Justice and the deconstruction of psychological jurisprudence
| Author | Bruce A. Arrigo |
| DOI | 10.1177/1362480603007001200 |
| Published date | 01 February 2003 |
| Date | 01 February 2003 |
| Subject Matter | Articles |
Justice and the deconstruction
of psychological jurisprudence:
The case of competency to stand trial
BRUCE A. ARRIGO
University of North Carolina, USA
Abstract
Critical psychological jurisprudence draws attention to the forces of
ideology, power and violence embedded in the narratives of law
and psychiatry, criminal justice and mental health. Application work
in this area identifies how and for whom justice is served (or
denied) by prevailing medicolegal decisions and practices. One
method of discursive analysis comes from deconstruction. Indeed,
as Derrida has proclaimed, ‘deconstruction is justice.’ To further this
perspective, the author deconstructs psychological jurisprudence by
examining the competency to stand trial (CST) phenomenon in the
United States. To facilitate this investigation the precedent case law
on the subject is presented and reviewed. In addition, selected
principles from Derridean deconstruction are recounted and then
applied to the medicolegal narrative of competency to stand trial.
Given these observations, the author concludes by tentatively
exploring the meaning(s) of deconstruction as justice in the domain
of psychological jurisprudence.
Key Words
competency to stand trial • critical psychological
jurisprudence • deconstruction • justice
Introduction
As a critically animated domain of inquiry, psychological jurisprudence
attempts to establish a radical ‘philosophy of law based on psychological
Theoretical Criminology
© 2003 SAGE Publications
London, Thousand Oaks
and New Delhi.
1362–4806(200302)7:1
Vol. 7(1): 55–88; 030200
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values’ (Fox, 1997: 219). The aim of this enterprise is to cultivate a ‘theory
of legal action that is derived from an understanding of law’s subjective
significance in our lives’ (Melton, 1988: 854; see also Haney, 1993; Ogloff,
2000). Underpinning this philosophical excursion is the search for the
discursive meaning(s) of justice and the often embedded, implicit and
unspoken values that inform the established, taken-for-granted terrain of
medicolegal science (Arrigo, 2002a). Thus, the critical agenda in psycho-
logical jurisprudence reveals how the systems of mental health, law,
juvenile justice, corrections, policing and the like function to privilege
certain political ideas, ethical codes, social arrangements, modes of com-
portment and power relations, effectively denying alternative, more in-
clusive, expressions of the same (Fox, 1993a).1
The emphasis on critical theoretical inquiry as a worthwhile backdrop
against which to unpack the layered, often covert, dimensions of ideology
and violence lodged deep within psycholegal narratives should not be
underestimated or dismissed. Indeed, radical scholars have appropriated
the interpretive tools of various heterodox strains of thought to deepen our
understanding of many topical and controversial domains of import.
Selected studies in critical psychological jurisprudence include: the political
economy of proxy decision making for persons civilly committed
(McCubbin and Weisstub, 1998); anarchism and the critique of law’s
legitimacy in the psycholegal realm (see, for example, Fox, 1993b, 2001;
Williams and Arrigo, 2001a); chaology and the non-linear interpretation of
mental illness and dangerousness (see, for example, Arrigo and Williams,
1999a; Williams and Arrigo, 2001b, 2002); semiotics and sense making in
clinicolegal discourse;2and constitutive criminology and the reality con-
struction of the mentally ill ‘offender’ (Arrigo, 2001). These philosophical
forays represent a vastly different approach by which to engage in the
analysis of civil and criminal mental health law; one that charts a new and
provocative direction for citizen justice and radical social change at the
crossroads of law and psychology.3
One noteworthy and contentious topic in psychological jurisprudence,
not yet subjected to the insights of critical theoretical analysis as described
above, is the issue of competency to stand trial (CST). In the United States,
the doctrine of trial fitness and the courtroom evaluations pertaining to it
represent ‘the most significant mental health inquiry pursued in the system
of criminal law [today]’ (see, for example, Winick, 1985: 922; Bardwell
and Arrigo, 2002a). Researchers contend that CST determinations are
highly suspect because of the vague and confusing Supreme Court language
that informs decision making by lower court judges (Golding et al., 1984;
Bonnie, 1992; Cruise and Rogers, 1998; Arrigo and Bardwell, 2000), and
the inaccurate and unreliable psychological instruments that assess mental
health status (Grisso, 1986, 1992, 1996; Hoge et al., 1997). Indeed, some
law and social science scholars contend that the CST doctrine is so
conceptually flawed that practitioners (i.e. lawyers and forensic mental
health experts) lack ‘a shared understanding about why (in)competency
Theoretical Criminology 7(1)
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matters’ (Bonnie, 1992: 293). Given these concerns, the question is whether
a philosophical excursion into the discursive meanings of competency to
stand trial would help facilitate our understanding of trial fitness and
further our regard for how justice is (or is not) served by CST determi-
nations.
Accordingly, this article examines the CST doctrine4in the United States
from the perspective of critical psychological jurisprudence. The method of
analysis includes the interpretive insights of Derridean deconstruction.5In
particular, this article demonstrates how concepts such as the reversal of
hierarchies, differance and the trace, and arguments that undo themselves
provide a fertile intellectual point of departure from which to reveal the
covert and coercive forces of ideology, power and violence situated within
the text of trial fitness. As such, the article concludes by tentatively
exploring what deconstruction as justice signifies in the law–psychology
realm, particularly given this philosophical foray into the competency to
stand trial doctrine. However, before these matters are addressed, some
background comments on the CST determination and how it functions in
the United States are warranted.
At the outset, I note that critical psychological jurisprudence and Derri-
dean deconstruction are relevant to theoretical criminology, to radical
social science and to mainstream behavioral research, especially for those
who study enduring and complex issues in law, crime and justice. In short,
while critical psychological jurisprudence endeavors to establish a radically
inspired philosophy of law steeped in the evolving wisdom of psychology,
Derridean deconstruction, as a discursive method of inquiry, helps expose
the cultural roots of intolerance that breed and sustain misguided policies,
procedures and practices in civil and criminal mental health law. Thus,
deconstructive analysis focuses on the taken-for-granted way in which
narratives are pre-reflectively constructed, reinforced and legitimized. Re-
grettably, criminologists of various stripes have mostly failed to consider
how legal discourse is (un)consciously manipulated to represent a certain
view of criminal justice actors and institutions. In addition, they have
generally neglected to assess what the practical implications are for this
reality construction, especially when determinations about one’s conviction
and/or one’s sentence hang in the balance. Thus, it follows that a decon-
structive inquiry into the concealed forces at work (e.g. violence, ideology,
power) in competency to stand trial matters deepens our regard for the
utility of this methodological approach and its overall relationship to
criminological verstehen.
Competency to stand trial and the US Supreme Court
The contemporary doctrine of trial fitness is derived from the case of Dusky
vs United States.6Although rather brief, the Dusky decision represents the
formula used in federal court, and many state jurisdictions follow the
Arrigo—Justice and the deconstruction of psychological jurisprudence 57
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