Mental incapacity or incompetence can play a big role when it comes to sentencing a criminal defendant - the person convicted of a crime. Generally, a defendant's incapacity results in:

  • A reduced sentence under the US Sentencing Guidelines, or
  • Delaying sentencing until he gets better

Mental incapacity is treated differently in the federal and state courts. Some state courts follow the federal rule, while others don't. Check the laws that apply to your case to see how any claim of mental incapacity will impact your case at the sentencing phase.

Sentencing Guidelines

Federal courts use the US Sentencing Guidelines (Guidelines) when figuring out a defendant's sentence. They work like a math formula or points system. The higher the points, the harsher the sentence.

Some things can lower the points and so lower the sentence. These are called "mitigating factors."

Diminished capacity is a mitigating factor. This means that the defendant, at the time he committed the crime, couldn't fully understand that his actions were wrong, couldn't think clearly, or couldn't control himself.

Medical and psychological conditions are covered here, like mental retardation and schizophrenia. These make it difficult or impossible for a defendant to understand what he's doing.

Postponing Sentencing

Under the Guidelines, diminished capacity doesn't apply when it was caused by someone's voluntary drug or alcohol use. So, someone who has a mental or psychiatric disorder and commits a crime may get a reduced sentence, while someone who doesn't have the disorder and commits the same crime while drunk or intoxicated won't. State laws vary on this point.

Postponing Sentencing

Practically, defendants with any type of mental or psychological problem will raise it as a defense to the crime long before the sentencing phase begins. Still, it's possible that a defendant didn't have a mental disorder before sentencing, or maybe no one knew or he didn't show any symptoms.

When this happens, federal law, as well as many state laws, stop sentencing. The process stops until the judge is satisfied that the defendant has the mental capacity to understand the trial's sentencing phase. The prosecution or the defense attorney may bring the matter to court's attention and ask for a hearing about the judge's mental condition. Or, the judge may order a hearing if she notices a problem. The hearing must be requested within 10 days after the defendant is found guilty and before he's actually sentenced by the court.

At the hearing, if the judge believes the evidence shows some mental or psychological disorder, she may order the defendant to undergo further testing and analysis. It's possible that a defendant may be placed in a mental health facility for treatment. Sentencing continues when he's recovered.

If a defendant can't recover, a civil (non-criminal) action may be started by the state or local authorities to have the defendant declared incompetent. This allows for commitment to psychological or mental facility for long-term care and treatment.

Questions for Your Attorney

  • A judge found that my son was competent to stand trial, and so his court-appointed attorney says it's a waste of time to try to use diminished capacity to get his sentence reduced. What do you think?
  • My daughter's attorney didn't call the court's attention to her emotional disorder. None of us knew about it until after trial. She's already been sentenced. Is there anything we can do to have the sentence reduced?
  • I've been charged in state court with vehicular homicide. I caused this terrible accident because I forgot to take the epilepsy drugs. Is this "diminished capacity"? Can we use it to get my sentence reduced if I'm convicted?