Kent Make-Up Their Minds: Juveniles, Mental Illness, and the Need for Continued Implementation of Therapeutic Justice Within the Juvenile Justice and Criminal Justice Systems

I. Introduction 149II. Juvenile Due Process 150A. Competency 151B. Consent 154III. Many Juveniles Are Traumatized, Not Hardened Criminals 156IV. Criminalization of Mental Illness 158V. Therapeutic Justice 159VI. Programs for Mentally 111 Juveniles 161VII. Shifting the Vision for All Mentally 111 Offenders 162VIII. Conclusion 165I. INTRODUCTIONThis article discusses issues and promising solutions to the inundation of minors with mental illness into the juvenile justice (JJ) and criminal justice (CJ) systems. Minors, who have fewer rights than adults, require therapeutic justice to treat mental illness. Section II, analyzes the precedent set by Kent v. United States for procedural due process in juvenile cases.1 Subsections A and B, discuss how courts have applied Kent to issues that involved juvenile competency and consent for treatment.2 Many juveniles have been traumatized by abuse and other environmental factors.3 These children are not hardened criminals. The system should attempt to make them whole before castigating them as adults or deciding to waive them into criminal court. Section III addresses the role that trauma plays in recidivism and entanglements with the JJ and CJ systems.4 Section IV discusses criminalization of mental illness as it relates to biological and environmental factors, and the justice systems.5 Therapeutic justice is essential for rehabilitating youth and adults who enter the system and require treatment. Section V explains why therapeutic jurisprudence is about problem solving rather than punishment, with the primary goal of social justice.6 Section VI discusses mental health court and other programs for mentally ill juveniles in need of therapeutic justice.7 Section VII offers a new vision for the justice system's treatment of mentally ill delinquents and offenders.8 This section suggests that society needs to continue shifting the roles of members of the court to a therapeutic position. It also suggests that we need to continue humanely building our response to mentally ill offenders at both the community and political levels.II. Juvenile Due ProcessIn 1966, the Supreme Court decided Kent v. United States.9 In a majority decision, the Court held that due process rights, which require a preliminary hearing to apprise defendants of charges, apply to juveniles.10 Morris Kent, a sixteen-year-old male charged with rape and robbery, moved to the juvenile court for a waiver hearing.11 Kent's attorney requested access to Kent's social service file, arguing that those records would influence the judge's decision.12 The motion included an affidavit signed by a psychiatrist.13 The psychiatrist described Kent as severely psychopathic and recommended institutionalization for observation.14 No hearing was granted, but Kent was waived into criminal court without knowledge of the grounds.15 Neither Kent's parents nor his attorney were notified.16 On appeal, the Court held that the lower court had not made a full investigation before waiving the juvenile defendant into criminal court.17 Due process must apply to juveniles to ensure that judicial discretion is not arbitrary.18 The defendant's participation is a critically important part of the process, even in juvenile hearings.19A. CompetencyBefore Kent, states increasingly controlled children on the basis that children were less formed, and thus were less competent than adults and did not deserve full due process. …