Mental Health and Juvenile Justice

1. Mental Health and Juvenile Justice Class 19

2. Mental Health • Historical Antecedents • Hijacking of juvenile court by psychologists and psychiatrists in its “second phase”, starting in the 1920s (shift from social work interventionist model) • 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?

3. Recent Trends • There appears to be an increasing number of youth with mental disorders • entering the juvenile justice system. The Texas Youth Commission reported • a 27% increase in the number of youth with mental disorders entering the • state's juvenile justice system between 1995 and 2001 (TYC, 2002). • Many of these youth are incarcerated for minor, non-violent offenses. A • review in Louisiana found that 73% of youth in Louisiana were incarcerated • for non-violent offenses. A similar review in Texas found 67% • (Schwank et al., 2003). • There is concern that the juvenile justice system is becoming the system • of "last resort" for many youth. A 1999 survey by the National Alliance for • the Mentally Ill (NAMI)found that 36% of their respondents reported having • to place their children in the juvenile justice system in order to access • mental health services that were otherwise unavailable to them (NAMI, 1999). • A more recent study conducted by the U.S. General Accounting Office (GAO) • found that in 2001, parents placed over 12,700 children into the child welfare or juvenile justice systems in order to access mental health services (GAO, July 2003). • Source: National Center for Mental Health and Juvenile Justice, 2005

4. Mental Health as Prediction • IQ and personality scores • Psychopathy - stable and enduring trait, explanation for lack of tractability of delinquents to treatment • Measurement • The PCL Y-R • Utility in Prediction? • Deviance or development?

5. Factor 1 - Interpersonal/Affective • p0pcl01 - Impression Management. • p0pcl02 - Grandiose Sense of Self Worth. • p0pcl04 - Pathological Lying. • p0pcl05 - Manipulation for Personal Gain. • p0pcl06 - Lack of Remorse. • p0pcl07 - Shallow Affect. • p0pcl08 - Callous/Lack Empathy. • p0pcl16 - Failure to Accept Responsibility • Factor 2 - Socially Deviant Lifestyle • p0pcl03 - Stimulation Seeking. • p0pcl09 - Parasitic Orientation. • p0pcl10 - Poor Anger Control. • p0pcl12 - Early Problem Behaviors. • p0pcl13 - Lacks Goals. • p0pcl14 - Impulsivity. • p0pcl15 - Irresponsibility. • p0pcl18 - Serious Criminal Behavior. • p0pcl19 - Serious Violations of Conditional Release.

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) • What are minor’s due process rights when parents seek to institutionalize child in mental health facility • Should this be an adversarial proceeding? • Federal district court ruled in favor of child, enjoined commitments without full due process • Also ordered expenditure of funds to create non-institutional alternatives • SCOTUS Reversed. Court recognized stigmatizing consequences of mental health placement but distinguished it from stigma of “delinquent” • Therefore, not in conflict with Gault, 6th or 14th amendment concerns

8. SCOTUS declined to require states to regulate use of private mental health placements sought by parents. Court refused to limit discretion of either parents or state guardians in use of these facilities • “Parents generally have the right, coupled with the high duty….to recognize symptoms of illness and to seek and follow medical advice” • But Court does recognize risk of error in mental health placement by parents, calls for review in “independent procedure”…just not by a legal professional….”Thus, a staff psychiatrist will suffice” (see Addington v Texas”…. “Judges certainly can’t do a better job than a trained mental health professional” • Risk of error does not translate into constitutional protection • “…Not necessary for deciding physician to conduct a formal or quasi-formal hearing…” • State interest only begins when the institution endangers child, then parental rights are circumscribed and state becomes protector of child

9. Brennan Dissent • Cannot assume that parents act in child’s best interest when commitment to mental institution is at stake • Other Critiques • What are the obligations of a court to determine whether family functioning meets “best interest” standard? • When is this “dumping” the kid? • Should states provide an adult standard for mental health commitments? Aren’t all commitments of minors “involuntary”?

10. 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

11. 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

12. 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. • About one in five had “serious” disorder • 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.

13. 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).

14. 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).

15. 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?

16. 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)

17. 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 • Unchallenged as a result of Parham • Example of how this area of juvenile justice is driven far more by statute than by case law

18. The MAYSIQuestionnaire and Coding Scheme • Thomas Grisso et al., Massachusetts Youth Screening Instrument for Mental Health Needs of Juvenile Justice Youths, 40 J. Am. Acad. Child Adolesc. Psychiatry 541 (2001) • “The MAYSI-2 was intended primarily for use at the front door of juvenile justice programs to identify youths who may be in need of immediate clinical intervention” … “as a triage instrument rather than for formal diagnoses or to identify long-term treatment needs.”

19. Some Residual Issues • Disparity by race and gender • Methods of legal or social regulation of placement decisions and conditions • Can you make an argument that mental health placement is punitive? • Wouldn’t that require that Parham be overturned? • Sexual abuse and institutional violence – re-victimization • What happens if we import Hendricks logic? • Correctional placement as pathway to mental health placement when offender is violent? • Either non-responsive to institutional care or history of violence triggers Hendricks/Crane evaluation?