Over the past forty years, the United States has replaced its system of mental-health hospitals and asylums with more and more prisons.  Currently, prisons and jails are the largest providers of psychiatric services in the country.  The rate of major mental disorders is five times higher among inmates than among the general population.  The astonishing data reflect the general shift from treating to incarcerating the mentally ill.  Additionally, research shows that many who enter prison with no history of psychiatric disorder experience the onset of mental illness due to the trauma of incarceration.  Nonetheless, criminal defendants in most states do not have a right to competency during state and federal postconviction proceedings. 

In her Note, Hannah Robertson Miller argues that the absence of a competency standard for Texas death row inmates has turned postconviction state and federal habeas corpus proceedings into a “meaningless ritual.”  Without such a standard, postconviction proceedings are deprived of their function, reliability, and accuracy.  Noting the protections historically afforded to mentally ill defendants, Miller focuses on the void left by the denial of the right to competency during postconviction, collateral review of death sentences for prisoners on death row.

Using behavioral and social-science research and conflicting case law, Miller argues for the creation of a postconviction competency requirement to be used in both federal and state habeas corpus proceedings.  In light of the goals of habeas litigation—ensuring the reliability and accuracy of death sentences—a postconviction competency standard would focus on the defendant’s ability to engage in rational and effective communication with his attorney.  Without such a standard, there is a risk that a vulnerable class of criminal defendants will be denied the full extent of their due process rights.