At age 14, Jimmy was charged with second-degree murder. The victim,
an elderly man, had been struck on the head during a robbery and died
of a heart attack on the way to the hospital. Under a new state law,
juvenile courts could not proceed over murder cases, and so Jimmy was
charged in adult criminal court and assigned public counsel.
As Jimmy's attorney began to investigate the case, she found that
the evidence against Jimmy--which at first seemed substantial--was less
than conclusive. For example, the witness who identified Jimmy had been
drinking and saw the event only from a distance in poor light. When
he was arrested, Jimmy initially told police officers he wasn't there;
after considerable questioning, he tearfully said, "I did it--I want
to go home," at which point his mother insisted the officers stop questioning
Jimmy because he looked ill.
Upon visiting Jimmy at the juvenile detention center, the attorney's
hopes of getting a more complete story quickly evaporated. Although
Jimmy was 14, he acted much younger. It took a long time for her to
get Jimmy to say anything to her. He acted shy and scared, as though
he saw her more as a school principal than an advocate. After several
visits, he finally began responding to her questions, but most of his
answers consisted of shrugs, nods, and partial sentences spoken in quiet
diffidence.
Over the course of several interviews, his explanations of the evening
came out in unrelated pieces that failed to produce a coherent picture.
For example, he eventually told her he was with two other boys the night
of the murder, but he said he didn't know who they were, causing the
lawyer to questions whether Jimmy was fabricating or protecting the
other boys. Further, it was impossible to understand from Jimmy's account
exactly when and where he was with the other boys. She soon found, however,
that Jimmy described other events in this same manner, even those he
had no reason to avoid or conceal. The attorney hoped her line of defense
never required Jimmy to testify; it would be a disaster.
When it came time to decide whether to plead guilty, Jimmy grew increasingly
apathetic, distant, and disinterested. Despite the attorney's careful
efforts to explain the potential consequences of a conviction, and Jimmy's
ability to seemingly understand, she began to doubt whether Jimmy had
any real notion of a long-range future. As far as she could tell, he
rarely thought beyond the Nintendo sessions that the detention center
allowed him every afternoon. Her concern about his ability to comprehend
the true ramifications of his legal plight increased when, contrary
to her advice, Jimmy said he wanted to plead guilty.
Jimmy is a fictitious boy, but the problems he presented for his attorney
are a composite of real frustrations that attorneys encounter when working
with juvenile defendants. Given their developmental immaturity, and
incapacity to understand the trial process, assist their attorneys,
and make decisions that will affect them for the rest of their lives,
can adolescents as young as Jimmy really assist adequately in their
own defense? Does their incomplete development jeopardize the fundamental
fairness of the adjudicative process? Are they truly competent to stand
trial?
A criminal defendant must be capable of meaningful participation in
his or her defense. In other words, the defendant must be competent
to stand trial, having "sufficient present ability to consult with his
attorney with a reasonable degree of rational understanding and a rational
as well as factual understanding of the proceedings against him." (Dusky
v. U.S., 362 U.S. 402 (1960).). In many states, this includes making
decisions about the waiver of important rights. If a defendant is found
incapable of making these decisions at any time during the legal process,
from arraignment to adjudication and sentencing, then the waiver of
constitutional rights during this process may be invalidated.
The issues of juveniles' competency to stand trial has little history
in law. Only in recent years has it emerged to raise new questions of
law and enigmatic problems of legal representation of juveniles. Forensic
mental health examiners across the country report a sudden increase
in the demand for competency evaluations of youths, both in juvenile
and criminal court proceedings. In many states, even veteran court clinicians
say that until two or three years ago, they performed only a few competency
evaluations for juveniles.
What is the reason for the legal system's recent attention to the
question of youths' capacities to participate in their defense? What
special questions about competency are raised by youths' developmental
immaturity? Does the doctrine of competency, as it has developed in
criminal law, provide meaningful answers?
Juveniles' competence in criminal court
The issue of juvenile competency to stand trial began to emerge in the
early 1990s amidst a dramatic increase in violent offenses by juveniles.
Alarmed by this trend, states began changing their juvenile delinquency
laws. Fully 90 percent of states revised their codes pertaining to the
adjudication of youths charged with serious and violent offenses. (Patricia
Torbet et al., State Responses to Serious and Violent Juvenile Crime,
Washington DC, Office of Juvenile Justice and Delinquency Prevention
(1996).) Almost without exception, these changes ensured an increase
in the number of juveniles who, at younger ages and for a wider variety
of offenses, were tried in criminal court rather than juvenile court.
The legislative message was clear: whenever possible, youths would be
punished like adults for their serious offenses. (Thomas Grisso, Society's
Retributive Response to Juvenile Violence: A Developmental Perspective,
20 L. & Hum. Behav. 229 (1996).)
Until recently, almost all youths waived from juvenile to criminal
court were usually 16 or 17 years old, near the upper age limit of juvenile
court jurisdiction. Judicial waiver, traditionally the most common form
of waiver to criminal court, allowed juvenile court judges the discretion
to retain younger adolescents in the juvenile system.
Recent state juvenile justice reforms, however, have replaced or augmented
judicial waiver with prosecutorial discretion to file charges in juvenile
or criminal court, or "waive by exclusion," which automatically places
certain offenses by juveniles under the jurisdiction of criminal courts.
(see Patricia Torbet et al., State Responses to Serious and Violent
Juvenile Crime, Washington DC, Office of Juvenile Justice and Delinquency
Prevention, (1996).) In some states, these reforms lowered waiver to
criminal court to age 14, and in other states, to ages 12 or 13. A few
states specify no age limit for exclusion of certain serious offenses.
(Delaware, Mississippi, Nevada, Ohio, Pennsylvania: Howard Snyder &
Barbara Sickmund, Juvenile Offenders and Victims: A National Report,
Washington, D.C., Office of Juvenile Justice and Delinquency Prevention
(1995).)
This change in the legal system's response to youthful offenders has
produced difficult challenges for criminal justice. Already crowded
criminal court dockets are stretched even further by new cases, in some
states thousands each year, that are no longer under juvenile court
jurisdiction. Issues of competency to stand trial in this younger group
of adolescents are emerging.
For example, throughout the history of criminal justice, adult defendants'
competency has considered incapacity due to mental illness or retardation.
Defendants typically are evaluated by forensic mental health examiners,
who assist the court in weighing the issue. When defendants are found
incompetent, the trial process is delayed while efforts are made to
restore their competence through treatment of their mental incapacity.
If their competence cannot be restored, criminal charges eventually
are dismissed.
Just as the capacities of some adults are limited by their mental
disorders so, too, may some youths' participation in the legal process
be limited by their as-yet undeveloped capacities. Most states' laws
recognize this lack of development in other legal contexts. For example,
the law does not presume that Jimmy and his classmates are capable deciding
about their medical treatment, entering into binding legal contracts,
or operating automobiles.
How will the law respond to cases like Jimmy's, where competency to
stand trial is questioned due to developmental immaturity rather than
mental illness? What should be done with youths who are incompetent
due to immaturity, and cannot simply be "treated" in order to improve
their abilities to participate at trial?
Some states provide that when youthful offenders appear in criminal
court, a hearing must be held to determine whether the case will proceed
in criminal court or be remanded to juvenile court. In some jurisdictions,
these hearings may consider the level of maturity of the youth in question.
Thus, youths who are not likely to possess capacities required for competent
trial participation may be remanded to juvenile court. Some states,
however, do not allow youths to return to juvenile court when they have
been charged with very serious offenses.
In summary, the law appears to be silent on how to deal with youthful
criminal defendants whose capacities to participate in their defense
are questioned on the basis of developmental immaturity. Although most
transfer hearings involved older youths who have committed crimes of
extreme violence, as younger juveniles enter the criminal courts with
increasing frequency, the question of competency seems destined to be
raised.
Competence in juvenile court
The emergence of competency to stand trial in juvenile court has a different
history. During the first 50 years of the juvenile justice system, competency
to stand trial was conceptually irrelevant for juvenile court proceedings.
A justice system that intended to rehabilitate rather than punish had
no need for formal due process or the right to legal counsel. Its objectives
were beneficent, so there was no need for a "defense" for youthful offenders
in juvenile court and, therefore, no necessity for a competent defendant.
The U.S. Supreme Court decisions in Kent v. United States, 383 U.S.
541 (1966), and In re Gault , 387 U.S. 1 (1967), revised delinquency
proceedings, entitling juveniles to many of the same due process rights
afforded to adult defendants. This included a right to counsel and,
presumably, the requirement to be competent to stand trial, without
which the right to counsel would have little meaning. Within another
20 years, about one-third of the states recognized, by statute or case
law, that youths must be competent to stand trial in delinquency proceedings.
(Thomas Grisso, et al., Competency to Stand Trial in Juvenile Court,
10 Int'l J. Psychiatry & L. 1 (1987).) The issue, however, was rarely
raised, and no significant body of case law emerged to define the meaning
of competency in juvenile court hearings.
The competency issue arises now in the context of new laws providing
for waiver of juveniles to criminal court, as well as changes in laws
that apply to juveniles who are not waived. In states that retained
judicial waiver, threshold criteria often were modified (e.g., lowering
the age for allowable waiver, and changes in the standards and burdens
of proof) in ways that increased the likelihood of waiver to criminal
court.
Other laws were revised to assure that youths who remained in juvenile
court faced new and more serious consequences. Many states decided to
authorize juvenile court judges to extend sentences so that youths serve
well into their adult years. For example, in Massachusetts and New Mexico,
juvenile court judges may sentence youths who are convicted of murder
under either juvenile or criminal law. Thus, in Massachusetts, a juvenile
found guilty of murder in juvenile court may serve a life sentence without
possibility of parole. (Massachusetts has no death penalty.)
As juvenile courts have become more similar to criminal courts in
both their process and potential outcomes, the argument that youths
must be competent to stand trial in juvenile court has increased. In
murder cases, a hearing on waiver to criminal court may be one step
toward the death penalty, a step that should require no less due process
than the criminal trial itself. The decisions that juveniles have to
make in a waiver hearing are no less complex than in a criminal trial--arguably
more so, because the range of outcomes is greater. Nevertheless, only
one state ,Virginia, requires that the question of a juvenile's competency
to stand trial as an adult must be decided at the hearing on waiver
to criminal court.
In this context of increasing stakes in juvenile cases, some states
(most recently Arizona and Florida) have amended their statutes with
rules and definitions regarding competency to stand trial in juvenile
proceedings that are nearly identical to those in their criminal codes.
Other states have addressed the question on appeal. For example, in
Georgia, a 12-year-old boy was charged with aggravated sodomy of two
younger children. The defense attorney argued that the youth, who was
diagnosed with mental retardation, could not give a coherent or consistent
account of the alleged event, preventing counsel from obtaining information
critical for the boy's defense. The judge denied the motion, explaining
that Georgia law did not provide a statutory framework that protected
incompetent juveniles from being tried in delinquency proceedings.
The Georgia Court of Appeals reversed. (In the Interest of S.H., A
Child, 469 S.E.2d. 810 (Ga. Ct. App., 1996).) The appellate court noted
that in Georgia, juveniles have rights, such as notice of charges, legal
counsel, and privilege against self-incrimination, all in order to assure
due process and fairness in juvenile proceedings. The court reasoned
that providing these rights would be meaningless if a juvenile defendant
was not capable of exercising them. The value of legal counsel, for
example, was denied in this case if the defendant's incapacity to assist
counsel jeopardized the development of a defense. The court concluded
that youths in delinquency proceedings could be tried only if they were
competent to stand trial.
Recognition of youths' competency to stand trial in juvenile court,
however, is only the beginning of a series of questions yet to be answered
in law, policy, or practice. Most state laws are silent on the definition
of competency in juvenile proceedings, the relevant characteristics
of youths regarding decisions about their competency, and the consequences
of finding a juvenile to be incompetent.
Juveniles' capacities as trial defendants
While the law struggles with these questions, child developmental researchers
have begun to examine what they know about children's and adolescents'
capacities. The John D. and Catherine T. MacArthur Foundation recently
inaugurated a number of projects focusing on juvenile justice issues.
One of these projects is a research initiative, entitled the Program
on Adolescent Development and Juvenile Justice, which seeks to guide
juvenile justice policy, law, and decision makers in several areas,
including juveniles' risk of future violence, amenability to rehabilitation,
developmental questions about their culpability, and their capacities
related to trial competence. Still in the early stage of their work,
the program's researchers review of adolescent development research
is not complete, but as the following discussion will show, it provides
guidance while awaiting more definitive research.
Ultimately, any judgments about the competency to stand trial must
consider the types of abilities that the law deems relevant for defendants
to participate in their defense, as well as the level of those abilities
that are required for a fair trial.
Generally, legal precedent has been clear concerning the types of
abilities that need to be considered. (For example, see Godinez. v.
Moran, 113 S. Ct. 2680 (1993); Richard Bonnie, The Competence of Criminal
Defendants: A Theoretical Reformulation, 10 Behav. Sci. & L., 291 (1992).)
Generally, they include:
the ability to understand the nature and possible consequence of
charges, the trial process, the participants' roles, and the accused's
rights in this process;
the ability to participate with and meaningfully assist counsel in
developing and presenting a defense; and
the ability to make decisions to exercise or waive important rights.
Adult defendants typically manifest these abilities only to some
degree. Although they are considered competent to stand trial, they
usually do not have a flawless understanding of the trial process
or ability to assist counsel. The question for policy and judicial
decisions about juveniles' competence, therefore, is not whether they
have deficits in these areas, but whether their deficits make them
less capable of participating in their defense than the average adult
defendant. (See Thomas Grisso, The Competence of Adolescents as Trial
Defendants, Psychology, Public Policy, and Law (forthcoming), for
a more detailed review of the research described in the following
discussion.)
Youths' understanding of the trial process
Current research suggests that by age 13 or 14, the average youth
tends to have a basic idea of the roles of persons in the trial process.
Further, they can understand that defendants are charged with offenses
and that the consequences may be punitive. More questionable is their
ability to deal with abstract legal concepts that are grasped by the
majority of adults.
For example, adults typically see a legal right as an "entitlement,"
which is provided to them by law and cannot be revoked. In contrast,
research suggests that children think of a right as "conditional"--
something that authorities allow them to have, but which could also
be retracted. It is only around ages 13 or 14 that youths develop
the capacity to think of a right as "belonging" to them, which they
may assert or waive.
Although younger adolescents develop the capacity to think about
rights in this way, most of them do not think this way until they
are older. For example, a comprehensive, government-funded study gave
special tests to 400 delinquent youths in juvenile detention facilities
and 200 criminal adults in order to determine their understanding
of Miranda warnings. (Thomas Grisso, Juveniles' Waiver of Rights,
1981; see also, Thomas Grisso, Juveniles' Capacities to Waive Miranda
Rights: An Empirical Analysis, 68 Calif. L. Rev. 134 (1980).) Even
at ages 14 to 16, only about one-fourth of delinquent youths, as compared
to about one-half of adults offenders, described a "right" in a way
that connotes an entitlement. Thus, when asked what is meant when
police said, "You do not have to make a statement and have the right
to remain silent," many youths indicated a conditional view of legal
rights, such as "You can be silent unless you are told to talk," or
"You have to be quiet unless you are spoken to." Even though youths
may develop the capacity for understanding rights early in adolescence,
it often takes additional time and life experiences before their capacity
influences their actual understanding.
Moreover, to say that youths "on average" develop certain capacities
does not tell the whole story. Not surprisingly, research shows that
understanding of information about the trial process and rights is
poorer for adolescents with lower intelligence test scores, problematic
educational histories, learning disabilities, and mental disorders.
(See, e.g., Robert E. Shepherd & Barbara A. Zaremba, When a Disabled
Juvenile Confesses to a Crime: Should it be Admissible? 9 Crim. Just.
31 (1995).) For example, in the Miranda study noted earlier, delinquent
youths, ages 15 to 17 with low IQ scores, showed significantly poorer
understanding than average 12-year-olds. Moreover, while adolescents
of average intelligence compared well with adults of average intelligence,
the ability to comprehend legal information was poorer in adolescents
of low intelligence than adults of similarly low intelligence.
Age, by itself, is a poor indicator of whether youths between ages
14 16 have reached an adult level of knowledge about the legal process,
or an adult's capacity to understand it. Juveniles at these ages have
various types of cognitive and emotional disabilities, which is characteristic
of many delinquent youths; it simply takes them longer to reach their
adult potential. As a consequence, there is much more varied capacity
level among youths at these ages. This variability gradually decreases
until, in the older adolescent years, it is comparable to adults.
Finally, some courts have assumed that if delinquent youths have
been repeatedly arrested and exposed to court procedures, they are
likely to have a better understanding of legal matters. Current research
does not support this presumption. Certainly some youths will learn
from such experiences and may even become quite sophisticated; others
will learn nothing at all from the same type of experiences. As a
consequence, research is finding that the mere fact that a youth is
a repeat offender is not a reliable indicator of the youth's understanding
of the trial process and rights.
Assisting counsel
Developmental psychologists have focused that fundamental abilities
of sensation, perception, and memory ordinarily mature by early adolescence.
This suggests that on average, adolescents should be about as capable
as adults of providing accurate information (e.g., to their attorneys)
based on their experience. They should also be capable of tracking
the trial process as it unfolds, so that with some assistance, they
can relate the significance of one event for a later one--for example,
contradictory testimony occurring on different days.
The exceptions occur in youths who have specific deficits that impair
these abilities. For example, youths with Attention Deficit/Hyperactivity
Disorder may be so vulnerable to distractions that the significance
of trial events may elude them. Another example is provided by the
Georgia case of S. H., described earlier, involving a youth whose
mental retardation seriously impaired his ability to communicate a
coherent and chronologically meaningful account of critical events.
Mental retardation, however, is not the only circumstance in which
communication deficits may occur. As in Jimmy's case, the youth described
at the beginning of this article, communication may be impaired by
developmental delays and emotional immaturity, even though his intellectual
capacities are otherwise adequate.
Assisting counsel, however, requires more than being able to watch,
listen, and communicate. The youth also must see legal counsel as
someone with whom collaboration is meaningful due to the attorney's
advocacy role and promise of confidentiality. Of course, not all adult
defendants perceive their attorney as helpful and someone to be trusted.
In some juveniles, however, there is not so much a paranoid skepticism
as a simple misperception. Relevant studies suggest that even when
youths can describe the basic advocacy role of counsel ("She's there
to help me--to get me off"), often they have trouble separating the
defense attorney's function from court authority. For example, one
study asked detained juveniles why defendants must be truthful with
their lawyers. About one-third of them (compared to about 10 percent
of adult offenders) believed that this was necessary so that the lawyer
could decide whether or not to advocate the defendant's interests,
to report the defendant's guilt to the court, or to decide whether
to "let him go or send him up." (Thomas Grisso, Juveniles' Waiver
of Rights (1981); see also, Michele Peterson-Badali & Rona Abramovitch,
Children's Knowledge of the Legal System: Are They Competent to Instruct
Legal Counsel? 34 Can. J. Crim.139 (1992).)
It is not difficult to imagine why some youths have this misperception.
For many of them, past experience with adults in authority provides
little reason for them to imagine that an adult in a professional
role would take their side against other adults in a legal process.
(See Emily Buss, "You're My What?" The Problem of Children's Misperceptions
of Their Lawyers' Roles, 64 Fordham L. Rev. 1699 (1996).) Moreover,
not so long ago, in the decade following Gault when defense attorneys
were introduced into juvenile courts, attorneys in delinquency cases
actually had a dual role that was not so different from the one described
by these youths. Vestiges of this duality may still be found in some
circumstances. Overall, therefore, the developmental, social, and
historical circumstances of adolescents raises special questions about
their abilities to work with counsel in their defense.
Making decisions
Making decisions is a critical part of a defendant's role. Some decisions
are related to important rights--waiving jury trial, pleading, and
weighing plea bargains--while others are strategy decisions that must
be considered when developing a defense. Rule 1.14 of the Rules of
Professional Conduct instructs attorneys to maintain a normal client-lawyer
relationship, as far as reasonably possible, when the client's abilities
are impaired due to mental disability or the client's youthful age.
It is appropriate, therefore, for attorneys to advise their young
clients on certain matters of trial strategy and to honor their decision
concerning whether or not to accept counsel's advice, such as to testify,
to provide evidence against one's cohorts, or to reveal family secrets
in court.
An essential part of meaningful decision making is the ability to
foresee the consequences of a decision. Defendants must be able to
imagine hypothetical situations, envisioning conditions that do not
now exist and that they have never experienced, but which may result
based on the choices they make. They must then evaluate these potential
outcomes, comparing them with what they know or imagine to be more
or less desirable or painful in life.
Several studies have found that pre-adolescents are significantly
less capable of imagining risky consequences of decisions and are
more likely to consider a constricted number and range of consequences.
One recent study (with non-delinquent youths) found that pre-adolescents
were less likely than older adolescents to think "strategically" about
pleading decisions. (Michele Peterson-Badali & Rona Abramovitch, Grade
Related Changes in Youth People's Reasoning about Plea Bargains, 17
L. & Hum. Behav. 537 (1993).) Youths begin to develop the ability
to think in terms of hypothetical conditions some time in early adolescence,
but it takes several more years for them to achieve their adult potential
to do this, especially to use this ability in unusual and emotionally
charged circumstances, such as their own legal proceedings. The time
line for this process varies from one adolescent to another.
In general, child developmental researchers are beginning to identify
ways in which adolescents differ from adults in making decisions.
(For reviews, see Elizabeth Scott, Judgment and Reasoning in Adolescent
Decision Making, 37 Vill. L. Rev. 1607 (1992); Elizabeth Scott et
al., Evaluating Adolescent Decision Making in Legal Contexts, 19 L.
& Hum. Behav. 221 (1995); Laurence Steinberg & Elizabeth Cauffman,
Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent
Decision Making, 20 L. & Hum. Behav. 249 (1996).) For example, until
late adolescence, youths more often minimize perceived risks. (Laurence
Cohn et al., Risk-Perception: Differences Between Adolescents and
Adults, 14 Health Psychology 217 (1995).) Time perspective continues
to develop through adolescence, such that younger adolescents are
less likely to focus on longer-range consequences. (Elizabeth Cauffman
& Laurence Steinberg, Age Differences in Decision-Making Are Due to
Differences in Maturity of Judgment (manuscript in review, 1997).)
Moreover, their decisions may be related to certain values, such as
the importance of peer approval, which may result in choices they
would not make when their values and sense of personal identity have
matured.
One might expect such differences to be reflected in youths' judgments
about the value of accepting plea bargains and of waiving important
rights in the legal process. For example, in the Miranda study of
more than 400 detained youths described earlier, juveniles were asked
to imagine the consequences of waiving or asserting rights to silence
when questioned by police. The consequence mentioned most frequently,
especially by younger adolescents, was the immediate response of the
police ("They might send me home tonight if I say I did it"), rather
than the impact of the decision on later events in court. (Thomas
Grisso, Juveniles' Waiver of Rights (1981).)
Much more scientific evidence is needed, however, before we know
whether and how youths' immature judgment influences their decisions
in their criminal and juvenile court trials, and some child development
researchers are examining those questions. If they find that younger
adolescents are greatly at risk of making decisions at trial that
they might not make if they were adults, this will be of considerable
importance in a time of juvenile justice reform that increases the
likelihood that youths will suffer the consequences of their immature
decisions well into their adult years.
The law's response to questionable competence
The evidence discussed in this article identifies significant differences
between youths younger than 14 and older adolescents or adults in
most of the abilities that are relevant for defendants' participation
in their trials. This conclusion about pre-adolescents and younger
adolescents is consistent with the results of the only study to date
of forensic mental health examiners' opinions about youths' competency
to stand trial. The study involved all 144 youths who were referred
to South Carolina's William S. Hall Psychiatric Institute for competency
evaluations during a seven-year period. (Vance Cowden & Geoffrey McKee,
Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive
Maturity and the Attorney-Client Relationship, 33 U. of Louisville
J. Fam. L. 629 (1995).) Only one-fifth of youths younger than 13,
and only about one-half of 13-year-olds, were evaluated as competent.
In other studies, about 80 90 percent of adults referred for competency
evaluations were considered competent.
If the available evidence is correct, is it just to try defendants
younger than 14 in criminal court, when it is considered unjust to
require adults to defend themselves if they are similarly disadvantaged
due to mental disabilities? In contrast, it may be justifiable to
try youths younger than 14 in juvenile court, despite their immaturity
and questionable capacities, to the extent that juvenile justice sanctions
are for shorter time periods and continue to have some rehabilitative
objective, even in an era of punitive reform.
The message is different for older adolescents. The evidence suggests
that some youths between the ages of 14 16 are not markedly different
from adults in their abilities related to competency to stand trial.
Yet the range of abilities among youths at any of these ages is much
greater than among adults. While some youths acquire these abilities
by mid-adolescence, others progress more slowly and achieve their
adult capacities only near the end of their adolescent years. Therefore,
for this age group, policy makers may wish to require mandatory review
of juveniles' competency to stand trial, whenever they youths face
criminal court proceedings or juvenile proceedings that may lead to
criminal adjudication.
Questions about the legal definition of competency to stand trial
as it applies to adolescents require immediate attention by policy
makers. As noted earlier, current standards for competency to stand
trial in criminal court identify incompetence as produced by serious
mental illness or mental retardation. In contrast, the current review
suggests that some adolescents' capacities to participate in legal
proceedings are impaired for reasons that would not fall within these
categories--developmental immaturity, as well as learning disabilities
or emotional disturbances that can delay cognitive and social development.
Criminal courts appear not to have dealt with this question to date.
Recognition of developmental immaturity as a relevant factor would
seem to be a more familiar notion for juvenile courts, but its relation
to the law of competency to stand trial in juvenile court is quite
uncertain. For example, lawmakers are only now beginning to address
whether criminal statutory provisions governing competency to stand
trial apply in delinquency proceedings, or whether the circumstances
of juvenile court adjudication allow for somewhat different standards.
(see State v. E.C., 922 P.2d 152 (Wash. Ct. App. 1996), giving juvenile
courts greater latitude in handling incompetent juveniles, if that
is necessary in order to meet the needs of a particular juvenile offender.)
Perhaps the most perplexing problems to be faced pertain to the
disposition of youths when they are found incompetent to stand trial
due to developmental immaturity. The disposition for incompetent defendants
in criminal law includes treatment to restore competence within a
time limit, after which continued incompetence must result in dismissal
of charges (see Jackson v. Indiana, 406 U.S. 715 (1972)). This remedy
was framed in the context of mental illness as the cause of incompetency.
This dispositional scheme, however, makes less sense when incompetence
is due to a youth's immaturity or delayed development. In many cases,
modifying these conditions--for example, providing remedial education
and allowing the youth "time to mature"--could take longer than the
time allowed in most states' provisions, resulting either in dismissal
of charges or in lengthy state custody of juveniles without adjudication.
This is another instance in which the mere extension of criminal law
provisions does not fit the special circumstances of juvenile defendants,
creating the need to formulate special remedies that protect the rights
of youths while at the same time addressing the state's need to adjudicate
serious acts of juvenile delinquency.
What remedies are possible? Just as is done with adults, it is appropriate
for youths deemed incompetent in juvenile or criminal court due to
mental illness or mental retardation to be committed and treated to
restore competency. To deal with incompetence due to developmental
immaturity, however, it would first be necessary to legally recognize
two propositions on which potential remedies could be based:
Defendants below the statutory age for juvenile jurisdiction may
be found incompetent for reasons of developmental immaturity in both
juvenile and criminal court.
The threshold for competency to stand trial--the degree of ability
required--should be considered lower for adjudication in juvenile court
than in criminal court (with the exception of juvenile court hearings
on waiver to criminal court.)
A lower threshold for competence in juvenile court might be justified
on the basis of the lesser severity of consequences of adjudication
on delinquency charges, as well as the continuing obligation to provide
rehabilitative services to youths found delinquent.
Given legal recognition of these concepts, when youths do not meet
the standard for competency in criminal court due to developmental
immaturity, their criminal charges could be dismissed and filed later
as delinquency charges in juvenile court. The lower threshold for
competency in juvenile court proceedings may allow them to proceed
to adjudication, although the justification for the lower threshold
would require that the consequences would be confined to dispositions
that would not involve incarceration beyond the age of jurisdiction
of the state's juvenile correctional authority.
Some youths proceeding in juvenile court might not even meet the
juvenile court's lower threshold for competence. Although no empirical
data are available, one suspects that this group would be very young
and would constitute a very small proportion of delinquent youths.
In cases that involved offenses of moderate seriousness, courts might
see fit to dismiss the charges in light of the youth's very young
age and the family's willingness to make use of appropriate social
services. Yet there would remain a small number of important and troublesome
cases involving offenses too serious to dismiss, such as the nine-year-old
habitual house-breaker who shoots an unexpected occupant, or the 11-year-old
who kills his parents because he says they were too strict.
No clear remedy for handling this small minority of youths is apparent.
Whatever the solution, it probably will require systemic changes,
not merely statutory changes pertaining to the competency of juvenile
defendants. Most states' juvenile justice systems do not even have
appropriate settings to rehabilitate adjudicated nine-year-old murderers,
much less supervise their development while they reach sufficient
maturity to be competent to stand trial.
Lawyer response to youths' incapacities
While the law begins to deal with these challenges, attorneys who
represent youths in cases involving serious offenses should be sensitive
to the capacities of their clients to participate in their defense.
When a youth's incapacities are identified, however, a motion for
a finding of incompetency need not be the first order of business,
nor is it necessarily in the youth's best interest. The attorney might
first consider what steps are necessary, within the reasonable role
of counsel, to try to augment the youth's understanding or decision-making
ability.
Sometimes this can be accomplished by providing careful and simplified
explanations and discussion that may enable the youth to understand.
Parental assistance might be considered. Although exceptions exist,
a parent may be in the best position to help communicate matters in
ways their children can understand, or to assist the youth in dealing
with decisions that exceed the youth's own abilities or emotional
capacities.
When these efforts fail, however, attorneys may consider raising
the question of youths' competency to stand trial, especially (a)
when their capacities actually preclude their meaningful participation
in their defense, resulting in an unfair trial, and (b) when their
immature decisions place them in serious legal jeopardy that otherwise
might be avoided. When an attorney raises the question of possible
incompetency to stand trial, typically the court will order an evaluation
of the defendant by a mental health professional who is qualified
to perform evaluations and testify about the defendant's capacities.
Attorneys must be attentive to the special difficulties of the evaluation
process as it pertains to adolescent defendants.
If the case is in criminal court, the examiners who perform the
evaluation often will have had little or no experience in assessing
adolescents because, until the recent influx of adolescent cases into
criminal courts, they have evaluated adults. Their attention, therefore,
will be on the presence of mental illness or mental retardation, but
not necessarily on the ways that developmental immaturity may be responsible
for deficits in youths' abilities to stand trial. Moreover, mental
health professionals who are imminently qualified to diagnosis mental
disorders in adults are not necessarily qualified to identify adolescents'
developmental disabilities or mental illnesses.
In contrast, examiners who have performed evaluations primarily
in juvenile courts will be better prepared to identify mental disorders
among adolescents; however, because competency has not often been
raised in juvenile court, they may be less familiar with the concept
and assessments related to it. They, too, may believe that only mental
illness is relevant for the question of competence, or that the competency
definition is satisfied if the youth simply knows the charges, knows
the potential outcomes, and knows generally about the trial process.
If they are unfamiliar with mental health law concepts typically associated
with criminal cases, they may confuse the question of competence with
that of criminal responsibility: that is, the youth's mental status
at the time of the offense as it relates to questions of insanity
and reduced culpability.
To avoid these problems, attorneys must be particularly attentive
to the qualifications of mental health examiners and the quality of
their competency evaluations. They should consider requesting that:
the examiner appointed by the court will be qualified to evaluate
children and to perform competency to stand trial evaluations;
the examination will include not only an assessment of mental disorder,
but also an assessment of developmental disabilities and cognitive and
social developmental status; and
the assessment will include the full range of abilities relevant for
competency to stand trial: (a) understanding of the charges, consequences
and trial process, (b) cognitive, attentional, communication, and interpersonal
abilities relevant for assisting counsel meaningfully, as outlined earlier
in this review, and (c) capacities for decision making about rights
that are essential for due process.
In conclusion, cases like Jimmy's have taken on new significance
in an era of punitive juvenile justice reform. The presumption that
adolescents should be held to adult-like accountability does not necessarily
mean that their capacities to participate in their defense will meet
legal standards that ensure the integrity of the juvenile and criminal
justice systems. In In re Gault, the U.S. Supreme Court observed that
juvenile justice had provided youths the worst of both worlds: denial
of due process rights in exchange for beneficence that was never received.
Providing them due process rights in a fully adversarial system of
justice is no better if we fail to identify youths whose immaturity
negates their ability to exercise those rights.
Thomas Grisso is professor of psychiatry (clinical psychology) in
the Law-Psychiatry Program at the University of Massachusetts Medical
Center, where he is the director of Forensic Training and Research.
He is a member of the John D. and Catherine T. MacArthur Foundation
Research Program on Adolescent Development and Juvenile Justice, which
supported the preparation of this article.
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