Juvenile Justice Articles

Criminal Justice Magazine
Fall 2003
Volume 18 Number 3

Juveniles on Trial
MacArthur Foundation Study Calls Competency into Question

By Laurence Steinberg

Laurence Steinberg, Ph.D., director of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, is the Distinguished University Professor and Laura H. Carnell Professor of Psychology at Temple University in Philadelphia, Pennsylvania. He has written extensively on many aspects of adolescent development, including family relationships, youth employment, school achievement, and psychopathology.

Andy was just 11 when he started hanging around with the teenage gang members in his neighborhood. They used him as a lookout when they sold drugs . . . until one drug deal turned violent and two people were shot. That's how Andy ended up facing a charge of murder. The prosecutor offered a deal: Andy could admit he was there, testify against the others, and face a few years in juvenile detention. Otherwise, he would be transferred to adult court and, if found guilty, spend a much longer time in detention and prison. Andy had just a few minutes to make a decision that would determine the rest of his life. He chose to take the risk: He would go to trial.

A psychologist was called in to evaluate the boy's competence. "Do you understand what happens if you're found guilty?" she asked. "Yes," Andy said, "I'll go to prison for a long, long time." Weeks later, another examiner asked Andy the same question and got the same response. This time, though, she asked him to give an example of what he meant. "It's like when you do something bad," the boy explained, "and your mother sends you to your room for the whole weekend." (A true incident, though the boy's name and other details have been altered to protect his identity.)

The way this country deals with young offenders has changed dramatically in the past 10 years, with more children-at a younger age-being tried as adults in criminal court. Even juvenile courts are meting out more serious penalties. This shift in both policy and practice highlights the need for attorneys and youth advocates to knowledgeably contemplate the issues of blameworthiness and responsibility, the role and effectiveness of rehabilitation, and the competence of young people to participate in the legal process.

That defendants should be able to understand the charges against them and to assist in their own defense is a given in adult legal proceedings. But as the opening vignette illustrates, children and adolescents don't-in fact they can't-think like adults. They may commit the same criminal acts as adults, but, as this article will demonstrate, many adolescents are neither emotionally nor cognitively mature enough to understand the full ramifications of their actions or what will transpire once they enter the legal system. Despite the fact that attorneys and judges need guidance to recognize and address these issues in dealing with young defendants, the relationship between immaturity and competence to stand trial has been largely ignored in research and policy circles. The MacArthur Juvenile Competence Study (see The MacArthur Study, page 23), was designed to help close that knowledge gap. Our study confronts policymakers and courts with an uncomfortable reality: many young offenders-particularly those under the age of 14-may not be appropriate subjects for criminal prosecution.

A century of change

The juvenile justice system was founded just over a century ago on a revolutionary concept: children are different from adults, and the justice system should reflect these differences. Recognizing that young people may be less culpable than adults and more amenable to change, reformers acknowledged society's responsibility to protect children and created a system whose central tenets were not punishment and retribution, but protection, treatment, and rehabilitation.

But in the 1990s, the public trust in the system began to erode. The late 1980s and early 1990s saw a dramatic increase in homicides and other violent crimes committed by juveniles (due, many experts claimed, to an increase in the availability of guns). The public demanded action. Legislators spoke of a nation under siege by a generation of "superpredators," and states instituted tough legal reforms. They lowered the age at which youths could be tried in adult criminal courts, and expanded the range of offenses for which that was possible. Many states took the power to handle younger offenders out of the hands of juvenile court judges and gave it to local prosecutors, and made transfer to adult court for certain offenses mandatory or increased the severity of penalties available to juvenile courts.

By the mid-1990s, 48 states had revised their codes pertaining to youths charged with violent offenses. Twenty-three states and the District of Columbia now have no minimum age at which children can be tried as adults for the most serious offenses. In the remaining 27 states, the minimum age ranges from 10 to 15. Today, an estimated 200,000 American youth under the age of 18 are tried as adults each year; about 12 percent of these are younger than 16.

The message is clear: Youths will now be treated like adults for serious crimes. But if children are to be treated as adults, they must also have all the protections the law extends to adults.

The law and competence

United States law requires that defendants in criminal cases must be "competent to stand trial." (Dusky v. United States, 362 U.S. 402 (1960.) That means they must be able to comprehend the charges against them; have a basic understanding of the roles of the opposing attorneys, judge, and jury; be able to consult with their attorney in a meaningful way; and be capable of weighing the consequences of the decisions they have to make, such as whether or not to accept a plea agreement.

In the juvenile justice system, by contrast, competency played virtually no role until the U.S. Supreme Court ruled in the mid-1960s that juveniles are entitled to many of the same due process rights as adults. (Kent v. United States, 383 U.S. 541 (1966) and In re Gault, 387 U.S. 1 (1967).)

This raised new and perplexing legal questions. Historically, the concept of incompetence has been used almost exclusively for adult defendants with mental illness or mental retardation. Adolescents bring a very different issue to court: developmental immaturity. Only recently have the courts begun to ask pointed questions about the developmental factors that might influence a young offender's competence to stand trial.
Inside the brain of the adolescent

Adolescence-roughly the years between 10 and 17-is a time of rapid and dramatic change that varies not only among individuals, but also along different dimensions within any given individual. One 15-year-old, for example, may be quite mature in appearance, but emotionally still a child. Another may be intellectually ahead of his or her peers, but lag far behind in social skills. A teenager may act like an adult one day and be very impulsive the next, or mature in one social setting and impulsive in another.

The adolescent's cognitive, psychological, social, and moral development is not simply a matter of life experience: It has a significant biological basis. New medical imaging techniques, such as PET scans and functional MRI, are starting to reveal aspects of brain development that take place during adolescence. One is the maturation of the frontal lobe that oversees high-level cognitive tasks such as hypothetical thinking, logical reasoning, long-range planning, and complex decision making. We now know that during adolescence, the frontal lobe is a hub of activity: Neurons are wrapping themselves in myelin sheaths that speed the transmission of electrical impulses, while the "pruning" of unneeded synaptic connections is increasing the efficiency of mental processing. Elsewhere in the brain, the limbic system-the center of emotional processing-is increasing its connections, paving the way for a better integration of emotional and cognitive processes.

During the time these processes are developing, it doesn't make sense to ask the average adolescent to think or act like the average adult, because he or she can't-any more than a six-year-old child can learn calculus. But what exactly are adolescents' cognitive and psychosocial capacities? And how do those capacities-or their absence-relate to an adolescent's competence to stand trial? These were the basic questions we set out to answer in the MacArthur Juvenile Competence Study.

What we looked at in the study

Joe is 14 years old. He's been in trouble with the police in the past. Last night, Joe and three of his friends robbed a storekeeper with a gun. The robbery wasn't Joe's idea, but he stood as a lookout inside the front door of the store. The police think Joe was involved in the robbery. They picked him up and took him to the police station. . . .
(Hypothetical situation from the MacArthur Judgment Evaluation.)

We designed the Juvenile Competence Study to examine three basic questions:
1. Do adolescents differ from adults in their abilities to participate in the adjudicative process, including police interrogation, consultation with their attorney, and trial?
2. If they do, in what types of youths are these differences most apparent?
3. And what kinds of deficits have implications for law, policy, and practice?
(The study did not address questions of adolescents' blameworthiness or their amenability to rehabilitation.)

Since our aim was to determine whether there were differences among young adults and adolescents of different ages, we tested males and females ages 11 to 24. Half of the 1,400 participants were in jail or in juvenile detention centers at the time; the rest were drawn from the general population. To provide cultural, ethnic, and socioeconomic diversity, we conducted the testing at sites in Philadelphia, Los Angeles, Virginia, and Florida.

Because there is no absolute definition of "competence" in the law, there is no way to directly test for it. Instead, we used the participants' responses to hypothetical situations to evaluate a variety of abilities related to competence. The vignette above is a hypothetical situation taken from the MacArthur Judgment Evaluation, a tool designed specifically for this study and used to assess how immaturity affects the choices defendants make. Beginning with "Joe's" participation in a robbery, the test describes a series of decisions he would have to make-how to respond to police interrogation, whether to share information with his defense attorney, and whether to accept a plea agreement-and presents participants with choices about how Joe ought to respond. The reasons that participants give for their choices, when scored by our trained raters using a predetermined set of criteria, allow us to assess three key aspects of psychosocial maturity: the ability to evaluate risk, to think about future consequences, and to resist peer pressure.
A second evaluation tool, the MacArthur Competence Assessment Tool-Criminal Adjudication, is a well-researched instrument used with adults to assess their functional abilities related to competence. This test, like the other, describes a hypothetical crime and the events that unfold as a result. It then asks questions designed to elicit the participants' understanding of courtroom procedure and the people involved; their ability to recognize information that may be important to the situation; and the reasoning that goes into their decision making. Adults who score low are generally impaired by mental illness or retardation; we wondered whether youths without these impairments might score low for reasons related to their immaturity.

We also gathered data on a number of other variables describing the participants, including their age, gender, ethnicity, socioeconomic status, experience with the justice system, intelligence, and mental health problems. We wanted to see how these factors might contribute to developmental maturity and the capacities related to competence. We were aware that the population of delinquent youths has a relatively high prevalence of mental disorders and an average IQ about 20 points below that of the general population-two factors with the potential to affect competence.

What we found

The results of our study strongly suggest that about one-third of 11- to 13-year-olds and one-fifth of 14- to 15-year-olds probably are not competent to stand trial.

Compared to young adults, many of these young adolescents have essential deficits in their knowledge of the judicial process. Many of them don't understand what a jury does or what the role of the judge is. Often they don't know the difference between the defense and prosecuting attorneys. They are less likely to recognize their rights under the law, even when those rights are explained to them.

But there are even more fundamental differences. Many children 15 and younger-and especially those 13 and younger-are not able to put facts together and draw logical conclusions, and less able than adults to think about the future consequences of their decisions.

The study found that in matters regarding trial-related understanding and reasoning about important information, 30 percent of those 11 to 13 years old, and 19 percent of those ages 14 and 15, performed at the level of mentally ill adults who have been found not competent to stand trial. (For older adolescents and young adults, the figure is 12 percent.) In matters regarding legal decision making, such as talking to police, consulting with their lawyer, and accepting a plea agreement, we found that adolescents 15 and younger were significantly more likely than older adolescents or young adults to go along with what an authority figure seemed to want. Those age 13 and younger were also less likely to understand the risks or to consider the long-term consequences of their choices.

The findings offer another important insight: adolescent immaturity may affect their behavior as defendants in ways that extend beyond competence to stand trial. For example, as a group, adolescents are more willing than adults to confess rather than remain silent when confronted by an authority figure such as the police-especially if they believe it will result in an immediate reward, such as going home. For similar reasons, they may be more likely to accept a prosecutor's plea agreement.
These age-related findings hold true, we found, regardless of gender and ethnicity, and across geographic and socioeconomic boundaries. Perhaps most surprising, the findings are also consistent regardless of the participant's previous contact with the legal system; it seems that prior experience in the legal system is of little help to a mind that is not ready for it.

One factor that did make a difference is intelligence. Adolescents with below-average intelligence were most likely to lack the abilities related to competence. This is an especially important finding because a disproportionately large number of young people in the juvenile justice system are of below-average intelligence. Among the study participants in the "detained" group who were 15 and younger, two-thirds had an IQ under 89-compared to just over one-third of participants drawn from the community. (This study did not sample individuals with serious mental illness, another factor that is disproportionately represented in the juvenile justice system. Other research shows that about 60 percent of youths in the juvenile justice system, compared to 20 percent in the general population, have mental disorders such as depression, anxiety, and suicidal ideation. (Linda A. Teplin, Karen M. Abram, Gary M. McClelland, Mina K. Dulcan & Amy A. Mericle, Psychiatric Disorders in Youth in Juvenile Detention, 59 Archives of Gen. Psychiatry 1081, 1133-43 (2002).))

What do the findings mean?

The results of the MacArthur Juvenile Competence Study are consistent with what developmental psychologists have long known: that children reach an important juncture in development around the age of 16. Before that point, many adolescents lack the capacities that are needed to be a competent defendant. In the human organism, it seems, there are some fundamental aspects of judgment and reasoning that don't come fully online until later in adolescence.

The study reminds us of the need for evaluations and safeguards, not only at trial, but also in juveniles' interactions with police, with defense and prosecuting attorneys, and in plea bargaining in both criminal and juvenile proceedings. Those who deal with young people charged with crimes need to be alert to the impact of psychosocial factors on adolescents' attitudes and decisions, even when their understanding and reasoning appear to be adequate. For example, we must recognize that adolescents' attitudes toward authority figures, as well as their deficits in risk perception and future orientation, make them more vulnerable to police coercion and undermine their decision making in ways that standard assessments of competence do not capture.

There are also more specific implications and questions for policymakers and legislators, defense attorneys, prosecutors, and judges.

Policymakers and legislators. The study was intended to offer guidance to state legislators and policymakers seeking to develop meaningful laws dealing with juvenile offenders. Questions of juvenile competence are new to the law, but they turn on longstanding issues of justice and fairness. Policymakers must ask themselves: Is criminal court trial fair for young defendants who are disadvantaged by their immaturity, when adults who are similarly disadvantaged by mental disabilities are deemed incompetent to stand trial?

Our findings suggest that states should reexamine the age at which it is permissible to try juveniles as adults. States may wish to consider making competence evaluations mandatory before a young adolescent is tried in the adult system, or to create a legal presumption of incompetence below a certain age.

Robert Schwartz, cofounder and executive director of the Juvenile Law Center (and a member of the Research Network and the study team), notes that some states require a finding of competence before a juvenile is transferred to criminal court. "But where that's not the case," he says, "the judge can-and should-consider competence first."

The study also suggests that competence evaluations of juveniles that focus only on what the youth does or doesn't understand are incomplete. Many of the differences between adolescents and adults have to do with their ability not merely to understand things, but to use information to make decisions.

In addition, the findings raise questions about the issue of competence in juvenile delinquency proceedings. Should all young adolescents be evaluated for competence, even in juvenile court? Should the standard for competence in juvenile court be less demanding, since sanctions are typically less severe and because rehabilitation still plays a role in the juvenile system? If some young defendants who could not be tried as adults can be tried in juvenile courts, are there changes that need to be made in the juvenile system? And how should policymakers deal with adolescents charged with a serious crime who are found incompetent to be tried in either system?

Defense attorneys. Young adolescents facing criminal charges are in a difficult and frightening position. In a very brief period of time, and under extreme pressure, they must make decisions that will affect the rest of their lives-and they will have to make those decisions alone. No one-not a parent, not a lawyer-can decide for a defendant how to plead.

Competence is the first question defense attorneys have to confront in these cases, says Patricia Lee, deputy public defender in the Juvenile Court in San Francisco and a member of the MacArthur Research Network.
"Many of these kids have been traumatized, they suffer from cognitive deficits and learning disabilities, they've been abused or abandoned by their families," Lee points out. "Now they're in a situation where they may have been sitting in a holding cell for hours, the police are pressuring them to waive their rights, prosecutors are offering plea bargains, and the judge, who may be rushing through 20 or 30 cases a day, is demanding an answer. I question whether any of these kids understands what's happening."

Lee notes that the burden is on defense attorneys to make sure their clients understand the situation and the choices they must make. To do that, she says, you have to know your client's level of development. That's a complicated task; few defense lawyers, even those who work exclusively with juveniles, have a sophisticated understanding of adolescent development. For Lee, the study underlines the need for defense lawyers not only to raise the issue of competence for their clients, but also to find an appropriate professional to conduct the evaluation.

Prosecutors. Prosecutors also have a difficult task: as representatives of the people, they must balance a concern for public safety with the desire to be fair and to follow constitutional restrictions against prosecuting an incompetent defendant.

Amy Holmes Hehn, another member of the MacArthur Research Network, is senior deputy district attorney in charge of the Juvenile Unit in Multnomah County (Portland) Oregon. She points out that the same characteristics that can make a juvenile incompetent can also make her (or him) a threat to public safety.
"Adolescents are different from adults," Hehn says, "but those differences don't necessarily make them 'safer.' Some of the features that make them different-like impulsivity, a limited ability to see long-term consequences, and feelings of invincibility-can also, in some situations, make them more dangerous. Immaturity may make a youth unqualified to stand trial, but it doesn't make the victim feel any less victimized."

Hehn also points out that the study does not indicate that all juveniles under a given age are incompetent. "What it really tells us," she says, "is that the younger a kid is, and the lower the IQ, the more important it is to look at issues of competence and sort them out. The burden is on the defense to get the process started, but the system also needs a structure for evaluating juveniles and deciding what to do." At present, she adds, we don't have a good evaluation tool, and many systems have neither the people to do evaluations nor a process for dealing with juveniles who are found incompetent.

Judges. Although law and policy set guidelines, the responsibility of ruling on a defendant's competence lies with the judge. Most judges, though, are not experts in adolescent development, and few have considered the role of developmental immaturity in competence. An issue for all justice systems is the continuing education of judges, attorneys, and the people who conduct competence evaluations. Indeed, for judges, the competence of the evaluator is a critical issue.

"You have to have good evaluators," says Kimberly O'Donnell, a judge in the Richmond, Virginia, Juvenile and Domestic Relations Court, and member of the MacArthur Research Network, "and judges need a way to determine exactly how good they are. What kinds of questions should we ask to ensure they have an adequate understanding of the issues they're evaluating? What training and qualifications should they have? What tools and instruments should they use? It would be helpful for all judges to have a handbook or checklist for guidance."

A related issue, according to O'Donnell, is deciding what the standards of competence should be-particularly in juvenile court. It's ironic, she says, that having created a system for dealing with kids too young to be deemed competent, we then create a mechanism for "opting them out."

"The fact is, the juvenile justice system has become so punitive, the consequences of a juvenile adjudication have such long-term effects on kids' lives, that we have to address the competence issue," O'Donnell acknowledges. "But there's still a real difference between juvenile and criminal court, and I think-as the study pointed out-it may be appropriate for juvenile courts to have a lower standard of competence in some situations."

Some open questions

Our competence study shows why it is important to expand the way the justice system looks at young people's competence to stand trial. The next question is how: the system still lacks appropriate tools and procedures for assessing adolescents' competence.

The Research Network is addressing that issue now. We're developing a standardized protocol, based on some of the assessment tools used in the competence study, that mental health professionals can use to evaluate the developmental status and competence-related abilities of adolescents. We're also looking at a broader evaluation process that might include factors such as the youth's mental health history and current mental status, his or her educational background, and his parents' ability to provide emotional and practical support. The aim is to provide better, more appropriate information to attorneys and judges who must make competence decisions about youths.

Better information should also help advance policy discussions about juvenile competence. Among the questions policymakers need to consider: How much ability is enough to be considered competent? Should the required level of ability be absolute, or should it depend on the particular circumstance of each case? Should there be standards for competence in juvenile as well as criminal court? (Most states have so far left this question unresolved.) If so, should the standards be different from those in criminal court?

An equally challenging question concerns what should happen to young offenders who are found incompetent to stand trial. Practice now varies widely among jurisdictions: these youths may be dealt with in juvenile court, given probation, removed to foster care or a residential treatment facility, or even continued in custody until they become competent-a daunting possibility when the time it takes for a child to mature may be longer than any possible sentence.

Finally, we should point out again that our study of juvenile competence does not address two other critical factors in dealing with young offenders: their still-developing psychological capacity to be fully responsible for their actions, and their potential for rehabilitation. These concerns, which were fundamental in the creation of the juvenile justice system, are now the focus of other studies by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice.

Although the challenges are complex, the message is clear: adolescents are not miniature adults. Their immaturity is real, and it must be taken into account in a justice system that is striving to be both effective and fair.

The MacArthur Study

The MacArthur Juvenile Competence Study is a research project undertaken by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, and was funded by the MacArthur Foundation with additional support from the Open Society Institute.

The network is an interdisciplinary "research institute without walls," based at Temple University in Philadelphia, whose members include leading scholars, policy experts, and practitioners in child and adolescent development, psychology and psychiatry, and juvenile and criminal law. Its research-aimed at helping practitioners and policymakers make more informed, more effective decisions-focuses on two broad issues: the competence and culpability of adolescents, and the factors that influence their antisocial behavior.

The study was directed by Thomas Grisso, professor of psychiatry at the University of Massachusetts Medical School. In addition to Grisso and Laurence Steinberg, researchers on the MacArthur Juvenile Competence Study included Jennifer Woolard, Georgetown University; Elizabeth Cauffman, University of Pittsburgh; Elizabeth Scott, University of Virginia School of Law; Sandra Graham, University of California-Los Angeles; Fran Lexcen, University of Massachusetts Medical School; N. Dickon Reppucci, University of Virginia; and Robert Schwartz of the Juvenile Law Center in Philadelphia.

Phase I of the study, which ran from 1997-2002, collected data to compare youths and adults regarding their capacities as trial defendants. The results, based on the study of more than 900 youths and more than 450 adults, were reported by the members of the research team (Grisso, et al.) in the journal Law and Human Behavior in 2002 (volume 27, page 33) under the title "Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants." Phase II of the study is developing tools to assist courts and mental health professionals in evaluating youth's competence to stand trial.
For more information on the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, visit its Web site at www.adjj.org, or call Marnia Davis, MacArthur Research Network administrator, at (215) 204-0149.

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