Mental Health and Juvenile Justice

1. Mental Health and Juvenile Justice Class 16

2. CASE OF THE DAY: Pediatric Pedophiles • Facts • “Sarah” is one of over 200 minors charged in the past year with having consensual sex with other minors • Prosecution rate is low – 12/200 • Felony if one of the persons is below age 16, and misdemeanor if age 16-17. • Jurisdiction asserted by Child Protective Services agency, case investigated as an instance of child physical and sexual abuse • Medical, educational and other professionals or service providers are required to notify CPS • Both boys and girls are charged and prosecuted

3. Issues • Who is prosecuted? • “Only those who pose problems to their families or schools….” • Selective? • What is the punishment? • Six months of court supervision • Mandatory separation from their sexual partners • Curfews and mandatory school attendance • Collateral consequences • Sex offender registration and notification for older teens (age 18 or older, or those waived to criminal court) • Criminal record and other stigma

4. The Legislature’s Harm Reduction Reaction • Avoid registration is minor is four years younger or less (most states have 3 year gap, so WI is more liberal?) • Questions • Legal rationale? Public health? Special interest in protecting minors from harm and self-harm? • Parental preference? Conflict between state and parents’ interests? • What should the response be when minors engage in consensual sex? • Should there be a differentiated response for sexual acts other than intercourse? • Parameters of “consensual” – age, context, nature of act • Punishment? Culpability?

5. MENTAL HEALTH • Historical Antecedents • Hijacking of juvenile court by psychologists and psychiatrists in its “second phase”, starting in the 1920s • Sharp rise in admissions of minors to mental hospitals in this era • Commensurate with expansion of institutional and other residential mental health services • Deinstitutionalization movements in the 1970s (linked to federal funding under 1974 JJDPA) • Private sector growth: increase in use of private MH facilities from 37% to 61% in one decade (Weithorn) – political economy?

6. Practices • Standards for court-initiated placement to a MH institution or facility? • Behavioral criteria • Diagnostic Classification • “Severe problems” attributable to a “psychiatric disease” • Akin to diagnosis of “dangerousness” (Weithorn, at 787) • MH Diagnosis as marker of dangerousness

7. Legal Regulation • Case Law • Parham v J.R. 442 U.S. 584 (1979) – court declined to require states to regulate use of private mental health placements. Court refused to limit discretion of either parents or state guardians in use of these facilities • Conflict with Gault? Other juvenile rights? • State interest only begins when the institution endangers child, then parental rights are circumscribed and state becomes protector of child

8. Professional Regulation • Standards Projects? Very little, mostly “training and technical assistance” to improve services– see: National Center for Mental Health and Juvenile Justice, http://www.ncmhjj.com/ • Financial oversight through state insurance regulators – effective? • Mandated review of admissions – substitution of procedural oversight instead of substantive review of decision making

9. Juvenile Justice Placements • “Transinstitutionalization” beginning in the 1970s when JJDPA limited juvenile court jurisdiction for non-delinquents • Sharp expansion by courts following JJDPA (Herz, at 173) • For delinquents, MH options expanded in 1970s within juvenile corrections agencies for “dangerous” offenders with diagnosed mental health problems – secure TX

10. Prevalence estimates • Detention: • See: Linda A. Teplin, et al., Psychiatric Disorders in Youth in Juvenile Detention, 59Arch Gen Psychiatry 1133-1143 (2002). • DISC measurement (interviewer-guided self-report of symptoms) • 1172 males, 657 females, ages 10-18 years in secure detention in Cook County • 2/3 of males and 3/4 of females met diagnostic criteria for one or more psychiatric disorders. • Half of males and almost half of females had a substance use disorder, and more than 40% of males and females met criteria for disruptive behavior disorders. • Affective disorders were also prevalent, especially among females; more than 20% of females met criteria for a major depressive episode. • Rates of many disorders were higher among females, non-Hispanic whites, and older adolescents.

11. Corrections Source: California Youth Authority, Substance Abuse and Mental Health Needs Assessment, 2000; Thomas Grisso, Massachusetts Youth Screening Instrument for mental health needs of juvenile justice youths. 40 Journal of the American Academy of Child & Adolescent Psychiatry, 541-548 (2001).

12. Correctional Institutions • Capacity of correctional institutions to protect kids with MH problems? To treat them? • How are classifications and decisions made? • Validity of testing and classification measures? • Steven Erickson, “Psychological Testimony on Trial: Questions Arise About the Validity of Popular Testing Methods,” XIX Law Guardian Reporter, December 2003 • Daubert tests challenge validity of MMPI, Rorschach, others (see also NYT, 3/9/04, Science 1).

13. Decision Making and Disparity • Which offenders receive mental health placements and which are sent to correctional institutions? • Disparities by race and gender? • Balance of ‘penal proportionality’ with treatment needs?

14. Herz Study • N=4,758 cases • Females, Whites, Age (younger) more likely to receive MH placement over other correctional placements • Prior record and offense seriousness were not significant predictors • Geographic and court jurisdiction variations reflect availability of services and different preferences of judges (PPG articles)

15. Current Climate • PPG Articles • Deinstitutionalization has depleted MH resources, created dependence on JJ system for kids with mental health or emotional problems • $ • Low threshold for detention and incarceration creates little room for risk in placement decisions • PA HB 1448 – relaxes standards for involuntary commitments of youths for mental health and substance abuse treatment based on physician recommendation

16. Some Issues • Disparity by race and gender • Overuse and difficulty of regulation • Is it punishment? • Future of Parham? • Sexual abuse and institutional violence – revictimization • What happens if we import Hendricks logic?