evidence of a defendant’s competency); see also Pate v. Robinson, 383 U.S. 375, 378 (1966) (“[T]he conviction of an accused person while he is legally incompetent violates due process . . . .” (citing Bishop v. United States, 350 U.S. 961 (1956) (per curiam))). In Dusky v. United States, the Supreme Court enunciated the minimum capacities a person accused of a crime must possess before they can be prosecuted. 3 Dusky, 362 U.S. at 402. The Court fashioned this procedural protection to enforce a basic intuition: As a matter of due process, a defendant must be able to participate in their own defense. 4 See Drope v. Missouri, 420 U.S. 162, 171 (1975) (discussing when a defendant lacks the capacity to stand trial); Richard J. Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation, 10 Behav. Scis. & L. 291, 293 (1992) [hereinafter Bonnie, A Theoretical Reformulation] (“The relevant dimensions of a defendant’s ‘competence’ in most situations are [their] capacity to assist counsel[,] conduct an adequate investigation of the case[,] and . . . make whatever decisions a defendant is required or expected to make in order to defend and/or resolve the case without a trial.”). The Dusky test asks courts to determine whether the accused has “sufficient present ability to consult with [their] lawyer with a reasonable degree of rational understanding” and whether they have “a rational as well as factual understanding of the proceedings.” 5 Dusky, 362 U.S. at 402 (internal quotation marks omitted) (quoting J. Lee Rankin, U.S. Solic. Gen.). Usually, competency assessments rely on mental health experts, like psychologists and psychiatrists, to produce knowledge about the defendant and their neurodivergence. 6 See, e.g., Mark Walker, How Court-Ordered Competency Evaluations Work, Argus Leader, https://www.argusleader.com/story/news/2015/11/14/how-court-ordered-competency-evaluations-work/75493920/ [https://perma.cc/BZX9-YM9W] (last updated Nov. 14, 2015) (“The psychiatrist submits a report recommending whether a person is competent to stand trial.”). If a court finds the defendant unfit, it can institutionalize them until it finds that they have been restored to legal capacity. 7 See 1 Wayne R. LaFave, Substantive Criminal Law § 8.1(b) (3d ed. 2024) (“[I]n most jurisdictions the practice has been to institutionalize because of incompetence to stand trial . . . without reference to the legal criteria for civil commitability (generally, whether the person is dangerous to society or is in need of treatment and unable to care for himself).”); Substance Abuse & Mental Health Servs. Admin., Foundation Work for Exploring Incompetence to Stand Trial Evaluations and Competence Restoration for People With Serious Mental Illness/Serious Emotional Disturbance 56–99 (2023), https://store.samhsa.gov/sites/default/files/pep23-01-00-005.pdf [https://perma.cc/3H4Z-5E5C] (providing a state-by-state survey of adult CST procedures, including whether outpatient restoration is a possibility); Amanda Wik, Vera Hollen & William H. Fisher, Nat’l Ass’n of State Mental Health Program Dirs., Forensic Patients in State Psychiatric Hospitals: 1999–2016, at 29 (2017), https://nri-inc.org/media/1318/tac-paper-9-forensic-patients-in-state-hospitals-final-09-05-2017.pdf [https://perma.cc/G966-BE96] (reporting that twenty-three of thirty-seven states surveyed indicated that “their state psychiatric hospitals accepted both misdemeanants and felons for those evaluations”). The CST framework following Dusky and Drope v. Missouri, which modified Dusky, posits that legal equality can be achieved for individuals with disabilities through short-term treatment in carceral settings. 8 In this Essay, the form of neurodivergence discussed is also generally considered a psychiatric disability. As a result, the terms are used interchangeably.

Broadly defined, disability is a “chronic impairment that significantly impacts the daily life of a given individual.” 9 Cassandra Hartblay, Disability Expertise: Claiming Disability Anthropology, 61 Current Anthropology S26, S26 (2020). It is a fluid and complex category. 10 See Tanya Titchkosky, The Question of Access: Disability, Space, Meaning 24–27 (2011) (arguing that the social construction of disability emerges from a collective perspective grounded, in part, in how members of a group understand themselves, their bodies, and their access to shared spaces, literal and figurative). Its recognition in different domains has always depended on ascribed institutional, cultural, social, and political meanings, and its impact has varied with context. 11 See Syrus Ware, Joan Ruzsa & Giselle Dias, It Can’t Be Fixed Because It’s Not Broken: Racism and Disability in the Prison Industrial Complex, inDisability Incarcerated: Imprisonment and Disability in the United States and Canada 163, 165 (Liat Ben-Moshe, Chris Chapman & Allison C. Carey eds., 2014) (“[W]e consider the stories of criminalized, racialized, and disabled prisoners, intentionally making a connection between the experience of ableism and racism/colonialism and the [prison industrial complex].”). In CST proceedings, examiners parse through defendants’ neurodivergence, which may include psychiatric conditions. The experts determine whether the defendants have demonstrated impairments that merit recognition as disabilities under the Dusky–Drope standard.

This Essay reveals a hierarchy of psychiatric disabilities embedded in the competency standard. 12 See infra Part III. State and federal courts frequently recognize psychotic disorders (such as schizophrenia) and the cognitive impairments they produce (like hallucinations and disorganized thoughts) as grounds for incompetency. 13 See infra Part III. Meanwhile, judges and forensic examiners have tended to discount PDs, a group of disabilities that manifest as personality traits that frustrate interpersonal relations and court administration. 14 See infra section III.D.2. PDs are characterized as enduring patterns of inner experience and behavior that deviate from cultural expectations. 15 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 733 (5th ed., text rev. 2022) [hereinafter DSM-5-TR]. One cluster of PDs discussed at length in this Essay includes antisocial, borderline, histrionic, and narcissistic personality disorders. 16 Id. Clinical literature describes that people with these disorders may appear dramatic, emotional, or erratic. 17 Id. at 734. Even in the face of evidence that an accused struggles to collaborate with their attorney because of a diagnosed PD, courts have been reluctant to recognize such claims of disability as triggering incompetency protections. 18 See infra section III.D.2. They have asserted that these conditions are different from psychotic disorders because defendants retain control over their behavior. 19 See infra section III.C. They characterize these defendants as intentionally uncooperative, ascribing the challenges they face with their attorneys as instances of misconduct, not the product of disability. 20 See infra section III.C. Examiners have explained and courts have declared that defendants with PDs are more likely to manipulate proceedings to their advantage and feign disability. 21 See infra section III.D.1 (discussing cases in which a personality disorder was treated as evidence of malingering). In turn, courts have gone as far as to categorically reject PDs as a basis for incompetency claims. 22 See, e.g., United States v. Clements, 522 F.3d 790, 795 (7th Cir. 2008) (“Clements has not provided us with a single example of his conduct that would suggest incompetence; instead, Clements has focused his argument on the statements . . . which do nothing more than acknowledge that Clements exhibited behavior consistent with Antisocial Personality Disorder.”); United States v. Savage, 505 F.3d 754, 759 (7th Cir. 2007) (finding that the defendant did not prove “why either [post-traumatic stress disorder or dependent person-ality disorder] would necessitate a finding of incompetence”); United States v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992) (affirming the conviction because the defendant did not have any diagnoses “that would prevent a defendant from understanding the proceedings against him and interfere with his ability to confer with his attorney on his own behalf”); United States v. Rosenheimer, 807 F.2d 107, 112 (7th Cir. 1986) (per curiam) (affirming the district court’s finding of competency and sanity because “the defendant did not suffer from any mental disease or defect, but rather from a narcissistic personality disorder which is separate and distinct from suffering from a mental disease or defect”); United States v. Mitchell, 706 F. Supp. 2d 1148, 1220 (D. Utah 2010) (“[T]he court finds that Mitchell’s personality disorders do not affect his ability to rationally understand the proceedings against him or his ability to consult with his lawyers with a reasonable degree of rational understanding.”); State v. Walther, 581 S.W.3d 702, 709 (Mo. Ct. App. 2019) (“Viewing the evidence in the light most favorable to Appellant establishes, at best, Appellant suffered from a personality disorder and not from a statutorily cognizable mental disease or defect.”); Emily Stork, Note, A Competent Competency Standard: Should It Require a Mental Disease or Defect?, 44 Colum. Hum. Rts. L. Rev. 927, 957 (2013) (arguing against the inclusion of “mental disease or defect” in competency determinations because “it invites unnecessary line-drawing and battles of the experts”).

But clinical research does not support the neat conclusion that PDs are categorically distinct from psychotic disorders, and there is no evidence to establish that the symptoms of PDs are simply the product of bad choices. 23 See Robert Kinscherff, Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act, 38 J.L. Med. & Ethics 745, 750 (2010) (“The functional impairments associated with personality disorders can be severe and similar to the functional impairments associated with mental disorders that would be permitted for consideration of nullification of criminal responsibility.” (emphasis omitted)). Clinicians and bioethicists note PDs’ ambiguous status in psychiatry 24 See infra section II.B. : They pose a genuine moral and scientific dilemma. 25 See Jill Peay, Personality Disorder and the Law: Some Awkward Questions, 18 Phil. Psychiatry & Psych. 231, 242 (2011) (describing the “acute” dilemma posed by those with personality disorders). Neither psychologic nor psychiatric expertise can authoritatively answer whether someone with a PD can exercise control over their behavior. Where to draw the line between the person and the disorder, between deviance and ability, is a normative—rather than strictly descriptive—question. 26 See Ben Bursten, Beyond Psychiatric Expertise 55 (1984) (arguing that distinctions in legal standards about what counts as a cognitive impairment are ultimately a matter of policy that implicates fairness and moral responsibility); Jonas B. Robitscher, Tests of Criminal Responsibility: New Rules and Old Problems, 3 Land & Water L. Rev. 153, 173 (1968) (“[T]he test [of criminal responsibility] is less important than the spirit and wisdom with which it is applied and the climate in which the determination is made[,] . . . [and it] is of concern not only to lawyers, psychiatrists and malefactors, it is also a matter of public concern.”). When a criminal defendant refuses to speak to their lawyer, and the defense alleges that this refusal is consistent with their chronic incapacity to trust others, to conclude that the accused chose not to control their symptoms is a moral judgment.

While expert forensic examiners do not explicitly confront this vexed issue of responsibility, they do so implicitly when they pronounce such defendants competent. 27 See infra section IV.A. When experts opine on the accused person’s competency, their testimony effectively stretches clinical expertise and the rules of evidence. 28 Rules 702(c) and (d) of the Federal Rules of Evidence authorize an expert to offer their opinion if, inter alia, the proponent can show that the expert’s testimony is “the product of reliable principles and methods” and that their “opinion reflects a reliable application of the principles and methods to the facts of the case.” Fed. R. Evid. 702. The Daubert standard requires courts to critically assess the reliability of expert opinions by scrutinizing the methods they use to arrive at their conclusions. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593–95 (1993). Factors that courts evaluate under Daubert inquiries include: (1) whether the technique or theory in question can be and has been tested; (2) whether it has been subjected to publication and peer review; (3) whether the technique has a known or potential error rate; (4) whether there are standards controlling its operation; and (5) whether it is widely accepted within a relevant scientific community. Id. Their approach in these moments is empirically suspect, subjective, and confused. 29 See Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial 5–9 (2000) [hereinafter Perlin, Hidden Prejudice] (discussing the way courts distort disability, both factually and conceptually, across areas of law). Expert conclusions elicited in CST proceedings launder weighty deontological and substantive considerations about moral responsibility. 30 See id. at 15 (arguing that experts rely on nonclinical factors, such as personality characteristics or a crime’s seriousness, when making competency decisions). At their most extreme, examiners’ opinions trigger miniature trials about the accused person’s character. 31 See, e.g., People v. Berg, No. B236694, 2013 WL 492553, at *3 (Cal. Ct. App. Feb. 11, 2013) (“Dr. Dudley diagnosed appellant with having longstanding problems with social interactions, e.g. the capacity to read social cues and respond appropriately. As a result, appellant consistently misperceived the behavior of other people, and responded inappropriately.”); see also Michel Foucault, Lecture of 15 January 1975, in Abnormal: Lectures at the Collège de France 1974–1975, at 39–41 (Valerio Marchetti & Antonella Salomoni eds., Graham Burchell trans., Verso 2003) (1999) [hereinafter Foucault, Jan. 15 Lecture] (narrating the historical evolution of the relationship between psychiatry and law from one of antagonism to embracing one another, culminating in a consolidated medico-judicial power where “both justice and psychiatry are adulterated” in the expert opinion commissioned to describe abnormal individuals). In CST proceedings, experts opine not simply about whether the accused is incompetent but about whether they deserve to be held incompetent. 32 See infra section IV.A. In so doing, their interventions transform a modest procedural protection into a substantive decision point. 33 Substance refers to the rules that govern conduct outside courtrooms and specifically the prohibitions of the criminal law; procedure denotes the rules that govern legal actors. See Jenny S. Martinez, Process and Substance in the “War on Terror”, 108 Colum. L. Rev. 1013, 1020–21 (2008) (defining substance as “rules that control the primary conduct of human beings outside the litigation or lawmaking process” and procedure as questions of process “within courts” and “among different government actors”); see also infra section IV.B. That is, examiners focus more on defendants’ moral responsibility, a core concern in substantive criminal law, than on defendants’ ability to fairly contribute to their defense, the procedural concern ostensibly underlying the Dusky–Drope standard. Experts enjoy this wide latitude in CST proceedings because courts have abdicated their adjudicative function. 34 See Patricia A. Zapf, Karen L. Hubbard, Virginia G. Cooper, Melissa C. Wheeles & Kathleen A. Ronan, Have the Courts Abdicated Their Responsibility for Determination of Competency to Stand Trial to Clinicians?, 4 J. Forensic Psych. Prac. 27, 39 (2004) [hereinafter Zapf et al., Have the Courts Abdicated?] (“The courts tend to ignore the rule that experts cannot give evidence on the ultimate issue in relation to competency evaluations.” (citation omitted) (citing Gary B. Melton, John Petrila, Norman G. Poythress & Christopher Slobogin, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 20 (2d ed. 1997))). The problem is systemic rather than individual.

Understanding examiners’ motivations is beyond the scope of this Essay. Rather, this Essay expounds on the function that examiners’ opinions and courts’ rulings play in the wider system of criminal court. 35 See generally Mark B. Couch, Causal Role Theories of Functional Explanation, Internet Encyc. Phil., https://iep.utm.edu/func-exp/ [https://perma.cc/A2QX-597W] (last visited Oct. 16, 2024) (explaining that functional explanations are ones in which “researchers appeal to the functions that a structure or system has” but that such accounts can “commit us to problematic views about the existence of teleology”). Specifically, it looks at how the knowledge examiners produce facilitates criminalization 36 See Michel Foucault, Lecture of 8 January 1975, in Abnormal: Lectures at the Collège de France 1974–1975, supra note 31, at 1, 15 [hereinafter Foucault, Jan. 8 Lecture] (“[E]xpert psychiatric opinion allows the offense . . . to be doubled with a whole series of other things . . . presented in the discourse of the psychiatric expert as the cause, origin, motivation, and starting point of the offense.”). and contributes to an epistemology of criminalization. 37 For another example of a contribution to an epistemology of criminalization, see generally Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall 17–23 (2021) (describing “the history of antihomosexual policing” as “provid[ing] a useful case study of the politics of knowledge underlying the administration of the criminal law—what we can think of as the epistemology of law enforcement”). More precisely, when examiners conclude that defendants with PDs are engaged in procedural misconduct, and hence are competent to stand trial, their decisions mimic outcomes in insanity litigation. 38 See infra section IV.A. Courts and legislatures have typically denied both incompetency claims and insanity defenses to defendants diagnosed with PDs because their symptoms too closely resemble traits of criminality, like lack of empathy, 39 See Catherine Young, Janice Habarth, Bruce Bongar & Wendy Packman, Disorder in the Court: Cluster B Personality Disorders in United States Case Law, 25 Psychiatry, Psych. & L. 706, 707 (2018) (noting that some researchers have argued that “the predominant theme” of Cluster B personality disorders—such as antisocial, borderline, histrionic, or narcissistic personality disorders—“is a lack of empathy” (citing George Kraus & David J. Reynolds, The “A-B-C’s” of the Cluster B’s: Identifying, Understanding, and Treating Cluster B Personality Disorders, 21 Clinical Psych. Rev. 345 (2001))). manipulation, and deceit. 40 See, e.g., United States v. Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (noting that people with certain personality disorders “tend to be highly manipulative”); State v. Dahl, 783 N.W.2d 41, 46–49 (N.D. 2010) (describing the accused person’s vandalism of his jail cell as an attempt to manipulate the judicial system rather than irrational behavior stemming from mental illness). Across both insanity and competency law, courts and examiners interpret misconduct as prima facie proof of capacity, not disability. 41 See infra section III.D.1. The apparent consistency in experts’ findings across these two distinct areas of law is remarkable because each serves a very different purpose. This consistency reveals the insertion of substantive concerns into procedural law. Criminality acts as a foil for disability when examiners and courts undertake competency decisions. They frame disability as a limited deviation from the normative figure of the able-bodied, free-willed perpetrator.

The story here is not about a clash between law and psychiatry, commonly treated in the literature as two incommensurable forms of knowledge. 42 See Holloway v. United States, 148 F.2d 665, 667 (D.C. Cir. 1945) (“A complete reconciliation between the medical tests of insanity and the moral tests of criminal responsibility is impossible.”); Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America 7–8 (Harvard Univ. Press paperback ed. 1997) (1995) (discussing common tropes in law, science, and technology studies); Gary B. Melton, John Petrila, Norman G. Poythress, Christopher Slobogin, Randy K. Otto, Douglas Mossman & Lois O. Condie, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 32–33 (4th ed. 2018) (discussing the conflict between law and psychiatry regarding standards of evidence); David L. Bazelon, The Interface of Law and the Behavioral Sciences: The Lowell Institute Lecture, 271 NEJM 1141, 1141 (1964) (“The recurrent problem at the interface of law and the behavioral sciences . . . can be put this way: which of us, lawyer or psychiatrist, has primary responsibility for determining the issue of responsibility? Who is responsible for responsibility?”). Nor does this Essay seek to expose forensic psychiatry as a junk science; rather, it illuminates the unavoidable moral dimensions of the practice of forensic psychology as it animates legal doctrine. 43 See Foucault, Jan. 8 Lecture, supra note 36, at 18 (“Expert psychiatric opinion makes it possible to transfer the point of application of punishment from the offense defined by the law to criminality evaluated from a psychologico-moral point of view.”); Lyons, supra note 1, at 1998 (“Science, however, is characterized by subjective, value-laden choices made at every step of the process, from data collection to experimental design and result interpretation.”); see also Sandra Harding, Whose Science? Whose Knowledge?: Thinking From Women’s Lives 81 (1991) (“[M]odern science has been constructed by and within power relations in society, not apart from them.”); Jonathan M. Metzl, The Protest Psychosis: How Schizophrenia Became a Black Disease, at xi–xvii (2010) (critiquing the influence of racial bias in the psychiatric definition of schizophrenia and interrogating its pathological conceptualization); Heather Douglas, Inductive Risk and Values in Science, 67 Phil. Sci. 559, 563–64 (2000) (“First, values (both epistemic and non-epistemic) play important roles in the selection of problems to pursue. Second, the direct use to which scientific knowledge is put in society requires the consideration of non-epistemic values. . . . Third, non-epistemic values place limitations on methodological options . . . .”). It concludes that the ultimate task of distinguishing between those disabilities that deserve recognition and those that do not is best reserved for legal actors rather than forensic experts. 44 See Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie, 85 J. Crim. L. & Criminology 571, 623 (1995) [hereinafter Winick, Reforming Incompetency to Stand Trial and Plead Guilty] (“Moving competency determinations from clinicians to defense attorneys should increase the accuracy of competency decisionmaking, . . . [and] would recognize that competency in the criminal process is more a legal than a clinical question, involving legal and normative judgements and not merely clinical ones.”).

These observations suggest the CST framework fails on its own terms: Even the fiction of formal legal equality for neurodivergent defendants is out of reach for those diagnosed with a PD. There are groups of people who claim disability but are excluded. 45 It is unclear how often this occurs. But even if it is a small number of people, their exclusion reveals the deeper workings of the competency standard. See, e.g., United States v. Wayt, 24 F. App’x 880, 882–83 (10th Cir. 2001) (affirming that the accused person’s personality disorder did not meet the statutory standards for incompetency and that the defendant was competent to stand trial). Recognition is the minimum in any effort to combat the marginalization of those who are differently abled. But if the problems this Essay exposes are excluded defendants, unprincipled analyses, and usurped roles, the solution is more difficult than the diagnosis. It is both undesirable and untenable to demand that all neurodivergent defendants, including those who are diagnosed with PDs, be recognized in CST proceedings.

It is undesirable because asking examiners and courts to recognize a greater diversity of mental disabilities in CST proceedings would lead to more people being forcibly committed to underfunded state hospitals. Scholars and advocates have noted the harsh conditions of those settings. 46 Since the 1930s, state mental hospitals and residential facilities that housed individuals with intellectual or developmental disabilities have been mired in abuse scandals. See, e.g., Albert Q. Maisel, Bedlam 1946: Most U.S. Mental Hospitals Are a Shame and a Disgrace, LIFE, May 6, 1946, at 102, 102 https://www.jerrycookearchives.com/photo-essays/bedlam-1946/ (on file with the Columbia Law Review) (“Through public neglect and legislative penny-pinching, state after state has allowed its institutions for the care and cure of the mentally sick to degenerate into little more than concentration camps on the Belsen pattern.”); Ben Cosgrove, Strangers to Reason: LIFE Inside a Psychiatric Hospital, 1938, LIFE, https://www.life.com/history/strangers-to-reason-life-inside-a-psychiatric-hospital-1938/ [https://perma.cc/LKN4-82VK] (last visited Jan. 28, 2025) (featuring Alfred Eisenstaedt’s photographs of patients at Pilgrim State Hospital, whom he described as “the most neglected, unfortunate group in the world” (quoting Alfred Eisenstaedt, LIFE photographer)). By the 1960s, the steady stream of grievances and complaints had culminated in political momentum to shutter these types of institutions, leading to deinstitutionalization. See Peter Nolan, Mental Health Nursing in the 1960s Remembered, 28 J. Psychiatric & Mental Health Nursing 462, 467 (2021) (“The institutions were to be replaced by care in the community, thus ending mass incarceration, facilitating civic inclusion and recovery, and empowering patients to become active participants in their own care.”). Today, despite the far smaller number of individuals segregated on account of their mental disability, the institutions remain haunted by neglect. See Liat Ben-Moshe, Decarcerating Disability: Deinstitutionalization and Prison Abolition 3 (2020) [hereinafter Ben-Moshe, Decarcerating Disability] (“The population of people with intellectual and/or developmental disabilities (I/DD) in large residential institutions . . . peaked at 194,650 in 1967. By 2015, this number had declined to 69,557.” (citing David L. Braddock, Richard E. Hemp, Emily S. Tanis, Jiang Wu & Laura Haffer, The State of the States in Intellectual and Developmental Disabilities (11th ed. 2017))); see also Neil Bedi, You’re Trapped. They’re Cashing In., Tampa Bay Times (Sep. 18, 2019), https://projects.tampabay.com/
projects/2019/investigations/north-tampa-behavioral-health/ [https://perma.cc/GLY5-X6VR] (“[North Tampa Behavioral Health] illegally cuts patients off from their families. Then it uses loopholes in the statute to hold them longer than allowed, running up their bills while they are powerless to fight back. Some patients describe getting virtually no psychiatric treatment.”); Liz Kowalczyk, Families Trusted This Hospital Chain to Care for Their Relatives. It Systematically Failed Them, Bos. Globe (June 10, 2017), https://www.bostonglobe.com/metro/2017/06/10/arbour/AcXKAWbi6WLj8bwGBS2GFJ/story.html (on file with the Columbia Law Review) (exposing recent conditions in Massachusetts psychiatric facilities run by Arbour Health System, which has extracted “robust profits” while “repeatedly and sometimes egregiously shortchanging patient care”); Public Crisis, Private Toll: The Hidden Costs of the Mental-Health Industry’s Expansion, Seattle Times (Aug. 23, 2019), https://projects.seattletimes.com/2019/public-crisis-private-toll-prologue/ [https://perma.cc/N2Z7-XQTM] (investigating the harms of the expansion of private psychiatric care, designed to address inadequate state capacity, in Washington). Nonetheless, by outlining arguments for incompetency, this Essay intends to support a harm-reduction strategy in instances when a defense attorney can clearly discern a net benefit to their client being found incompetent. In many cases, however, there are no good choices for defendants with psychiatric disabilities in criminal court. Although both the disability justice and disability rights movements advocate for greater inclusion in public life, 47 See infra section I.B. that demand seems misguided here. Inclusion is a paradox in the carceral state. 48 But see Jamelia N. Morgan, The Paradox of Inclusion: Applying Olmstead’s Integration Mandate in Prisons, 27 Geo. J. on Poverty L. & Pol’y 305, 312–17 (2020) [hereinafter Morgan, Paradox of Inclusion] (arguing that although the legal mandate to integrate individuals who have disabilities conflicts with the central features and functions of the American punishment system, this paradox is potentially productive for those seeking to transform the carceral state).

It may also be untenable to expect more expansive accommodations because criminal courts may not be able to recognize all psychiatric disabilities. Even if a person’s disability shapes their chances in court, recognizing the manifestations of some disabilities could undermine criminal law’s core commitments to assigning blame and responsibility. Furthermore, courts may be drawing lines to produce a narrow exception out of “a fear of too much justice.” 49 McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting). That is, courts may be drawing a firm rule to prevent a proliferation of incompetency claims. 50 See id. (“The Court next states that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing.”). Among people in state and federal prisons in 2016, an estimated 40.4% reported having a psychiatric disability. 51 Laurin Bixby, Stacey Bevan & Courtney Boen, The Links Between Disability, Incarceration, and Social Exclusion, 41 Health Affs. 1460, 1462 (2022). Of those diagnoses, PDs are among the most overrepresented in carceral settings. 52 See Janet I. Warren, Mandi Burnette, Susan Carol South, Preeti Chauhan, Risha Bale & Roxanne Friend, Personality Disorders and Violence Among Female Prison Inmates, 30 J. Am. Acad. Psychiatry & L. 502, 507 (2002) (finding antisocial, borderline, and paranoid PDs to be common diagnoses among women incarcerated at a maximum security prison). Examiners’ exclusion of PDs in CST proceedings preserves the rapacious administration of criminal law. 53 See Perlin, Hidden Prejudice, supra note 29, at 72 (“The legal system selectively—teleologically—either accepts or rejects social science evidence depending on whether or not the use of that data meets the a priori needs of the legal system.”). There are strong institutional incentives to define disability narrowly.

CST proceedings should also serve as a cautionary tale for ongoing efforts to address neurodivergence in criminal court, particularly those that propose mental health expertise as a key ingredient for decarceration. Across jurisdictions, criminal court actors have embraced alternatives to incarceration, particularly for those with psychiatric needs. 54 See Amy J. Cohen, Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City, 95 Tex. L. Rev. 915, 923–25 (2017) (detailing the rise of “socialized courts”); Erin R. Collins, The Problem of Problem-Solving Courts, 54 U.C. Davis L. Rev. 1573, 1575 (2021) [hereinafter Collins, Problem of Problem-Solving] (describing the proliferation of “mental health courts” and other specialized courts); Allegra M. McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law, 100 Geo. L. J. 1587, 1605–11 (2012) (describing the movement for specialized criminal courts, which began to combat “the miscarriages of justice” occurring in regular criminal court); see also Michela Lowry & Ashmini Kerodal, Ctr. for Ct. Innovation, Prosecutor-Led Diversion: A National Survey, at v (2019) https://www.innovatingjustice.org/wp-content/uploads/2019/03/‌prosecutor-led_diversion.pdf [https://perma.cc/P98G-VXU5] (“Across both urban and rural counties, the most commonly available mandates and services were community service (77%), substance abuse education (69%), substance abuse treatment (59%), and individual therapy (42%).”). In such cases, a person can accept a plea to a criminal charge and can undergo treatment, broadly defined, as their sentence. 55 See Collins, Problem of Problem-Solving, supra note 54, at 1582 (“Problem-solving courts are specialized criminal or quasi-criminal courts that often offer treatment and enhanced supervision in addition to or in lieu of incarceration.”); Erin R. Collins, Status Courts, 105 Geo. L.J. 1481, 1488–89 (2017) (stating that, for example, “[d]rug courts embrace the idea that . . . treating the [drug] addiction instead of incarcerating the defendant is a more effective and long-lasting response to drug-related criminal behavior”); Leah Wang & Katie Rose Quandt, Building Exits off the Highway to Mass Incarceration: Diversion Programs Explained, Prison Pol’y Initiative (July 20, 2021), https://www.prisonpolicy.org/reports/diversion.html [https://perma.cc/2AUN-2N4Y] (discussing the bene-fits and limitations of alternatives to incarceration). To implement these alternatives, courts have assembled teams of interdisciplinary experts to identify those who stand to benefit from softer penal interventions. Mental health specialists play a critical role in these efforts, drawing on their diagnostic expertise to educate judges, prosecutors, and defense attorneys about neurodivergence and appropriate interventions. 56 See Council on Psychiatry & L., Am. Psychiatric Ass’n, Resource Document on Mental Health Courts 5 (2020), https://www.psychiatry.org/getattachment/b808a481-c996-4c88-8afe-41605412dd48/Resource-Document-2020-Mental-Health-Courts.pdf [https://perma.cc/U3R6-Z9VU] (noting the important role of mental health professionals in mental health courts). Many progressive reforms treat mental health expertise as a humanizing antidote to criminalization. 57 See, e.g., Renée Binder, Mental Health Courts: An Effective Alternative to Incarceration, Psychiatric News, Nov. 20, 2015, at 8, 8 (“Mental health courts take a thera-peutically oriented approach. . . . They use a harm-reduction model and try to facilitate treatment adherence.”); see also Akhi Johnson & Mustafa Ali-Smith, Vera Inst. of Just., Diversion Programs, Explained 2 (2022), https://vera-institute.files.svdcdn.com/production/inline-downloads/diversion-programs-explained.pdf? [https://perma.cc/39LJ-CDHU] (discussing pre- and post-arrest diversion programs, including diversion to mental health services); Wang & Quandt, supra note 55 (enumerating the types of diversion offered by various criminal legal actors). But CST proceedings suggest that the diagnostic framework mental health experts deploy is not necessarily distinct from criminal law’s deontological framework. 58 See infra section IV.B.

This Essay engages with four intellectual currents. First, legal scholars have recently illuminated the central but underappreciated role of disability in jurisprudence governing search and seizure, 59 See, e.g., Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. 489, 516 (2022) [hereinafter Morgan, Disability’s Fourth Amendment] (“[T]he reasonable person standard in the Court’s test for whether a seizure has occurred does not adequately take into consideration disability. . . . As a result, this test fails to adequately protect the Fourth Amendment rights of disabled people.”). state–federal relations, 60 See, e.g., Katie Eyer & Karen M. Tani, Disability and the Ongoing Federalism Revolution, 133 Yale L.J. 839, 845 (2024) (“In the 1970s and 1980s, disability cases regularly provided the site for the Court’s early revival of federalism doctrines, as well as its development of new ones.”). and family law. 61 See, e.g., Sarah H. Lorr, Disabling Families, 76 Stan. L. Rev. 1255, 1262–64 (2024) (arguing that the family regulation system constructs the social category of disability, renders people disabled or more disabled, and reinforces the belief that people with disabilities are categorically unable and unfit to parent). Second, law-and-social-movement scholars have expanded scholarly horizons by applying the insights of prison abolition to legal doctrine and reform. 62 See, e.g., Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1788 (2020) (“By contending with abolitionist critique and organizing, we deepen our understanding of policing and cogenerate strategies that have the potential for political, economic, and social transformation.”); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 464 (2018) (unpacking the movement for prison and police abolition’s “critique of traditional criminal law reforms”); Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 800–01 (2021) (noting a shift in recent scholarship toward “self-governance, or at least . . . reduc[ing] the subjugating effects of policing”). These authors’ works draw on a rich scholarly tradition of highlighting the often underappreciated role that social movements play in legal reform. See Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 826 (2021) (describing the methodology of “movement law” as one that “approaches scholarly thinking and writing about law, justice, and social change as work done in solidarity with social movements, local organizing, and other forms of collective struggle”); Scott L. Cummings, The Puzzle of Social Movements in American Legal Theory, 64 UCLA L. Rev. 1554, 1559 (2017) (discussing “movement liberalism,” in which “social movements are positioned as leaders of progressive legal reform in ways that promise to reclaim the transformative potential of law while preserving traditional roles for courts and lawyers”); Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2749–50 (2014) (advancing demosprudence, which “focuses on the ways that ongoing collective action by ordinary people can permanently alter . . . democracy by changing the people who make the law and the landscape in which that law is made,” over jurisprudence, which focuses on “the work of judges”). This body of work shakes foundational myths about criminal legal institutions and conventional modes of reform. 63 Professor Amna Akbar notes the distinctions leftist organizers make between reformism and nonreformist reforms. Amna A. Akbar, Non-Reformist Reforms and Struggles Over Life, Death, and Democracy, 132 Yale L.J. 2497, 2518–30 (2023) [hereinafter Akbar, Non-Reformist Reforms]. In the legal academy, reformism is the mainstay. Id. at 2502. Reformism, according to Akbar, “assume[s] the legitimacy of the prevailing political, economic, social, and juridical order,” involving mere “tweaks” to doctrine and policy. Id. “Reformism telegraphs to the public that the system, institution, or set of relations it seeks to tweak are here to stay; that the problem is not structural or symptomatic but stray.” Id. at 2519. Nonreformist reforms, by contrast, “aim[] to undermine the political, economic, and social system or set of relations as [they] gesture[] at a fundamentally distinct system or set of relations in relation or toward a particular ideological and material project of worldbuilding.” Id. at 2527. Such a program of transformation “draws from and builds the popular strength, consciousness, and organization of revolutionary or agential classes or coalitions—most clearly, in doctrinaire Marxism, for example, the working class.” Id. If criminal legal institutions operate as tools of social control instead of providing safety, and if procedural safeguards actually entrench state violence, 64 See, e.g., Zohra Ahmed, Bargaining for Abolition, 90 Fordham L. Rev. 1953, 1955–58 (2022) (arguing that criminal legal actors engage in violence work); Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 7 (2019) (stating that abolition posits that “the expanding criminal punishment system functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime”); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550 (2022) (“For an abolitionist, the criminal legal system does not seek justice, repair harm, neutrally arbitrate between good and bad, or create public safety. . . . It maintains and legitimizes unequal and exploitative power relationships.”). then legal scholars may need to rethink their favored solutions and consider shrinking rather than fixing criminal law and its institutions. 65 See Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 242 (2007) (developing the heuristic of nonreformist reforms in the context of antiprison organizing); see also Akbar, Non-Reformist Reforms, supra note 63, at 2529–31 (discussing the emergence of nonreformist reforms in the context of battles for decarceration). By engaging with this literature, this Essay hopes to challenge legalist modes of reform, like the CST framework.

Third, this account also draws on the insights of an older intellectual tradition, the antipsychiatry movement, which emerged in the 1960s. 66 See David J. Rissmiller & Joshua H. Rissmiller, Evolution of the Antipsychiatry Movement Into Mental Health Consumerism, 57 Psychiatric Servs. 863, 863 (2006). Spurred by the neglect, cruel experimentation, and abuse in state mental hospitals, scholars and organizers in this tradition argued that these institutional excesses were features of a system of knowledge that constructed and enforced psychological normality and enabled deprivations of liberty. 67 Psychoanalysts, psychiatrists, and sociologists formed the first generation of antipsychiatry activists who came together in opposition “to what were perceived as biological psychiatry’s abuses in the name of science.” Rissmiller & Rissmiller, supra note 66, at 863. Thomas Szasz, a psychiatrist in the United States and one of the prominent proponents of this view, criticized the foundational precepts of psychiatry and abnormal psychology in his 1960 seminal essay. See Thomas S. Szasz, The Myth of Mental Illness, 15 Am. Psych. 113, 113 (1960) (“My aim in this essay is to raise the question ‘Is there such a thing as mental illness?’ and to argue that there is not.”). Namely, in Szasz’s view, the fields drew a false equivalence between bodily disease and mental illness. Id. According to mental health experts, Szasz explained, “[a]ll problems in living are attributed to physicochemical processes which in due time will be discovered by medical research.” Id. This view, he posited, mystified the true source of psychological distress: So-called mental illnesses were at base difficulties with living, rooted in “differences in personal needs, opinions, social aspirations, values, and so on.” See id. at 113, 118. Szasz thus called for social intervention rather than biological remedies. See id. at 115 (“Since medical action is designed to correct only medical deviations, it seems logically absurd to expect that it will help solve problems whose very existence had been defined and established on nonmedical grounds.”); see also id. at 114 (“The norm from which deviation is measured whenever one speaks of a mental illness is a psychosocial and ethical one. Yet, the remedy is sought in terms of medical measures which—it is hoped and assumed—are free from wide differences of ethical value.”). Because of the unacknowledged ethical and hence political content of psychiatric practice, “Szasz argued for a similarly clear division between ‘psychiatry and state,’” and helped establish the Libertarian Party. Rissmiller & Rissmiller, supra note 66, at 864.
Szasz also wrote at a time when psychiatry and psychology were under attack from other social groups. Ken Kesey’s 1962 novel, One Flew Over the Cuckoo’s Nest, invited the public into the conditions of psychiatric institutions. See Ken Kesey, One Flew Over the Cuckoo’s Nest (Penguin Books 1962). In Britain, R. D. Laing was an influential critic of psychiatry. See R.D. Laing, The Divided Self: An Existential Study in Sanity and Madness (Penguin Books 1965) (1960) (providing a phenomenological account of schizophrenia, madness, and sanity). In Italy, Franco Basaglia founded the democratic psychiatry movement and helped to bring about deinstitutionalization. See generally John Foot, The Man Who Closed the Asylums: Franco Basaglia and the Revolution in Mental Health Care (2015) (narrating the evolution of the movement Basaglia founded to close mental institutions in Italy). The antipsychiatry movement accompanied deinstitutionalization, which involved the closure of both psychiatric hospitals and large state institutions for those with developmental disabilities from the 1950s through the 1980s. See Ben-Moshe, Decarcerating Disability, supra note 46, at 38 (noting that “antipsychiatry . . . advanced a new conceptualization of human worth and difference that made deinstitutionalization necessary and possible”).
In the 1970s, the professional-led antipsychiatry movement waned, and patients took up the mantle of activism. See Beatrice Adler-Bolton & Artie Vierkant, Health Communism 137–38 (2022). For example, in Germany, the Socialist Patients’ Collective championed an ethos of turning illness into a weapon in the fight against capitalism, the most important determinant of health, in their view. Id. at 136–39. In their efforts to liberate themselves from medical paternalism, activists described themselves not as patients but as consumers, clients, or even survivors. See Nancy Tomes, Remaking the American Patient: How Madison Avenue and Modern Medicine Turned Patients Into Consumers 263 (2016) (describing the debate between the terms “consumer,” “client,” “survivor,” and “patient” (internal quotation marks omitted)). Instead of medical therapies, radical groups that opposed psychiatry proposed peer support and mutual aid for individuals who were neurocognitively different. See Judi Chamberlin, On Our Own: Patient-Controlled Alternatives to the Mental Health System 18–19, 86–87 (McGraw-Hill Book Co. 1979) (1978) (articulating nonmedical and peer mechanisms to improve the lives of people who are neurodivergent).
This upheaval coincided with the LGBTQ movement’s challenge to the psychiatric profession’s hostility to homosexuality. From 1952 to 1973, the American Psychiatric Association classified homosexuality as a “sociopathic personality disturbance.” Robert Paul Cabaj, Working With LGBTQ Patients, Am. Psychiatric Ass’n, https://www.psychiatry.org/psychiatrists/diversity/education/best-practice-highlights/working-with-lgbtq-patients [https://perma.cc/6FY6-8ED6] (last visited Feb. 15, 2025); see also John J. Conger, Proceedings of the American Psychological Association, Incorporated, for the Year 1974: Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psych. 620, 633 (1975) (“The American Psychological Association supports the action taken on December 15, 1973, by the American Psychiatric Association, removing homosexuality from that Association’s official list of mental disorders.”). In 1970, gay activist Frank Kameny interrupted an American Psychiatric Association meeting, declaring that “[p]sychiatry is the enemy incarnate” and that “[p]sychiatry has waged a relentless war of extermination against us. You may take this as a declaration of war against you.” Donald Beaulieu, 50 Years Ago, Psychiatrists Stopped Calling Homosexuality a Mental Illness, Wash. Post (Dec. 15, 2023), https://www.washingtonpost.com/history/2023/12/15/homosexuality-disorder-dsm-apa-psychiatry/ (on file with the Columbia Law Review) (internal quotation marks omitted) (quoting activist Frank Kameny).
In courts, individuals with psychiatric disabilities also pushed to change the standard of care, so as to force medical and therapeutic institutions to prioritize care in community settings rather than in segregated warehouses. See, e.g., Lake v. Cameron, 364 F.2d 657, 660 (D.C. Cir. 1966) (en banc) (“Deprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection.”). Theorist Michel Foucault drew and expanded on these insights in his meticulous study of forensic psychiatry. 68 See generally Abnormal: Lectures at the Collège de France 1974–1975, supra note 31 (using criminal cases to demonstrate the moral and political dimensions of psychiatry and psychology); Michel Foucault, Madness and Civilization: A History of Insanity in the Age of Reason (Richard Howard trans., Vintage Books 1988) (1965) (offering a gene-alogy of the construction of madness in Western societies). Psychology and abnormal psychology were not neutral disciplines that illuminated the truth of the human mind but rather techniques of governance. 69 See Foucault, Jan. 15 Lecture, supra note 31, at 39–41 (describing the ways in which, for example, medico-psychological services are used in prison to monitor detainees). The antipsychiatry movement in turn sought to denaturalize the study of the brain and of human behavior. 70 See supra note 67. This Essay takes inspiration from this line of critique, uncovering the political, moral, and normative dimensions to the practice of psychiatry and psychology. 71 As Judi Chamberlin argued:
Although many psychiatrists claim that their training gives them the expertise to detect symptoms of the various mental illnesses, it is the very existence of mental illness that is in question. Leaving the determination of whether mental illness exists strictly to the psychiatrists is like leaving the determination of the validity of astrology in the hands of professional astrologers.
Chamberlin, supra note 67, at 9; see also Szasz, supra note 67, at 116 (stating that the author seeks “to criticize and counter a prevailing contemporary tendency to deny the moral aspects of psychiatry”). Professor Liat Ben-Moshe summarized Chamberlin’s argument, stating: “Altered states, anger, and pain should not be characterized as illness but as a consequence of a system of power and inequality that denies people their basic human needs.” Ben-Moshe, Decarcerating Disability, supra note 46, at 96. It is psychiatry, not stigma, that is “the force that most oppresses those psychiatrized.” Id. On Szasz, she added: “Szasz’s goal was to untie the knot between deviance/abnormality and biomedicalization, leading to psychiatric confinement.” Id. But it does not fully embrace antipsychiatry in that it does not suggest that psychiatry ought to be abolished, nor does it contend that the brain, human behavior, and psychopathology cannot be meaningfully examined. This Essay does, however, embrace anti-psychiatry’s invitation to critically scrutinize the discipline and profits from the hermeneutical space that the antipsychiatry movement created. Indeed, the “Mad Pride” and “Crip” movements, antipsychiatry’s intellectual descendants, have illuminated the recalcitrant ableism that permeates law and medicine. 72 As Ben-Moshe explains:
Probably the most pervasive way in which alternatives to psychiatry are conceptualized, imagined and practiced are through national and international networks and organizations created by psychiatric survivors, ex-patients, and consumers, as well as people within the anti-psychiatry movement more generally (and those who don’t fit neatly into any of these categories). The importance of such organizations is that they build an alternative community to psychiatry, one that is supportive, caring, and often defiant. As in the critique of restorative justice, the point of these networks is not to restore the person to some sort of normative mental health but to discuss the social conditions that led to distress and, in many instances, to increased distress and oppression caused by attempts to biomedically “treat” a perceived behavior or outcome. People who self identify as Mad, for example, claim the category as a form of difference, one in which they find community and home, culture and pride. In a similar fashion to other disability rights and disability justice advocates, madness is seen as an identity, and not a disease. As such, it is a source for frustration, pride, and an entry point into a political stance.
Liat Ben-Moshe, Alternatives to (Disability) Incarceration, in Disability Incarcerated: Imprisonment and Disability in the United States and Canada, supra note 11, at 255, 262; see also Ryan Thorneycroft, Crip Theory and Mad Studies: Intersections and Points of Departure, Canadian J. Disability Stud., Feb. 2020, at 91, 95, 107–08 (explaining that disability activists have sought to reclaim terms such as “crip” and “mad”).

The fourth area of new scholarship that this Essay draws on comes from social science scholars examining the underappreciated connections between carceral expansion and other areas of law and policy, such as municipal finance, taxation, land use, and community economic development. 73 See, e.g., Gilmore, supra note 65, at 28 (“[R]esolutions of surplus land, capital, labor, and state capacity congealed into prisons . . . .”); Jasmine Heiss, A Quiet Jail Boom, in The Jail Is Everywhere: Fighting the New Geography of Mass Incarceration 19, 19–24 (Jack Norton, Lydia Pelot-Hobbs & Judah Schept eds., 2024) (describing the jail boom in small cities and rural areas as the consequence of municipal resource concentration in jails and prisons, fragmentation of the social safety net, hollowing-out of industry, and prioritization of the criminal legal system to solve social problems). Professor Liat Ben-Moshe has persuasively exposed the logic of incarceration as it permeates the treatment of individuals with disability. 74 See Ben-Moshe, Decarcerating Disability, supra note 46, at 1–2 (discussing the “carceral archipelago” as the “variety of enclosures, especially prisons, jails, psychiatric hospitals, and residential institutions for those with intellectual or developmental disabilities” that make apparent the interconnections between practices of incarceration and psychiatry (internal quotation marks omitted) (quoting Chris Chapman, Allison C. Carey & Liat Ben-Moshe, Reconsidering Confinement: Interlocking Locations and Logics of Incarceration, in Disability Incarcerated: Imprisonment and Disability in the United States and Canada, supra note 11, at 3, 10, 14, 18)). For further elaboration on the logic of incarceration, see Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, 132 Harv. L. Rev. 1575, 1587 (2019) (“[I]ncarceration as a logic and method of dominance is not reducible to the particular institutional form of jails, prisons, detention centers, and other such brick-and-mortar incarcerating facilities . . . .”). This Essay brings these scholarly threads together, attending to the logic of criminalization as it trespasses into other areas of public policy and fields of inquiry.

This Essay also addresses the relative dearth of scholarly writing about disability and criminal procedure. 75 For two important exceptions, see Perlin, Hidden Prejudice, supra note 29, at 206 (“The public’s obsession with the use of the insanity defense is matched by its profound disinterest in the role of incompetency in the criminal trial process.”); Morgan, Disability’s Fourth Amendment, supra note 59, at 494–95 (arguing that disability is undertheorized in the Supreme Court’s Fourth Amendment jurisprudence, demonstrating how “disability mediates interactions with law enforcement” and exposing how Fourth Amendment doctrine renders individuals with disabilities further vulnerable to police violence). The insanity doctrine has captivated generations of academics, 76 For comparison, a search to find secondary literature, like law review articles, on CST turns up 1,611 articles, while a search responsive to insanity delivers 2,339 law review articles. Memorandum from Zohra Ahmed to Columbia L. Rev. (Jan. 22, 2025) (on file with the Columbia Law Review). For the literature on the insanity defense, see generally ABA, Insanity Defense, 16 Mental & Physical Disability L. Rep. 266 (1992) (surveying legislative and judicial developments in insanity defense law; examining shifts in legal standards, including the narrowing of the irresistible impulse test and the exclusion of volitional impairments in some jurisdictions; and discussing due process concerns regarding competency evaluations and post-acquittal commitment of insanity acquittees); Carl Cohen, Criminal Responsibility and the Knowledge of Right and Wrong, 14 U. Mia. L. Rev. 30 (1959) (critiquing and describing the history of the M’Naghten Rules in insanity determinations); Federica Coppola, Motus Animi in Mente Insana: An Emotion-Oriented Paradigm of Legal Insanity Informed by the Neuroscience of Moral Judgments and Decision-Making, 109 J. Crim. L. & Criminology 1, 50 (2019) (proposing a neuroscience-based reform of the insanity defense that expands traditional cognitive and volitional prongs to include an emotional capacity test and advocating for a tripartite insanity standard that integrates cognitive, volitional, and emotional impairments as grounds for legal insanity); R.J. Gerber, Is the Insanity Test Insane?, 20 Am. J. Juris. 111, 119–31 (1975) (analyzing empirical data on how different insanity defense standards influence juror perceptions and verdicts and emphasizing inconsistencies in lay evaluations of legal insanity); Jerome Hall, Mental Disease and Criminal Responsibility, 45 Colum. L. Rev. 677, 695, 708–09 (1945) (analyzing the philosophical and legal foundations of the insanity defense and defending the M’Naghten Rules as grounded in traditional, commonsense psychology while critiquing the inconsistencies in psychiatric challenges to legal standards of responsibility); Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 Ohio St. J. Crim. L. 289, 299–301 (2003) (proposing a partial responsibility doctrine that takes into account degrees of diminished responsibility and advocating for a “Guilty But Partially Responsible” verdict to achieve more proportional justice in criminal law (internal quotation marks omitted)); James R.P. Ogloff, A Comparison of Insanity Defense Standards on Juror Decision Making, 15 L. & Hum. Behav. 509, 522–26 (1991) (empirically evaluating how different insanity defense standards influence juror decisionmaking, finding that jurors struggle to comprehend legal insanity instructions and rely more on their own perceptions of mental illness and culpability than on formal legal standards); Walter Sinnott-Armstrong & Ken Levy, Insanity Defenses, in The Oxford Handbook of Philosophy of Criminal Law 299 (John Deigh & David Dolinko eds., 2011) (providing a comprehensive philosophical analysis of the insanity defense, examining its historical development, legal justifications, and moral underpinnings, while critiquing both retributive and consequentialist objections to excusing mentally ill offenders from full criminal responsibility); Laura Reider, Comment, Toward a New Test for the Insanity Defense: Incorporating the Discoveries of Neuroscience Into Moral and Legal Theories, 46 UCLA L. Rev. 289 (1998) (arguing for a neuroscience-informed reform of the insanity defense, contending that traditional tests inadequately account for the role of impaired emotional processing and moral reasoning in criminal responsibility, and proposing a broader standard that incorporates empirical findings on brain function and decisionmaking).
For the literature on competency, see generally Henry J. Steadman, Beating a Rap?: Defendants Found Incompetent to Stand Trial (1979) (filling in the profile of defendants found incompetent to stand trial); Bonnie, A Theoretical Reformulation, supra note 4, at 291–316 (proposing a two-part framework for criminal competency by distinguishing between “competence to assist counsel” and “decisional competence,” arguing that current legal standards conflate these distinct constructs, and advocating for competency evaluations that consider the specific cognitive and decisional demands of each stage of criminal proceedings); Alison J. Lynch & Michael L. Perlin, “I See What Is Right and Approve, but I Do What Is Wrong”: Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging, 25 Lewis & Clark L. Rev. 453 (2021) (examining the legal and psychological distinctions between psychopathy and ASPD; critiquing the use of psychopathy labels in federal sentencing as reinforcing racial bias; and exploring how neuroimaging research challenges assumptions about psychopathy, punishment, and recidivism in criminal justice policy); Robert A. Nicholson & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative Review of Comparative Research, 109 Psych. Bull. 355 (1991) (conducting a meta-analysis of thirty studies comparing competent and incompetent criminal defendants; identifying key predictors of incompetency, including poor performance on forensic competency tests, psychotic diagnoses, and severe psychiatric symptoms; and highlighting potential biases in competency determinations based on demographic and legal history factors); Michael L. Perlin, Beyond Dusky and Godinez: Competency Before and After Trial, 21 Behav. Scis. & L. 297, 300–09 (2003) (critiquing the narrow application of competency standards in criminal proceedings; arguing that competency determinations should extend beyond trial participation to include pretrial, sentencing, appeal, and post-conviction processes; and highlighting due process concerns arising from inconsistent judicial treatment of mentally ill defendants across different procedural stages); Gianni Pirelli, William H. Gottdiener & Patricia A. Zapf, A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psych. Pub. Pol’y & L. 1 (2011) (conducting a comprehensive meta-analysis of sixty-eight studies spanning four decades and examining demographic, psychiatric, and psycho-legal factors distinguishing competent from incompetent defendants); Christopher Slobogin, Mental Illness and Self-Representation: Faretta, Godinez and Edwards, 7 Ohio St. J. Crim. L. 391,
391–93, 399–402, 406–10 (2009) [hereinafter Slobogin, Mental Illness and Self-Representation] (arguing that Indiana v. Edwards, 55 U.S. 164 (2008), improperly limited defendants’ autonomy by allowing courts to deny self-representation even when defendants are competent to stand trial and proposing a competency standard that differentiates between adjudicative and decisional competence to ensure fair trial rights for defendants with psychiatric disabilities); Patricia A. Zapf & Ronald Roesch, Future Directions in the Restoration of Competency to Stand Trial, 20 Current Directions Psych. Sci. 43, 43–47 (2011) (reviewing research on competency restoration, identifying key predictors of restorability, critiquing the effectiveness of existing treatment programs, and advocating for competency restoration approaches tailored to specific psychiatric and cognitive deficits rather than broad diagnostic categories); Patricia A. Zapf, Tina M. Zottoli & Gianni Pirelli, Insanity in the Courtroom: Issues of Criminal Responsibility and Competency to Stand Trial, in 2 Psychology in the Courtroom 79, 89–95 (Daniel A. Krauss & Joel D. Lieberman eds., 2009) (overviewing doctrine, history, and literature related to the competency to stand trial); Stork, supra note 22, at 927–69 (describing how federal courts treat PDs in CST proceedings). but it is a substantive rule that excuses defendants from criminal liability. Despite the popular fascination with the insanity defense, it is invoked far less often than one might expect, in fewer than 1% of cases. 77 Henry J. Steadman, Margaret A. McGreevy, Joseph P. Morrissey, Lisa A. Callahan, Pamela Clark Robbins & Carmen Cirincione, Before and After Hinckley: Evaluating Insanity Defense Reform 149–51 (1993) (reporting results from a four-state study over a ten-year period and finding that the defense was raised in 0.9% of cases). By contrast, public defenders express concerns about clients’ competency in 10% to 15% of cases. 78 See Melton et al., supra note 42, at 193 (“Surveys of public defenders indicate that defense lawyers have concerns about their clients’ competence in between 10 and 15% of their cases.”); Wik et al., supra note 7, at 43 (showing a national average of over two hundred patients per state in state psychiatric hospitals institutionalized for being incompetent to stand trial in 2014). Competency assessments are a central feature of criminal litigation in a way that insanity is not. With a few notable exceptions, existing legal scholarship has not engaged in a granular critique of CST proceedings. 79 Cf. Perlin, Hidden Prejudice, supra note 29, at 205–08 (discussing general public disinterest in CST proceedings, despite their broad implications). This Essay aims to do just that, while offering constructive guidelines for reform.

To make its critique, this Essay dives into the disciplines of psychology and psychiatry—and their constructions of disease and ability—to assess forensic practices on their own terms. Psychology and psychiatry are fields of knowledge oriented toward understanding and treating what they discern to be mental diseases. 80 See DSM-5-TR, supra note 15, at 21 (“The primary purpose of DSM-5 is to assist trained clinicians in the diagnosis of mental disorders as part of a case formulation assessment that leads to an informed treatment plan for each individual.”); About APA, Am. Psych. Ass’n, https://www.apa.org/about [https://perma.cc/9SRY-X3N5] (last visited Feb. 21, 2025) (“Psychologists study both normal and abnormal functioning and treat patients with mental and emotional problems.”); What Is Psychiatry?, Am. Psychiatric Ass’n, https://www.psychiatry.org/patients-families/what-is-psychiatry [https://perma.cc/G8QM-NQZW] (last visited Feb. 21, 2025) (“Psychiatry is the branch of medicine focused on the diagnosis, treatment and prevention of mental, emotional and behavioral disorders.”). But the term “disease” is an awkward fit for neurodivergence. As a general matter, when a branch of medicine labels something an “illness” or “disease,” this involves identifying an undesirable “cluster of characteristics” that has a rational explanation and an expected course. 81 Bursten, supra note 26, at 5, 27; see also W. Miller Brown, On Defining ‘Disease’, 10 J. Med. & Phil. 311, 312 (1985) (describing the prominent view that “disease may be an impairment, i.e., deviation from the normal structural or functional integrity of the body, organ-system, or biosynthetic process”). Furthermore, to label something an illness is to root the problem in the individual’s biology rather than powerful social forces that often determine health. Psychiatric diagnoses trouble these biomedical definitions of disease—none more so than PDs, in part because their biological origins are uncertain. 82 See Robert F. Krueger, Continuity of Axes I and II: Toward a Unified Model of Personality, Personality Disorders, and Clinical Disorders, 19 J. Personality Disorders 233, 245–47 (2005) (“[G]enetic influences do not provide the entire story with respect to the etiology of psychopathology.”); G. E. Partridge, Current Conceptions of Psychopathic Personality, 87 Am. J. Psychiatry 53, 64 (1930) (describing Robert Gaupp’s view that “[t]he psychopathic is something that lies between mental normality and mental disease, which is not dependent upon a purely physical condition”). These disciplinary uncertainties seep into CST determinations too.

One problem with embracing psychology and psychiatry’s framework is that these fields of knowledge describe certain differences as abnormal, disordered, and ill, whereas the disability justice movement rejects such discourse as ableist and dehumanizing. 83 See Sins Invalid, Skin, Tooth, and Bone: The Basis of Movement Is Our People 5, 19 (2d ed. 2019) (noting that the disability justice movement rejects that disabled individuals are “deviant or aberrant” and instead sees disabled individuals as “powerful, not despite the complexities of [their] bodies, but because of them”). This Essay will use the terms “disorder,” “illness,” “disease,” “symptom,” and “impairment,” not because these are correct ways to frame neurocognitive difference, but because these are the terms that actors in CST proceedings use.

Critically, while experts in psychology and psychiatry approach their epistemic practices as scientific, this Essay underscores the underappreciated moral dimension of the knowledge they produce. Assembling a diagnostic typology, or nosology, involves discerning undesirable traits and abnormal conditions and identifying who deserves compassion and accommodation. 84 See Bursten, supra note 26, at 27–28 (describing the definition of illness via the identification of an undesirable “cluster of characteristics”). These normative endeavors require more than merely identifying statistical deviations in human experience. 85 See, e.g., Ron Amundson, Against Normal Function, 31 Stud. Hist. & Phil. Biological & Biomedical Scis. 33, 52 (2000) (“[V]ersions of biological determinism have buttressed racist and sexist doctrines. Celebrated for their scientific objectivity, they had little objective biological foundation. Their plausibility was enhanced by their congruence with the social prejudices of their time.”). Not all psychological differences establish a psychiatric diagnosis. Those cognizable psychiatric conditions are enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM)—the most recent edition of which is the Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition, Text Revision (DSM-5-TR)—which serves as these disciplines’ authoritative catalog. 86 See Katia Romelli, Alessandra Frigerio & Monica Colombo, DSM Over Time: From Legitimisation of Authority to Hegemony, 11 BioSoc’ys 1, 12, 17 (2016) (“[T]he APA is positioning itself as the only legitimate actor that can establish the nature of valid knowledge in this domain.”). This Essay relies on the DSM-5-TR’s categories of disorders, but it does not assume that these accurately capture a stable constellation of behaviors and experiences.

This Essay proceeds as follows. Part I traces the origins of the competency process, describes how it typically unfolds, and surveys the pertinent critiques of competency assessments. Part II examines the controversial status of PDs in psychology and psychiatry, as well as in public life. Part III presents the results of a national survey of CST proceedings, which reveal that examiners abide by a hierarchical scheme of diagnoses. Case law and examiners’ testimony establish disability as something that is externally verifiable and primarily acts on a person’s perception of reality. Part IV probes examiners’ conclusions to expose the buried moral dimensions of their epistemic practices. It draws on moral philosophy to expose the parallels between examiners’ reasoning in insanity and CST proceedings and, after enumerating the distinct concerns animating these different areas of law, it asserts that such consistency is undesirable. Part V teases out the implications for reform, in and outside of court. This Essay concludes by suggesting that the study of CST proceedings should serve as a cautionary tale for ongoing efforts to address neurodivergence in criminal court.