The Supreme Court on dignity.

The Supreme Court on dignity.

The Supreme Court on dignity.

The law, lawyers, and the court.
July 29 2008 5:03 PM

Let Them Be Lawyers

The Supreme Court on the dignity of the mentally ill.

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Breyer had to contend with Faretta's reasoning, however, that a defendant's Sixth Amendment right to represent himself is grounded in notions of individual autonomy and, implicitly, human dignity. His opinion concedes that those concerns underpin the right of self-representation. But Breyer found them insufficient when weighed against a different sort of indignity. "The spectacle that could well result from self-representation at trial is at least as likely to prove humiliating as ennobling," he wrote. "Moreover, insofar as a defendant's lack of capacity threatens an improper conviction … self-representation undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial."

Justice Scalia, writing in dissent for himself and Justice Clarence Thomas, and channeling Ayn Rand, took the opposite view. Even though defendants who represent themselves usually harm their cases, the "choice must be honored out of 'that respect for the individual which is the lifeblood of the law,' " Scalia wrote. He said that the indignity a defendant suffers by making a fool of himself in court is of less concern than "the supreme dignity of being master of one's fate rather than a ward of the State—the dignity of individual choice." Scalia concluded, "Whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice." Could any general counsel to the ACLU have said it better? (Evidently not. Justice Ruth Bader Ginsburg once had that job but sided with the Breyer majority in Edwards.)


In short, Breyer is appalled at the prospect of a mentally ill person being paraded to debase himself in a proceeding he can't intelligently navigate. Scalia is equally dismayed at the Kafkaesque prospect of suspending constitutional rights because Important State Officials know best about what makes a fair trial. In the end, Scalia got this one right, and Breyer got it wrong. While both Justices consider the defendant's dignity, Breyer's concern is ultimately about the criminal justice process, while Scalia's is about the individual with skin in the game.

Breyer's majority opinion also has the disadvantage of rendering murky what once was clear in a number of respects. Going forward, mental health evaluators will have the burden of deciding whether some defendants are competent to plead guilty without counsel but aren't competent to plead not guilty on their own. And there is also the unhappy possibility that the court's ruling will primarily serve to conceal from public view the limited capacity of some defendants. A mentally ill defendant who has been found barely competent but can't represent himself despite his wish to do so won't have the opportunity to expose his relative incapacity the same way he might if he were standing up in court. In that manner, compulsory counsel operates not just as a controller of the accused's defense but also as a screen that shields us from the truth of a defendant's limitations.

At the same time there is a heartening aspect of Edwards. The concept of human dignity, explicit nowhere in the Constitution but implicit everywhere, was the touchstone of the court's debate about what the Constitution should mean for defendants like Ahmad Edwards. Breyer and Scalia disagreed about how best to protect his dignity. But they were both asking the right question. If we're to look, for a concept that animates the Constitution's provisions regarding our relationship to our government, we could surely choose worse than "fulfillment of human dignity."

Cullen D. Seltzer is an attorney with SeltzerGreene PLC in Richmond, Va., and an adjunct law professor at the University of Richmond School of Law.