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Juveniles’ Adjudicative Competence Tools for the Legal Practitioner. Thomas Grisso University of Massachusetts Medical School. Agenda.

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juveniles adjudicative competence tools for the legal practitioner

Juveniles’ Adjudicative CompetenceTools for the Legal Practitioner

Thomas Grisso

University of Massachusetts Medical School

  • 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
what cst is
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”
juveniles cst a new issue
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?
how cst became an issue in juvenile court
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
evidence of growing issue
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
macarthur foundation juvenile adjudicative competence project 1998 2005
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
first guides for evaluating juveniles cst aimed at improving practice 2005
First Guides for Evaluating Juveniles’ CST, Aimed at Improving Practice (2005)
phase i developing the concepts

Phase IDeveloping the Concepts

Key Lessons from “Youth on Trial”

The legal uncertainties of CST in juvenile court

The relevance of adolescent development

working with and resolving the legal ambiguities
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
legal uncertainties
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)

legal uncertainties cont d
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

legal uncertainties cont d1
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

legal uncertainties cont d2
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

employing a developmental perspective in law and practice
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”)
developmental perspective cont d
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)
developmental perspective cont d1
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?
research on juveniles competence

Research on Juveniles’ Competence

Phase 2:

Does immaturity really make a difference for juveniles’ competence to stand trial?

questions for research
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?

the macarthur juvenile adjudicative competence study 2000 2003
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
number of youths adults
Number of Youths & Adults

Legal Status

Ages Detained Community Total

11-17 453 474 927

18-24 233 233 466

Total 686 707 1393

their characteristics
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

MacArthur Competence Assessment Tool for Criminal Adjudication

- Understanding

- Reasoning

MacArthur Judgment Evaluation

percent with inadequate understanding score 0 on maccat ca
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

maccat ca understanding percent seriously impaired before and after teaching percent of age groups
MacCAT-CA Understanding Percent Seriously ImpairedBefore and After “Teaching”Percent of age groups

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

decision making as a defendant
Decision Making as a Defendant
  • Vignettes requiring decisions in
    • Police interrogation
    • Plea bargaining
  • Asked to
    • Make a choice
    • Provide reasoning
questioning cont d
(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
plea bargain cont d
(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…”)
time perspective average number long term consequences mentioned in reasons across three vignettes
Time Perspective:Average Number Long-Term Consequences Mentioned in Reasons Across Three Vignettes
what deficits due to immaturity look like when evaluating competence
What deficits due to immaturity look like when evaluating competence
  • Examples from the Juvenile Adjudicative Competence Interview
  • Beyond “understanding” to “appreciation”
research on developmental incompetence suggests
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”
issues in practice 1
Issues in practice (1)
  • When should the question be raised?
Frequency of raising the question varies across jurisdictions Frequency of referrals in 2003 in 87 juvenile courts Percent


raising the question
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

obligations to raise the question
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…
dilemmas for defense counsel
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?)
potential negative consequences for defendant
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
dilemmas for defense counsel cont d
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?
finding substitutes for competence
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.
substitutes continued
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
issues in practice 2
Issues in Practice (2)
  • When should the question be raised?
  • What assertions are consistent with the developmental research?
assertions in motions and briefs
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.”
assertions cont d
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.”
assertions cont d1
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.”
issues in practice 3
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?
evaluating juveniles adjudicative competence a guide for clinical practice
“Evaluating Juveniles’ Adjudicative Competence: A Guide for Clinical Practice”
  • Focuses on concepts and data collection with sensitivity to developmental issues
  • Describes the full assessment process, including clinical, develop- mental and competence abilities
  • Prescribes basic minimum standard regarding
    • TYPES of data needed
    • CONCEPTS to guide the process
  • Provides structured interviews…e.g.,
    • Juvenile Adjudicative Competence Interview (JACI), with special questions to identify developmental reasons for deficits in competency abilities

Regional Juvenile Court Clinicians’ Workshops (2005)Juvenile court clinicians in 80 largest jurisdictions nationwide

Northeast West Midwest South

Philadelphia San Francisco St. Louis Atlanta

June August October December

see legal professionals guide for using examiners opinions
See “legal professionals’ guide” for using examiners’ opinions…
  • The Legal Standard and Process
  • Taking a Developmental Perspective
  • Understanding Clinicians’ Evaluations
  • Using Clinicians’ Opinions
  • Published June 2005
how the guides were developed
How the Guides were Developed
  • Core juvenile court clinic consultants brainstormed the prototype
  • National survey of juvenile court clinical services (assisted by NCJFCJ), and national review of law
  • Drafting and piloting
  • Review and revision by ADJJ Network’s lawyers, clinicians, and developmental scientists
  • Review by national expert panels (2004)
    • Six juvenile court clinicians
    • Six legal professionals (judges, prosecutors, and defense attorneys)
  • Drafting of legal professionals’ guide by representatives of national prosecutor, defense, and judicial organizations
some key points we are teaching clinicians
Some key points we are teaching clinicians…
  • J-CST evaluations should be performed by child forensic specialists whenever possible
  • Should recognize the potential influence of immature cognitive and social features of adolescence
    • E.g., not must “mental” status exams--also “developmental” status
  • Should go beyond mere “understanding” to…
    • Ability to apply information to one’s own case (appreciation)
    • Ability to make decisions about waiver of rights (decisional capacities)
  • Clinicians should provide explanations for their opinions (not opinions alone)
how clinicians are being taught to evaluate juveniles competence
How clinicians are being taught to evaluate juveniles’ competence
  • Functional abilities assessed with interview questions about….
    • charges, penalties, purposes of a trial, how one can plead, what pleading means
    • roles of people in the trial process
    • working with an attorney, and how all of this applies to one’s own case
    • decisions in trial process (deciding how to plead, dealing with a plea agreement offer)
advantages and disadvantages of methods for assessing functional abilities related to cst
Advantages and disadvantages of methods for assessing functional abilities related to CST
  • Interview questions developed by examiners for traditional CST evaluations are likely to miss developmental issues
  • Structured and scored tools may sometimes be of use (the MacArthur Competence Assessment Tool for Criminal Adjudication: MacCAT-CA)
  • A specialized structured CST interview for adolescents has distinct advantages (Juvenile Adjudicative Competence Interview: JACI)
evaluating competence cont d
Evaluating competence (cont’d)
  • Causes of deficits: finding clinical reasons for them
    • Assessing possible mental illness
    • Investigating possibility of mental retardation
    • Examining the developmental status of the youth
    • Considering possible malingering

Most CST evaluations of youths are not adequate without having obtained school and mental health records

Psychological testing not always needed, but “mental status exams” alone often miss important features developmental delays or disorders

some unsettled issues in performing juvenile cst evaluations
Some unsettled issues in performing juvenile CST evaluations
  • Values and limits of attorneys’ involvement in the evaluation
    • The “Attorney CST Questionnaire:” Controversy about providing referral information
    • Values of attorney participation in interview
  • Values and limits of caretakers’ participation

Parents should always be interviewed for developmental history. But limits to their involvement in youths’ decisions

    • How parents can sometimes help
    • How parents are not allowed to help
    • How parents sometimes do not help (and in fact hinder)
a comment about clinicians resources
A comment about clinicians’ resources
  • Great variability across U.S. in quality of evaluations because of differences in resources

Number of hours spent on a JCST evaluation:

Percent of urban juvenile courts in U.S.

Number of hours usually spent on JCST evaluation

issues in practice 4
Issues in Practice (4)
  • When should the question be raised?
  • What assertions are consistent with the developmental research?
  • What information should clinicians be providing courts?
  • What is the proper disposition for youths’ found incompetent due to immaturity?
thinking about dispositions when incompetence is due to immaturity
Thinking about dispositions when incompetence is due to immaturity
  • Remediation often possible for poor understanding
    • Unless also due to mental retardation
    • No need for inpatient setting (absent serious mental disorder)
  • Remediation often unlikely when incompetence is due to immature decision-making incapacities
    • Especially when under 14 years of age
    • And especially within most state’s Jackson time limits
  • Simply “dropping the charges” and nothing more is probably good for neither youths nor society
potential dispositional remedies
Potential Dispositional Remedies
  • Require lower level of competence in juvenile court than in criminal court
    • Except in judicial transfer hearings
    • Except for delinquency cases that could have more serious long-range consequences
  • Allow for transfer of the case from delinquency court to child welfare court for services and monitoring
    • Court enforcement is through its child welfare authority (not delinquency authority…charges should be dismissed)
    • Must include a plan to minimize repeat offending
in conclusion
In conclusion…

The broader agenda…

Clarify legal standards for juvenile CST (not merely down-load them from criminal law)

Develop protocol for raising the question in juvenile court

Develop strategies for dispositions when incompetence due to immaturity

Encourage clinicians’ adoption of effective methods for assessing youths’ capacities