Juveniles’ Adjudicative Competence Tools for the Legal Practitioner

1. Juveniles’ Adjudicative CompetenceTools for the Legal Practitioner Thomas Grisso University of Massachusetts Medical School

2. Agenda • Useful products of the MacArthur Juvenile Adjudicative Competence Project • Recognizing the legal ambiguities • Understanding the research findings • Implications for practice • Using and challenging clinicians’ evaluations of juveniles’ competence to stand trial

3. What CST is • Dusky v. U.S, 1960 • Rational as well as factual understanding of the proceedings • Ability to assist counsel with a reasonable degree of rational understanding • Godinez v. Moran, 1993 • Includes decision making for waiver of rights • Different from “culpability” or “responsibility”

4. Juveniles’ CST…a new issue • Began mid-90s, punctuated by cases like Tate (Florida) • Questions that cases like these raise… • What is really required of youths to be competent in juvenile court or criminal court? • Whatever it is, are youths any different than adults in these abilities, due to immaturity? • If some of them are, can you rely on mental health examiners to identify those youths?

5. How CST Became an Issuein Juvenile Court • CST not necessary in early (civil) juvenile court • In re Gault (1967) to 1990 • Introduced due process in juvenile courts • But did not produce attention to CST for juveniles • 1990s reform of juvenile law after wave of juvenile homicides in late 1980s • Changes in use of criminal court • Changes in sanctions in juvenile court • Defense bar began raising the issue of juveniles’ CST in mid- to late-1990s

6. Evidence of growing issue • Recent survey: Two-thirds of juvenile courts report that referrals are continuing to increase • Most research studies developed only in past 10 years Juvenile CST articlesbefore 1990 2 1991 to 1995 5 1996 to 2000 12 2001 to now 25 • Stimulated development of MacArthur research initiative

7. What is the MacArthur Juvenile Adjudicative Competence Project?

8. MacArthur Foundation Juvenile Adjudicative Competence Project(1998-2005) Research Network on Adolescent Development and Juvenile Justice • 1998-2000, Defining the Issues • Grisso & Schwartz (eds.), “Youth on Trial” (Univ of Chicago Press, 2000) • 2000-2003, Research Study of youths’ capacities as trial defendants • Grisso, Steinberg, et al, Law and Human Behavior, 2003) • 2004-2005, Developing Evaluation Methods and training to improve clinical evaluations and legal practice

9. First Guides for Evaluating Juveniles’ CST, Aimed at Improving Practice (2005)

10. Phase IDeveloping the Concepts Key Lessons from “Youth on Trial” The legal uncertainties of CST in juvenile court The relevance of adolescent development

11. Working with (and resolving) the legal ambiguities What is clear in most states…. • CST applies in juvenile court (except Oklahoma) • The same set of abilities (a state’s equivalent of Dusky) is used in juvenile court as in criminal court • Factual and rational understanding of proceedings • Ability to assist counsel • Capacity for decision making about waiver of rights • All parties have responsibility to raise the question if there is doubt • Incompetence requires remediation in order for the trial to proceed

12. Legal Uncertainties A. Is the same degree of Dusky abilities required in juvenile court as in criminal court? • The traditional criminal court “adult” standard • A lower juvenile court standard? • An “age-peer” standard? Why this matters Often the source of examiners’ differences in opinions about youths’ competence Implications for “reverse waiver” (Scott and Grisso, North Carolina Law Review, 2005)

13. Legal uncertainties cont’d • Can incompetence in juvenile cases be a result of mental disorders not typically associated with incompetence in adults? • Attention-Deficit Hyperactivity Disorder • Anxiety and mood disorders • Receptive and expressive disorders (learning disabilities) Why this matters Some examiners apply only disorders that have traditionally been reasons for incompetence with adult defendants

14. Legal uncertainties cont’d • Can a youth be incompetent to stand trial when deficits in competency abilities are related to developmental immaturity? • Few states have settled this by statute/case law • Survey: 66% of JCCs say that their courts have found youths incompetent due to immaturity • Only 15% say it is the most common reason Why this matters Some examiners may not yet recognize that cognitive immaturity is relevant for competence determinations of youths

15. Legal uncertainties cont’d • What is the disposition for youths who are found incompetent due to developmental immaturity? • Few states have settled this by statute/case law • Traditional “restoration” laws often apply (inappropriately) • Some courts refer to child welfare side of juvenile court Why this matters Immaturity sometimes is not remediable within CST statute’s “Jackson” time limits Public safety and youth’s interests often not served by simply dismissing the charges

16. Employing a developmental perspective in law and practice • Children and adolescents are still developing in ways that are relevant for questions of competence to stand trial • Biologically: Brain development • Cognitively: Reasoning and problem-solving • Psychosocially: • Autonomy (doing what peers or authorities say) • Risk perception (judgment about plea bargains) • Time perspective (impact of “now”)

17. Developmental perspective (cont’d) Examiners should not be using the term “Immaturity” as though it’s a “diagnosis.” • Immaturity is relative (compared to whom?) • Immaturity is not all or none (in what way?) • Age does not define degree of maturity • Mental disorders and mental retardation may produce developmental delays (compared to age peers)

18. Developmental perspective(cont’d) Immaturity in cognitive or psychosocial abilities does not automatically mean “incompetent” • Functional abilities: What actually can’t the youth do related to competence? • Understanding • Appreciation • Decision Making • Cause: Are those inabilities related to immaturity? (Or something else?) • Context: Can the inabilities be dealt with by simple instruction or accommodation?

19. Research on Juveniles’ Competence Phase 2: Does immaturity really make a difference for juveniles’ competence to stand trial?

20. Questions for Research Are youths any more likely to have deficits in CST abilities than adults, on average? If so, at what ages are those differences most apparent? With regard to what specific abilities and characteristics of youths?

21. The MacArthur Juvenile Adjudicative Competence Study (2000-2003) • Philadelphia, Gainesville, Los Angeles, and North/East Virginia (Coordinating site, Univ of Mass. Medical School) • Youths and adults in detention centers and jails, and in communities in targeted neighborhoods

22. Number of Youths & Adults Legal Status Ages Detained Community Total 11-17 453 474 927 18-24 233 233 466 Total 686 707 1393

23. Their Characteristics • Every site contributed cases to all four of the study groups for both genders and all ages and ethnicities • Gender: one-third females • SES: Primarily lower and lower-middle class • Ethnicity • Matched across detention and community groups and all age categories • Ethnicity proportions identical to proportions in juvenile justice settings nationwide

24. Measures MacArthur Competence Assessment Tool for Criminal Adjudication - Understanding - Reasoning MacArthur Judgment Evaluation

25. Percent with Inadequate Understanding (score 0) on MacCAT-CA Sample Items11-13 14-15 16-17 18-24 • Role of Prosecutor 58 32 20 13 • Role of Defense Atty 22 10 8 10 • Role of Judge 55 52 46 50 • Rights given up when 85 72 63 54 plead guilty

26. MacCAT-CA Understanding Percent Seriously ImpairedBefore and After “Teaching”Percent of age groups

27. MacArthur Detained Sample: Percent Within IQ/Age Groups withSeriously Impaired MacCAT-CA on Understanding or ReasoningPercent of age groups Age groups

28. Decision Making as a Defendant • Vignettes requiring decisions in • Police interrogation • Plea bargaining • Asked to • Make a choice • Provide reasoning

29. “What Should Joe Do?” Response to Police Questioning

30. (Questioning cont’d) Reasoning they gave: • Youths tended to focus on how statement might allow Joe to go home now, and on being compliant to get leniency • Adults tended more often to consider how one’s statement could increase or decrease penalties later in adjudicative process

31. “What Should Joe Do?” Response to Plea Bargain

32. (Plea Bargain cont’d) Reasoning they gave: • Youths tended to focus on length of time (e.g., “2 years is less than 6 years”) • Adults tended to wrestle with odds of winning or losing (e.g., “If this is Joe’s first offense…” or “Depends on how he feels about the lawyer he got…”)

33. Time Perspective:Average Number Long-Term Consequences Mentioned in Reasons Across Three Vignettes

34. What deficits due to immaturity look like when evaluating competence • Examples from the Juvenile Adjudicative Competence Interview • Beyond “understanding” to “appreciation”

35. Research on “Developmental Incompetence” suggests… • Little or no difference (on average) in CST abilities between 16-17 year olds and adults • Greater risk of incompetence due to immaturity, when… • 14 or younger • 15-17 with low intelligence (compared to adults with low intelligence) • Youths with mental disorders that create developmental delays • The important differences are more in “appreciation” and “decision making” than in “factual understanding”

36. Implications for Practice Phase 3

37. Issues in practice (1) • When should the question be raised?

38. Frequency of raising the question varies across jurisdictions Frequency of referrals in 2003 in 87 juvenile courts Percent Frequency

39. Raising the question… • Research suggests that the risks of incompetence are increased when the youth shows any one (or more) of the following… 1. During any pretrial contacts, youth’s behavior has suggested serious problems in memory, attention or interpretation of reality 2. Prior diagnosis of MI or MR serious enough to have required treatment in the past 3. Prior record of IQ score below 75, or school record indicating learning disability 4. Younger than age 14

40. Obligations to raise the question • Attorneys and court are legally obligated to raise the question if there is any doubt • Failure to raise it when doubt exists may represent ineffective assistance of counsel • Yet this raises dilemmas for defense attorneys…

41. Dilemmas for Defense Counsel • What if raising the question risks serious negative consequences for the youth? (Should one always raise the question when there is doubt?)

42. Potential negative consequences for defendant.. • Strategic consequences of delaying trial process • Incurring greater immediate deprivation of freedom than if the case proceeded • Missing an opportunity to accept a plea agreement that is clearly in client’s interest

43. Dilemmas for Defense Counsel(cont’d) • What if raising the question will incur serious negative consequences for the youth? (Should one always raise the question when there is doubt?) • How far can counsel go (ethically) in attempting to avoid or remediate a youth’s probable incompetency?

44. Finding substitutes for competence.. Resolve to explain everything carefully until the youth “gets it?” • Factual understanding is not all there is to competence • Understanding something today does not mean the youth can retain and use it later.

45. Substitutes (continued)…. Attempt to resolve by using parent to compensate for youth’s deficits? (After all, youths are dependents.) • Clinically, parents often do not make decisions based on their children’s interests (Tate) • Legally, parents cannot waive constitutional rights of children as delinquency or criminal defendants • Guardianship to provide substituted judgment is not allowable in delinquency proceedings

46. Issues in Practice (2) • When should the question be raised? • What assertions are consistent with the developmental research?

47. Assertions in motions and briefs… • The relation of adolescence to incompetence • Wrong: “Juveniles are less competent than adults.” • Right: “Youths 15 and below are at greater risk of incompetence.” • Right: “Youths below 14 are at especially greater risk of incompetence.”

48. Assertions (cont’d)… • The relation of adolescents’ intellectual deficits and disorders to incompetence • Wrong: “Youths with low IQs or mental disorders typically are incompetent” • Right: “Youths with low IQs or mental disorders (even older youths) are at greater risk of incompetence.” • Right: “More than half of youths under 14 with low IQs or disorders lack abilities usually associated with competence.”

49. Assertions (cont’d)… • The relation of youths’ legal experience to competence • Wrong: “Youths with more arrests and court experience are less likely to be incompetent.” • Right: “There is no relation between youths’ amount of legal experience and their abilities relevant for competence.”

50. Issues in Practice (3) • When should the question be raised? • What assertions are consistent with the developmental research? • What information should clinicians be providing courts?