Lawyers Journal

Emerging issues in research, policy, and practice

Over the past decade, juvenile competence to stand trial (JCST) has become an issue on the agenda of states around the country. In the past five years, many states have passed JCST legislation. A currently pending bill (H. 1539)¹ would create a juvenile-specific competence law in Massachusetts, making the state part of the growing trend toward addressing JCST legislatively.

This article will provide a basic history of the evolution of JCST both from a legal and psychological perspective. Against this backdrop, it will then review the current state of JCST law in Massachusetts and proposed changes in H. 1539. It will then discuss a major emerging issue in the field - one that Massachusetts is likely to face in the near future - the need for juvenile competence remediation services.

In 1960, Dusky v. United States established that defendants must be competent to stand trial (CST). The Supreme Court held that the standard for competence is whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him."² In other words, a defendant must be able to understand factual information regarding the proceedings against him or her, reason to make decisions utilizing this information, and be able to assist counsel in their defense.

In in re Gault in 1967,³ the Supreme Court held that juveniles are entitled to due process in delinquency proceedings. Following the 1990s, legislative reforms that put youth at risk for harsher punishments, at younger ages, for a larger number of offenses, JCST began to be raised. However, it was not until the early 2000s that CST was raised in juvenile court with any frequency.

Psychological research began to address JCST as early as the 1980s,⁴ but the most comprehensive study to date was not conducted until the early 2000s.⁵ The MacArthur Foundation's Juvenile Competence Study examined 927 adolescents (12 to 17 years old), who were living either in juvenile justice facilities or in the community, and 466 young adults (18 to 24 years old) who resided either in jail or in the community. It found that, on average, juveniles under 15 years old performed worse on a standardized measure of competence-related abilities when compared to young adults. Sixteen- and 17-year-old participants' performances were similar to that of the young adult group. Both intellectual disability and mental illness also were found to increase the risk that a youth would have difficulty with decision-making abilities usually considered necessary to be competent. Subsequent studies of youths' CST abilities have found similar results.⁶ Additional research has also found that judges now take age and psychosocial immaturity into account in their determinations of youths' competence.⁷ Similarly, these studies indicated that evaluation of youths' competence related abilities required different procedures than those used with adults in order to take developmental variables into account.⁸ In 2005, this gap was addressed when a structured interview clinicians could use to assess youth's competence-related abilities, the Juvenile Adjudicative Competence Instrument (JACI), was published.⁹

By the mid-2000s, researchers had explored JCST and clinical forensic practice was catching up to the increasing requests from courts for evaluations, however, states lagged behind in addressing this topic legislatively. Few states had juvenile-specific laws and procedures, leading to confusion and ambiguity. Applying adult procedures and laws to juveniles was not working, and the research on juveniles' capacities to participate in their defense underscored the need for special care in applying CST to juveniles. As this area of research developed and JCST was increasingly raised in juvenile proceedings states began to realize the necessity of juvenile-specific legislation in this area.

Currently, states around the country are working to create developmentally appropriate laws to help protect juveniles' due process rights. In the past decade, approximately 15 states have developed JCST statutes. In the past five years states as diverse as California, Michigan, Maine, Connecticut, Ohio, Illinois, Michigan and Utah have passed juvenile-specific competence legislation, recognizing the unique needs of youth and the courts in which their cases are heard. In total, at least 20 states now have juvenile-specific legislation with several more in process.¹⁰

In Massachusetts, the adult CST statute is currently applied to juveniles.¹¹ Similar to other states, Massachusetts is considering juvenile-specific competence legislation because the current Massachusetts law, created for use in criminal courts, does not provide a good fit for juvenile proceedings. Like other adult CST statutes, it does not address the special questions and issues applicable to juveniles; for example, with youth the qualifications necessary for evaluators, the location in which the examination takes place, the content of the evaluation and report, and the types of dispositions available to the court differ.

Current Massachusetts CST law creates a "triage" system. Initially, defendants are briefly evaluated by a court clinician.¹² A more comprehensive evaluation may be conducted on an inpatient psychiatric unit if needed or at Bridgewater State Hospital if strict security is required.¹³ This is an effective procedure in adult cases, saving both time and money by avoiding inappropriate referrals for scarce inpatient bed space. However, it is not a good fit for the juvenile system where youth, whose cases are complicated by developmental and diagnostic issues, cannot easily be seen in the short same-day time frame created by the initial triage stage. Also, as minimization of system contact when possible results in better youth outcomes, avoiding inpatient stays when possible is preferable. The proposed legislation addresses this issue by specifically stating that youth should be held in the least restrictive setting possible while undergoing evaluation and shall not be held solely for the purpose of conducting an evaluation.

Youth are incompetent for different reasons than adults. Adults most commonly are incompetent due to mental illness or intellectual disability. Frequently, incompetent adults are experiencing psychotic symptoms. Once treated with psychotropic medications, these individuals are able to return to court. Youth can also be incompetent due to mental illness or intellectual disability; however, these may differ in youth. For example, a juvenile is more likely to be incompetent due to different types of mental illness (e.g., ADHD). Psychosis generally does not develop until early adulthood and thus is less likely to be the underlying reason for incompetence in youth.

Notably, youth also may be incompetent for a third reason that does not apply to adults. Even in the absence of mental illness or intellectual disability, developmental immaturity may interfere with a youth's competency. A juvenile may have difficulty with the abstract legal concepts one must grasp in order to be able to make decisions about his or her case. For example, youth tend to struggle with concepts such as that of a "right" or understanding their options under a plea bargain because they have not yet developed the ability to grasp and use abstract ideas.¹⁴ Research demonstrates that compared to adults, youth on average, are also more impulsive, weigh risks differently and are more short-sighted with a preference for immediate rewards, all of which can impact their ability to make decisions. Reiterating the Supreme Judicial Court's pronouncement in Abbot A., the proposed legislation recognizes developmental immaturity as potential underlying reason for a finding of incompetence¹⁵ providing clear guidance to the courts and mental health professionals conducting JCST evaluations. The proposed bill also states that a youth who is incompetent due to developmental immaturity shall not be hospitalized. Psychiatric facilities are designed to address the needs of those with mental health diagnoses. The needs of youth who are incompetent due to developmental immaturity alone could not be met at such a facility. Thus, it would be inappropriate to psychiatrically hospitalize a juvenile who was incompetent for this reason alone.

Current Massachusetts law does not specify the type of training required of mental health professionals conducting JCST evaluations. Clinicians who are trained with adult populations are not necessarily qualified to evaluate juveniles. The proposed legislation would rectify this by requiring evaluators in this area to have training in both the clinical and forensic evaluation of children and adolescents. Further, it addresses the issue of youth who are transferred. Nothing about transfer to adult court automatically converts a juvenile's characteristics and diagnostic and clinical needs such that he or she should be evaluated by a clinician who is only trained in the evaluation of adults. The juvenile-specific bill would require that a clinician who is both child/adolescent and forensically trained evaluate the youth, even though their case will be heard in criminal court.

The proposed law addresses the findings of empirical studies evidencing higher risk of incompetence among younger juveniles by shifting the burden to the commonwealth to prove competence by a preponderance of the evidence when a youth is a "young juvenile" 12 years old or younger. This is not to say that such youth are automatically incompetent to stand trial. We must still examine the youth's functional capacities - what he or she can actually do - with regard to competence-related abilities. However, this provision sets up a system in which those who are at the highest risk of being incompetent are provided some measure of additional protection.

This recent state legislative trend creating laws and procedures addressing JCST, has shed light on another emerging issue - the lack of juvenile competence remediation services.¹⁶ Like utilizing adult criminal legislation in juvenile courts was not workable, juvenile-specific CST remediation services are also needed. Applying adult procedures and service models to youth is at best likely ineffective and, at worst, potentially harmful.

As noted above, juveniles and adults are often found incompetent for different reasons. It follows that different types of services or methods for addressing incompetence should be employed with youth. This is particularly salient when it comes to developmental immaturity since it is unique to juveniles. Because youth are less likely to be incompetent due to serious mental illness (e.g., schizophrenia), the types of services they are likely to need are more educationally-based and less focused on the treatment of serious mental illness. Thus, the traditional psychiatrically focused models employed in the adult system cannot simply be applied to youth. Like other states Massachusetts will likely soon face the challenge of addressing developmental differences by applying juvenile-specific services in order to effectively remediate youth.

1. H.B. 188th Cong. § 1359 (2014).
2. 362 U.S. 402, 402 (1960).
3. 387 U.S. 1. Compare In re Gault, 387 U.S. 1 (1967) with McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (holding juveniles are not entitled to jury trials).
4. See. e.g., Jeffery C. Savitsky & Deborah Karras, Competency to stand trial among adolescents, 19 ADOLESCENCE 349-58 (1984).
5. Thoma Grisso, Lawrence Steinberg, Jennifer Woolard, Elizabeth Cauffman, et. al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 L. & HUM. BEHAV. 333-63 (2003). doi:10.1023/A: 1024065015717
6. See e.g., Jodi L. Viljoen, Candice Odgers, Thomas Grisso & Chad Tillbrook, Teaching Adolescents and Adults about Adjudicative Proceedings: A Comparison of Pre- and Post-teaching Scores on the MacCAT-CA, 31 L. & HUM. BEHAV. 419-32 (2007).
7. Jennifer Mayer-Cox,, Naomi E. Goldstein, John Dolores, Amanda Zelechoski, & Sharon Messenheimer, The Impact of Juveniles' Ages and Levels of Psychosocial Maturity on Judges' Opinions about Adjudicative Competence, 36 L. & HUM. BEHAV. 21-7 (2012).
8. Kirk Heilbrun, Gary Hawk, & David C. Tate, Juvenile competence to stand trial: Research issues in practice, 20 L. & HUM. BEHAV. 573-78 (1996).
9. See generally, THOMAS GRISSO, EVALUATING JUVENILES' ADJUDICATIVE COMPETENCE: A GUIDE FOR CLINICAL PRACTICE. (2005) (providing guidance regarding juvenile competence to stand trial (JCST) assessment).
10. To assist states in the development of JCST legislation, as part of the John D. and Catherine T. MacArthur Foundation Models for Change initiative, the National Youth Screening and Assessment Project (NYSAP) released KIMBERLY LARSON & THOMAS GRISSO, DEVELOPING STATUTES FOR COMPETENCE TO STAND TRIAL IN JUVENILE DELINQUENCY PROCEEDINGS: A GUIDE FOR LAWMAKERS (2011). This guide is a free resource available on the web at: www.modelsforchange.net/publications/330.
11. In the adult system, CST evaluations are conducted by a licensed psychologist or psychiatrist whenever the court finds that there is doubt regarding a defendant's competence. MASS. GEN. LAWS ch. 123 § 15(a) (2014).
12. MASS. GEN. LAWS ch. 123 §15(a) (2014) ("After the examination described in paragraph (a), the court may order that the person be hospitalized at a facility or, if such person is a male and appears to require strict security, at the Bridgewater state hospital, for a period not to exceed twenty days for observation and further examination, if the court has reason to believe that such observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial....).
13. MASS. GEN. LAWS ch. 123 § 15(a) (2014). ("Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial…it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists. Whenever practicable, examinations shall be conducted at the court house or place of detention where the person is being held. When an examination is ordered, the court shall instruct the examining physician or psychologist in the law for determining mental competence to stand trial and criminal responsibility.")
14. For example, juveniles may think that a "right" is something that is granted to them by authority figures and can be taken away, rather than understanding it as an absolute that cannot be revoked by adults. Similarly, research has demonstrated that youths' thinking is often much more concrete than that of their adult-counterparts. For example, we see differences between youth and adults who are posed with a hypothetical plea bargain in which they were given the choice of either five years of probation or two years in detention. Adults tend to grapple with issues related to their odds of winning or losing considering factors such as the strength of the evidence against them, their level of confidence in their attorney, or whether it was their first offense. Youth tended to look at the decision in a concrete manner. Regardless of whether the two years was associated with probation or detention, they often pick the two years providing reasons such as "two years is less than five years."
15. 458 Mass. 24, 38 (2010) ("Juvenile Court judges no doubt understand from their expertise and experience" incompetence may be due to "psychopathology, mental retardation, and/or immaturity.").
16. In the adult world, the term "competence restoration" is used because services are designed to ameliorate a defendant's issue such that he or she regains competence. However, with youth we are often creating an ability that was not there before. Thus, different terminology is used and we refer to the juvenile equivalent of competence services as "remediation" or "competency attainment."