Interesting Supreme Court Decision A Few Days Ago

Interesting Supreme Court Decision A Few Days Ago

Professor Volokh engages in "wild speculation" about the significance of some remarks in Justice Scalia's dissent in Indiana v. Edwards, handed down a few days ago, and what it may mean about the forthcoming Heller decision.

Indiana v. Edwards is itself an interesting decision (at least to me), because of how it shows the weaknesses of the judicial process and the changing situation with respect to mental illness between 1791 (when the Bill of Rights was ratified) and today.

The case involves a man who was charged with attempted murder and several other serious crimes after he was stopped trying to shoplift some shoes. Edwards is paranoid schizophrenic, and after considerable back and forth, Indiana courts decided that while he was mentally ill, he was at least well enough to stand trial. Edwards, however, decided that he wanted to defend himself, instead of using a public defender. Indiana law apparently did not allow that, because Edwards, being mentally ill, was regarded as competent to stand trial, but not to defend himself.

The majority ended up ruling in favor of Indiana, requiring him to use an attorney. The dissent, by Justices Scalia and Thomas, argues that the Indiana law violates Edwards' right to defend himself, apparently because of the Sixth Amendment's guarantee "to have the Assistance of Counsel for his defence," the Fourteenth Amendment's imposition of that onto the states, and subsequent decisions by the federal courts that one may, with a few limited exceptions, chose to defend oneself.

This is a very interesting and troubling decision. From a pure original intent standpoint, Scalia and Thomas may well be right about this. From my reading, it seems that relatively few persons who were seriously mentally ill went to trial in 1791. My understanding is that for many crimes, people regularly defended themselves. Did the courts allow these mentally ill defendants to represent themselves? I really don't know. This would be an interesting historical question to research. I can't see that either side of this dispute actually did so. Scalia's argument is based on existing precedent, which grants considerable freedom to defendants to represent themselves. (And Scalia is clear that representing yourself--even if you aren't mentally ill--is usually a bad decision.)

The majority opinion might well be wrong, from an original intent standpoint. But it is probably also a very, very bad idea for states to allow mentally ill defendants to represent themselves, not only for the potential for a miscarriage of justice, but because a screwed up trial opens up opportunities for appeal.

I would suggest that what we may be seeing here is another consequence of the dramatic transformation of the legal status of the mentally ill since the 1960s. Until that point, states regularly intervened under the doctrine of parens patriae (the government is effectively "father of the people") to care for those unable to care for themselves. In 1791--or even 1941--situations like this came up far less often, simply because so many of the mentally ill were institutionalized, and unable to commit crimes such as Edwards is charged with, or were institutionalized instead of proceeding to trial.