Competency to Be Sentenced

The question of whether an individual is competent to be sentenced hinges on the broader question “What is competence?” In general, competence is defined within the legal arena as the mental ability to play an active role in legal proceedings. Competency to be sentenced is a specific form of legal competence that addresses an individual’s ability to participate in the sentencing stage of trial and to both understand and appreciate the ramifications of the sentence that is imposed. The term competence to be sentenced has been used interchangeably with competence to be executed, but the former expression is more inclusive than the latter. Psychologists assist the courts by providing evaluations of competency to be sentenced, although there are minimal assessment guidelines and no accepted measures to guide their assessments.

The general standard for competency was defined by the Supreme Court in Dusky v. United States (1960) as the defendant’s “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.” This protection has been deemed to include the stages from the time of arrest through the end of the trial. However, sentencing is separate from trial, and jurisdictions differ on whether the Dusky standard extends to the sentencing phase. In some jurisdictions, defendants need only have a minimal level of competency to be sentenced (e.g., a defendant need only understand why he or she is being sentenced). Other jurisdictions hold that sentencing is part of the trial, therefore the defendant must meet the more exacting Dusky standard before he or she may be sentenced. Overall, the literature suggests that the competency to be sentenced standard is less stringent than the competence to stand trial standard.

The purposes behind the guarantee of competency to be sentenced are generally argued to be threefold. First, defendants are guaranteed competency to protect their individual rights. For example, in some cases, the defendant has the right to allocution at sentencing. The right of allocution refers to a defendant’s right to speak before the sentence is pronounced in order to address any legal cause why the sentence should not be pronounced or provide mitigating information that may reduce the sentence. Without the mental ability to participate in the proceedings, this right would be meaningless. Second, society has an interest in guaranteeing fair results and the dignity of the trial process. If a defendant does not appear to be a lucid participant in his or her trial and sentencing, the process loses these qualities. Third, to be competent to be sentenced, defendants should comprehend the duration and severity of the sentence. This understanding is a prerequisite for the sentence to meet its goals of punishment and deterrence from future crime. If defendants cannot rationally comprehend the reason why they have been sentenced, the punishment cannot have its desired effect on the psyche or act as a deterrent.

If a genuine doubt concerning the defendant’s competency to be sentenced arises, the defense, the prosecution, or the judge may raise the issue. If there is sufficient evidence that the defendant’s competency is questionable, the judge may order an examination by a mental health professional, such as a psychologist or a psychiatrist. When the evaluation is completed, the expert provides an opinion to the court in the form of a report and, possibly, testimony. The judge makes a decision regarding the competency of the defendant. If the defendant is found to be competent, the sentencing proceeds. If the defendant is found to be not competent, he or she is sent for treatment to restore competency before sentencing.

Psychologists have researched the issue of competency to stand trial, developed assessment strategies, and implemented treatment approaches to restore individuals’ overall competence. The defendant’s cognitive functioning is of central importance in evaluating any form of competence. Similarly, a defendant’s ability to communicate mitigating factors effectively to his or her attorney is essential. Many measures have aided in the evaluation of an individual’s overall competency. These include the Competency Screening Test (CST), the Competency Assessment Instrument (CAI), the Georgia Court Competency Test (GCCT-MSH), the Interdisciplinary Fitness Interview (IFI), the Fitness Interview Test (FIT-R), the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA), and the Evaluation of Competence to Stand Trial-Revised (ECST-R). These measures provide a clinician with information relevant to an individual’s competence to stand trial; however, there are minimal assessment guidelines and no accepted measures to evaluate competence to be sentenced. A comprehensive evaluation should be conducted to assess a defendant’s intellect, his or her personality, and any underlying psychopathology, in addition to the basic competency criteria. As mentioned above, if a defendant is found not competent to be sentenced, the question of possible restoration to competence must be dealt with. Restoration to competence may achieved by the use of psycho-education, medication, or individual therapy.

Individuals with mental retardation or metal illness, juveniles, and people suffering from dementia are at higher risk of being found incompetent to be sentenced. These groups are identified as “at risk” due to limitations in rational understanding and abstract thinking. By definition, individuals with mental retardation have below-average intellectual abilities and impaired adaptive behavior, which affect all aspects of competency. Juveniles are labeled at risk because they are considered developmentally and psychosocially immature. Children typically develop higher-order processing and reasoning abilities as they mature. Although there is no exact age at which children develop this reasoning ability, the idea that juvenile offenders should be treated differently from adult offenders has long been an accepted legal premise. Research has focused on determining whether a juvenile possesses the minimal reasoning ability required to be found legally competent. The findings indicate that juveniles who lack developmental and psychosocial maturity (a) may not fully appreciate the long-term consequences of their decisions, (b) may yield to peer influence, and (c) may minimize the ramifications and risk of being found guilty. These limitations would lead to impaired decision making. People with mental illness and/or dementia, on the other hand, sometimes lose their ability to reason abstractly and to understand legal processes.


  1. Cunningham, M. D., & Goldstein, A. M. (2003). Sentencing determinations in death penalty cases. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 407—136.). Hoboken, NJ: Wiley.
  2. Dusky v. United States, 362 U.S. 402 (1960).
  3. Melton, G. G., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press.

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