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A Proposal for the Abolition of the Incompetency Plea (with Norval Morris), 40 U. Chi. L. Rev. 66 (1972)


Though neither convicted of a crime nor civilly committed, many incompetent criminal defendants have been, in effect, serving life terms in state mental hospitals.' A study of Massachusetts practice found, for example, that of all incompetent defendants committed to Bridgewater, the relevant state institution, "more .. .had left by dying than by all other avenues combined.' In Jackson v. Indiana, a unanimous Supreme Court ended the common practice of committing for an indeterminate time persons accused of crime but found incompetent to stand trial. Jackson held that an incompetency commitment cannot last longer "than the reasonable period of time necessary to determine whether there is a substantial probability that [an incompetent criminal defendant will become competent] . . . in the foreseeable future" and that "continued commitment must be justified by progress toward that goal."

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