Recent changes in the laws in many jurisdictions and a few
sensational cases involving very young children have sparked renewed interest
in the relevancy of competency and sanity to the prosecution and defense
of juveniles charged with delinquent acts.
In California, for example, a six-year-old boy was initially charged
with attempted murder and burglary in connection with the beating of
a month-old baby before the juvenile referee suspended proceedings in
July because the boy suffered from "cognitive disabilities" and could
not understand the proceedings or assist in his own defense.
As a result of this renewed focus, increasing numbers of juvenile
and family courts are formalizing their approach to mental health issues.
The mental health of a juvenile is relevant to a number of issues in
a delinquency proceeding. The juvenile or family court judge, for example,
may wish to know about prior mental health treatment, the youth's social
and emotional maturity, the school placement or special needs of the
juvenile, and any other indications of a mental disorder, either currently
or at the time of the offense. The juvenile's mental health may affect
the court's judgment on appropriateness of transfer to adult court or
various dispositional placements. It may also influence the juvenile's
ability to waive certain pretrial rights such as the right to remain
silent during custodial interrogation, capacity to assist the lawyer
or to participate in the defense of the charges, ability to make decisions
about trial rights, and even responsibility for the delinquent behavior.
In the relatively informal context of juvenile proceedings, judges and
lawyers address mental health issues in widely varying manners. In contrast,
for juveniles transferred to adult court for trial on serious criminal
charges, system participants consider mental health issues within a
more detailed and specific jurisprudential framework, primarily in the
contexts of either competency to stand trial or insanity. This column
will focus primarily on the growing importance of competency and insanity
determinations in juvenile court delinquency proceedings.
HISTORICAL OVERVIEW
In adult court, the Supreme Court has long considered competency to
be a fundamental constitutional right of a criminal defendant. (Pate
v. Robinson, 383 U.S. 375 (1966).) In many jurisdictions, insanity has
been a criminal defense with a significant history. (See generally Michael
Perlin, The Jurisprudence of the Insanity Defense 73 100 (1994).) However,
when many states established juvenile courts in the early part of this
century, adult protections, including the competency requirement and
common law defenses like insanity, were not specifically incorporated
into juvenile court jurisprudence. Because juvenile courts were established
to protect juveniles from the rigors of criminal prosecution and incarceration
in adult institutions, their focus was on achieving dispositions more
compatible with the juveniles' particular needs, and thus many of the
protections and rights of the adult system were seen as superfluous.
Over the last decade, many state legislatures have established more
punitive options and procedures for handling delinquent juveniles. A
number of states also have amended their juvenile codes to express purposes
unrelated to the well-being of the juvenile. For example, earlier this
year, the Virginia legislature decided that, in addition to the welfare
of the child and the family, "the safety of the community and the protection
of the rights of victims are the paramount concerns of the Commonwealth."
(Virginia Code Ann. . 16.1 227 (Repl. Vol. 1996).) At the same time,
many states have liberalized their transfer statutes so that the most
serious or chronic juvenile offenders are tried in adult court. As a
result of the more adversarial focus of juvenile courts and the more
serious consequences of juvenile or family court handling, the competency
requirement and the insanity defense have gained renewed importance.
COMPETENCY REQUIREMENT
In adult court, at all stages of the criminal justice process, a criminal
defendant must have "sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding [and have
a] rational as well as factual understanding of the proceedings against
him," (Dusky v. United States, 362 U.S. 402, 402 (1960)), and have the
capacity "to assist in preparing his defense." (Drope v. Missouri, 420
U.S. 162, 171 (1975).) Competency concerns may occur at any time in
the process and may occur more than once. The competency of a defendant
may be at issue, for example, during a confession, a plea agreement,
a trial, a dispositional or sentencing hearing, or even at the time
of execution in a capital case.
The question of the competency of a juvenile is complicated by the
impact of his or her youthful age and mental or emotional immaturity.
While the constitutional standard for competency does not specify a
requirement of affixing a label to an underlying cause, most adults
are found incompetent based on a serious mental disorder or a significant
degree of mental retardation. In contrast, juvenile competency may be
affected by a broad range of variables. Current research at the University
of Virginia is exploring juveniles' competency to stand trial as it
is impacted by their age, intelligence, social and emotional maturity,
and degree of psychopathology.
Roughly half the states address juvenile competency in their statutory
or case law. With one exception, those states held that the juvenile
has a fundamental right not to be tried when incompetent. Some states
have a definition of incompetency that is more restrictive than the
adult constitutional standard--for example requiring that the incompetency
result from an underlying mental disease or defect. (E.g., 17 Ariz.
Rev. Stat. R. Crim. P. 11.1; D.C. Code Ann. . 16 2315 (1989).) Only
Oklahoma has held that, because juvenile proceedings are rehabilitative
and not criminal, and because juvenile courts are not restricted by
common law presumptions of age-related incompetency, its legislature
intended for juvenile courts to proceed with cases regardless of a juvenile's
mental state. (G.J.I. v. State, 778 P.2d 485, 487 (Okla. Crim. 1989).)
The Oklahoma Court of Criminal Appeals held in that case that the juvenile
court procedures provided an adequate substitute for the competency
requirement.
INSANITY DEFENSE
In contrast to the competency requirement, the insanity defense in adult
court is not a fundamental constitutional requisite, but instead is
a creation of state statute or case law. Currently, all states except
Utah, Montana, and Idaho have an insanity defense. (See State v. Young,
853 P.2d 327 (Utah 1993); State v. Cowan, 861 P.2d 884 (Mont. 1993),
cert. denied, 114 S. Ct. 1371 (1994); State v. Beam, 710 P.2d 526 (Idaho
1985), cert. denied, 476 U.S. 1153 (1986).) The insanity defenses in
other jurisdictions require a threshold showing of a "mental disease
or defect," and then require a specified level of cognitive and/or volitional
impairment. When lawyers observe indications of mental disorder or retardation
in their clients, such as delusions, hallucinations, inappropriate affect,
thought disorganization, or subaverage intellectual and adaptive functioning,
they frequently request a sanity evaluation. They then review the evaluation
report in the light of specific factors of the case, including the level
of exposure to criminal sanctions, to decide whether to plead insanity.
The published case law and state codes of the majority of states have
not addressed the status of the insanity defense in their juvenile or
family courts. A handful of states have established a juvenile insanity
defense as a matter of statutory law. (E.g., N. J. Stat. Ann. . 2A:4A
40 (West 1995); Tex. Fam. Code Ann. .55.05 (West 1996).) Other jurisdictions
seem to assume a juvenile insanity defense in other parts of their code.
(E.g., Calif. Penal Code . 25(b) (Deering 1995); Mass. Gen. Laws Ann.,
123 .. 15 (a), (f) (West 1995); Neb. Rev. Stat. . 43 258 (1995); N.Y.
Fam. Ct. Act .. 335.1, 344.3 (McKinney 1995).) A number of states refer
to the existence of a juvenile insanity defense in their case law, including
Louisiana and Wisconsin which have found an insanity defense to be a
fundamental right for a juvenile defendant. (Interest of Causey, 363
So.2d 472, 474 (La. 1978); Winburn v. State, 145 N.W.2d 178 (Wisc. 1966).)
Only the District of Columbia has explicitly held that the insanity
defense is not permissible in juvenile proceedings. (In the Matter of
C.W.M., 407 A.2d 617 (D.C.App. 1979); D.C. Code Ann. . 16 2315(d) (1995).)
Even in those states that recognize a juvenile insanity defense, the
precise effect of a juvenile's mental disorder on the disposition of
a delinquency case is often unclear. Given the historical flexibility
of juvenile proceedings, many courts may consider mental disorders that
do not rise to the level of legal insanity in disposing of delinquency
cases. In states that recognize a formal insanity defense in juvenile
court, many use the flexible dispositional options of the juvenile system
rather than sending juveniles found not guilty by reason of insanity
(NGRI) into a formal system for the treatment and management of NGRIs
similar to the adult system.
RAISING THE ISSUE
Lawyers involved in juvenile delinquency cases need to be alert to the
possibility of defenses based on competency or insanity. Competency
issues may arise because of some mental illness, but they also may stem
from mental retardation or simply youthful age. There needs to be greater
scrutiny of school records, which may indicate potential problems through
test results or special education placement. There also must be greater
sensitivity to the youth's inability to understand what is going on
in the legal process or to participate meaningfully in the defense of
the case. Simply because a youth responds affirmatively to the question,
"Do you understand what I just told you?," does not mean that real understanding
exists. The lawyer should ask the juvenile client to explain in his
or her own words any information conveyed. Any doubt about the youth's
capacity to cooperate in the defense or understand what is going on
should be resolved by a request for an expert evaluation. (See Vance
L. Cowden & Geoffrey R. McKee, Competency to Stand Trial in Juvenile
Delinquency Proceedings--Cognitive Maturity and the Attorney-Client
Relationship" 33 J. of Fam. L. 629 (1994 95); Thomas Grisso, Michael
O. Miller & Bruce Sales, Competency to Stand Trial in Juvenile Court,
10 Int'l J. of Law and Psychiatry 1 (1987).) Studies have revealed that
there is serious under-identification of retardation and other disabilities
affecting competency.
Lawyers considering requesting psychological evaluations for competency
or sanity in juvenile court, however, also should be cognizant of the
need to protect the juvenile's Fifth Amendment privilege against compelled
self-incrimination. In adult court, established procedures protect defendants
from Fifth Amendment violations in the evaluation process. Unfortunately,
the flexible and sometimes informal procedures of juvenile court can
jeopardize important rights of the juvenile. Competency evaluations,
which may be necessary to protect the constitutional legitimacy of the
delinquency process, can be requested by any party to the case. Consequently,
the evaluation report should not include the juvenile's description
of the delinquent act, which is potentially incriminating. In contrast,
sanity evaluations should be requested only by the defense lawyer in
preparation for a strategic decision to raise an insanity defense. Because
the evaluation report would be covered by the attorney-client privilege,
it should contain any relevant incriminating details about the delinquent
act, so that the defendant and defense counsel can make an informed
decision on whether to raise an insanity defense.
SERIOUS CONSEQUENCES
Juvenile delinquency proceedings have far more serious consequences
now than at any other point in the history of the juvenile or family
court. Not only can youths be subject to transfer or waiver to an adult
court for trial, but juvenile adjudications increasingly may be open
to public access, be reported to schools and other agencies, become
part of a sex offender registry, be considered in the preparation of
future adult sentencing guideline reports, and become one "strike" in
a three strikes-and-you're-out statute. A determination that a juvenile
is not competent to stand trial because of an inability to comprehend
the proceedings or to assist in the defense of the charge or a conclusion
that the youth was "criminally insane" at the time of the offense may
abort a transfer hearing or prevent prosecutorial bindover or forestall
a trial for delinquency that could result in severe and lasting consequences
for the young person. Lawyers must be more sensitive to these mental
health and immaturity issues than ever before, and prosecutors, judges,
defense lawyers, and court personnel should act to ensure that an incompetent
or legally insane young person is not convicted as a criminal, or even
as a delinquent.
Lynda E. Frost is an assistant professor, general faculty, University
of Virginia Law School and director of the Forensic Evaluation Training
and Research Center, Institute of Law, Psychiatry and Public Policy.
Robert E. Shepherd, Jr. is a professor of law at the University of Richmond
Law School and former chair of the Section's Juvenile Justice Committee.
Copyright 1996 American Bar Association. All rights reserved. This
information or any portion thereof may not be copied or disseminated
in any form or by any means or downloaded or stored in an electronic
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