NACDL

The legal standards for adjudicative competence¹ appear simple: as the U.S. Supreme Court declared in Dusky v. United States, the substantive 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.”² It is clear, too, that the defendant has a fundamental constitutional right not to be tried, convicted, sentenced, or executed while incompetent,³ and the procedure by which competence is raised and determined is relatively straightforward.⁴ But this apparent clarity is deceiving. Despite its evident importance⁵ and solid historical pedigree, adjudicative competence remains surprisingly ill-defined. The substantive meaning of Dusky — notably the distinction between “rational” and “factual” understanding — has escaped significant elaboration. Implementation of Dusky is also highly unpredictable, as it generally falls