Competency to proceed is the most common mental health referral for defendants in state criminal courts. Requiring a competent defendant ensures the Court’s adjudications are reliable and dignified and protects a defendant’s 14th and 6th Amendment rights. Defendants are presumed competent, but this can be questioned by the defense, prosecution, or by the judge at any point during the criminal proceedings. The judge must then determine that the defendant is competent before the the case can proceed. The Court will often request an evaluation by a mental health professional to inform decisions about competency. Attorneys may also consult their own mental health experts to evaluate the defendant.

The US Supreme Court defined a minimum standard for a defendant to be competency to proceed as “sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him (Dusky v. United States, 362, U.S. 402 [1960]). Louisiana Code of Criminal Procedure Article 641 specifies that incompetence must be due to a mental disease or defect i.e., “Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” In State v. Bennett (1977), the LA Supreme Court ruled that an expert opinion based on a mental status examination that did not consider the defendant’s functional abilities was not sufficient for determining competence to proceed. The Court listed 13 functional abilities that should be considered in determining a defendant’s competency to proceed that are commonly referred to as the “Bennett Criteria.”

Most defendants referred for a competency evaluation are found competent. Defendants who are found incompetent tend to have severe mental illnesses, developmental disabilities, or neurocognitive disorders. Defendants who are incompetent due to a mental illness can frequently be restored to competency with treatment. Incompetent defendants facing serious felony charges may be ordered to the state psychiatric hospital for treatment. Most of them will eventually be restored to competency. A minority may be deemed “not restorable in the foreseeable future.” These are typically individuals with severe psychotic disorders, major neurocognitive disorders, and moderate intellectual disability. Defendants who cannot be restored to competency will often meet civil commitment criteria, in which case they may be committed to the state hospital. Depending on the legal circumstances, they may still face charges if they become competent later. 

In a personal injury case involving emotional distress or psychological injury, a psychological evaluation may be needed to determine whether there is a compensable injury, the extent of the injury, and whether the injury is the result of a dereliction of duty by the defendant.

Clinicians are familiar with diagnostic assessment, which involves classifying individuals based on signs and symptoms or traits that are present. Risk assessment, however, is different. It involves making a prediction about something that has not happened yet and may never happen.

Actuarial risk assessments are based on empirical studies of the characteristics (i.e., risk factors) associated with future violence. These risk factors are combined into an actuarial scale in a way that maximizes the predictive accuracy. Research permits an optimum selection of items based on incremental validity; that is, the most powerful predictors are selected first, and then items are added only when they improve prediction. The resulting scores correspond to an estimated probability of future violence given the currently available information. Thus we can make probabilistic risk statement like, “75% of individuals in this risk category are expected to be arrested for a new violent offense over 5 years.”

Information about individual risk level relative to other offenders is particularly informative for decisions about how to allocate limited resources. These are the kind of decisions frequently facing criminal courts. This method is consistent with risk assessment in other fields like insurance ratings and weather forecasting. It is always the case that idiosyncratic features may affect outcomes, but they are by definition rare, and their effect is unknown. The most accurate predictions are achieved by studying large groups of offenders that best represent the entire population of offenders a particular population of offenders (e.g., male offenders, juvenile offenders, sexual offenders, etc.) and determining the variables that best predict recidivism among the group.

Violence risk assessments are typically requested to inform decisions about placement or sentencing for defendants adjudicated Not Guilty by Reason of Insanity, defendants convicted of sexual offenses, or defendants convicted of capital offenses. In light of the bail reform movement, violence risk assessments are more frequently included in the pretrial process as part of programs meant to replace monetary bond policies. In Louisiana, for example, the recently passed Gwen’s law (pertaining to cases of domestic violence) specifically refers to using risk assessment information to make decisions about pretrial detention.

For more information about risk assessments for domestic violence, seeﾠDomestic Violence Risk Assessment

Sexual violence and exploitation is particularly traumatic and damaging for victims, often more so than extreme physical violence, and society is interested in removing and punishing individuals who commit such acts. This is especially true for sexual offenses committed against children. Fear and dramatized media coverage of the most heinous events have contributed to misconceptions about “sex offenders” and the likelihood of victimization. Misconceptions have led to policies that unfairly characterize some offenders in a broad group of “sex offenders” and subject them to extremely harsh punishments, mental health treatment, and lifetime restrictions and community notification requirements. We’ve also seen some of the worst offenders go years without detection because victims are not believed and charges are reduced or dismissed.

It is important to distinguish among individuals charged or convicted of a sexual offense to determine appropriate sanctions and to properly protect the community from extremely high risk offenders. It is also incredibly important that this be done objectively, on the basis of scientific evidence, because our common misconceptions about sex offenses and offenders can lead not only to harsh treatment of undeserving offenders, but also to a failure to protect the public from the most dangerous offenders. 

Sexual offender risk assessments (sometimes called psychosexual evaluations) characterize the offender’s history and psychological attributes, including diagnosable mental disorders, and the offender’s perceptions, denoting any risk factors for future offending. Understanding the historical factors that led to an offense, the nature of the offense, and the offender’s response to detection is useful for determining the types of interventions that may prevent future offending. These are complex evaluations because many offenders engage in a number of deception and minimization tactics in response to the extreme stigma of sexual offending. Clinicians are subject to the same biases as everyone else, so objective assessment procedures and effective bias mitigation strategies are necessary in these evaluations. 

Effective risk management procedures target identified risk factors. There is little empirical evidence that psychological interventions are effective in reducing the risk of future criminal offending in general. Some studies suggest sexual offenders may benefit from cognitive behavioral interventions that target sexual offending. Research is limited in this area because high risk sexual offenders are rarely released to conditions that afford much opportunity to reoffend. 

Domestic offenders tend to have higher recidivism rates relative to other violent and nonviolent offenders. Domestic and nondomestic offenders share many of the same risk factors. Most incidents of domestic violence are perpetrated by a subset of offenders who perpetrate violence in and outside of the home and who have a high rate of reoffending. 

The Domestic Violence Risk Appraisal Guide (DVRAG) combines empirically supported risk factors for domestic violence that are associated with future domestic violence in males.  The DVRAG is the clinician version of the Ontario Domestic Assault Risk Assessment (ODARA) which is a tool used by police officers to assess risk at the scene of a domestic violence incident. In empirical studies, The DVRAG has been shown to predict the frequency and severity (i.e., lethality) of future domestic violence. 

The victim’s perception of risk is and important contributer to the prediction of future domestic violence. The Danger Assessment (DA) is a scale designed to measure a domestic violence victim’s fear of future violence from her partner. It can be administered by non-clinicians. Adding the DA to the DVRAG enhances the prediction of future domestic violence as well as the prediction of lethality. 

Risk factors for domestic violence include: prior domestic violence, prior non-domestic violence, custodial sentences, conditional release failures, threat to harm or kill victim, victim fears for life, substance abuse, pregnant victim, barriers to victim support, and psychopathy. 

The insanity defense has long been a controversial issue. Many people do not realize that insanity defenses are rarely successful at trial. Acquittal by reason of insanity in Louisiana is typically followed by an indefinite inpatient commitment in the case of serious felony charges. Foucha v. Louisiana specifies that a defendant acquitted by reason of insanity must be released if he is no longer mentally ill and dangerous. Once discharged from the hospital, the individual acquitted by insanity is usually subject to the terms of a conditional release.

Louisiana defines insanity in terms of a defendant’s capacity to determine the rightfulness or wrongfulness of his actions (LA R.S. 14:14). This is deemed the M’Naughten rule. Most individuals with a mental illness, even a severe mental illness, know the difference between right and wrong.

Individuals facing impending legal proceedings may be motivated to appear mentally ill or well-adjusted in order to influence the outcome of a case. Psychologists use specialized methods to detect invalid test performance and exaggerated or falsified reports of mental illness symptoms. Malingering assessment is standard in forensic evaluations and should be considered as a potential explanation of impairment.ﾠﾠ

Independent Medical Examinations (IMEs) are requested by parties seeking an opinion about an examinee’s diagnosis, injury, functional abilities, treatment, and compensation. IMEs include an evaluation of the examinee and review of medical records.

In cases involving professional malpractice, such as those against mental health professionals, a psychologist may provide an opinion on whether the professional’s actions were consistent with accepted standards of care and whether they caused harm. A psychologist can assess the quality of treatment and evaluate its impact on the plaintiff’s psychological functioning and well-being.

The United States Supreme Court has ruled that the execution of individuals with intellectual disabilities is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

In the landmark case of Atkins v. Virginia in 2002, the Supreme Court held that the execution of intellectually disabled individuals is unconstitutional. The Court recognized that individuals with intellectual disabilities have diminished culpability and lessened moral culpability due to their cognitive impairments. Their disabilities impair their ability to understand the consequences of their actions, to effectively assist in their defense, and to learn from their mistakes. Therefore, subjecting them to the death penalty would be excessive and violate their rights.

Since the Atkins decision, many states in the United States have implemented procedures to assess intellectual disabilities in capital cases. These procedures typically involve evaluations conducted by mental health professionals to determine whether the defendant meets the criteria for intellectual disability. If a defendant is found to be intellectually disabled, the death penalty cannot be imposed.ﾠ