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ModelsforChangeSystems Reform in Juvenile Justice

Competence to Stand Trial in Juvenile Delinquency Proceedings

Tuesday, September 3, 2013 2:00-3:00 p.m. EST

Photo: Jen Pagonis (_pidge)

Kimberly Larson, J.D., Ph.D.University of Massachusetts Medical School

Michelle Weemhoff, M.S.W.Michigan Council on Crime and Delinquency

http://www.flickr.com/photos/jenandi/3449609086/in/photostream/




• Leads a national movement• State-based juvenile justice

coalitions and organizations (43 members in 33 states)

• Laws, policies and practices that are fair, equitable and developmentally appropriate for all children, youth and families

Photo: Moriza

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Our Speakers



Competence to Stand Trial in Juvenile Delinquency Proceedings



September 3, 2013


Agenda

I. Competence to Stand Trial (brief general overview)

II. Juvenile Competence to Stand Trial (JCST)

III. Overview of Research on JCST

IV. National Trends & Legislative Issues

V. Considerations for Advocates


CST Basics: Dusky Standard

A defendant must have:…sufficient present ability to consult with

his attorney with a reasonable degree of rational understanding..

…and a rational as well as factual understanding of the proceedings against him

(Dusky v. U.S, 1960)


Defining CST• What Competence Is: Breaking down Dusky

– 3 “prongs” of Dusky standard– Functional Abilities– Traditional “Predicates”

– Note: CST is a decision made by the judge with the clinician’s input.


What Competence is Not

– Ex: Mental Illness ≠ IST– Difference between CST & criminal

responsibility


What’s Different When Applied to Juveniles?

Reasons why some adolescents might have deficits that impair competence….

• Same as in adults….– Intellectual disabilities– Mental disorders (but somewhat different disorders)

• Different from adults….– “Developmentally” less capable

• Even without disorders, greater risk of incompetence• And with disorders, more vulnerable


Evidence About Youths’ Abilities relevant for Competency to Stand Trial

MacArthur Juvenile Competence Study (2003)

• About 15% of adults were seriously impaired on competence measures used by forensic examiners

• For adolescents….– About the same (15%) for 16-17 year olds– About 25% of 14-15 year olds– About 40% of 11-13 year olds– And about 55% of 11-13’s with low IQs


National Trends

• Many states are now creating juvenile specific legislation for CST

• Michigan is in line with this trend


Important Issues to be Resolved Issue #1

- Is there an age when competence should be presumed?

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Age of Presumed Incompetency

In Michigan, a juvenile 10 years of age or older is presumed competent to proceed unless the issue of competency is raised by a party.

A juvenile less than 10 years of age is presumed incompetent to proceed.


Important Issues to be Resolved: Issue #2

– Who should conduct JCST evaluations• Being a licensed psychologist or psychiatrist not enough• Examiner must be specialized in child/adolescent forensic

evaluations

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Qualified Examiners

“Qualified forensic mental health examiner” means 1 of the following who performs forensic juvenile competency examinations but does not exceed the scope of his or her practice as authorized by state law:

(1) A psychiatrist or psychologist who possesses experience or training in the following…

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Required Training & Experience

(i) Forensic evaluation procedures for juveniles.

(ii) Evaluation, diagnosis, and treatment of children and adolescents with emotional disturbance, mental illness, or developmental disabilities.

(iii) Clinical understanding of child and adolescent development.

(iv) Familiarity with competency standards in this state.

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Qualified Examiners

(2) Beginning 18 months after the effective date of the amendatory act that added this section, a mental health professional other than a psychiatrist or psychologist who has completed a juvenile competency training program for forensic mental health examiners that is endorsed by the Department

AND who possesses experience or training in ALL of the following…

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Court Determines Expert Witness

The court has the final determination of an expert witness serving as a qualified forensic mental health examiner.

The qualified forensic mental health examiner appointed by the court shall be allowed reasonable fees for services rendered.



- What should a CST evaluation / report contain?

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Written Report

The qualified forensic mental health examiner shall submit a written report to the court not later than 30 days from receipt of the court order

The evaluation shall be based on the Juvenile Adjudicative Competence Interview (JACI) or another interview method approved by the court

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Report Must Contain…

A description of the nature, content, and extent of the examination;

A clinical assessment;

Description of abilities and deficits in the mental competency functions related to the juvenile’s competence to proceed

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Report to Court

The qualified forensic mental health examiner shall provide the court with an opinion about the juvenile’s competency to proceed.

Report must comment on the nature of any psychiatric or psychological disorder or cognitive impairment, the prognosis, and the services needed and expertise required to restore the juvenile to competency

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Information to Examiner

The court shall order the prosecuting attorney to provide to the juvenile’s attorney all information related to competency

The court shall order the prosecuting attorney and juvenile’s attorney to submit relevant information about the offense and juvenile’s background with 10 days.

Except as prohibited by federal law, the court shall require the juvenile’s attorney to provide available records, including:

(a) Psychiatric records.(b) School records.(c) Medical records.(d) Child protective services records.

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Information to Examiner

The requirement to provide records or information does not limit, waive, or abrogate the work product doctrine or the attorney-client privilege, and

Release of records and information is subject to the work product doctrine and the attorney-client privilege.

Within 5 working days, copies of the written report shall be provided by the court to the juvenile’s attorney, the prosecuting attorney, and any guardian ad litem.



- What is Restoration / Remediation?

- What are some of the differences in applying this concept to youth?

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Restoration

The court may issue a restoration order that is valid for 60 days (with one possible 60-day extension).

The qualified restoration provider shall submit a report to the court and the qualified forensic mental health examiner every 30 days, or sooner if:

(i) The qualified restoration provider determines that the juvenile is no longer incompetent to proceed.

(ii) The qualified restoration provider determines that there is no substantial probability that the juvenile will be competent to proceed.

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Incompetent, unable to be Restored

Determine custody of the juvenile as follows:

• (i) The court may direct that civil commitment proceedings be initiated, as allowed under the Mental Health Code, OR

• (ii) the juvenile shall be released to the juvenile’s parent, legal guardian, or legal custodian under conditions considered appropriate to the court.

(b) Dismiss the charges against the juvenile.

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Unable to be restored due to SED

If a youth in incompetent and unable to be restored due to a serious emotional disturbance, the court may in its discretion, order that mental health services.

The court shall retain jurisdiction over the juvenile throughout the duration of the order.

The entity ordered to provide mental health services shall continue to provide services for the duration of the period of treatment ordered by the court.

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Considerations for Advocates

Clarify the issue Compile cross-state research Compile in-state research Partner with key stakeholders Develop implementation plan

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Clarify the Issue

Emphasize that this is a constitutional issue

Difference between competency and criminal responsibility

Difference between competency and mental health

Different standard between youth in juvenile system and youth in adult system

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Compile cross-state research

Grid that compares statutes from all other states to assess how your state compares

Compile data from states with successful programs• # found incompetent and reason• # successfully restored• Increases and level off after

implementation

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Compile in-state data

# of competency evaluations by county

# of youth by age (particularly under 10)

Description of your system (state evaluators, court clinic, privately contracted evaluators)

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Partner with key stakeholders

Champion legislators Judges Prosecutors Defense attorneys Dept of Community Health Forensic clinicians Mental health associations

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Understand opposition

Costs (of great concern to county assoc.)

Presumed age is too high/too low Scope of practice among evaluators “but these kids need services

available from the court…”

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Create implementation plan

Who will educate/train on the new law?

Which agency is going to monitor quality of evals and provide ongoing training to clinicians and restoration providers?

What infrastructure exists for restoration?

Address costs


Questions or Comments

Kimberly Larson

(508) 856-2653

[email protected]

Michelle Weemhoff

(517) 482-4161

[email protected]

www.miccd.org

mailto:[email protected]

mailto:[email protected]

http://www.miccd.org/

photo: jen pagonis (_ pidge )

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