Commentary: Risk markers for incompetence in juvenile defendants.

The juvenile court was founded on a rehabilitation model in which competence of the juvenile defendant to undergo criminal process was not an issue. A few juveniles charged with serious crimes such as murder were waived to adult court, but maturity was generally taken into consideration in the waiver decision, and so severely mentally ill, mentally retarded, or very young defendants tended to remain in juvenile court, and those who might be found incompetent in adult court were rarely transferred. The U.S. Supreme Court, in a series of cases beginning with In re Gault, brought many adult criminal due process protections to juvenile proceedings, but has never required competence to stand trial in juvenile court. By 1987, only about a third of states required competency to stand trial in juvenile court, and rehabilitation remained a central mission of juvenile courts. The rapid increase in juvenile violent crime in the 1980s and early 1990s led to a shift from rehabilitation to a more punitive approach. Many state legislatures passed new mandatory waiver statutes, which typically required transfer to adult court of all youth over a specified minimum age (often 13 or 14) who were charged with one of a list of offenses (often including noncapital offenses). Mandatory waiver statutes did not exempt mentally ill or intellectually impaired defendants. One effect of this combination of an increased juvenile crime rate and expanded grounds for transfer was that questions of the competence of juvenile defendants to stand trial became considerably more frequent in adult courts. Simultaneously, juvenile proceedings became more punitive, partly out of the public’s concern about safety and partly out of stretched resources available for rehabilitation in the face of increasing juvenile arrest rates. More states began addressing the question of competence in juvenile court. Now, over two-thirds of states have either statutes or appellate decisions addressing competency to stand trial in juvenile court, and as far as I know, only one state (Oklahoma) has explicitly decided that competency is not needed in juvenile court. Even in states where there is not clear legal authority requiring competency to stand trial in juvenile court, some juvenile court judges have begun asking for competency assessments. Most jurisdictions use a variant of the Dusky test, but some states require that the incompetency be due to mental illness or mental retardation, not merely to immaturity, and some embody the concept that trial proceedings may be modified to accommodate a juvenile defendant’s limitations. Requiring competency in juvenile court raises complicated legal theory questions, such as the possibility of different levels of competency for different types of cases, modifying court procedures to aid impaired defendants, use of surrogate decision-makers (what should be the role of parents?), and restoration of competency for immature defendants (what is the court to do if a youth is incompetent because of immaturity, detain or commit the youth and wait until he matures?) Bonnie and Grisso have argued that the competence required of a juvenile defendant should vary depending on the possible severity of the penalty. As forensic evaluators gained experience assessing the competence of juvenile defendants, it rapidly became clear that adolescents are not just smaller and younger adults. Developmental immaturity alone may give rise to incompetence. Younger adolescents may have views seldom heard from adult defendants: consider an 11-year-old who refuses any consideration of a plea bargain because he believes, “The Dr. Ash is Director, Psychiatry and Law Service, and Associate Professor, Department of Psychiatry and Behavioral Sciences, Emory University, Atlanta, GA. Address correspondence to: Peter Ash, MD, Psychiatry Box 26238, Grady Memorial Hospital, 80 Jesse Hill Jr. Drive, SE, Atlanta, GA 30303-3050. E-mail: pash01@emory.edu