EMOTIONAL COMPETENCE, "RATIONAL UNDERSTANDING," AND THE CRIMINAL DEFENDANT

INTRODUCTION

[C]ognition is not as logical as it was once thought and emotions are not always so illogical.1

The legal standard for adjudicative competence2 appears simple: as the Supreme Court declared in Dusky v. United States, the test is whether a criminal defendant "has sufficient

present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him."3 This surface clarity, however, disguises a fundamental lack of transparent meaning. A robust conception of adjudicative competence that gives meaning to the Dusky standard must ask whether a criminal defendant has the capacity to participate meaningfully in the host of decisions potentially required of her, and sound assessment of such capacity requires careful attention to both the cognitive and emotional influences on rational decision-making. To date, no such theory of Dusky rationality has been adequately articulated, and implementation of the adjudicative competence construct is commensurately unstable. A decision-making approach, one that overtly concerns itself with both emotion and cognition, offers a path to both legitimate and stabilize a confused area of criminal law.

Adjudicative competence is, in many respects, the neglected younger sibling of the insanity defense, a secondary status that may explain its instability and relatively low profile. Its jurisprudence has grown up in insanity's shadow, to the extent that it until recently was referred to as "present insanity."4 Indeed, in the execution context the language of insanity and competence continues to be confusingly intertwined.5 Forensic experts often undertake to examine both competence and legal insanity at the same time and-unfortunately-by the same criteria, generally that of insanity; courts historically have done little better.6 The two doctrines also meet with the same generally disdainful attitude, as incompetence, like insanity, appears to many to be a mechanism by which perpetrators of criminal acts can escape accountability.7 But legal insanity and adjudicative competence are importantly distinct: the former looks to whether a person is able to understand the nature and quality of her acts, so as to justify attachment of criminal consequences, while the latter looks to whether a defendant is possessed of sufficient capacity to defend her own interests within the various stages of an ensuing prosecution.8

Though the insanity defense claims the lion's share of attention, adjudicative competence is far more important. Certainly, it has a much deeper reach into the defendant population. Indeed, one commentator has asserted that "[v]irtually every criminal defendant who appears to be mentally ill at any time within the criminal trial process is examined for competency,"9 as compared with the extremely small number of defendants who mount an insanity defense.10 Actual or suspected adjudicative incompetence affects a consistently significant percentage of misdemeanor and felony defendants: " it is implicated in as many of 8% of cases,12 accounts for tens of thousands of forensic examinations and admissions to inpatient medical facilities every year,13 and easily is the most common subject of mental health testimony in criminal cases.14 The consequences of an incompetence adjudication are, from a defendant's perspective, grave: such a finding may well translate into long-term confinement, particularly for those defendants deemed dangerous to themselves or others, without opportunity for a finding of guilt or innocence.15

Indeed, among inpatients with criminal-justice-system involvement, those with questioned competence or who have been adjudicated incompetent far outnumber those for whom insanity at the time of the offense is the issue-perhaps by a margin as great as 100 to 1.16

Despite the evident importance of adjudicative competence, and despite its solid historical pedigree,17 it remains a surprisingly neglected and ill-defined area of law.18 This is despite the fact that the governing legal standards appear straightforward. The law is clear, for example, that a criminal defendant has a fundamental constitutional right not to be tried, convicted, sentenced, or executed while incompetent.19 The substantive meaning of "incompetence" might appear similarly clear, but in fact is theoretically slippery.20 The meaning of each term embedded within the Dusky standard-notably the distinction between a "rational" and a "factual" understanding-has escaped significant elaboration by courts and theorists.21 It is also highly unpredictable in application, in large part because the task of implementing Dusky generally falls to forensic experts, to whom courts defer heavily but to whom firm guidance as to the legal standard is seldom given.22 These experts-typically psychologists and psychiatrists, but sometimes specialists in other areas of medicine and the mind sciences23-may differ wildly in approach, theoretical framework, understanding of the relevant legal constructs, and conclusions. Factually similar cases therefore may meet different outcomes; indeed, it is common for different experts to reach diametrically opposed conclusions in the same case.24 Forensic experts and legal theorists have collaborated, particularly in very recent years, to formulate standardized mechanisms for defining and measuring competence-relevant facts, but these tests are not yet widely used, despite their promise of promoting some measure of uniformity.25

In short, adjudicative competence, despite its enormous importance, is on whole a surprisingly ramshackle affair.26 It is poorly understood, under-theorized, and inconsistently implemented.

This Article proposes that a coherent theory and practice of adjudicative competence requires a robustly articulated concept of the baseline rationality we expect of criminal defendants. The first step in such an articulation is recognition that the Dusky standard embraces a requirement of "decisional competence," that is, the ability to make, communicate, and implement minimally rational and self-protective choices within the unique context of the criminal case.27 The crucial, yet to date entirely unexplored, next step is to recognize that both cognition and emotion-colloquially, thinking and feeling-make important contributions to such rational decision-making capacity. The role of emotion in adjudicative competence therefore is the primary focus of this Article.

Part I.A situates adjudicative competence within a family of law-relevant competencies and briefly outlines the decision points at which it may affect any given criminal proceeding. Part LB demonstrates that decisional competence is inherent in the "rational understanding" component of the Dusky standard. Part I.C then articulates the necessary components of the rational decision-making on which a criminal defendant's decisional competence depends. Drawing on certain courts' analysis of the disruptive effects of psychotic thought disorder, this section models how an appropriately fine-grained analysis of competence will seek to articulate precisely where in the decision-making process the defendant has gone astray and explain why those defects implicate her ability to represent her own interests within a criminal proceeding.

Part II then argues that the role of emotion is wrongly neglected in the traditional account of decision-making, including its application to adjudicative competence, and that attention to emotion's role illuminates certain threats to competence that are not perceptible with a solely cognitive view. The historical privileging of cognition within adjudicative competence mirrors the traditional, if of late largely discredited, disparagement and neglect of emotion within both law and the mind sciences. Part II.A therefore calls special attention to emotion's role in decision-making. Part II.B then explores two illustrative contexts in which a focus on emotion will yield results that a cognitive inquiry likely will not: cases in which a defendant suffers from a severe psychiatric mood disorder or from organic brain damage, where such condition unreasonably interferes with decision-relevant emotional perception, processing, and expression. Existing legal theory and forensic testing methods do not account explicitly for competence-relevant emotional dysfunction, and a predominantly cognitive approach is likely to miss or discount its impact.

Part III addresses weighty issues of implementation and policy, asking how a focus on the thinking-and-feeling elements of rational decision-making might be applied and whether such an application would further the goals of the adjudicative competence doctrine without unduly threatening other valuable societal goals. This Part argues that the transparency benefits of this approach are substantial and, further, that it could be implemented with an acceptable level of reliability and consistency. Part III proposes further that while this approach may generate tensions with other social goods-such as promoting defendant autonomy and protecting public safety-it will not add appreciably to those tensions already attending the adjudicative competence inquiry.

This Article concludes that a proper view of the Dusky standard requires that, when judging whether a defendant is competent to decide for herself how to navigate the shoals of criminal prosecution, we look to both her thought processes and emotional functioning.

I. "RATIONAL UNDERSTANDING" AND RATIONAL DECISION-MAKING

Adjudicative competence doctrine, like all law-relevant competencies, traditionally has sought to balance competing interests. On the side of finding competence wherever possible are respect for a defendant's autonomy and the state's interest in enforcing its criminal law; the countervailing interest is, fundamentally, that of protecting those who cannot protect themselves.28 Significantly, the common-law doctrine of competence is thought to have developed '"as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself.'"29 Prosecution of an incompetent defendant is thought to be an unfair fight of the worst kind, one that threatens grave harm to the individual, endangers reliability of outcome, and erodes the dignity of the process. Adjudicative competence thus is "fundamental to an adversary system of justice."30 For the adversary system to have legitimacy, the defendant must be meaningfully present as an autonomous actor capable of taking, should she so choose, permissible steps to attempt to protect herself from the assertion of state power.

Adjudicative competence therefore may be implicated at any stage in a criminal proceeding at which it appears that the defendant may lack such self-protective capacity, and-as the following sections demonstrate-at each such juncture the operative inquiry is whether she is capable of making rational decisions in service of her defense. While this focus on "decisional competence" has not been explicitly endorsed by the Supreme Court, it is implicit in the case law; indeed, it is hard to imagine a viable concept of competence that excludes it. Accepting a role for decisional competence requires a theory as to the necessary components of rational decision-making with reference to the particular decisions facing criminal defendants.31 This Part undertakes an articulation of those components and, using examples from certain cases involving psychotic defendants, demonstrates how such an approach promotes accuracy and transparency in competence determinations.

A. Introduction to Adjudicative Competence

Adjudicative competence is but one in a family of legal competency constructs that includes capacity to consent to or refuse medical care and research, enter into a contract, execute a will, and handle one's own property and finances.32 Some legal (in)competencies are status-based-for example, the law categorically deems children unable to make any number of decisions on their own behalf-but the majority are individually-determined departures from a baseline assumption of autonomy.33

Three common threads tie all law-relevant competencies together. First, competence is best understood as (to borrow a term familiar to the sciences but relatively foreign to law) an open-textured construct, the meaning of which "can never be fully reduced to a set of concrete operations and observational terms."34 Because competence "is an abstraction" that "retains the elusive quality of an idea," law provides "broad discretion in determining whether a set of case facts satisfies the criteria."35 Second, connecting all legal competencies is the recognition that "some individuals may not have the capacities to make important decisions in their lives" and that these "incapacities may jeopardize their welfare or that of others."36 Law therefore provides a mechanism for identifying such individuals and in such cases authorizes (and sometimes obligates) the state to curtail their rights. Courts make these decisions with deliberately heavy reliance on mental health professionals.37 Third, because determinations of legal incompetence are by nature profoundly paternalistic,38 the objective is not to ensure that an individual has the highest possible level of decision-making capacity, but rather to avoid state intervention if she has the bare minimum required.39

Moreover, the relevant decision-making capacity is utterly context-dependent; "[n]o single legal criterion or test applies across all legal competencies," and the law does not presume that (in)competence in one arena will imply or affect (in)competence in another.40 The consequence of incompetence also will vary: in some situations, such as inability to handle one's financial affairs, surrogate decision-making may be permitted; in others, the subject will be unable to access a good, such as dangerous medical treatment to which she is incompetent to consent; and in others, such as inability to provide for the basics of one's survival, the person may be institutionalized.

As part of the universe of legal competencies, adjudicative competence, broadly defined, includes competence to waive Miranda rights; plead guilty; dismiss counsel; stand trial and make the various decisions required during trial; pursue or abandon appeals and other avenues for post-conviction relief; and be executed.41

Within any given criminal case, then, the issue of competence may be raised at multiple junctures.42 After a defendant is arrested and charged, any party (or the trial judge) may raise the issue of possible incompetence. The court will then determine whether there is a bona fide doubt as to competence.43 If not, the case proceeds (though the process may well begin again if incompetence is argued at a later point). If so, the court will order an inquiry in conformance with the law of the jurisdiction, which will almost certainly entail examination by a mental health professional (and likely more than one) in an inpatient or outpatient setting. A clinical expert (or experts) will likely submit a written report and testify at a hearing, and probably will proffer a recommendation as to the ultimate issue of legal competence.44 The trial court is overwhelmingly likely to agree with the expert recommendation.45 If multiple experts give differing testimony, the court is likely to side with the prosecution's expert, as the burden of proof as to incompetence generally will rest with the defendant.46

If the defendant is found competent, the trial will continue (again, with the same caveat as to new evidence of incompetence, which may take the form of increasingly erratic behavior at trial). If, however, the defendant is found incompetent, she will be subjected to a period of continued evaluation and treatment-potentially including involuntary medication should certain stringent requirements be met47-in accordance with jurisdiction-specific timelines, bounded by an outside requirement of "reasonableness."48 Should competence at any point be restored, proceedings will resume; but should the defendant be deemed unlikely to be restored to competence within a "reasonable" time, she must be released or civil commitment proceedings must commence.49 During a period of indeterminate incompetence it is not clear whether the criminal charges may remain pending, or for how long.50

Finally, should a competent defendant be sentenced to death, she may face further inquiry should she decide to waive all appeals,51 and may have a claim of incompetence to be executed if she has experienced a substantial decline in mental health while incarcerated.52

Unfortunately, the substantive meaning of the competency construct underlying this straightforward procedure remains relatively undeveloped. But one strong theme that emerges from the cases, albeit largely sub rosa, is that-consistent with competence inquiries generally-the primary concern should be whether the defendant is capable of making critical decisions. As the following section demonstrates, such decisional competence is an integral component of the Dusky standard.53

B. Decisional Competence as a Component of Adjudicative Competence

The roots of the decisional competence construct may be found in the "rational understanding" component of Dusky itself.54 In Dusky the Court was faced with a defendant who, according to medical experts, suffered from schizophrenia but "understood what he was charged with, knew that if there was a trial it would be before a judge and jury, knew that if found guilty he could be punished, . . . knew who his attorney was and that it was his duty to protect the defendant's rights," and could furnish at least some relevant historical information with substantial accuracy.55 His incompetence, they testified, stemmed not from his inability to grasp factual concepts but, rather, from the "confused thinking" caused by his mental illness, which they asserted had rendered him unable to "interpret reality from unreality."56 Nonetheless, the district court found Dusky competent to proceed to trial.57

In a brief per curiam opinion, the Court accepted verbatim the Solicitor General's proposed definition of competence:

[I]t is not enough for the district judge to find that "the defendant [is] oriented to time and place and [has] some recollection of events" . . . the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him."58

Thus, the factual understanding displayed by Dusky was necessary but not sufficient for competence. What was also required was some sort of rational understanding, which, though apparently crucial, remained undefined.

Subsequent cases attempting to define what evidence would raise a bona fide doubt as to Dusky incompetence have yielded some additional hints as to what types of irrationality might be relevant. The Court, while resisting any attempt to define "a general standard" for such evidence,59 has delineated certain facts that generally warrant further inquiry-such as a "history of pronounced irrational behavior"60 or a recent suicide attempt61-and others that are insufficient to foreclose the inquiry even if relevant to the ultimate determination-such as lucid speech and behavior in the courtroom.62 Despite these clues, the value added by a requirement of "rational" as well as "factual" understanding has remained unclear.

That situation changed somewhat with Godinez v. Moran,63 in which the Court read a decision-making focus into the standard for Dusky rationality. Godinez answered a brewing debate among the lower courts and commentators as to whether different substantive standards of competency applied to different aspects, or at different stages, of a criminal proceeding.64 The short answer, the Court held, was no.

Richard Allen Moran, charged with killing the owner and a patron of a bar as well as his former wife, was found competent not only to stand trial but also to waive his rights to an attorney and trial; after a colloquy, the trial court accepted his waiver of counsel and plea; and he was convicted and sentenced to death.65 Moran later argued that he had been "mentally incompetent to represent himself."66 The Ninth Circuit agreed, reasoning that while Moran might have been Dusky-competent for purposes of standing trial with counsel, he should have been found competent to waive counsel and plead guilty only if determined also to have "the capacity for 'reasoned choice' among the alternatives available to him."67 The Ninth Circuit interpreted such capacity for "reasoned choice" as articulating a different (and more stringent) standard than that outlined in Dusky.68

The Court rejected the notion that there was a substantive difference between "reasoned choice" and "rational understanding."69 Listing the wide array of choices required of defendants whether they go to trial or plead guilty, the Court held that the same standard applied to both universes of decision-making.70 The only sense in which a higher standard applied is that certain decisions-such as those made by Moran to discharge counsel and plead guilty-additionally require a separate determination that they were made knowingly, intelligently, and voluntarily.71 In the end, the Court appeared to regard the dispute as one of semantics, as it believed capacity for "reasoned choice" or "rational choice" to mean nothing other than a "rational understanding" in the Dusky sense.72

Decided more than three decades after Dusky, Godinez represents the Court's most specific effort to explain what "rational understanding" might mean.73 The effort is in one sense frustratingly opaque: after Godinez, "rational understanding" likely means what the Ninth Circuit meant when it spoke of capacity for "reasoned choice," though it might mean something slightly different and somehow less demanding.74 What is clear, though, is the Court's focus on defendant decision-making as the crucial capacity to which the rationality aspect of the competence construct is directed.

To be sure, Godinez did not use the term "decisional competence," urged on it by prominent commentators,75 or make absolutely explicit that Dusky's "rational understanding" standard was meant to embrace such a concept. Indeed, the dissenters complained bitterly that the majority had imposed an unduly passive notion of Dusky competence on very consequential decisions.76 Some therefore have interpreted Godinez "to mean that defendants' decision making abilities need not be considered when making judgments about their competence, because the Dusky standard makes no specific reference to 'decision making.'"77 But this conclusion is belied by the Godinez majority's nearly single-minded focus on the various decisions that might be required of a criminal defendant.78 Indeed, the Court asserted that

all criminal 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.79

That the Dusky standard must be understood to revolve around ability to make rational decisions pertaining to one's status as a criminal defendant was reinforced by Justice Kennedy, who in concurrence stated flatly that "[w]hat is at issue here is whether the defendant has sufficient competence to take part in a criminal proceeding and to make the decisions throughout its course."80

Accordingly, in very recent years a number of forensic theorists have embraced the notion that decisional competence not only survived Godinez but was in fact promoted to a protected position within the Dusky standard.81 Significantly, a panel of theorists and practitioners who collaborated on a comprehensive, longterm MacArthur Foundation adjudicative competence study defined decisional competence as a discrete domain and designed a forensic assessment instrument specifically to measure such competence.82 The MacArthur study also revealed that discrete measurement of decisional competence might catch some defendants who otherwise would be deemed competent.83 And far from being controversial, the centrality of decisional competence is widely accepted in the field of competence to consent to medical treatment.84

The extent to which a focus on decisional capacity is being implemented in the criminal-law context, however, unquestionably is hindered by the lack of transparency in the case law, in which "rational understanding," not rational decision-making, remains the operative term. Expert assessments, which form the sole basis for nearly all judicial determinations of adjudicative competence, "tend to give little, if any, attention to decisional competence."85 Even those most prominently advocating a decisional competence approach concede that its precise meaning within the well-established Dusky formula is not clear at present.86 This confusion should be put to rest. Decisional competence should be recognized as the core of the "rational understanding" component of adjudicative competence.

C. A Theoretical Model of Competence-Relevant Decision-Making

Having shown that rational decision-making capacity is key to Dusky rational understanding, it is essential to define more precisely the decisions at issue. Some decisions facing criminal defendants-for example, strategic calls as to whether to waive indictment or demand certain forms of discovery-routinely are entrusted to the attorney, while others plainly are the province of the defendant.87 These defendant-driven decisions are whether to demand a jury trial, represent oneself, testify on one's own behalf, be present at trial, or plead guilty.88 More broadly, the defendant is thought also to have the right to make global decisions as to the theory of her defense-for example, whether to pursue an insanity defense-and the objectives to be pursued by counsel.89 When we speak of decisional competence, then, it is the competence to make these choices, and not a more general decision-making ability, about which the law should care. And construing the requirement of rational decision-making capacity in light of the goals sought to be balanced by adjudicative competence doctrine,90 we may conclude further that the decisional capacity we demand of a criminal defendant is that which renders her capable of making critical defendant-driven decisions in a minimally rational and self-protective manner.

Still, the content of such "rationality" requires yet further explication. Rationality is far from self-defining.91 Though it is difficult to articulate the components of decision-making processes, and more difficult still to judge the rationality of their operation, recent decades have seen significant advances in our understanding of such processes.92 Exploring the relevance of such research for adjudicative competence and demonstrating how a decision-making focus sometimes is invoked in the cases illuminates an approach that may give substance to the sketchy outlines of Dusky rational understanding.

The literature on decision-making is vast,93 but there is some degree of consensus as to the necessary building blocks of the types of decisions faced by criminal defendants. As an initial matter, most agree that a focus on rationality should look to process rather than outcome, despite the fact that the latter is far more accessible.94 The danger of adopting a predominantly outcome-driven test for competence-relevant rationality is that it may encourage examiners and courts simply to substitute their judgments for those of defendants whose choices appear misguided.95 Judging reasonableness of outcome can play an important role, as manifestly bizarre or self-destructive decisions might be evidence of a faulty process, but it is to that process that the search for rationality should be directed.96

Decision-making processes generally may be described as consisting of perception, understanding, reasoning, and choice.97 One making a "rational" decision should have at least minimally intact ability to: (1) perceive the world accurately; (2) think coherently about those perceptions and thereby form valid understandings; (3) run those understandings through a sound reasoning process guided by personally relevant goals; and (4) imagine a conclusion logically flowing from that process, express that conclusion to others, and formulate and execute a course of action flowing logically from the preceding steps.98 Each of these steps is both theoretically and practically complex (and a potential site for a finding that a defendant lacks decisional competence).

The extent to which courts have examined defendants' competence with reference to a decision-making model is quite limited. However, certain helpful clues as to such a model's utility may be found in the treatment of defendants with severe thought disorder.99

Persons with severe thought disorder, particularly those diagnosed with schizophrenia, often are labeled "psychotic,"100 and psychosis is very strongly associated with findings of adjudicative incompetence.101 Indeed, it appears that many examiners regard psychosis as the sine qua non of incompetence, starting and ending their analysis with that diagnosis.102 Unfortunately, the underlying rationale as to why the thought disorder associated with psychosis is thought to disrupt Dusky rationality seldom is made plain. Indeed, few courts have attempted to define Dusky rational understanding at all, let alone by reference to decision-making processes.103 There are, however, several prominent exceptions.

Those courts that have attempted to explain the relevance of psychosis to adjudicative competence generally have located the operative decision-making defects at the stages of perception and understanding. Perception, or the human body's transformation of sensory stimuli into internal images,104 is a crucial threshold requirement,105 but is not as straightforward as it may seem. Because sensory stimuli are transformed into conscious perceptions by complex (and largely nonconscious) neural processes, factors ranging from stress to neurological disorder can intervene, with sometimes seriously distorting consequences, between percept and perception.l06 Once an object is perceived, with or without prior distortion, a decider will form thoughts and beliefs-or understandings-about it.107 Generally accurate understandings about relevant aspects of the external world are, like perception, necessary but not sufficient for competent decision-making.108

Defendants with severe psychosis frequently display perceptual and understanding processes that are so profoundly distorted as to obviate competence. Such was the conclusion in Lafferty v. Cook,109 an unusually thoughtful decision by a sharply split Tenth Circuit panel. Ronald Lafferty was diagnosed as suffering from a "paranoid delusional state" but deemed competent; he then attempted suicide by hanging, and four examiners opined that Lafferty's "paranoid delusional system," aggravated by oxygen deprivation to his brain, had rendered him incompetent by impairing "his ability to perceive and interpret reality."110 Lafferty's delusions included the strong belief that all those involved in his case-including his lawyer-"were part of a corrupt man-made order" against which he was required by God to rebel.111 Because he displayed factual understanding of the proceedings,112 the majority recognized that its task was to determine the meaning of Dusky's rational understanding requirement."3 After examining the trial record in Dusky the majority determined that "a defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him."114 Thus, the majority concluded, "sufficient contact with reality" is the "touchstone for ascertaining the existence of a rational understanding."115

This test, focused primarily on the effects of psychosis on perception and understanding, has been adopted by a small handful of other courts.116 In In re Heidnik, for example, the Third Circuit found a death row inmate incompetent to abandon appeals117 because his decisions were based on a flawed "perception of reality,"118 including "fixed false beliefs" that his victims had killed themselves and that his execution would lead to the end of capital punishment. These delusional beliefs were "all-encompassing in nature" and colored "every aspect of his cognitive functioning,"119 with the result that Heidnik was "seeing people as other than what they are."120 A similar approach was recently taken as well in Utah v. Mitchell, in which Brian David Mitchell was found incompetent to stand trial for the kidnapping of Salt Lake City teenager Elizabeth Smart.121 After determining that Mitchell suffered from a delusional disorder characterized by fixed, false beliefs (including that Smart was destined to be his wife and that God required his conviction and imprisonment in order to trigger an eventual personal battle with the Antichrist),122 the court concluded that his "ability to accurately perceive and interpret external reality" was unduly impaired.123 The court therefore found him unable to make rational choices, which it equated with the "rational understanding" required by both Utah law and Dusky.124 Thus, as these cases demonstrate, severe defects in perception and understanding can impede a defendant's ability to make decisions on his own behalf.

Defects in reasoning-the process by which one draws inferences and conclusions from premises125-also can defeat competence. Flaws in logical reasoning are perhaps the most obvious and intuitive examples of irrationality; for example, were a defendant to understand (and believe) that all defense attorneys are their clients' advocates, and that the person assigned to represent her is a defense attorney, and yet conclude that her defense attorney is the state's advocate, we might well conclude that her logical reasoning powers are impaired. Significantly, though, such defects seldom are reflected in the cases; instead, as the above cases demonstrate, at least with regard to psychotic defendants, courts have found incompetence despite intact logical capacity. This makes sense: while deductive reasoning is a necessary component for competence,126 it is far from sufficient, for such reasoning maps quite poorly onto real-world decision-making, in which the validity of premises matters and where decisional conditions are often confusing and in flux.127 Flexible reasoning-which requires fluid intelligence, ability to use deductive and inductive reasoning as appropriate, and incorporation of background goals, knowledge, and learning-provides a more appropriate model for the reasoning process underlying the pragmatic, real-world decision-making faced by criminal defendants.128 Thus, though Lafferty's reasoning was logical-his conclusions and decisions, such as a desire to discharge counsel and refrain from presenting an insanity defense, were consistent with his premises-the court found it dispositive that delusional beliefs irredeemably distorted his premises.129

The extent to which courts have identified competence-threatening defects in choice-including the component steps of formulating a conclusion, expressing that conclusion, and taking action accordingly-is limited. Choice warrants separate articulation,130 as it is possible that a defendant might display valid reasoning on the basis of sound premises and yet reach a conflicting or somehow irrational conclusion,131 lack ability to communicate her choices,132 or be unable to act in accordance with her choices. For example, the record indicates that Lafferty may have had additional defects in this domain, as he had chosen to discharge counsel but was unable to take action implementing that choice. For reasons that he apparently would not explain, Lafferty refused to put his expressed desire to represent himself on the record in the required form, with the result that counsel was not discharged.133

The Lafferty, In re Heidnik, and Mitchell decisions represent some of the only examples of an overt attempt by the courts to define rational understanding, let alone an attempt to do so by reference to an articulation of the affected stages of a rational decision-making process. This approach is far from uncontroversial. The dissenting judge in Lafferty, for example, took strong issue with what he saw as the majority's misguided "quest to articulate the one true legal definition of competency."134 Such criticism, though, is overcome by the significant advantages of a transparent and finely grained approach. In the case of psychosis incorporating delusional perception and understanding, one clear benefit of locating the site of dysfunction and teasing out its effect is avoidance of, on the one hand, over-inclusion attending simplistic equation of psychosis with incompetence135 and, on the other, under-inclusion attending simplistic reliance on logic as the sine qua non of competence.136 But the methodological benefits go even further, as thought-content disorders are not the only sort to warrant such an articulation; these may just be the easiest cases. A defendant like Mitchell may be relatively easy to identify should he choose to verbalize his beliefs, delusional by any objective standard. Certainly other, possibly less obvious, disorders might have equivalent impact. These cases therefore are valuable also because they model an approach that can be applied to other disorders, including-as the next Part proposes-emotional disorders.

As this Part has shown, then, a model of human decision-making-even a basic one such as that offered here-incorporates a number of complex underlying concepts, each of which represents a site of potentially competence-threatening "irrationality."137 In the case of psychosis, the most endangered sites appear to be perception and understanding, though defects at those stages also will frustrate flexible reasoning and potentially destabilize choice. Perhaps not surprisingly, then, despite controversy over methodology, the conclusion that severe impairment to a defendant's cognitive processes-particularly that associated with thought-content disorder-can defeat the presumption of competence is reflected in a number of cases.138 It also has been urged by scholars writing in the area of competence to consent to medical treatment.139

Largely missing from this traditional account of decision-making and its relevance to adjudicative competence, however, is the influence of emotion. Defendants with profound impairments of emotional perception, processing, and expression may be equally unable to make self-interested rational decisions, although they may appear to be in touch with reality in a way that psychotic persons often do not. That is the subject of the following Part.

II. EMOTIONAL COMPETENCE AND RATIONAL UNDERSTANDING

As the preceding Part explained, the key to Dusky rational understanding is whether a criminal defendant is capable of making defendant-driven decisions-such as whether to plead guilty, discharge counsel, raise an insanity defense, present mitigating evidence, and challenge or acquiesce to her conviction and sentence-with recourse to at least minimally intact rational decision-making processes. Such a determination requires a highly particularized inquiry into whether the defendant's perception and understanding of relevant aspects of the world are accurate; whether she is able to engage in appropriately flexible reasoning; and whether she can formulate, express, maintain, and implement choices. Such a determination should be made in light of the specific demands of the criminal case, with an eye always toward whether the defendant's decisionmaking capacities permit her to hold up her end of a highly adversarial proceeding. Before the defendant is found incompetent on the basis of a flaw at any decision-making juncture, an examiner or court should be able to articulate the origin of that fault and explain how it is thought to disrupt rationality.

All evidence suggests that no such approach is being implemented. Because judicial determinations almost always rest entirely on the recommendation of experts, and because those experts generally do not explain either their methodology or the basis for their conclusions, it is very difficult to know what underlies most adjudicative competence decisions.140 But to the extent that examiners and courts sometimes reveal their conception of the distinction between a "rational" and "factual" understanding, it appears clear that the generally operative concept of Dusky rationality is focused almost entirely on disordered cognitive processes, such as those seen in thought disorder. The role of emotional disorder, though sometimes mentioned, remains almost entirely unexplored.141 Indeed, it is sometimes deliberately disregarded.

This Part, then, seeks to articulate, with reference to the decision-making model presented in Part I, the theoretical underpinnings of an adjudicative competence standard that incorporates a sophisticated understanding of emotion. The two examples it explores, depression and brain damage, represent two situations in which severe emotional dysfunction might disrupt the rational decision-making capacity demanded by Dusky but to which a purely cognitive approach is particularly ill-suited.

A. The Role of Emotion in Decision-Making

Emotion is implicated in decision-making processes at many, or perhaps all, of the junctures described in the previous Part.142 Its role, however, historically has been both underexplored and undervalued.143 As a result, emotion is more poorly understood than are the various cognitive mechanisms underlying human decisionmaking. Fortunately, this situation is changing rapidly.144 But despite these advances, no concerted effort has been made to tie contemporary emotion research into the formulation of competence-relevant decision-making.145 Because of emotion's importance, such an effort is vital.

The first task is to define emotion, which is used here as an umbrella term encompassing the concepts of emotion, feelings, mood, and affect.146 Theorists generally agree on the existence of certain "core" emotions-including fear, anger, happiness, sadness, surprise, and disgust-a repertoire on which humans demonstrate many variations.147 "Affect" refers to the positive or negative quality of a feeling-state, but is used also to describe the manner in which a person externalizes feeling-states-for example, one whose facial expressions appear to display no emotion is said to have a "flat affect."148 "Mood" refers to feeling-states-such as anxiety and depression-that are "more transient, diffuse, and less attributable to particular sources" than emotions.149

Fundamentally, each of these aspects of emotion is thought to be in important respects both separate and separable from "cognition,"150 which refers generally to intellectual or "thinking" processes (including many that operate below the level of consciousness) not necessarily imbued with emotional content.151 In recent years most emotion theorists have come to agree that this dividing line is anything but sharp,152 and that many, perhaps all, emotions have cognitive aspects.153 Nonetheless, the two realms are still helpfully conceptualized separately, even as we gain a more sophisticated understanding of their interrelatedness.154 Referring to cognition and emotion as separate-as thinking and feeling-remains so common in both scientific and colloquial conversation that it retains communicative value. Moreover, as discussed below, emotion has unique influences that cannot be accounted for, either theoretically or practically, with cognitive tests.

Historically, to the very limited extent that emotion has been considered within decision-making theory it has been regarded solely as a distorting factor whose presence disrupts rationality.155 This disparaging attitude has been particularly influential within law, in which passion traditionally is cast as the enemy of reason.156 Certain aspects of emotional experience unquestionably can distort rational decision-making; scholars have largely legitimated the folk wisdom, reflected in numerous areas of legal doctrine, that emotion can be a powerful and sometimes disruptive force.157 However, recent developments in emotion theory have made clear that emotion also can play a positive role.158 Indeed, in recent years a number of legal theorists have drawn on emotion theory to assert that "emotion in concert with cognition leads to truer perception and, ultimately, to better (more accurate, more moral, more just) decisions."159 Negative and positive perspectives-both grounded fundamentally in the realization that emotion cannot be eliminated but instead should be better understood-are equally important to an examination of emotion's influence on competence-relevant decision-making.160

Most importantly for the purposes of this Article, emotion has a significant influence on the decision-making model proposed in the preceding Part.161 This is because emotion represents an important mechanism for the perception and processing of information, one that captures different information than would cognition alone.162 Emotion also affects the perceived value, personal relevance, or attractiveness of the information being processed, and therefore will shape motivation and goals.163 These impacts of emotion may be specifically mapped on to the four previously described stages of decision-making.

First, emotion can influence both which stimuli are perceived and how they are perceived.164 This is first seen through the mechanism of attention. Because emotionally salient stimuli tend to be the ones of greatest significance to one's thriving, they will be attended to disproportionately.165 Thus, one without recourse to emotion's guidance will find herself largely unable to sort effectively among the nearly infinite competitors for her attention. Once a stimulus is attended to, emotion continues to have an influence. For example, a fearful person might believe that the shadow of a tree is that of a man wielding a knife, where others would not perceive such an aggression.166 In such a case, while the common tendency is to describe the distortion as residing in what the person "thought she saw," it may also reside one stage earlier: the emotion has shaped both "what she saw" and what she "thought she saw." Extremes of emotion may also influence perceptual recall. In acute cases of trauma, for instance, persons might become unable to recall the emotionally powerful incident, or instead may recall it so vividly and frequently that other information is kept out of accessible memory.167 Thus, the emotional salience of stimuli can substantially affect attention to, as well as perception and memory of, both those stimuli and emotionally nonsalient stimuli.

Emotion also has a strong influence at the understanding stage. Different emotional states are associated with distinct information-processing modes;168 for example, studies have suggested that persons in whom a "sad mood" has been evoked process information more slowly but possibly more accurately than "neutrals," while those in a "happy mood" tend to process information more quickly but with a lower level of accuracy.169 But from the perspective of competence assessment, perhaps the most significant contribution of emotion to this stage of decision-making is through "appraisal" and "appreciation." Intimately tied to emotional salience, appraisal and appreciation are interdependent aspects of understanding that concern awareness of personal significance. Appraisal describes a "lighting-fast" judgment as to whether and how particular stimuli matter to one's well-being and goals,170 a judgment that will then shape information processing.171

Intact appraisal leads to emotional reactions to personally relevant stimuli.172 Such appraisal and the attending emotion then contribute heavily to the specific understanding, or appreciation, that information presented to (and decisions required of) a person are applicable to her and carry consequences for her personal situation.173 For example, a defendant may understand that the death penalty is a potential consequence of her prosecution. To say that she cannot appreciate that fact would mean that she literally does not think it applies to her-for example, because she believes that she is immortal-or that she realizes that it applies, but does not attach to that realization any emotional significance. Without appreciation, a defendant lacks Dusky "rational understanding."174 This is largely because a person without appreciation does not have access to the fear, hope, or other emotional reactions to relevant information that normally would guide personally consequential decision-making. 175

Reasoning also will be influenced by emotion states. For example, one exposed to a negative feeling (e.g., fear evoked by recalling the sighting of a snake) generally will report an increased (and likely inaccurate) estimation of the likelihood of future occurrence of events that, though completely unrelated, may provoke the same negative feeling (e.g., a terrorist attack).176 That reasoning process likely would be quite different were the subject to have entered the probabilistic exercise with a different affective prior. However, the mechanisms by which emotion influences reasoning remain contested. Research has suggested, for example, that persons in a positive mood disproportionately draw inferences consistent with maintenance of positive mood.177 Other researchers, however, argue that positive affect can be shown to make reasoning "more efficient and more thorough, as long as the task is one that is meaningful, interesting, or important to the decision maker."178 To simplify a complex area, emotion's influence on reasoning is highly contextual.

Finally, emotion can profoundly influence choice, including its communication and implementation. The person described above, inordinately fearful of terrorist attack, might make specific choices (e.g., engaging in increased risk avoidance) on the basis of her affectively driven reasoning. Emotion-driven choice can also be far more primal. Feeling-states predispose the actor to particular behavioral responsesanger, for example, is highly associated with risk-taking behavior and aggression, fear with risk avoidance and escape, and disgust with avoidance and withdrawal.179 Some emotional experiences-notably fear-appear to be nearly automatic responses to certain types of stimuli, with the result that they (and the outward behaviors with which they are associated, such as freezing, running, or striking out) are experienced as involuntary, or at least very difficult to override cognitively.180 It also has been suggested that extreme emotional instability causes inability to maintain a consistent choice preference.181 Ability to communicate a choice may also be impaired-for example, a person who firmly wishes to obtain a divorce may feel unable to say so (and be thus frustrated in realizing his goal) because of intense fear of public exposure to shame for having failed in his marriage.

As the above discussion reveals, a very significant movement within the mind sciences-one that is increasingly reflected in legal theory182-asserts that, not only is emotion not the natural enemy of rationality,183 it is intimately connected to the perception and processing of information, appraisal of value, formation of goals, motivation of behavior, and implementation of choice.184 Emotion can be a strong force contributing to rational thought by marking particular stimuli as meaningful and generating a sense of personal relevance and value that will shape goals and motivations. Thus, a lack of emotion where one normally would expect it to be present can deprive the decision-maker of vital information and guidance. Emotion can also be disruptive, in that it may derail optimal perception, understanding, reasoning, and communication, or may override one's otherwise preferred choices. While emotion and cognition are deeply intertwined, the influence of the former cannot always be seen or accounted for by reference only to the latter.

A complete account of the decisional competence component of Dusky rationality therefore demands close attention to the positive and negative contributions of both cognition and emotion.185 Because adjudicative competence is concerned with radical departures from minimal norms of rational decision-making, we must think carefully about the sorts of emotional dysfunction that might take a defendant so far outside these norms as to be declared unfit to determine her own fate within a criminal proceeding. That is the project of the following section.

B. Emotional Disorder and Rational Decision-Making

We previously have explored the intimate relationship between cognition and emotion in human decision-making, and in the preceding Part we saw how some courts have begun to delineate how certain defects in cognitive processes might undermine adjudicative competence. A similar effort is possible with regard to emotional dysfunction. However, no such effort has been undertaken to date.

This is not to say that emotion is never discussed at all in connection with adjudicative competence. Indeed, the case law occasionally surrenders small hints that emotion is considered at least marginally relevant.186 Milton Dusky, for example, apparently experienced "emotional turmoil," as well as "depression, feelings of inadequacy and unworthiness," and Richard Alien Moran was described as depressed and wracked by remorse and guilt.187 The significance of these emotional and mood states was never explained, but they were for some reason considered worthy of mention.188 Similarly, commentators and forensic theorists sometimes, in passing, mention emotion-states as a potentially relevant consideration.189 One (now quite outdated and likely seldom used) standardized forensic assessment instrument incorporated a direct measure of a defendant's "ability to deal emotionally with the criminal process."190

However, while it seems that from time to time scholars, examiners, and courts regard emotion as somehow relevant to adjudicative competence, there is no operative theory as to why or how this is so.191 There certainly are few indications that emotion is thought to be relevant because its intact functioning is critical to rational decision-making. Indeed, given the very long history of rationality being explicitly opposed to emotion and the extremely recent genesis of research and scholarship challenging that opposition,192 there is every reason to believe that when courts, examiners, and commentators have spoken of rational understanding they have understood it to have nothing do to with emotion-or even to refer to the utter absence of emotional influence.

The following Subsections propose two situations in which emotion ought properly to be considered in determinations of adjudicative competence. The first is that of defendants with psychiatric illnesses, particularly severe clinical depression, that can impair the accurate perception and processing of decision-relevant information, derail formation of self-protective motivation, and impair stable, self-interested choice. In these cases, we may be concerned about a lack of emotional balance, as well as the damaging influence of a surfeit of particular emotions, such as grief and despair, and a dearth of others, such as joy or hope. The second is that of defendants with neurological defects, usually caused by brain damage, that impair perception, processing, and expression of emotion in a manner that appears to disrupt rational decision-making. Here, our concern stems from a general lack of emotion.193

1. Mood Disorder and Dusky-Relevant Emotional Dysfunction

A defendant's competence may be threatened by mood disorder, a term encompassing a range of mental illness but generally used to signify either "unipolar" or "bipolar" depression.194 Unipolar depression captures the cluster of symptoms most commonly associated with depression: loss of interest in or pleasure from most activities; feelings of worthlessness, guilt, and despair; change (usually a retardation) in motor activity; decreased energy; difficulty thinking, concentrating, or making decisions; and, frequently, thoughts of suicide.195 Depression also may incorporate manic episodes, periods associated with an unusually elevated mood (such as euphoria), psychomotor agitation, inflated self-esteem and grandiosity, pressured speech, and poor judgment.196 A person in whom major depressive episodes and manic episodes alternate generally will be diagnosed as suffering from "bipolar" disorder, or what is referred to colloquially as "manic depression."197 Some manifestations of these disorders are relatively short-lived or can have but minor effects on functioning.198 While such manifestations might have some impact on rational decision-making-for example, were a defendant required to make a very consequential choice while in the midst of a severe but short-term depressive or manic episode-competence generally is liable to be seriously threatened only by more severe and persistent manifestations, particularly where latitude is given for choices to be postponed until a short-term episode has passed.199

The effects of severe clinical depression on, inter alia, attention, perception, concentration, and memory are well-recognized in the clinical literature, and any one of these effects could derail one or more of the stages of competence-relevant decision-making.200 On the perceptive level, the severely depressed may focus so disproportionately on mood-congruent stimuli as to neglect important contrary information. For example, such persons may ponder or commit suicide out of "a desire to give up in the face of perceived insurmountable obstacles or an intense wish to end an excruciatingly painful emotional state that is perceived by the person to be without end," though a non-depressed person might perceive other, more hopeful, facts and possibilities.201 Depression-linked perceptive and understanding deficits may become so severe as to incorporate delusions, hallucinations, and other symptoms characteristic of thought disorder. For example, the depressed may develop feelings of "worthlessness or guilt. . . of delusional proportions (e.g., a person who is convinced that he or she is personally responsible for world poverty)."202 Moreover, depression appears to significantly derail normal appreciation, preventing formation of self-interested motivation. A severely depressed person may be capable of accurately grasping the factual parameters of her situation and options but report simply not caring about what the correct course of action might be or how it might hinder or further her personal well-being.203 Even if the depressed person does care about risk, the normal direction of such caring may be reversed: she may want to take undue risks and may choose a clearly self-harming outcome.204

Nor are major depressive episodes the only culprits: the mania associated with bipolar depression also can profoundly distort perception, understanding, reasoning, and choice. In terms of perception and understanding, manic persons generally will be highly distractible and unable to distinguish between relevant and irrelevant stimuli and thoughts. Those experiencing mania often will exhibit disturbances of thought form, such as extremely fast, pressured, tangential, and even nonsensical speech, as well as of thought content, such as "[g]randiose delusions" as to their personal power and importance.205 On the level of reasoning, the manic are prone to overestimate wildly their personal abilities and chances of success in difficult situations. Further, persons experiencing mania are prone to impulsive and imprudent choices, often in service of seeking immediate pleasure and gratification.206 The extreme lability of affect associated with mania also can occasion frequent and dramatic changes of course, obviating decision-making consisten-cy.207

Despite these dramatic effects, the academic literature and case law generally do not reflect any significant examination of the effects of depression, whether unipolar or bipolar, on adjudicative competence.208 However, because mood-disordered defendants present with some regularity, so too do these issues. Perhaps because of the lack of a strong theoretical exploration of mood disorder in this context, the case law reflects a highly confused attitude as to its relevance.

On the one hand, depression is sufficiently well recognized (and its effects potentially so devastating) that courts sometimes take note of it,209 and sometimes rely on it to support incompetence findings. In Drape v. Missouri, for example, the Supreme Court found that while a recent suicide attempt did not per se signal incompetence, it was highly relevant to whether a competence inquiry was required, presumably because it provides some indication of serious depression.210 More recent cases reflect a similar acknowledgment that depression is relevant, though there is no particular consensus as to how or explanation of why.211 This was the case in State v. Holland, in which the Supreme Court of Utah relied on the defendant's bipolar mood disorder to reverse a trial court's finding of competence and remand for a hearing.212 Though the court did not explain why manic depression signaled possible incompetence, it seemed irritated with the trial court for relying heavily on its assessment of Holland as "articulate," suggesting that it may have found the trial court's test overly cognitive.213 On the other hand, courts also-and perhaps more frequently-dismiss the import of depression in a manner that reflects a strong privileging of cognition.214

Indeed, the dissenting judge in Holland focused on the defendant's lack of evident thought disorder, apparently regarding affective disorder to be irrelevant.215 Depression's negation of self-protective motivation often has met with a similarly dismissive attitude. For example, in United States v. Rivera, two court-appointed experts agreed that the defendant suffered from clinical depression and was highly unmotivated to assist in his defense.216 The court nonetheless found him competent, crediting testimony from one expert that Rivera had "the ability to effectively communicate with his attorney and to assist in the planning of his defense but simply chooses not to do so,"217 and rejecting contrary evidence that "depression prevents the defendant from being motivated enough to communicate with his attorneys."218 It then recounted apparently "rational" behavior, such as speaking coherently, as further evidence of Rivera's competence.219 The court appeared to believe that depressed persons could be motivated to care about their fate if they chose to be so motivated.220 In addition to being tautological, such reasoning signals a fundamental disregard of the role of emotion-dependent appreciation and motivation within rational decision-making.

The tension between these attitudes as to the impact of depression is perhaps most clearly seen in the very thorny context of execution volunteer cases. Because competent defendants are free to decide whether to challenge a lawfully imposed punishment, death row inmates generally will be presumed able to acquiesce to execution;221 but because such acquiescence may spring from suicidal depression, purported best friends often come forward to try to prevent what they consider a suicide by execution.222

It appears that, in this battle, confusion reigns supreme223 but that a disproportionate focus on cognitive abilities is winning. This certainly was the case in Rumbaugh v. Procunier.224 Two forensic examiners agreed that Rumbaugh was "profoundly depressed" and that such depression substantially affected "his capacity in the premises" on which his decisions were reached, and might "act as a coercive force and impair[] his ability to exercise free will to make a decision."225 They nonetheless concluded that he was competent to exercise rational choice because he understood his position and was able to "think coherently" and reason "logically."226 The Fifth Circuit, though recognizing the challenge of determining what "rational" might mean in such circumstances, noted that Rumbaugh had filed "an extremely coherent and well-reasoned pro se state habeas corpus petition" and upheld the finding of competence because Rumbaugh's decision to end his life was "logical," given the intense suffering caused by his depression.227

As with the majority opinion in Rivera, the Rumbaugh majority's approach fails to give adequate consideration to the disabling effects of depression. As the dissenting judge in Rumbaugh correctly argued, the majority opinion rested on a limited and largely cognition-driven standard of rationality, erroneously equating "'rational' with logical."228 On the majority's view, "a person's cognition, his understanding, is deemed tantamount to an ability to choose rationally."229 Such a result displays a lack of respect for the vital contributions of emotion, particularly through the mechanisms of appraisal and appreciation, to rational decisionmaking.

A similarly dismissive attitude often attends the impact of depression on choice. Consider Smith v. Armontrout, in which the Eighth Circuit deemed competent a severely depressed defendant who had over the course of his imprisonment changed his mind as to whether to pursue or abandon appeals at least ten times.230 The dissenters urged careful attention to the destabilizing effects of depression with its "frequent mood changes"231 and "unstable and self-destructive tendencies."232 Though such lability is a common aspect of depression, particularly the bipolar sort, the majority without significant elaboration deemed Smith capable of choosing to "suffer the consequences of his crime and declined to order a new evaluation.233 Armontrout does not appear to be an outlier case. While inability to maintain a consistent choice may be seen by courts as irritating or threatening to finality, it seldom is considered as an indicator of possible adjudicative incompetence.

Thus, the cases reveal a very real and persistent disagreement over the appropriate level of consideration to be given to affective disorder, particularly clinical depression, when determining adjudicative competence. Even those examiners and courts that think depression relevant appear to lack an articulated theory as to why. And, unfortunately, the general resolution of that debate reflects simplistic notions of decision-making, consisting of nothing more than intact cognition plus the powers of deductive reasoning.

2. Brain Damage and Ousky-Relevant Emotional Dysfunction

Another manifestation of emotional dysfunction relevant to competent decisionmaking is that attending certain forms of brain damage, particularly to regions of the frontal lobes. The emotional deficits associated with such brain damage appear to be highly correlated with persistent inability to make self-protective choices in situations of risk to one's own thriving, despite retention of cognitive capacity. Though such disorder almost certainly is less common than clinical depression, these cases now are beginning to surface and their proper resolution promises to be hotly contested.

Evidence of concurrent emotion-and-reasoning deficits attending brain damage is found in the cognitive neuroscience literature-particularly (but by no means exclusively) the work of Antonio Damasio234-and is grounded in the story of the most famous neurological patient in history, Phineas Gage.235 In 1848, Gage survived a railroad-construction accident in which an iron rod was propelled at high speed through his head. Amazingly, he remained conscious and appeared to recover with nothing more than disinfectant and bandages. His miraculous recovery, however, was elusive. It was only a matter of time before all who knew him concluded '"Gage was no longer Gage.'"236 Whereas before he had been polite, prudent, and hard working, he became impatient, foul-mouthed, and prone to fits of rage. Though still intelligent and skilled, Gage became unable to keep a job; in fact, as his doctor recalled, "he was good at 'always finding something which did not suit him'" and appeared to have become incapable of planning or forethought.237 He became transient and died penniless 13 years later.238

The Gage case led to a number of fundamental insights animating the modern neurosciences, including that "a lesion of circumscribed areas of the brain could cause the loss of very specific mental or nervous functions in humans."239 Further, that the "new Gage" lacked emotional regulation and became unable to plan for (or execute action toward) a stable future suggested that such abilities might be both intertwined and dependent on the brain areas damaged in the accident.240 Though many brain areas now have been shown to be involved with emotional perception, processing, regulation, and expression,241 damage to the ventromedial portions of prefrontal cortex-the areas damaged in Gage242-has been shown to interfere with "social and emotional competence while not affecting cognitive competence in other domains."243 It therefore is to these areas-and to prefrontal cortex244 more generally-that researchers have looked for an intersection between emotion and decision-making.

In Descartes' Error Damasio describes clinical evidence of what he dubbed a "Gage matrix" of disabilities attending frontal lobe damage. His most detailed description is of a patient known as "Elliot," whom Damasio styled as a "modern-day Phineas Gage." Following surgery for a brain tumor in which portions of his frontal lobes were removed, Elliot went on a downward spirallosing jobs, squandering money on suspect investment schemes, and alienating family members-that eventually resulted in inability to support himself.245 Examinations revealed that Elliot was intelligent, had intact cognitive abilities, and displayed normal knowledge of ethics, social conventions, and moral value. On two measures of functioning, though, he was highly abnormal. First, Elliot was emotionally flat. He was able to recognize and describe the emotional salience of stimuli, such as pictures of gruesome injuries, but displayed no normal physiological reactions to such stimuli.246 second, he displayed a profound dissociation between "real-life failure and laboratory normalcy" in making choices.247 In laboratory conditions, he was able to solve hypothetical problems as well or better than most, but in his personal life, he continuously made disastrous choices in the face of clear warning signals, resulting in the loss of virtually all his assets and social supports.248 Damasio reports having examined twelve other patients with similar brain damage: each displayed the same "combination of decision-making defect and flat emotion and feeling," leading him to conclude that "[t]he powers of reason and the experience of emotion decline together," and that "their impairment stands out in a neuropsychological profile within which basic attention, memory, intelligence and language appear so intact that they could never be invoked to explain the patients' failures in judgment."249

The clinical evidence of this precise correlation between emotional dysfunction and impaired personal decision-making is limited-at least in part because brain damage is often diffuse, meaning that persons with damage to ventromedial prefrontal cortex often will have damage elsewhere, such that "Gage matrix" symptoms may present as part of a larger and more varied set of disorders.250 Moreover, Damasio's account of why emotion and reasoning are so intertwined is contested within cognitive neuroscience.251 His theory, rooted in what he calls the "somatic marker hypothesis," appears directed primarily to appraisal, appreciation, and choice: lack of emotion, he has proposed, might prevent these persons "from assigning different values to different options," making their "decisionmaking landscape hopelessly flat" or, perhaps, "too shifty and unsustained" to support sound and consistent choices.252 Whether this account is correct remains to be rigorously tested. But regardless of debates as to the nature of underlying mechanisms, it is now accepted that brain damage affecting emotional perception, processing, and expression-particularly damage to the frontal cortices-is correlated with diminished rationality, particularly in the realm of highly personal decision-making.253

This research has at least three important implications for assessments of adjudicative competence. First, persons with specific forms of frontal lobe damage might with some regularity become defendants, as their extreme decision-making deficits may lead to poor choices (and, in rare cases, disinhibited and aggressive behaviors) with criminal consequences.254 If this is so, it is particularly important that adjudicative competence doctrine have a theory as to how such persons should be regarded. second, such persons may exhibit intact cognitive abilities and yet be incapable of the kind of high-stakes, highly personal decision-making required of criminal defendants, and that inability will present together with-and perhaps be caused by-severe impairment in ability to experience and express emotion. In these cases, failure to consider impaired emotional capacity might lead to an erroneous finding of competence, either because deadened emotion is not recognized as a clue leading to further inquiry that might uncover brain damage,255 or because of imposition of an overly cognitive test in which the emotion and decision-making deficits, even if proven, are dismissed as irrelevant.256 Third, other brain-damaged persons (for example, those with more diffuse sites of injury) may display the above-described impairments as well as cognitive and motor deficits. In these cases, the danger of false negative might be lower; but as competence determinations look to the combined effects of impairments, failure to take seriously those going to emotion and personal decision-making could remove important information from the calculus.

These issues are novel, and to date are scarcely reflected in the case law. However, to the limited extent that they have been addressed they have met with inconsistent results.

Consider the case of "Jane," a prominent member of society with a long and impressive record of educational and professional accomplishments and philanthropic activities.257 Unbeknownst to her, she suffered from a congenital bloodflow defect known as an arteriovenous malformation ("AVM"), located in the left frontal lobe of her brain. Very late in her life, Jane began suddenly to engage in a series of obviously foolish financial schemes, and experienced a downfall much like that of Damasio's Elliot. She lost virtually all of her family's money, was sued for financial improprieties, and eventually was convicted for minor participation in what was revealed to be a fraudulent investment scheme. The brain damage was discovered in the sentencing phase, after new defense counsel-seeking to determine the cause of her sharp change in life circumstances and struck by her odd emotional profile-arranged for psychiatric and developmental testing and, finally, a neurological exam and brain scan. The scan both showed the AVM and revealed that at some point, likely quite late in Jane's life and probably shortly before the start of her "downfall," the AVM had ruptured and bled. Extensive neuropsychological testing then revealed that Jane retained her extremely high intelligence and virtually all of her cognitive abilities, though she did display the highly tangential and perseverative speech characteristic of a thought disorder.258 This general cognitive intactness had largely masked others' ability to recognize her progressively more serious deficits. However, her affect was noticeably constricted and she was consistently unable to make self-protective choices in personal, particularly financial, matters. Significantly, she appeared utterly incapable of perceiving the mental instability of the fraud's ringleader and the implausibility of her representations and promises, though those facts were immediately evident to others. She also appeared strangely detached from the extremely serious repercussions of her conviction for both her and her family. A court-appointed expert, after considering the defense's evidence and examining Jane, opined that she was incompetent to be sentenced.259

Jane's case would appear to be the first in which an examiner has explicitly relied on evidence of a "Gage matrix" disorder to make a finding of adjudicative incompetence. Other instances in which similar issues were raised have met with very different outcomes, as decision-makers in those cases regarded evidence of emotional dysfunction, even if presumed to be true, to be irrelevant.

The first such case is North Carolina v. Shytle.260 Wanda Graybeal Shytle shot herself in the head after killing a number of family members. Expert examinations conducted after her self-inflicted injury indicated that while her intelligence and memory were intact, the significant damage to Shytle's brain "impaired her emotional response[s] to situations" and led to inappropriate behavior, such as laughing at serious moments, that suggested that she failed to grasp the seriousness of her plight.261 One examiner testified that she was incompetent because "her affective appreciation of events has been lost," preventing her from "understanding her legal situation and cooperating with her attorney."262 The North Carolina Supreme Court was asked whether, "if an individual's cognitive, reasoning ability is separated from basic emotional responses or affect," she would be "competent not only to aid in [her] defense but also to proceed to trial."263

Two trial judges, without significant discussion, determined that she was competent, and the North Carolina Supreme Court agreed:

There was evidence that the defendant had an IQ within the normal range and that she knew what the charges were and what could happen to her if she was convicted. If this did not worry or upset her because of her altered medical condition, it does not mean that she did not understand those facts .... If the defendant's situation did not bother her it does not mean she did not comprehend it.264

This analysis-in which the extreme abnormality of Shytle's lack of emotional reaction to her potentially dire situation was sanitized by the presence of bare intellectual understanding-ignores the importance of appreciation in shaping self-protective motivations and goals.265 In Shytle, then, cognitive function simply trumped emotional dysfunction, without a considered effort to determine how the latter might have affected rationality.

Similar evidence met with a similar disposition in the recent clemency petition of Donald Beardslee, executed in 2005 for taking part in a multiple murder to avenge a small debt.266 Though the issue argued there was not competency but, rather, potential mitigation providing a reason to spare his life, the way in which the brain-damage arguments were treated is relevant and illuminating.267 In an eleventh-hour bid for clemency, Beardslee's attorneys came forward with new evidence suggesting that he had brain damage-present at birth and aggravated by two head injuries in adulthood, one of which resulted in coma-that, among other deficits, impaired emotional capacity.268 According to a defense expert and family members, throughout his life Beardslee appeared unable appropriately to express emotion, was unusually gullible and na?ve, and exhibited terrible judgment when making personal decisions under conditions of stress and uncertainty.269

In a response closely paralleling that in the Shytle case, prosecutors offered a purely cognitive theory: Beardslee could not be seriously brain-damaged, at least not in a legally meaningful way, because he had a relatively high IQ, well-developed cognitive skills, got good grades, had before his incarceration been capable of caring for himself, and had a solid work history.270 To the extent that Beardslee failed to show emotion, the state argued, that merely showed his lack of remorse. The Governor of California, Arnold Schwarzenegger, agreed. While acknowledging that the claim that brain injury left Beardslee "unable to process emotions ... warrant[ed] more extensive discussion," Schwarzenegger declined to enter that discussion and instead concluded that Beardslee's apparently intact cognition answered the inquiry.271 Though "many observers ha[d] reported that Beardslee" had "a flattened affect for much of his life" and had argued that "this lack of emotion [wa]s a symptom and byproduct of his mental deficiency," Schwarzenegger concluded that the fact that "Beardslee had a flat affect... does not have persuasive value" showing that he lacked "capacity to make reasoned decisions."272 Beardslee was executed.273

In both the Beardslee and Shytle cases, then, legal decision-makers held that evidence of cognitive function simply overrides evidence of emotional dysfunction. The fact that these states of being can coexist-and, further, that emotional dysfunction can correlate with and signal rational decision-making deficits even where cognition is intact-was simply not considered credible. Nor did the decision-makers in those cases appear to regard as important the fact that persons with profoundly impaired emotional function might be incapable of formulating the self-protective motivation that would animate active participation in their defense, including cooperation with counsel. In contrast, in Jane's case an examiner took such emotional impairments seriously, in conjunction with evidence of other (and arguably more cognitive) impairment, and determined her to be adjudicatively incompetent. This juxtaposition, paralleling that of the courts' and examiners' varying treatment of depression, indicates that current theory and practice fail to reflect a consistent and sophisticated understanding of emotion's influence on rational decision-making.

III. MEASUREMENT AND POLICY CONSIDERATIONS

Thus far, this Article has argued that both cognition and emotion are integral to the rational decision-making on which adjudicative competence depends. It has urged that decisional competence be recognized as key, that examiners and courts-whose interdependent efforts are vital to determinations of adjudicative competence-undertake any given competence determination by reference to the component parts of rational decision-making, and that such examination articulate and take seriously the effects of both thought disorder and emotional disorder, particularly where the latter is not adequately captured by a cognitive focus. It has argued specifically that courts and examiners should consider whether clinical depression (whether unipolar or bipolar) has impaired substantially a defendant's perception, appreciation, and ability to choose, and that the emotional deficits attending certain forms of brain damage should be regarded as important concomitants of impaired capacity for reasoning and choice. It is worth asking, though, whether this proposal is amenable to implementation that would further the goals of adjudicative competence doctrine. This Part addresses those concerns.

The question of whether emotional competence is amenable to accurate, consistent definition and measurement is no small matter. This difficulty is not unique to emotional considerations; because of the open-textured nature of the construct, it inures to all attempts to define and measure competence.274 The real question, then, is whether there is something about emotional disorder that makes it so different from cognitive disorder as to prevent it from being articulated, measured, and considered as part of the legal test for adjudicative competence. While there is good reason to raise this question, it should be answered in the negative.

One prominent competence theorist, Paul Appelbaum, raised just this question within the context of a parallel debate over capacity to consent to medical treatment.275 Appelbaum agreed that "disturbing questions" had been raised "about the lack of attention to emotional issues in competence assessment."276 He cautioned, however, that before incorporating emotional considerations we ought to satisfy ourselves of the existence of a substantial target population whose incompetence is not likely to be captured by more traditional cognitive measures, as well as of the feasibility of measuring such dysfunction. Perhaps, he argued, the historical focus on cognition at emotion's expense is warranted if it reflects "the experience of the courts with regard to the major causes of decision-making incapacity."277 Thus, he asserted, "[i]t is imperative to know before beginning that the game is worth the candle."278 Appelbaum's concerns, which have not to date been followed up within the consent-to-treatment literature,279 are well placed, though he almost certainly was wrong that historical neglect of emotion's role might reflect the wisdom of experience. Such neglect is entirely consistent with and reflective of the historical disregard of emotional considerations that is now under sustained attack.280 And if we look beyond that neglectful pedigree, the outlook is hopeful.

The search for "rational" cognition is, after all, not so very different from the search for "rational" emotion; as LeDoux has pointed out, "cognition is not as logical as it was once thought and emotions are not so illogical,"281 and as to both we operate with reference not to an ideal but to a rough account of the normal.282 Thinking and reasoning are not "inherently rational, optimal, desirable, or even smart. A thorough history of human thinking will include quite a few chapters on stupidity."283 And as abundant research on bounded rationality284 has confirmed, people consistently exhibit normatively non-rational processes when forming judgments and making decisions.285 While reliance on cognitive heuristics and biases286 is in one sense irrational, it cannot be the sort of irrationality about which adjudicative competence is concerned, if for no other reason than that it is far too common.287 Similarly, the fact that most people are of only average intelligence and routinely make foolish choices cannot be legally significant. But by buying into the adjudicative competence requirement, we necessarily assume that we can somehow, and with some level of consistency, tell the difference between everyday irrationality and the competence-threatening sort.288

Even when considering only cognitive function this is often far from an easy call, as discussion of the thought-disorder cases reveals. But the quest for such rationality is significantly furthered by the decision-making approach argued here. Indeed, that approach is largely reflected in the forensic assessment instrument created by the MacArthur team.289 More widespread use of that instrument, the MacCAT-CA, would promote clarity and consistency, at least in terms of assessing cognitive disorder. Encouraging close articulation of the necessary steps of decision-making-including by use of the MacCAT-CA-should not, though, be read to imply that each step must be ideally executed for the entire process to be deemed minimally rational.

A similar analysis pertains to emotional disorder. Though this Article has explained how a dearth or surfeit of particular emotions, a general lack of emotional capacity, or lack of emotional balance can threaten competence, that does not signify that a defendant must have optimal emotional health to be competent, just as she is not required to display above-average intelligence and sharp, non-biased reasoning skills.290 Criminal defendants often will present with emotional disturbances, only a small subset of which might threaten competence.291 Defendants may well have had mood disorders and emotional problems before committing the conduct of which they are accused; the offense conduct might have been motivated by emotional disturbance or itself may have caused trauma; and the prospect of conviction and punishment may trigger significant stress and suffering.292 While these factors might matter to adjudicative competence in any given instance, they might not, though a prudent approach would regard many such emotional disturbances as warranting further examination. What we are concerned about is the presentation of extreme disorders that can be shown to seriously disrupt one or more identifiable stages of minimally stable, self-protective decision-making processes.

In this regard, examination of competence-threatening emotional disorder may not be on quite as solid a footing as a cognitive approach. However, it still falls well within acceptable limits. An example is illustrative. Consider the MacCAT-CA, which, as "primarily a cognitive assessment tool,"293 is not well suited to an assessment of emotion's role. For example, it contains only one indirect measure of affect, the "appreciation subscale," but that subscale is not specifically directed to the emotional component of appreciation, but rather to its thought-disorder iteration.294 Moreover, the understanding and reasoning portions of the Mac-CAT-CA rely on the defendant's responses to a hypothetical incident, which by reason of being "one step removed from the defendant's actual case"295 may be particularly ill-suited to capturing "Gage matrix" dysfunction, in which intact laboratory response to hypotheticals stands in contrast to real-life failure.296 These limitations suggest that the MacCAT-CA will be of little use in cases of emotional dysfunction. But such a conclusion would be overstated. While a new instrument could be developed to incorporate the types of emotional considerations urged here, assessment of emotional competence need not await such a test. No forensic assessment instrument is intended to stand alone, but instead is meant to be considered as part of a holistic evaluation including clinical observation, review of the defendant's medical and psychiatric history, interviews with those in a position to shed light on her behavior, and evaluation of the particular issues and demands at play in the specific case.297 Thus, the MacCAT-CA could be supplemented with a more emotion-focused inquiry were the examiner, defense attorney, prosecutor, or judge to suspect a relevant emotional disorder.

At least with regard to depression, such an examination is likely to be fruitful. Clinical depression is a relatively well-understood disease affecting a large number of persons.298 While its definition and diagnosis always will be subject to meaningful debate, this is equally true of schizophrenia and other psychotic disorders. Moreover, as the cases demonstrate, the possible incompetence of such persons is not always captured by cognitive tests. Capturing such impairments will depend on whether emotional factors are explicitly considered relevant to the legal standard. What is lacking is not a strong empirical foundation for depression diagnoses; it is, rather, a strong theoretical foundation within law, such as that offered herein, affirming that such depression might matter to competence, and explaining how. If courts direct examiners to make such assessments, those examiners have ready access to the diagnostic tools to comply.

The prognosis for assessment of "Gage matrix" disorder is more mixed. While it now appears clear that emotional capacity and reasoning decline together in persons with specific forms of frontal damage, causation remains unclear. Though causation is a highly contested issue in the study of psychotic and mood disorders as well, the novelty of the emerging brain research warrants particular caution when deciding whether to attribute to it real legal significance.299 It is also difficult to know how many people, let alone how many criminal defendants, might be affected by such brain damage. There is reason to believe they may be overrepresented in the defendant population.300 It has been suggested, too, that a large percentage of death row inmates suffer from frontal lobe damage,301 and at least some of those may well display such disorder. But detection issues loom large. The emotional flatness characteristic of "Gage matrix" disorder could mimic the flat affect displayed by those considered "psychopaths" or even those attempting, for reasons of ego maintenance or self-protection, to project a tough image.302 Because of the high cost and uncertain payoff of brain imaging, in addition to privacy concerns, it would be neither feasible or desirable to image all defendants' (or even all capital defendants') brains, absent other strong indicators of incompetence or brain injury.

Still, "Gage matrix" disorder should be allowed to inform competence assessment. In cases like Jane's, where a strange emotional profile-particularly one incorporating highly unusual affective flatness and inability to "read" the emotional signals of others-presents together with a history of evidently self-destructive behaviors, there is good reason to suspect such disorder. Because cognition tends to remain intact in such persons, attention to the emotional aspect will matter, because without it we are left with a purely outcome-driven inquiry: we think the defendant may be incompetent because of the terrible choices she has displayed in life. Such an assessment will fall far short of that required to trigger an inquiry or justify an incompetence finding, and cognitive tests likely will reveal nothing unusual. Following up on the suspicion created by the addition of apparent emotional disorder, then, generally by neuropsychological examination and brain imaging, may bring very important information to the table. The current state of scientific knowledge permits a conclusion that such a profile is underlain by a defective decision-making process, although we may not yet know precisely why. The high correlation of emotion and reasoning defects suggests that the latter are both substantial and not something over which the defendant has control. Thus, even under the most cautious approach, presentation of such a profile should raise a bona fide doubt as to competence sufficient to warrant more searching inquiry.303 Whether any resulting evidence of brain damage should be considered to establish Dusky incompetence will be a harder call, highly dependent on the exact nature of the damage and the extent to which medical experts and courts are able to articulate its effect on the defendant's ability to make sound, self-protective decisions in the context of her case.304 Given the limitations of existing standardized tests such a determination almost certainly will require creative solutions, potentially including administration of the type of experimental gambling tasks used by Damasio in his research,305 observation of the defendant in actual decision-making situations, and interviews of persons who have observed her real-life decision-making processes.

Even once we have satisfied ourselves that we can incorporate emotional evaluation into competence determinations, we still must ask ourselves if we should. It is possible that fewer defendants will be deemed incompetent under the proposed approach, because the effort might lead examiners away from simplistic determinations-for example, those that de facto equate psychosis with incompetence-but it seems more likely to result in more-potentially many moreincompetence determinations, particularly of the severely depressed.306 Because of the doctrine's delicate balancing act between competing values, undue expansion of the test threatens to both impair defendants' autonomy and frustrate the state's interest in public safety and law enforcement.

Structural features of the competence determination, however, largely guard against any serious threat to autonomy and public safety. In nearly every case, the consequence of an incompetence determination is not termination of criminal proceedings: it is a delay in proceedings while the defendant is evaluated and treated.307 Extensive delay in proceedings surely can weaken a prosecution case, but confinement for restoration of competence may not continue indefinitely and must be justified by treatment progress, creating incentives for timely resolution. Depression, even severe depression incorporating elements of thought disorder, often is amenable to treatment, particularly with medication308-and in very extreme cases medical staff may be permitted to administer such medication involuntarily.309 The period of evaluation and treatment also is useful for detecting malingering.310 Further, even if the interest in enforcing criminal law never is vindicated, the defendant might still be incapacitated, as should she be incapable of competence restoration but dangerous to herself or others she will be subject to civil commitment proceedings.311 And while the potential for encroachment on autonomy is real, most defendants (particularly those with viable defenses) who truly are capable of autonomous decision-making have strong incentives to try to prove that they have been wrongly identified as incompetent, to avoid both the stigma of involuntary mental health treatment and the possibility of long-term confinement with no opportunity for a determination of guilt or innocence.312

Further, to the extent that some number of defendants might escape both prosecution and confinement, that is an acceptable (if potentially painful) price to pay.313 This is particularly relevant to disposition of brain-damaged defendants who, like Jane, likely will never get better. Though it is possible that medical experts might identify strategies to improve such defendants' competence, it is prudent to assume that most will be adjudicatively incompetent for life. The same result may obtain with regard to that percentage of the severely depressed whose disease defies treatment.314 Should such defendants be neither dangerous nor otherwise subject to civil commitment, they may in fact go permanently "unwhipped of justice."315 But the number of such defendants is likely to be relatively small; they will by definition not present an imminent danger to public safety; and the ill effects of their disorders may be effectively cabined by surrogate decisionmaking, for example, by appointment of guardians to handle their financial affairs. Though not without cost, such a result is far less offensive to the system of criminal justice than the trial of an incompetent person in contravention of her fundamental constitutional rights.316

CONCLUSION

This Article has proposed a thinking-and-feeling conception of the Dusky requirement of rational understanding. To implement this conception, it is vital that courts, examiners, and legal scholars join forensic theorists in recognizing the centrality of decisional competence. Because most courts and examiners do not explicitly so frame their inquiry, they deprive themselves of transparent access to decision-making theory's large and useful trove of substantive knowledge and analytical tools. Further, courts, examiners, and legal theorists must join the contemporary mind sciences in recognizing that emotion is both deeply intertwined with the mechanisms of cognition and of independent significance within rational human decision-making. Looking for and describing the specific cognitive and affective substrates of defendants' decision-making processes provides a language and methodology that will expose the theoretical and practical underpinnings of competence determinations.317

But transparency is not the only virtue. The advocated approach also will uncover certain threats to competence that simply would not be noticed, or regarded as important, under a more simplistic or purely cognitive approach. If, for example, we are unaware that inability to perceive and process emotional information is highly correlated with defective reasoning under conditions of personal risk, a defendant's deficits in the former domain-even if proven-lack any logical hook into tests of competence. And if we lack understanding of emotion's role in appraisal, appreciation, and choice, we not only cannot articulate why it is that a profoundly depressed person might be incapable of formulating and communicating a sound, stable, self-protective choice, we cannot voice any theory under which that phenomenon might matter. Under the approach advocated here, evidence of cognitive function never should be allowed simply to trump evidence of emotional dysfunction; nor should the converse be true. Adjudicative competence doctrine and practice should strive, rather, to reflect the "harmonious integration of reason and passion in the brain."318

This is not to say that the adjudicative competence conundrum can be solved for once and for all by reference to the insights of the mind sciences.319 Nor, despite significant advances in our understanding of human decision-making, may we reasonably expect to discover and define some stable conception of rationality.320 Rationality will, like competence, always retain the somewhat elusive quality of an idea. Shifting the inquiry away from a general search for "rationality," however, and toward a more finely grained search for rational decision-making processes by reference to both cognitive and emotional influences, is one way out of the "black hole" into which courts sometimes feel themselves drawn.321 This approach is transparent, theoretically defensible, and amenable to concrete implementation. It offers our best hope for giving meaning to "rational understanding."