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The Problem of the Incompetent or Insane Defendant or Convict.— It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial.118 When it becomes evident during the trial that a defendant is or has become insane, or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.119 What the state must do is to provide the defendant with a chance to prove that he is incompetent to stand trial; there is no further constitutional requirement that the state assume the burden of proving the defendant competent. Due process is not offended, therefore, by a statutory presumption that a criminal defendant is competent to stand trial, or by a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence.120 When a State determines that a person charged with a criminal offense is incompetent to stand trial he cannot be committed indefinitely for that reason. The court’s power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that this is not the case, then the State must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen.121

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted.122 The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence “therefore is irrelevant to the purposes of . . . commitment.”123 Thus, the in[p.1770]sanity acquittee may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”124 It follows, however, that a state may not indefinitely confine an insanity acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.125

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of pre–execution sanity must be determined in a proceeding satisfying the minimum requirements of due process.126 Those minimum standards are not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board.127

Corrective Process: Appeals and Other Remedies.—“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.”128 This holding has been recently reaffirmed129 although the Court has also held that when a State does provide appellate process it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.130 But it is not the case that a State is[p.1771]free to have no corrective process at all in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum,131 the Court asserted that a conviction obtained in a mob–dominated trial was contrary to due process: “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.” Consequently, it has been stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment,132 and it has been held that to burden this process, such as limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights.133

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. “Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at a place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.”134 If a State provides a mode of redress, a defendant must first exhaust that mode, and if unsuccessful may seek relief in federal court; if there is no adquate remedy in state court, the defendant may petition a federal court for relief through a writ of habeas corpus.135


When appellate or other corrective process is made available, inasmuch as it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court’s sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law.136 But in Moore v. Dempsey,137 while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi138 and now taken for granted.


118 Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956) ).
119 Id. For treatment of the circumstances when a trial court should inquire into the mental competency of the defendant, see Drope v. Missouri, 420 U.S. 162 (1975) . Also, an indigent who makes a preliminary showing that his sanity at the time of his offense will be a substantial factor in his trial is entitled to a court–appointed psychiatrist to assist in presenting the defense. Ake v. Oklahoma, 470 U.S. 68 (1985) .
120 Medina v. California, 112 Ct. 2572 (1992).

Supplement: [P. 1769, add to n.120:]

It is a violation of due process, however, for a State to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996) .

121 Jackson v. Indiana, 406 U.S. 715 (1972) .
122 Jones v. United States, 463 U.S. 354 (1983) . The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere idiosyncratic behavior.
123 463U.S. at 368 463U.S. at 368.
124 Id. at 370.
125 Foucha v. Louisiana, 112 Ct. 1780 (1992).
126 477 U.S. 399 (1986) .
127 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that “the ascertainment of a prisoner’s sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477U.S. at 411 477U.S. at 411– 12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding.
128 McKane v. Durston, 153 U.S. 684, 687 (1894) . See also Andrews v. Swartz, 156 U.S. 272, 275 (1895) ; Murphy v. Massachusetts, 177 U.S. 155, 158 (1900) ; Reetz v. Michigan, 188 U.S. 505, 508 (1903) .
129 Griffin v. Illinois, 351 U.S. 12, 18 (1956) ; id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974) .
130 The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956) , in which it was deemed to violate both the due process and the equal protection clauses for a State to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions. See infra, pp. 1916– 20.
131 237 U.S. 309, 335 (1915) .
132 Moore v. Dempsey, 261, U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935) ; New York ex rel. Whitman v. Wilson, 318, U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238–39 (1949) .
133 Ex parte Hull, 312 U.S. 546 (1941) ; White v. Ragen, 324 U.S. 760 (1945) .
134 Carter v. Illinois, 329 U.S. 173, 175–76 (1946) .
135 Supra, pp. 811–12. Note that in Case v. Nebraska, 381 U.S. 336 (1965) , the Court had taken for review a case which raised the issue whether a State could simply omit any corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the State in the interim enacted provisions for such process.
136 Frank v. Mangum, 237 U.S. 309 (1915) .
137 261 U.S. 86 (1923) .
138 297 U.S. 278 (1936) .
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