Presentation on theme: "Juvenile Competency Training Conference October 18, 2013"— Presentation transcript:
1Juvenile Competency Training Conference October 18, 2013 A Legal Professionals Guide to evaluating competency to proceed and likelihood of successful attainment with juveniles Ivan Kruh, Ph.D. Forensic & Clinical Psychology – Ossining, NYAlso -- I am going to do my best to call this CTP since that is what you call it here in Utah.And Attainment rather that restoration.But know that they are equivalent!In Washington State, where I did most of my work in this area, it is called CST.In New York State, it is called “Capacity.”It is increasingly being referred to as “Adjudicative Competence.” Mouthful to say… Glad won’t have to today.I still slip back to CST – and may well today.Juvenile Competency Training Conference October 18, 2013
2Nice to be here when everyone in SLC is in a well-deserved celebratory mode!!
3Oxford University Press Series Thomas Grisso, PhD
5Competency to Stand Trial Criminal defendants must be able to meaningfully participate in the case against them.Yield defense decisions reflecting defendant’s wishesPromote accurate and just adjudicationsRetain the integrity and dignity of the court processProtects:The defendant being triedThe state’s pursuit of fair and reliable adjudicationsTraditional Threats:Acute Psychosis or ManiaCognitive Disability (especially Mental Retardation)
6Competency to Stand Trial USSC Dusky v. United States (1960):…the test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against himGodinez v. Moran (1993):[All c]riminal defendants – not merely those who plead guilty – may be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial.DUSKY:Sufficient ability and reasonable understandingDoes not require complete and fully unimpaired functioning.Present abilityExplicitly a “current mental state question”Generally accepted to include the immediate future across the trial processAbilityWant to identify individuals unable to function adequatelyNot simply unfamiliar with the process or choosing not to participate adequately.Factual vs. rational understandingMore than a concrete, rote understanding is requiredAndBoth components are necessary.Godinez:Says that making decisions is an inherent component of being a competent defendant.No need to assess specific decisional competencies – competency to plead guilty – being competent to stand trial assumes decisional competence
7Competence to Proceed – Utah Law Juvenile Court Act (Chapter 6)78A-6-105(30). Definitions.“Not competent to proceed” means that a minor, due to a mental disorder, intellectual disability, or related condition as defined, lacks the ability to(a) understand the nature of the proceedings against them or of the potential disposition for the offense charged; or(b) consult with counsel and participate in the proceedings against them with a reasonable degree of rational understanding.If we look at how CTP is defined in Utah law for juvie courts, see clearly based on Dusky.Adds the predicate requirement!
8Competency to Proceed As a Forensic Concept Four-factor general model summarizes most modelsFactual UnderstandingBasic, concrete knowledge of the legal processRational AppreciationAccurate “beliefs” about what is understood about courtAssisting CounselAbility to participate with and meaningfully aid defense counsel in developing and presenting the defenseLegal Decision MakingAbility to consider legal alternatives and reach adequately contemplated legal choicesOne job of forensic mental health experts is to translate legal concepts into mental health concepts so that clinicians can assess them.“Forensic Mental Health” is the bridging of two different worlds – an idea we will come back to….A number of different conceptualizations have been offered—I have found a general 4 factor model to be the most compelling and the most helpful in the hundreds of Juv-COMP evaluations Ive done.Lets look at each factor in turn.
9Competency to Proceed Factual Understanding Basic, concrete knowledge of the legal processUnderstands they are accused of a crimeUnderstands what the alleged crime isUnderstands the court will decide guilt and innocenceUnderstands the trial could result in punishmentUnderstands what punishments are possibleUnderstands the various ways one may pleadUnderstands the roles of various participants at a trialUnderstands the basic process of a trial!!!!!DON”T GET INTO DIFFERENCES BETWEEN ADULT PROBLEMS AND JUVE PROBLEMS HEREDO IT AT THE END!!!Factual Understanding – Basic, concrete knowledge of the legal processe.g., Understands the court will decide guilt and innocenceUnderstands what punishments are possibleUnderstands the various ways one may pleadOf course, youth less likely to have studied or been exposed to how courts work vs. adults.
10Competency to Proceed Rational Appreciation Accurate “beliefs” about what is factually understood about courtIs able to manipulate the information that is factually understoodIs able to contemplate the implications and significance of what is understoodIs able to rationally apply that knowledge in one’s actual case-related situationsRational Appreciation - Accurate “beliefs” about what is factually understood about courtIs able to rationally apply knowledge in one’s actual case-related situationsadult defendants > most common threat = idiosyncratic and irrational beliefs resulting from psychotic delusions.e.g., a defendant who factually understands the role of the court personnel might nonetheless believe and act in court from the premise that,“Although defense attorneys are supposed to help the defendant, my defense attorney is a CIA agent and only the judge can save me from his plot to kidnap me.” Fails to appreciate (or to rationally apply) that which he understands about the role of the defense attorney and the judge.May happen this way in less common cases in which youth are psychotic.more common in younger defendants (or with limited cognitive abilities) >distorted beliefs rooted in concrete thinking, incomplete understanding of the process, and/or other factors (e.g., limited temporal perspective) that impair the ability to appropriately consider and apply information.Increased risk for over-generalizations, under-generalizations, confusion, immature presumptions, and frankly erroneous beliefs.e.g., a youth may be able to state that she is allowed to plead not guilty and may accurately define that term, but may believe that to plead not guilty when she knows that she committed the offense is not allowed “because it’s lying, and you can never lie in court.”Another e.g.,Difficulty appreciating the role of defense counsel due to potential difficulty conceptualizing why their own authority eclipses that of an adult -- contrary to the usual social distinctions between children and adults that they face in most other aspects of everyday life.
11Competency to Proceed Assisting Counsel Ability to participate with and meaningfully aid the defense attorney in developing and presenting the defenseIs able to understand and adequately respond to counsel’s questions during pre-trial consultations in a manner that provides relevant information for mounting a defenseIs able to provide a coherent account of the facts of the alleged crimeIs able to identify potential sources of relevant evidence and witnessesIs able to identify reasons for confronting opposing witnessesIs able to manage the stresses and demands of trial processIs able to follow and comprehend the testimony of other witnesses so to be able to alert counsel to any distortions of the factsIs able to provide testimony with relevance, coherence, and independence of judgment.Assisting Counsel - Ability to participate with and meaningfully aid the defense attorney in developing and presenting the defensee.g., Is able to provide a coherent account of the facts of the alleged crimeIs able to understand and adequately respond to counsel’s questions to allow for mounting a defenseTraditional threat – disorganization due to psychotic thought processYounger and/or cognitively-limited defendants may also be vulnerable > due to general cognitive underdevelopment.e.g., May believe that their primary role in court is simply to show up and avoid behaving inappropriatelyMay misunderstand role of defense as advocate and withhold information from counsel for fear it will be used against themFurther, skill limitations in memory, attention, tracking, processing, verbal reception and expression, interpersonal perspective-taking, rapport development with strangers, and time perception may each limit Assisting abilities.
12Competency to Proceed Legal Decision-Making Ability to consider process and weigh legal alternatives, and ability to reach and communicate adequately contemplated legal choicesIs able to rationally decide how to pleadIs able to rationally decide about going to trialIs able to rationally decide about accepting a plea offerIs able to rationally decide about testifyingIs able to rationally decide about calling certain witnessesIs able to rationally decide about pursuing certain defensesLegal Decision Making: Ability to consider legal alternatives and reach adequately contemplated legal choicese.g., Is able to rationally decide about accepting a plea agreement offerLegal decisions are appropriately based on the advice of counsel, but they cannot be made by or altered by the defense attorney alone.Defendants must be able to engage their case with autonomy, self-interest, and rational expectations so that case decisions are not merely capitulation to the attorney’s ideas (Rogers & Shuman, 2005).Again, traditional threat is disorganized thinking and delusional beliefs –e.g., decide to take the case to trial because at trial it will be made known that the defendant is JCYouth and cog limited > skills deficits may interfereJuveniles – “I’ll take the case to trial because that’s what my mom told me to do.”“I’ll plead guilty because I want to go home right now.”
13Competency to Proceed – Utah Law Juvenile Court Act (Chapter 6)78A (7). Juvenile Competency.In conducting the evaluation and in the report determining if a minor is competent to proceed as defined in Subsection 78A-6-105(30) the examiner shall consider the impact of a mental disorder, intellectual disability or related disorder on a minor’s capacity to:(a) comprehend and appreciate the charges or allegations;(b) disclose to counsel pertinent facts, events, or states of mind;(c) comprehend and appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the minor;(d) engage in reasoned choice of legal strategies and options;(e) understand the adversarial nature of the proceedings;(f) manifest appropriate courtroom behavior; and(g) testify relevantly, if applicable.Point out here that the Utah Juvenile statute breaks down CTP a bit differently.Identifies 7 factors that must be considered by examiners.But if you review these 7 factors I think it is easy to see how they relate to the four factors I just presented.A – Factual Understanding and Rational AppreciationB – Assisting CounselC – Factual Understanding and Rational AppreciationD – Legal Decision MakingE – Factual Understanding and Rational AppreciationF - Assisting Counsel and/or Legal Decision MakingG – Assisting Counsel
15Competence to Proceed & Juveniles During the era of “rehabilitative” juvenile justice, incompetence irrelevantReforms of the 1960s and 1970sKent v. US (1966)In re Gault (1967)In re Winship (1970)McKeiver v. Pennsylvania (1971)Breed v. Jones (1975)Reforms of the 1980s and 1990sResponse to public outcry against juvenile violence.Deterioration of rehabilitative ideal.Deterioration of special protections.Growth of retribution traditionally reserved for adult system.In modern juvenile justice, respondents face more serious sanctions and are afforded due process rightsCompetence becomes relevantIf a person’s ability to defend themselves is severely compromised by MI, seems unfair to try them -- as if we are trying them in absentia.Although this need long recognized in CJS, not true in JJS When JJS was non-adversarial, legal counsel not used, and based on pure rehab goals, no need to worry about competency to defend oneselfWith the new JJS we work within now -- the process is more adversarial,respondents do more often mount defenses against the charges, and quite punitive outcomes are at stake.CST has become relevant.Like adults, juveniles should not be tried if they are unable to defend themselves
16Differentiating Competent & Not Competent Youth Factors that differentiate across studies:AgeUnder 12 – Very High Risk13-15 – Elevated Risk15 and above – Similar to AdultsIntelligenceMentally Retarded – Very High RiskBorderline IQ – Elevated RiskLow Average and Above – Similar to AdultsAcademic FunctioningSpecial education placement and poor Achievement Test scoresGrades and Retention not relatedMental Health ProblemsFindings less consistentMental Health: Relation of mental health diagnosis; mental health treatment, current mental health symptoms depends on sample/methodsDiagnoses – less consistent findingsSeveral studies have found behavior problems – ADHD; hostility; etc. predictsLess well investigated at this pointWill discuss in a little more detail in a little bit
17Differentiating Competent & Not Competent Youth Factors that do not differentiate:Experience with Legal SystemRaceGenderSocioeconomic StatusNature of Instant ChargesCourt of Jurisdiction (Juvenile vs. Criminal)
18Red Flags for Problems with Juvenile Competency Youth seems:Easily ConfusedDetached and/or IndifferentSeverely DepressedHostile and/or aggressiveInattentive and/or DistractedOppositional and/or DefiantImmature and/or InfantileYouth demonstrates:Poor MemoryDifficulty communicating informationDifficulty understanding attorneyDisorganized speechPeculiar statementsResponding to internal stimuliChaotic and/or bizarre behavior!!!!!!!!!!!!!!!!!!!CONSIDR SKIMMING!!!!!!!!!!!!!!!!!!!!!!!!!Here are some things to look for…So, when should attorneys carefully consider a referral for a competency evaluation?Remember – red flags are issues to consider – the identification of a red flag does not, in and of itself mean a referral is necessary!
19Situational Red Flags for Problems with Juvenile Competency Limited contact with &/or trust of attorneyAlleged fact pattern is complexEvidence against the youth is unclearHearings are likely to be lengthyHearings are likely to involve many witnessesCase likely to require use of a complex defenseTestimony by youth is likely to be necessaryPlea bargaining is likelyMany examiners and attorneys alike don’t appreciate that competency is specific to THIS respondent involved in THIS case!Does the child accused of hitting his teacher in anger in front of another teacher require the same ability as a child accused of raping...No. But NOT because, simply, the charges are differently serious.But because each is likely to require a different level of functioning.Alleged fact pattern is complexEvidence against the youth is unclearAbility to provide coherent fact accountHearing(s) likely to be lengthyAttention/concentration skillsHearing(s) likely to involve many witnessesAbility to track proceedings and confront witnessesHearing(s) Respondent likely to pursue a complex defenseTestimony by respondent likelyPlea Bargain likelyDecision-making/reasoning ability
20Evaluations of Competence to Proceed Conceptualizing the Process
21Competency To Proceed Evaluation Model (Grisso, 2003) The Functional QuestionWhat competency-related deficits exist?The Causal QuestionWhat are the causes of the deficits?The Contextual QuestionHow will the deficits impact this examinee in their case?The Conclusory QuestionAre the deficits adequately impairing to meet the legal test? (Is the examinee not competent?)The Remedial (Attainment) QuestionCan the deficits be remediated within the legal time-frame? How?Now that we have a better understanding of the functions that are needed to be competent, let’s talk about how the evaluation is conductedGood to keep this model in mind throughout the evaluation process.Let’s look more closely at how we answer each question.
22The Functional Question What competence-related deficits exist?Summary of abilities and deficitsPurely descriptive:What the respondent actually knows, understands, believes, and can doIdentifies consistencies and inconsistencies
23The Causal Question What are the causes of the deficits? Forming and testing hypothesesConnection between identified deficits and examinee’s clinical/developmental problemsPotential causes of deficits include:Clinical causes (i.e., symptoms of mental disorders)Developmental causes (i.e., developmental delay or immaturity)“Nonclinical” causes, (i.e., feigning/motivation, evaluation conditions, visual/auditory deficits that interfere with reception of information, lack of experience and acquired information)Typically not considered a reason for a finding of incompetenceDevelopmental in red. Many jurisdictions consider developmental factors.Utah does not. I considered taking all mention out completely.But at the end of this presentation we will discuss these developmental issues.So – want you to know where and how they get considered in states that allow for it as a predicate.So put in red.
24The Contextual Question How will the deficits impact this examinee in their case?Having a deficit does not equal being incompetentPrimary contextual factor:Specific demands of the respondent’s caseSecondary contextual factor:Caretaker influenceCaretaker influence: Minor weaknesses might be managable with a highly supportive and functional family.Minor weaknesses might yield major problems with an interfering and dysfunctional family.
25The Conclusory Question Are the deficits adequately impairing to meet the legal test? (Is the examinee incompetent?)Must begin with a presumption of competenceAre the deficits significant enough to warrant an incompetency finding?
26The Remediation (Attainment) Question Can the deficits be remedied within the legal time-frame? How?Interventions to alleviate problems causing the deficitsClassic model = medication to reduce clinical symptomsUnmedicated Psychotic DisorderUnmedicated child with severe ADHDLess useful with many disordersPervasive Developmental DisordersLanguage DisordersMost common intervention used with youth = EDUCATION
27The “Ultimate Issue” Issue Ultimate Issue = the court’s legal questionIs the youth competent to proceed?Is there a substantial probability that the minor may attain competency in the foreseeable future?Ultimate Issue Issue = unresolved debate about whether forensic clinicians should answer it.AgainstForAnswering is the domain of the judge because the answer is a legal, social, moral matter – not clinicalThe court is aware any opinion is only advisory.Some laws forbid these opinionsMany laws allow and many judges demand these opinionsCurrent science is not precise enough to answer these questionsScience has advanced so that reasonable answers can be givenUI opinions -- Where law and MH run into problems.The ultimate legal question is a LEGAL QUESTION. Not a clinical or scientific one.Legal perspectiveWill the adjudication process be unfair if deficits prevent respondent from meaningfully participating?Have to keep in mind that scientists try to answer the question differently that judges—We have no scientific ways to determine fairness – so we look at cases where past judges have found it to be unfair, and try to compare our cases to that.Empirical perspectiveHow do respondent’s abilities compare to others who have been found competent and incompetent to stand trial?Also: Courts want issues to be Black & White; mental health evaluations often identify Grays.Many prominent scholars train to NEVER give UI opinions.Others say can when the issues are crystal clear -- the legal criteria & the repsondent’s meeting of them.When board certified clinicians were asked of UI opinions should be given in 2003, 1/3 said always; 1/3 said never; and 1/3 said acceptable but not mandatory.
28Evaluations of Competence to Proceed The Evaluation ProcessNow let’s turn to what examiners do to collect the data and analyze the data to answer these questions.
29Overview of Data Collection Target relevant domainsHistorical/Developmental ContextCurrent Mental StatusCurrent Case-Related FunctioningObtain reliable information by emphasizing:manualized and structured checklists/interviewscorroboration for obtained datapsychological tests (when applicable and feasible)multiple interviews (when applicable and feasible)Use a flexible approachManualized checklists and interviews – aide memoire; helps us to develop an internal barometerCorroboration: allowing for verification or disconfirmation of hypothesesMultiple sources: talk about them in a bitFlexible Battery:For one youth who has been a ward of the state and has no adult in his life with detailed historical information, you may spend a lot of time asking about Hx.For a youth who is a poor historian because they are young or they have a PDD, and you know there is an involved parent you will speak with, may spend much less time on basic Hx information.
30Data Collection Third-Party Information Sources (Records & Interviews) Teachers & School OfficialsMental Health & Medical ProvidersSocial Service RepresentativesProbation Officers & Detention OfficialsDefense AttorneyCaregiversPsychosocial HistorySymptom Observations to inform diagnosisObservations relevant to competencePotential influence upon competenceRecommendations for data sources (Records & Interviews)An essential feature of good forensic evaluations is heavy use of third-party information sources.Enhances validity and reliability:Provides information that occurred outside of the current case.Obtains the opinions of people less vested in the outcome of the current case (caregivers a clear exceptionMain goals – Put together a clear Psychosocial History, which includes the youth’s developmentObtain any information about recent or even current functioning to assess diagnoses.Example of School:Daily functioning in a more structured and verbal-based settingAbility to learn novel informationPrevious psychological evaluationsIndividualized Education PlansCaregivers:Assess caretakers’ abilities to advocate, support youth, or refrain from impairing youth’s capacitiesShould never be conceptualized as possibility of caregivers compensating for youth’s incapacitiesConstitutional requirement that defendant alone can waive rights (must be autonomous)- Parents cannot decide for youth- Parents may only advise2. Caretakers’ relation to youth may reduce effective guidanceGood parenting principles can he harmfulEmotional reactions may interfere (guilt, anger, fear)Caretakers may have conflicts of interest, leading to influence not youth’s best interestMay have relationships with other suspects in the case, or with the victimMay have an interest in child being removed from own custodyMay have financial conflict of interests (e.g., how much time away from work will this take?)
31Data Collection Interview of Youth STATUS Clinical and Developmental InterviewNotification of RightsPsychosocial HistorySymptom History/Diagnostic InformationCurrent Mental StatusCompetence InterviewDirect Observation of Relevant FunctioningFunctional Interview of Competence AbilitiesStructured InterviewingCase-Specific InterviewingCurrent Mental StatusObservations across the interview – eg/ posture; motor behavior; affect; speechFocused MSE questions: basic cognitive functioning – memory, abstraction; fund of general info.STATUSThe purpose of mental status examsIdentify mental and emotional features related to mental disorder
32Data Collection Structured Interview of Competency Abilities Tools Designed for AdultsSome have been studied with juveniles:Fitness Interview Test – Revised (FIT-R)MacArthur Competency Assessment Tool – Criminal Adjudication (Mac-CAT-CA)Some have been recommended for use with juveniles:Competency Assessment Screening Tool for Mentally Retarded Defendants (CAST- MR)Problems with using with juveniles:Some content inapplicable to juvenile courtNot designed to address developmental impedimentsAppreciationReasoningAbility to LearnSpecialized Content:Some content because the functioning of juvenile court is different than criminal court (if a juvie case)No jury trialsProbation Officers as case workersSome content because research has shown youth have particular difficultyNature of legal rights!!!!!!!!!!!!!!!!!!!!!!!!!!!!!DO NOT DETAIL THE BELOW!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!Appreciation1. ApplicationNot enough to just ask to define – need to ask to apply – abstract skill – may be able to offer rote definition, but not know how to apply it in practice.“If you testified in your case, what would your attorney want your testimony to prove? What about the prosecutor?”“If someone tells a lie about you in court, who should you tell? Why?”JACI2. Developmental vs Psychotic With psychosis, looking for the interference of delusional contentWith youth, looking for the interference of immature ideas, concepts, abstraction, reasoning skillsI never want to go to detention – I heard they torture you there and don’t feed you.Must always tell the judge you did it if you did because lying is wrong and not telling is as bad as lyingReasoningAlso different issues:With adults, mainly cognitive:Hold information in memory;consider strengths and weaknesses of various options;reach an adequately reasoned decision;articulate that decisionWith youth, increasining evidence of psychosocial factors that can impair reasoningAutonomy (aka Conformity & Compliance) - ability of a youth to be self-reliant, independent, and autonomous in their decision-making so – compliance with authority figure; or with peersAttitudes Toward & Perceptions of Risk – Ability to imagine negative outcomes; assess their likelihood; appropriately assess aversivenessTime Perspective - ability to appropriately consider both long-term and short-term implications of their decisions and actionsTemperance - ability to maintain emotional and behavioral control; esp. modulate their impulsivity in their decisions and actionsTeachingMuch more common – and important part of eval with juvenilesNeed approaches that allow for great deal and flexibility of teaching and re-assessing.Is it enough to teach and immediately re-ask? Maybe re-ask at the end of the interview? Maybe re-ask at a second interview?
33Data Collection Structured Interview of Competency Abilities Juvenile Adjudicative Competence Interview (JACI)Past Experiences with CourtFraming and ContextNature and Purpose of the TrialUnderstanding & Appreciation Items + Flexible Capacity ChecksRoles of ParticipantsAssisting CounselReasoning and Decision MakingReasoning ItemsParticipating at the Juvenile Court HearingBehavioral ObservationsNature and seriousness of offense; nature and purpose of trial; possible pleas; penaltiesRoles of pros, def, prob, judge (jury)Assisting def + plea agreementsDecisions about having a defense lawyer; assiting the lawyer; how to plead; plea bargainAbility to attend; maintain self-control; testify
34Data Collection Psychological Testing (as relevant and needed) Of YouthCompleted by Caregivers (or others)Intellectual Functioning (esp. Abstraction Skills)Memory & Learning AbilitiesAttentional AbilitiesCurrent Mental Health Problems / SymptomsDevelopmental Functioning / LevelResponse StyleTesting. AS RELEVANT AND NEEDED.Important to understand. All surveys of expert CST evaluators have yielded opinion that testing is not necessary in many CST evaluations.Why? There are few tests that assess the abilities relevant to CSTThe deficits are so clear from basic interviewing (e.g., psychosis; severe MR) that testing will not add anything.The impairment is so severe that obtaining valid testing is unlikely.There is recent testing conducted in other contexts – which offer the benefit of potentially higher effort, greater validity?(except can’t always vouch for other examiner….)Strongest argument for testing is probably for assessing response style – but, no great tests for youth! – Word Memory Test. Maybe SIRS?The use of a standard test battery is unnecessary and rarely recommended.If you see a psychologist that uses a test battery – especially a vast test battery – and especially assessing things that seem irrelevant to CSTthey are likely unable to shift from how the conduct general clinical evaluations, or they are padding their charges.Intellectual functioning (especially abstraction skills)WISC-IV WJ-TCA-III WASIMemory & learning abilitiesWRAT-4 WRAML-2Other neuropsychological abilities (e.g. attention)CPT BRIEF K-SNAPMental Health SymptomsCBCL-2/BASC-2 MMPI-ADevelopmental FunctioningAdaptive FunctioningVineland-II ABAS BASC-2Psychosocial FunctioningRST-IResponse styleGeneralMMPI-A BASC-2Memory & EffortTOMM WMTPsychosisSIRS
35Data Analysis & Forming Opinions The Functional QuestionWhat competence-related deficits exist?The Causal QuestionWhat is the cause(s) of the deficits?The Contextual QuestionHow will the deficits impact this examinee in their case?The Conclusory QuestionAre the deficits adequately impairing to meet the legal test? (Is the examinee incompetent?)The Remedial (Attainment) QuestionCan the deficits be remediated within the legal time-frame? How?Now we return to the five questions and can use the data that was collected to answer these questions
36Evaluations of Competency to Proceed Assessing Likelihood ofSuccessful AttainmentNotice that I say “Assessing Likelihood of Successful Attainment”Again, the legal question is different “Is there a substantial probability that the minor may attain competency in the foreseeable future”Clinical question vs Legal Question
37Pursuing Attainment Requires Likelihood of Success Jackson v. Indiana 406 U.S. 715 (1972):“…a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceedings that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.”The reason why success needs to be likelu is rooted in the USSC decision in Jackson v IndianaKeep in mind this was in reference to an adult model – if ITP, results in involuntary hospitalization.Court was preventing indefinite detention based on ITP.
38Competency to Proceed – Utah Law Juvenile Court Act (Chapter 6)78A (8). Disposition on finding of incompetency to proceed – Subsequent hearings – Notice to Prosecuting AttorneysIf at any time during the attainment period the court finds that there is not a substantial probability that the minor will attain competency in the foreseeable future, the court shall terminate the competency proceeding, dismiss the delinquency charges without prejudice, and release the minor from any custody order related to the pending delinquency proceeding, unless the prosecutor informs the court that commitment proceedings pursuant to Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be initiated…Jackson was a protection of civil liberties issueInteresting that Utah encoded it for juveniles in ALL attainment cases – whether or not there is a deprivation of civil liberties.Can see arguments in both directions.
39Types of Attainment Interventions PharmacologicalThe “Psychotic Adult” ModelGoal: Remission of symptoms causing deficitsLess Straightforward with Childhood DisordersPsychotherapeuticLess Common Model with AdultsMay augment or replace pharmacologyThere is a literature – should be consultedHowever: Target in literature is not competenceLet’s begin by thinking about the type of attainment interventions that are possible.Pharmacological: Target the symptoms causing deficits with medications.The traditional approach with psychotic adults. Fairly straightforward and frequently successful.Less straightforward with childhood disorders – ADHD, Anxiety/Dep, etc.Medications to target psychiatric symptomsPsychosis (rapid)ADHD (rapid)Depression (less rapid)PTSD (long term)Medical Disorders (e.g., hyperthyroidism) (???)Many symptoms minimally responsive to medicationsCognitive weaknessesLanguage DysfunctionPervasive Developmental DisordersOften complicated by previous treatmentMany medications tried and did not improve functioningMany medications already being prescribedPsychotherapeutic: Target the symptoms causing deficits with psychosocial interventions.Consider treatment literature for the disorder or symptoms causing deficits…but remember: Successful Attainment Does Not Require:Complete remission of relevant symptomsComplete cure of relevant disordersOnly adequate improvement to be Competent.Even in adult worldITP defendant is psychoticGoal is not necessarily to make him not psychotic, but to have skills to be CTP.May well overlap – but may not.
40Types of Attainment Interventions EducationalThe “Mentally Retarded” Adult ModelGoal: Teaching of skills to alleviate deficitsWidely Applicable with YouthTypes of Educational Curricula:Traditional Training CurriculaDidactic PsychoeducationCriticized for focus on memorization of facts21st Century Training CurriculaMulti-Modal and Active-Learning TechniquesSystematic and Explicit InstructionFocus on Development of Specific SkillsAbstraction ~ Communication ~ Social SkillsEducational: Education often a component of Attainment efforts even with psychotic adults, but classically used with cog limitationsWith adults, research suggests moderately effective.Applicable in cases beyond MR > milder IQ deficits, LD, weaknesses in communication, memory, executive functioning.And of course, developmental-based interference.Historically, educational programs have focused on rote repetition of facts.No research on efficacy with these curricula with youth.However, both experts and courts have agreed that rote memorization of facts is less adequate than ability to meaningfully participate.Goal for the future is more sophisticated approaches:TO TARGET UNDERSTANDING:Multimodal interventions; active-learning techniques > yield deeper process of the information than “chalk-n-talk”Simulations; mock trials; case studies; stories; games; courtroom visitsMy Cousin VinnySystematic and Explicit Instruction – From special education literatureKnowledge and skills are broken down into smaller subcomponents and re-linked after they are masteredBegin with frequent use of prompts and visual aides – over time, prompts and aides are reduced and eliminated.Enhancing the development of focused skills.Abstraction skills with Cognitive Acceleration (see Adey & Shayer, 2002).Initial Instruction on vocabulary and conceptsProblems are offered that challenge their thinkingProblems are solved in small groups – encouraged to reflect on their thoughts as they solve.Some evidence it works in general pop with general skills – typically requires 1-2 years of instruction!Communication Skills Training – brief interventions (e.g., Lamb, Bibby & Wood, 1997 – a 12-week program)Social Skills Training – (Spence, 2003 – modeling, role-playing and rehersal; feedback; self monitoring; social problem solving; self-regulation)Very little of this out there and no research on it specific to CST attainment.Training to target knowledge weaknessesCurricula have been developedRote repetition to over-learn and memorize factsUse of other methods to deepen understandingMulti-modal presentations & active learning techniquesTarget Factual UnderstandingTraining to target skills deficits (communication; decision making; social)Just beginning to be contemplated (Viljoen & Grisso, 2007)No available curricula
41Clinical Literature Juvenile Competency Remediation Certain sources of deficits decrease the likelihood of successful attainment:Disorders That Are Less Responsive to TreatmentIntellectual DisabilitiesAutismDisorders That Require Long-Term InterventionsPosttraumatic Stress DisorderReceptive & Expressive Language DisorderDelayed DevelopmentYoung AgeGrisso, 2005Otto et al., 2006Schouten, 2003
42Clinical Literature Juvenile Competency Remediation Certain types of deficits decrease the likelihood of successful attainment:Factual Understanding deficits generally more remediableAppreciation, Assisting, and Decision-Making deficits generally less remediableGrisso, 2005; 2013Peterson-Badali & Abramovitch, 1993Viljoen & Grisso, 2007Viljoen & Roesch, 2007Understanding – Overlearning through repeated exposure has decent likelihood of success even with lower functioning youthAppreciation, Assisting, Decisionmaking – Fostering the development of higher order cognitive abilities (e.g., better abstraction) is highly challenging.This is NOT to say impossible – just more challenging!
43Empirical Literature Juvenile Competency Remediation Studies of time-framesVery brief interventions are rarely successfulCooper, 1997Viljoen, Odgers, Grisso, & Tillbrook, 2007Four-Month to Six-Month Period seems Essential:Most youth ordered for attainment successfully attained by 6 monthsIf did not attain by 6 months, likelihood of success drops markedlyMcGaha et al., 2001Warren et al., 2009Brief Interventions: 1-hr videotape. Cooper, Quick correction of responses a la MacCAT-CA, Viljoen et al
44Empirical Literature Juvenile Competency Remediation ~ 70% Returned to Court CompetentSuccess may depend on:Source of deficits:Mental Illness %Intellectual Disability %Both %Age:Younger Adolescents %Middle Adolescents %Older Adolescents %McGaha, Otto, McClaren & Petrila, 2001Warren, DuVal, Komarovskaya, Chauhan, Buffington-Vollum & Ryan, 200970% deemed competent – actually, 71% and 72%, respectivelyOlder adolescents less likely to be made competent than Middle.Why? More likely to have MR or serious MI.McGaha, Otto, McClaren & Petrila (2001)N=471; all Florida juveniles found IST from 5/1997 – 8/2000 and referred to their “Attainment” programDid not include juveniles tried as adults nor juveniles charged with misdemeanor level offenses.Restoration time period: 5-6 months, average.Warren et al. (2009).n = 563; the first Virginia youth ordered to the Virginia Juvenile Competency Program – 1999 – 2006.“…many young juveniles can be remediated in their competence-related abilities if they are provided developmentally tailored educational processes provided in the context of a consistent relationship with trained restoration counselors who meet with youth multiple times a week…”“…when the youth suffers from mental retardation, at times combined with severe mental illness, the impact of the interventions is far more limited…”Warren, DuVal, Komarovskaya, Chauhan, Buffington-Vollum & Ryan, 2009
45Breaking Down the Remedial (Attainment) Question What are the specific functional deficits?Factual UnderstandingRational AppreciationAssisting CounselLegal Decision MakingWhat are the sources of those deficits?A treatable mental disorderWeak cognitive skills (normal &/or pathological)Weak psychosocial skills (normal &/or pathological)What types of interventions are most likely to help each deficit?Psychiatric InterventionsPsychotherapeutic interventionsEducational InterventionsHow long is intervention expected to require for each deficit?How did youth respond to training efforts during the evaluation?How has youth responded to similar interventions in the past?What does empirical and clinical literature suggest?As with all good treatment plans, restoration services should use a “matching paradigm.”Interventions should be matched to the problem that is being targetedTHE FINAL QUESTIONS AFTER THOSE ON THE SLIDE:How does the timeframe match with statutory requirementsWhat is the likelihood of successful attainment of each deficit?What is the overall likelihood of successful attainment?
46Attainment Opinions Opinions based on clinical judgment Legal professionals must knowEvaluators must rememberOpinions only as good as the reasoning/rationaleMultiple deficits may require multiple estimatesPrediction can quickly become complexEvaluator opinions are best understood as reasonable, but limited, guidance“I don’t know” may not be a cop out.Legal determination Evaluator opinionSubstantial Likelihood vs. Probability of SuccessOpinions are based on clinical judgment – very little research to guide the formation of opinions.Court needs to be aware of this.Evaluators need to remember this –Everyone must be open to the possibility that the opinion is wrong.Across my career I have been surprised in both directions. You will be too!Different response probabilities: “Whereas the youth’s Understanding deficits may be remediable through education, the Appreciation deficits seem unlikely to respond to attainment efforts.”Allows the court to use its own threshold of the importance of each deficit.Maybe the court sees an unattainable deficit as not critical!e.g./ Inability to testify – maybe the court is clear that testimony of the youth will not be needed.Remember the legal threshold for pursuing attainment in Utah is “substantial likelihood that the minor may attain competency in the foreseeable future”Court gets to decide what that threshold means.Courts are often reluctant to forfeit the opportunity to adjudicate without clear evidence that remediation is unsuccessful.Grisso (2013) noted that a finding that a youth is unremediable at the initial hearing is very rare nationally – usually will wait til first revie
47Appropriate Attainment Setting DetentionOnly if youth’s risk to community or potential to abscond warrants itPsychiatric HospitalizationOnly if treatment of clinical issue typically warrants itSome Unique ScenariosVast Majority of Youth Treatable in CommunityLRAS: Hospitalization is necessary only when the youth’s mental health status is that which would require hospitalization in other contexts.Detention is necessary only when the youth’s level of risk to the community or potential to abscond warrants it.Unique scenarios: Youth with ID whose home provides inadequate care and supervision may warrant placement in res facility for IDYouth with less severe mental health issues who may warrant day treatment or even residentialTwo available studies of juvenile attainment services in Florida (McGaha, 2001) and Virginia (Warren, 2009) found vast majority can be served on an outpatient basis.Virginia – 100% in communityFlorida – 50% only in community; 28% combo of res placement and community; 22% only in a res placement. 5% served at some point in detention.Tell story of situation in Washington – ALL restoration done on an inpatient basisRip kids from home supportsPlace them in a setting with youth with severe psychiatric problems – contagion.Utilize highly expensive resources when not necessary.
48Services When Attainment Not Successful Civil CommitmentTitle 62A, Chapter 5, Services for People with DisabilitiesTitle 62A, Chapter 15, Substance Abuse and Mental Health ActChild/Person/Family In Need of SupervisionA minor who is a habitual truant from schoolReferral to Mental Health SystemA dilemma everywhere in the countrySince JJS has become (for better or worse) a key provider and clearinghouse for MH services – what to do when the JJS loses jurisdiction due to IST?Some juveniles will still need services– residential placements (long or short-term), psychiatric hospitalization, connections to appropriate community providers.Nearly all states provide for civil commitment to be considered when IST – provides help for the most imminantly dangerous.Highly important – but doesn’t totally solve the problem.What other states ae doing:Allow case to be referred for CHINS/PINS/FINS. – keep youth under court jurisdiction in its child protection capacity.Typically, must meet typical standards.Some states have added Not Competent as part of the standard so ALL not competent juveniles are eligible.Other states have mechanisms for court to refer youth to mental health system and then let go of case:Favored in places that have highly functional child mental health system.MHS better at determining services that are needed than court.Keeping court in role of supervising services increases likelihood of youth ending up back in delinquency system
49The “Development Dilemma” What should be done with youth who need to “grow up” to become competent?Courts torn on how to handleSome courts allow dismissal of chargesSome with prejudiceSome without prejudiceSome courts continue for extended period, allow the youth to grow up, and revisit afterUnique complexity of these issues in UtahAs Grisso has said, trying to develop Appreciation skills in a youth who has not yet developed abstraction skills is a bit like trying to get an infant to learn to walk before it has begun to sit up or crawl.UTAH:Developmental Immaturity is not recognized as a basis for IST.Still, some youth found IST will have Developmental Immaturity as a contributing factor.e.g., 12-yo with severe untreated ADHDIt may be that if the ADHD is successfully treated, the youth will still function poorly re CST because of young age.BUT, since young age is not recognized, this youth is now legally CST.That is, now that the legally recognized predicate for IST has been resolved (the ADHD), there is no longer a legally recognized predicate.So – competent!Becomes much more complicated when we think about more stable, less treatable clinical concerns.12-yo who has BIQ. Both are contributing.Really no way to tease out where, exactly, the impariments from BIQ end and the impairments from young age begin.Don’t see much option beyond considering “impairments due to a complex and difficult to specify interaction of young age and BIQ”The Utah statute has set up dilemmas like this – and it may take actual cases and possible even appellate cases to resolve.
50Why Are The Experts Dueling? 1. Differences in Answers to Evaluation Questions.2. Differences in Quality of Evaluation.3. Different Interpretations of Legal AmbiguitiesHopefully you now know how to consider the evaluation questions and can see where two evaluators may have gone in different directions with analysis.Of course, another possibility is that one or both of the evaluations was not done at high quality – will discuss some ways to assess.A third possibility that you should be aware of is that every juvenile CTP evaluation is finding a way to manage ambiguities in the legal issues.
51Basic Contents of a Good Report and Questions to Ask to Assess This Includes identifying and referral informationStates legal questions to be addressedDid the examiner correctly understand the relevant law?Did the examiner correctly translate these to psychological issues?Identifies sources relied uponDid the examiner fail to consider any relevant data?Contains Valid and Reliable FactsDid the examiner adequately corroborate the data?Did the examiner employ appropriate and valid techniques, tests, and instruments to obtain the data?!!!!!!!!!!!!!!!!!!!!!!!!CONSIDER SKIMMING!!!!!!!!!!!!!!!!!!!!!!!!!Corroboration -- part of the dispassionate approach that clinicians turned forensics don’t appreciate
52Basic Contents of a Good Report and Questions to Ask to Assess This Describes the capacities relevant to the Competency to ProceedDid the examiner describe psychological capacities relevant to Competency to Proceed?Creates a connection between these capacities and Competency to ProceedDid the examiner offer a logical connection between the psychological capacities and opinions about Competency to Proceed?!!!!!!!!!!!!!!!!!!!!!COSNIDER SKIMMING!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53Basic Contents of a Good Report and Questions to Ask to Assess This Offers concluding opinionsDid the examiner offer an Ultimate Issue opinion? If so, is the underlying rationale for this opinion made evident? Is it consistent with the facts?Did the examiner avoid an Ultimate Issue opinion? If so, is the underlying rationale for forming an opinion made evident? Is it consistent with the facts?Offers limits of the opinionsDid the examiner explain his/her uncertainties about the concluding opinions?Did the examiner offer alternative explanations for the findings and the reasons they were rejected?!!!!!!!!!!!!!!!!!!!!!!!!!!!CONSIDER SKIMMMING!!!!!!!!!!!!!!!!!!
54Legal AmbiguityAre the same degree of competency abilities required in juvenile court as in criminal court?The “Competent Adult” standardThe “Competent Adolescent” standardThe “Fundamental Understanding & Communication” standardThe “Age-Peer” standardThe “Flexible Bar” standardFundamental Und & Comm >Require only concrete knowledge: e.g., the ability to be aware that defense is advocate without necessarily having the ability to apply that in courtMost US jurisdictions have yet to take a stand on this:A few have: Adult Defendant Standard: Minnesota – In the Matter of the Welfare of D.D.N. 1998Adolescent Defendant Standard:– Washington, D.C: In the Matter of W.A.F., 1990; Ohio: Ohio v. Settles, 1998; Michigan: People v. Carey, Ohio references “juvenile norms”
55Should There Be A “Lower Bar” or “Flexible Bar” In Juvenile Court? Grisso (1997) has argued that juvenile respondents need not function as well as adult defendants. Bar should be lower: 1) The juvenile system maintains some level of parens patriae philosophy despite the retributive turn in juvenile justice – they are there to help the child.2) Juvenile dispositions are typically less severe than criminal sentences.3) Juvenile dispositions are more likely than adult sentences to include educational and clinical interventions4) Using the same bar as adults could render the court unable to order services for children who need it.Possible arguments in other direction:1) Juvenile sentences may be less severe in direct comparison, but are they less severe in long-term outcome? (e.g., might it be that detention with separation from family/community and exposing to antisocial peers is more damaging than adult incarceration, even if its for a shorter time? These are formative years!)2) Is the quality of educational and clinical services delivered in JJS settings of high enough quality to make it of benefit to the youth?3) The bar in adult court is already very low. e.g. State v. Ortiz (1985) said that the ability to choose among alternative legal strategies is NOT a requirement for competency!4) BOTTOM LINE: Courts have equated juvenile dispositions to adult sentences in terms of deprivation of liberty. Shouldn’t they then have same ability to avoid it?No statutes or case law to help us know the system’s beliefs about this.Yes:Juvenile dispositions less severe than criminal courtJuvenile dispositions include rehabilitative servicesJuvenile Justice Systems still promote rehabilitative idealsNo:Severity of dispositions is a relative termJuvenile Court should not substitute for an adequate social welfare/mental health systemCriminal court bar is already very low
56Relevant ResearchJudges, attorneys, and clinicians appear to use a “Flexible Bar” approach (Jones, 2004)Given vignettes varying functioning and chargesMore likely found incompetent with more serious chargesThe type of bar impacts % of youth found incompetent (Viljoen, Zapf, & Roesch, 2007)Administered competency screening instrument to youth(% Incmptnt)14-15 (% Incmptnt)16-17 (% Incmptnt)Adult- Norm88%73%45%Adolescent-Norm20%6%2%Basic Und. & Cmnctn.80%59%33%
57Legal AmbiguityShould the predicate requirement include a broader array of mental disorders in juvenile court than criminal court?Anxiety and Mood disordersLess Severe Cognitive ImpairmentDevelopmental Disorders“Soft” Neuropsychological DeficitsUtah: due to a mental disorder, intellectual disability, or related condition as defined,What is to be considered a mental disorder?With adults, courts typically see only major mental illness (psychosis) or MR as bases for ISTBut w/ children, a broader array of disorders can cause major dysfunctionLess Severe Cognitive ImpairmentBorderline Intellectual FunctioningDevelopmental DisordersAsperger’s Disorder“Soft” Neuropsychological DeficitsAttention-Deficit Hyperactivity DisorderReceptive and Expressive language disordersLearning DisordersClinically apparent: Research beginning to demonstrate this is true:
58Childhood Disorders and Competence Studies have shown that other disorders may predict poor competency functioning in juveniles (Baerger et al., 2003; Ficke et al., 2005; Kruh et al., 2006; McGaha et al., 2001; Redlich et al., 2003; Viljoen & Roesch, 2005; Viljoen et al., 2005; Warren et al., 2003)Substance Abuse DisordersLearning DisordersBehavior DisordersAttention-Deficit/Hyperactivity DisorderBorderline Intellectual FunctioningSome clinical disorders with obvious links not yet studiedPervasive Developmental DisordersCommunication DisordersDifferent studies with different samples, different methodologies > inconsistent resultsResearch beginning to demonstrate this is true:McGaha, McClaren, Otto, & Petrila (2001): among 471 juveniles found incompetent in Florida between May 1997 and August 2000, 70% were diagnosed with mental illness.Of the 349 youth with an Axis I diagnosis,57% were diagnosed with Conduct Disorder,37% with ADHD35% with Mood Disorders,17% with Psychotic Disorders15% with Adjustment Disorder.Viljoen & Roesch (2005) – ADHD may have particular relevance with Appreciation and ability to assist counsel
59Legal AmbiguityShould developmental immaturity be considered in juvenile competency determinations?Younger children at higher risk to be not competent (Grisso, 1997):Knowing, learning, and applying legal informationAppreciating attorneys are advocates, even if guiltyCommunicating in the face of authority pressuresTaking the perspective of others as to adequately explainReasoning and decision-making about legal issuesResearch supports age-based deficitsOnly a few states have settled this by statute or case lawOnly six states clearly allow developmental incompetence, whereas 17 have laws that do not include developmental immaturity as an acceptable basis of incompetence in juvenile courts. Grisso has brought this issue to the forefront, beginning in 1997 with a review of developmental literature that explained why we should expect younger children to be less competentSince then, research has clearly supported this – in fact, age may be the most well-supported predictor of juvenile AdjCompAge differences have been shown in at least 12 studiesacross different measures of AdjComp – CST; GCCT; Mac-CAT, FIT-R; clinicians opinionsacross different populations – community; detained; delinquent; examineesWhy this matters90s trend toward charging younger adolescentsFunctional illogic of requiring MI/MR only
60“The MacArthur Study:” (Grisso, Steinberg, Woolard, Cauffman, Scott, Lexcen, Reppucci, & Schwartz, 2003)Compared 927 adolescents and 446 adults on:MacArthur Competence Assessment Tool – Criminal Adjudication (MacCAT-CA)MacArthur Judgment Evaluation (MacJen)MacCAT:Youth 15 and younger performed more poorlyYouth 15 and younger more likely to demonstrate level of impairment consistent with adults found incompetent1/3 of all youth were significantly impaired1/5 of all youth were significantly impairedMacJen:Youth 15 and under more likely to make decisions based on compliance with authority, focus on short-term consequences, and other more superficial reasons.Largest study of juvenile competency to date: MacArthur Network:Mac-CAT: Standardized and normed assessment tool for CSTHopefully discussed in CST talkMac-Jen: A research measure designed for this study3 vignettes and structured interview questions with objective response categories:1) Responding to a police interrogation2) Disclosing information to defense attorney3) Responding to a plea agreement offerScored for:1) Readiness to comply with authority2) Effects of immaturitya. Ability to identify risksb. Ability to identify long-term vs. short-term risksc. Resistance to peer influenceWith Mac-CAT (read slide):Ages 11-13: 1/3 in incompetent rangeAges 14-15: 1/5 in incompetent rangeWith MacJen: (read slide)Specifically – younger adolescents had more difficulty identifying risks to their decisions, as well as long-term risks. No differences in resistance to peer influence!Similar findings in a study we conducted at CSTC
61“The MacArthur Study” Overall Impairment in COMPETENCE TO PROCEED (i.e., one or more scales) Y-Axis is the percentage in the sample who had the deficitsJuveniles were more than three times as likely as adults to show significant deficits.Juveniles were more than 2x as likely as adults to show them.However, juvenile were just about as likely as adults.These findings held across race, ethnicity, gender, SES, and geographical region.
62Legal ResponsesJudges are more likely to find youth incompetent when they (Cox et al., 2012) :Are youngerHave features of psychosocial immaturityFew states make clear if immaturity-based incompetency is legally recognized (O’Donnell & Gross, 2012):6 states allow17 states do not allowThis study investigated whether defendants’ ages and levels of psychosocial maturity would affectjudges’ ratings of juveniles’ adjudicative competence in juvenile and criminal court. Three hundred fortytwo judges reviewed a forensic psychological report about a hypothetical defendant; only the defendant’sage (12–17) and maturity level (mature, immature) varied across reports. Results revealed a main effectof age, with older juveniles generally deemed more competent, and a main effect of maturity, with maturejuveniles generally deemed more competent. No interaction was found. Results suggest that age andmaturity play major roles in judicial determinations of juvenile competency.
63Adolescent Development & Competence to Proceed Adolescent Development is an area of struggle for juvenile justice.Seems odd – JJS designed specifically for youth.But adolescent development is SUCH a complex issue.For reasons I want to spend some time looking at – this is an issue that DOES NOT FIT WELL WITH LEGAL SYSTEM DESIRE FOR BLACK/WHITE DISTINCTIONS!
64Adolescent Development: Basic Domains Physical DevelopmentNeurological DevelopmentEmotional DevelopmentCognitive DevelopmentPsychosocial DevelopmentAdolescent development occurs across a number of important domains.Most relevcant here are cognitive and psychosocialCloser look….
65Adolescent Development: Cognitive Development Verbal FluencyInformation Processing SkillsKnowledge Base/ExperienceOrganization of InformationShort- and Long-Term MemorySustained Attentional CapacityAbstraction SkillsGrasp the meaning of eventsAppreciate more complex concepts (e.g., a legal right)Apply learned information or past situations to new situations,Imagine consequences one has never encountered before (hypothetical situations)Reasoning and Problem SolvingClearly amongst the most important changes occurring in the transition from childhood to adulthood are cognitive abilities.
66Adolescent Development: Psychosocial Development (Scott-Reppucci-Woolard & Steinberg-Cauffman Models)Autonomy/Conformity & CompliancePerceptions and Attitudes about RiskTemperancePerspective TakingInterpersonalTemporalTwo groups of researchers have identified psychosocial factors that are particularly relevant to adolescent decision-makingand, therefore, to many forensic evaluation contexts.The overlap between the models yields four main factorsTheoretical sources of what is commonly called “poor teenage judgment”Autonomy/Conformity Compliance – Ability to think and behave in ways that are self-reliant, self-governing, independent & autonomousAbility to appropriately integrate the perspectives of others (parents; peers; authority figures) without being overly compliant or overly rejectingPerceptions of Risk – Process of assessing risk tends to be different among youth than adultsLess aware of possible risks, underestimate likelihood of neg outcomes; underestimate impact of neg outcomes; place greater weight on positive outcomes (e.g., fun) and negative consequences of avoiding risk (e.g., peer rejection).Temparance - Ability to exercise restraint regarding emotional and behavioral impulsesImmature temperance fosters impulsive decision-makingPerspective TakingInterpersonal – Ability to take perspectives of other peopleWhen abilities immature, risk is higher for more self-serving decisions and ineffective communication about themTemporal– Refers to ability to appropriately consider both long-term and short-term implications of decisions and actionsYouth tend to place greater weight on short-term consequences and discount long-termYield less-adaptive decisions
67Adolescent Development: General Features Development is idiosyncraticDevelopment is domain-specificDevelopment is non-linearDevelopment is progressiveDevelopment is interactionalNow that we have a sense of the WHAT develops in adolescence – important to understand some general features of that developmentIdiosyncratic - Individual adolescents develop along different dimensions at different rates“Everyone grows at their own rate”Even in biological issues – significant differences in the onset and progression of puberty across childrenDomain-Specific - Typical development in one domain does not necessarily translate to normal development in anotherYouth vary significantly in the rates and timing at which they develop various characteristics and abilities.Just because a youth is physically mature, does not mean that they are cognitively mature or emotionally mature.Yet there are well-documented cases in which courts used physical development or social development as an indicant of all types of developmentNon-Linear – Development within any domain is a gradual, non-linear process, with stops and starts, spurts and delays, and even regressionsEach domain is highly sensitive to environmental influences – e.g., death of loved one can cause social regressionDevelopment in a given domain is sometimes context-specificA child who is socially mature at home, but childish at school.Progressive – Development at one point is influenced by the quality of development at earlier points.A socially immature child is rejected by his maturing age-peers, which causes him to associate with younger children, which further impairs his social development.Or a child whose cognitive development is notable for verbal processing deficits – he can’t keep up with verbally presented information about how to attack academic problems in school, which impairs his general problem solving development.Interactional – Development in one domain can impact development in other domainsThey are in constant interaction with one anotherEXAMPLE: Interaction Between Biological & Social DevelopmentBoys with Early PubertyGreater: Confidence; Popularity; High Self-esteemGreater Risk: Academic Failure; Drugs; Sex; Illegal BehaviorTake home messages:Development is complex – simple conclusions are often inaccurate conclusions.67
68Adolescent Development The Term “Immaturity” Refers to incomplete or delayed developmentIncomplete Development: “Immature compared to adults”Delayed Development: “Immature compared to age-peers”Describes specific abilities or characteristics, not an overall condition of the youthDepends on actual functioning, not simply on ageCan be expressed in degrees1234 – you hear this all the time – he’s socially immature. How immature? How impairing is it?
69Development & Psychopathology Diagnosis is different with youthUnique disordersUnique presentations of common disordersDiagnostic clarity is rarerSetting-specific problemsSymptom overlap across disordersHigh comorbidity ratesInteractions with normal developmentDevelopmental Psychopathology (Dante Cicchetti)Symptoms = Exaggerations of normal developmentSymptoms interact with development in complex waysPsychopathology is dimensionalSo far, we have been discussing the complexity of normal adolescent development.Of course, many of the youth passing through the JS have issues that go beyond interference in their normal development.Add in the issue of psychopathology and things get more complicated very quickly!DIAGNOSTICSSome Disorders are more commonly diagnosed among youth than adults (e.g., PDD; FAS; Language Disorders)Other Disorders have unique presentations in youth (e.g., prevalence of irritability in depression – arguments about Bipolar)Diagnostic clarity is often limited:True symptom overlap among disorders (anger and irritability in behavior and affective disorders; distractibility in attentional and depressive disorders)Much higher rate of comorbiidity of disorders among youth than adults – problems tend to cluster – e.g., PTSD and Depression – long Dx listsInteractions between symptoms of disorders and normal developmentDevelopment can impact: thecharacteristics of disordersmost appropriate label and conceptualization of problems – tantrums at 9 understood differently that tantrums at 15impactDevelopmental Psychopathology:Symptoms of disorders result from adaptational compromises or failures in normal developmentOnce they develop, these symptoms continue to interact with patterns of normal development – so stability and trajectory of problems not always clearTherefore, pathology is better understood as lying on a dimension between “normal” and “pathological” – no clear linesClassification systems can suggest a clear distinction between pathology and normality; typically a dimensional issueDSM and the “Medical Model”
70Development-Based Threats to Competence to Proceed UnderstandingLess exposure than adultsChallenged by abstract concepts (e.g., rights)AppreciationSuperficial understanding yields erroneous applicationsDemands beyond their own experience (e.g., role of defense)Assisting CounselInformation processing and organization weaknessesSocial skill weaknesses Attentional weaknessesLegal Decision MakingPsychosocial deficits yield poor decisionsUNDERSTANDINGAbstract Concepts:Problems with Legal Rights as an absolute and irrevocable protective legal entitlements.Youth may say, “I have the right to remain silent.”But if you ask them, can you get in trouble if you stay silent, they may say yes.Rational Appreciation - Accurate “beliefs” about what is factually understood about courtIs able to rationally apply knowledge in one’s actual case-related situationsTraditional threat: Delusion – “I know defense attorney helps me, but my defense attorney is an alien.Juveniles: distorted beliefs rooted in concrete thinking, incomplete understanding of the processyield overgeneralizations, undergenralizations, confusion, immature presumptions, and frank errors in understanding– “I know defense attorney helps me, but I know my PO much better.”May understand allowed to plead not guilty and understand that term – but may refuse to plead guilty even when the case against him is weak “because its lying and you get in trouble for lying”Difficulty with role of defense counsel > can’t understand why an adult stranger would advocate for them against other adults, why an adult would put aside their own views to advocate for a larger purpose, or why their own authority eclipses that of an adult.Many youth assume there are some situations in which defense would abandon assiting them and turn against them.Leads ti problems in Assisting. Next…Assisting Counsel - Ability to participate with and meaningfully aid the defense attorney in developing and presenting the defensee.g., Is able to provide a coherent account of the facts of the alleged crimeTraditional threat: Disorganized, irrational thinking due to psychosisJuveniles: Immature development of cognitive skills to process and organize information and language skills to express informationDifficulty taking the perspective of others – difficulty developing rapportSimple difficulty paying attention when consulting with counselLegal Decision Making: Ability to consider legal alternatives and reach adequately contemplated legal choicesIs able to rationally decide about accepting a plea agreement offerTraditional threat: Psychotic Reasoning – “I’ll take the case to trial so everyone can see I am J.C.”Juveniles – “I’ll take the case to trial because that’s what my mom told me to do.”“I’ll plead guilty because I want to go home.”Decisions may be based on immature reasons:Placing short-term gain over larger long-term gain.Making decisions based on wishes of parents; or expectations of peersMaking decisions based on unrealistic assessment of risk – being found guilty; how bad detention will be, etc.
71The Role of Legal Professionals in Enhancing Juvenile Competency We tend to think about ways we can adapt the child to be better equipped to handle the legal process.Not enough attention is given to how the legal process can be adapted to facilitate the youth’s ability to navigate it!
72What can legal professionals do? Obtain trainingYouth DevelopmentUnique Challenges of Juvenile DefendantsDevelopmentally-sensitive CommunicationIn attorney consultations:Provide instructionCreate a trusting relationship in which the youth is comfortable asking questions or noting confusionEnhance client involvement in trial preparationDemonstrate loyalty to clientEngage in role playingCONSULTATIONS:Model Rules of Professional Conduct – Direct lawyers to “explain…matter[s] to the extent necessary to permit the client to make informed decisions regarding the representation.”Much of what is needed is better relationship building.Youth have no model for interacting with an adult in the manner expected within an attorney-client relationship.Many of the youth who become JJS involved have particularly weak relationship development and manintenance skills.Of course, this takes time which rubs up against modern caseloads.American Bar Association Juvenile Justice Center has been making recommendations for years about the problems of caseloadsMostly gone unattended to – or problem has worsened.Enhance involvement – youth learn best when they are active in the context they are learning about – involve them so they learn the mechanics of the process and the nature of the decisions they will need to make.Demonstrate loyalty – fight for youth’s confidentiality; take youth’s perspective over that offered by parents.Of course – attorneys cannot fully compensate for an incompetent youth – probably helps most with borderline cases.
73What can legal professionals do? In the courtroom:Slow things downUse simplified languagePresent testimony and arguments in simplified waysInclude procedural steps that can help a participant structure and track what is happeningAssess youth’s understanding on ongoing basisProvide summaries of what is occurringHave youth paraphrase legal concepts and processesAllow more time for decision-making in courtTime to re-explain options and consequencesCOURTROOM:Interestingly, it has been pointed out that some criminal courts may be more conducive to youth participation than juvenile!This is because criminal court professionals often must accommodate the layman perspective of jurors.This is not an issue in juv court.Also, criminal courts must adhere to strict procedural trappings – opening and closing statements, swearing in witnesses one at a time, giving of testimony at set points in the process.Juvenile courts more likely to function with informalityMy experience in Washington: Against Ron Roesch – judge decided she could accommodate the youth’s deficits.Frequent breaks.Allow youth to raise hand and say she is feeling frustrated and needs a breakDirect attorney to periodically offer youth summary of what was happening.
74What can legal professionals do? Resources:Buss, E. (1996). “You’re my what?” The problem of children’s misperceptions of their lawyer’s roles Fordham Law Review, 64, 1699.Buss, E. (2000). The role of lawyers in promoting juveniles’ competence as defendants. In T. Grisso & R.G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp ) Chicago: University of Chicago Press.Walker, A.G. (1994). Handbook on questioning children: A lingusitic perspective. Washington, DC: American Bar Association.COURTROOM:Interestingly, it has been pointed out that some criminal courts may be more conducive to youth participation than juvenile!This is because criminal court professionals often must accommodate the layman perspective of jurors.This is not an issue in juv court.Also, criminal courts must adhere to strict procedural trappings – opening and closing statements, swearing in witnesses one at a time, giving of testimony at set points in the process.Juvenile courts more likely to function with informalityMy experience in Washington: Against Ron Roesch – judge decided she could accommodate the youth’s deficits.Frequent breaks.Allow youth to raise hand and say she is feeling frustrated and needs a breakDirect attorney to periodically offer youth summary of what was happening.
76Legal AmbiguityIn what ways should ‘interested adults’ play a role in the competency determination?ParentsAre they always “interested adults?”Specialized Guardians ad litemCan provide emotional support, assist in communications with attorney, help ensure adequate legal representation.Can’t offer legal advice or make legal decisionsAdults serve as proxy decision-makers for youths in a number of legal contexts (e.g., parenting decisions)Should adults serve such a role with juvenile defendants?Not aware of any statutes or case law fully on point:Interestingly, in WA a statute in our JJA requires a narrow application:Only for youth under age 12Only for waiver of legal rightsParents MUST make waivers for children – keep in mind entering a guilty plea is a waiver!No attempt seen to apply this to AdjCompJen Woolard doing resarch in this area
77Relevant ResearchSurvey of parent/child dyads during adjudication (Woolard, 2006)Many misconceptions:Believe defense can talk openly with parents about case50% of parents35% of youthBelieve parent makes final decisions about the case75% of parentsMost younger juveniles; fewer older juvenilesObservations of adult support persons during police interrogations (Medford, Gudjonsson & Pearse, 2003) :Passively observeAre unsupportive (incriminate the youth; challenge their account)There were many misconceptions about the role of parents in juvenile adjudications among these units. For example, many youth (35%) and parents (50%) believed that defense attorneys can communicate openly with parents about the youth’s case. Over 75% of parents believed that they play the role of final arbiter in their children’s cases when they disagree with their child. Younger youth tended to have similar ideas, but older youth increasingly believed attorneys are supposed to rely on adolescent defendants’ preferences.