American Journal of Law & Medicine

The mental health paradigm and the MacArthur study: emerging issues challenging the competence of juveniles in delinquency systems.


Understanding the factors that impact a juvenile's adjudicative competence in delinquency and criminal proceedings today requires some familiarity with mental illness, mental retardation, and developmental immaturity. Current research and studies shed new light on these factors that juvenile advocates, prosecutors, judges, and policymakers must routinely confront. This article discusses some of the issues involved in competency determinations of juveniles awaiting trial; addressing both the more traditional factors, such as mental illness and mental retardation, and some of the more recent studies and literature identifying developmental immaturity as an emerging basis for challenging the competency of juveniles to stand trial.

Juvenile justice systems routinely presume that adolescents accused of delinquent or criminal misconduct are competent to stand trial. (1) Adults charged with criminal misconduct are also presumed to be competent. (2) Competency requires that citizens accused of criminal misconduct understand the charges against them, have rudimentary understanding of the court process, be able to understand and answer questions posed to them by their counsel, and be able to make decisions about their trial such as whether to testify, and whether to accept or reject plea bargains. (3) Although juveniles must be competent to stand trial before their delinquency cases can go forward, recent studies of juvenile mental health issues and of developmental immaturity raise serious concerns for state delinquency systems. Current literature suggests that large numbers of juveniles in delinquency systems suffer mental health problems that undermine competency. Additionally, a recent study by the MacArthur Foundation found that the developmental immaturity of many juveniles casts doubt on their ability to competently assist in preparing their defense. (4) Although seemingly unrelated, these factors create major challenges for state delinquency systems.

For many years the governing policy behind maintaining a separate juvenile justice system was based on the belief that children are more readily "rehabilitated" and prevented from graduating into a life of adult crime since they are still young and malleable. (5) Following a decade of public frustration with high profile and often extremely violent juvenile crime, states slowly adopted transfer laws that moved juvenile offenders out of delinquency systems and into adult criminal systems. (6) Several researchers have noted that:

   Changes in juvenile law were unprecedented in the 1990s as state 
   legislators cracked down on juvenile crime. Changes have made 
   it easier to transfer children to criminal court, expanded 
   sentencing options, minimized confidentiality requirements, and 
   refocused on accountability and community protection, resulting 
   in a more punitive juvenile justice system. The number of 
   adjudicated cases that resulted in residential placements of youth 
   grew by 51% between 1987 and 1996. Moreover, the number of 
   delinquency cases judicially waived to criminal courts grew by 
   73% between 1988 and 1994, despite the fact that studies 
   indicated that children transferred to criminal court tend to 
   recidivate more quickly and frequently on average than those 
   kept in the juvenile system. (7) 

As juvenile justice policy moved from a more rehabilitative model to a more punitive model, researchers focusing on adolescent behavior and development began identifying new information about juveniles. (8) Many of the fundamental assumptions concerning adolescent behavior became the subject of intense social science scrutiny, and much research became focused on the differences in cognitive abilities and behavior between adults and adolescents. (9)

Researchers estimate that well over 35,000 adults with serious mental illnesses are booked into U.S. jails on any given day. (10) Researchers also estimate that approximately 60,000 adult competency evaluations are conducted annually in the United States, but that only about 30% of the defendants referred for evaluation are found by courts to be incompetent. (11) Less is known about the rates of incarceration for juveniles with serious mental illnesses, co-occurring mental health problems and substance abuse or addictions, (12) or developmental immaturity. As state legal systems and philosophies shift away from treating juvenile offenders differently and separately from adult offenders, (13) juveniles have increasingly been transferred into adult criminal systems. (14) Current research and literature suggests that the issue of juvenile competency to stand trial now warrants greater attention. (15)

A new dimension in the competency debate has emerged with the increase of information collected about juvenile mental health problems, mental retardation, and developmental immaturity. The MacArthur Study on juvenile adjudicative competence focuses on developmental immaturity, and raises serious issues about the ability of juveniles to assist in the preparation of their defense. (16) While systemic resources for the treatment of juveniles with mental health disorders are overburdened and under funded in many communities, (17) the MacArthur Study raises significant new questions about the actual number of children who lack competence to proceed to trial. (18) If greater numbers of children are found to lack competence, states must determine appropriate responses for both children who will eventually regain competence and those children who are unlikely to ever be found competent.

At least three distinct competency issues require attention. First, significant numbers of juveniles charged with delinquency offenses have diagnosable mental health problems. (19) These conditions require treatment or special placement before some of these juveniles may proceed to trial. (20) Longitudinal studies and other recent literature suggest that significant percentages of this population frequently suffer mental health problems involving multiple diagnosable disorders or conditions. (21) Conventional thinking about juveniles in delinquency systems has yet to consider many of the newly identified mental health problems of these adolescents.

Second, many juveniles function at levels similar to disabled adults who lack competence; not because of diagnosable mental health problems, but because of developmental immaturity. (22) For example, the decision-making capacities of a significant number of adolescents are quite similar to those of adult offenders found lacking competence to stand trial. (23) The problem is that while the process of brain development is not yet complete for adolescents, (24) the criminal justice system often requires the same level of accountability for juveniles as for adults. (25)

Third, it is currently unknown what result if any might occur from overlapping conditions or interactions between these two seemingly independent competency issues. That is, what impact does developmental immaturity have on the thought process of an adolescent who also suffers from mental illness? The presence of mental illness or mental retardation in and of itself does not necessarily result in an adolescent's lacking competence to stand trial. (26) Similarly, an adolescent with some level of developmental immaturity might not necessarily lack competence to stand trial. However, an attorney representing a juvenile client should be aware not only of developmental immaturity and its potential impact on client competency, but also of the potential impact of mental illness or mental retardation combined with a client's developmental immaturity and how these combined factors affect the competency of the juvenile.

Recent publications concerning juveniles in delinquency systems that suffer from mental illness or disability may generate new concerns about the training of future generations of lawyers that represent children. Recognizing mental illness and developmental immaturity in clients are generally not skills taught in law school. Additionally, recent literature raises concerns about resources needed to diagnose, treat, place, and monitor juveniles found incompetent to stand trial. (27) When the traditional factors challenging juvenile adjudicative competence are considered in conjunction with developmental immaturity, it becomes clear that policymakers must re-examine the way in which state delinquency systems respond to juveniles who lack competence to stand trial.

This article first discusses the magnitude and frequency of the more traditional mental health issues concerning juvenile adjudicative competency. The article then discusses the findings of the MacArthur juvenile adjudicative competence study while focusing on developmental immaturity. The article identifies some of the concerns about lawyers' failing to raise competence, available mental health assessment instruments, treatment programs, forcing medication on patients, and placement issues that impact juveniles lacking competence to go to trial. Finally, the article challenges attorneys who represent children as well as policymakers and legislators who create and manage delinquency systems to address some of the complex problems raised by these emerging issues.



Juveniles suffering from mental illness ("MI") present difficult competency issues. Each state has standards and rules defining competency to stand trial. (28) Most states have applied the competency requirements for adults established by the Supreme Court in Dusky v. United States. (29) However, some jurisdictions have enacted statutes that employ a different standard. (30) Generally, to assert that a juvenile lacks competence to stand trial, the child's attorney must have interacted with the client and determined that the client is either unable to communicate with counsel, unable to understand the legal proceedings, or appears to suffer from a mental condition or illness which prevents the client from participating in the preparation of his defense. (31) This presents an issue for juveniles represented by a public defender, because in that situation the attorney's ability to interact with the client is limited by the attorney's caseload, investigative resources, and knowledge and ability to identify problematic behavior by the client. (32)

Even if developmental immaturity is ignored, (33) and only more traditional factors of MI and developmental disabilities are considered, the data suggest that very large numbers of juveniles currently in delinquency systems exhibit serious shortcomings. Although youths entering the juvenile justice system are not routinely screened or evaluated for mental disorders, researchers estimate that 20% have serious mental health disorders, while 70% to 90% meet official criteria for at least one psychiatric diagnosis. (34) Current research on the mental health status of juvenile offenders by Howard N. Snyder, Ph.D., director of Systems Research at the National Center of Juvenile Justice, shows that:

* 68% of committed males were diagnosed with a mental health disorder, and research indicates that the percentage is greater for females in commitment facilities.

* 50% of committed males had a substance abuse diagnosis.

* 32% of committed males had a disruptive diagnosis (e.g., conduct disorder or attention deficit hyperactivity disorder).

* 10% of committed males had a mood disorder (e.g., depression).

* 58% of committed youth ages 15 to 17 had not completed eighth grade compared with 24% in the U.S. population. (35)

Not all of these juveniles are necessarily lacking in competency to stand trial, (36) but clearly a disproportionate number, in comparison to the population at large, do lack competency. The presence of a mental health problem in and of itself does not render a juvenile incompetent to stand trial. However, the rate of mental health problems observed in this population is amazingly high. Additionally, many of these juveniles frequently exhibit more than one diagnosable mental health disorder. Absent a body of published longitudinal studies focusing on juvenile competence, it is difficult to know whether there is a correlation between the high rate of mental disorders in this population and their competence to stand trial.

According to the most recently published study on the mental health needs of young offenders required by the Juvenile Justice and Delinquency Prevention Act of 1974,

   Among the general youth population, the rate of mental health 
   disorders is startlingly high. It is estimated that [20%] of 
   children and adolescents experience some kind of mental health 
   problem during their childhood.... Among youth in the 
   juvenile justice system, the percentage is substantially higher. 
   Between 50 to 75 [%] of incarcerated youth have a diagnosable 
   mental health disorder; one out of every five has a serious 
   emotional disturbance. (37) 

The collection of data about the frequency of mental health problems, MI, and mental disorders in this population has increased significantly in recent years. Although lawyers for children have long been familiar with anecdotal information about the frequency of mental health problems, these recent studies and the new body of literature paint a disturbing empirical picture of the frequent and often unmet mental health needs of these juveniles. (38)

It is difficult to argue that the frequency and magnitude of these diagnosable mental disorders has no impact whatsoever on the legal competence of this population. However, it is misleading to suggest that the high rate of mental disorders necessarily results in an equally high rate of competency problems. If the rate of mental disorders in this population is high, and if many of these children have not one, but multiple diagnosable disorders, then one should cautiously approach the issue of legal competency and its relationship to the high rate of mental health problems.

Of course, some juveniles with diagnosable disorders will be competent to stand trial. (39) This group of juveniles may proceed to their adjudication hearings, and ultimately some may be adjudicated delinquent while others may not. For those who are found to be competent and are subsequently adjudicated delinquent, there may be mental health problems that deserve attention at the dispositional stage of their case. In other cases, juveniles may be found to lack competence, which may be the direct result of their mental disorder or of their mental retardation. (40) Additionally, some authors suggest that large numbers of juveniles are not competent because of their developmental immaturity. (41) Whatever the reason for incompetence, state delinquency systems must address both treatment options when appropriate, and placement issues for the juvenile until the child is either found to be competent or until the court declares that the child will not likely be found competent in the foreseeable future.

An unresolved issue is whether delinquency systems should anticipate major disparities in rates of competency in juvenile proceedings when compared with adult criminal proceedings. Absent sufficient longitudinal studies conducted in multiple jurisdictions, this is a difficult issue to properly address. Nevertheless, it would be problematic to assume that juvenile competency issues occur any less frequently than adult competency issues. (42) With increased awareness of the frequency and magnitude of juvenile mental health problems, (43) child neglect and sexual abuse, (44) learning disabilities, (45) suicidal ideation, (46) fetal alcohol syndrome and fetal alcohol spectrum disorders, (47) mental retardation, (48) prenatal exposure to drug and alcohol abuse, (49) drug and alcohol addictions, (50) educational suspension and drop out rates, (51) homelessness, (52) posttraumatic stress disorders, (53) and children being separated from their families and placed in foster homes or group institutions, (54) among other considerations, (55) it should not be surprising that so many juveniles charged with delinquent misconduct present competency problems. (56) The rate of mental health problems in adult criminal systems has led one commentator to observe that:

   The prevalence of mental disorders among persons with criminal 
   justice system involvement is staggering. Each year about 
   700,000 adults with serious mental illness come into contact 
   with the criminal justice system. Justice Department statistics 
   indicate that [16%] of jail and prison inmates have a serious 
   mental illness, but these estimates rise to 35% when they include 
   less serious disorders. About 70% of those admitted to 
   correctional facilities have active symptoms of serious mental 
   illness, making the Los Angeles, Cook County (Chicago and 
   surrounding suburbs), and Rikers Island (New York City) jails 
   the largest mental hospitals in the country. Indeed, a recent 
   study in Michigan found that 31% of its prison population 
   required psychiatric care. The largest study to date, sampling 
   3,332 inmates in New York prisons, found that 80% had severe 
   disorders requiring treatment and another 16% had mental 
   disorders requiring periodic mental health services. (57) 

The prevalence and frequency of mental health problems of adults in criminal systems and juveniles in delinquency systems is well documented.

In the fall of 2000, the National Council of Juvenile and Family Court Judges published a position paper based on meetings between mental health professionals and judges from the thirty largest juvenile jurisdictions in the country. (58) The National Council found the prevalence of mental disorders among youth in juvenile justice facilities ranged from 50% to 75% based upon multiple, well-designed studies that used structured diagnostic interviewing techniques to determine children's diagnoses. (59) The Council also asserted that children involved with the juvenile justice system had substantially higher rates of mental disorder than children in the general population, and that they may have rates of mental disorder comparable (or even exceeding) those among youth being treated in the mental health system. (60)


Mental retardation-based challenges are another more traditional factor in competency analysis. Mental retardation ("MR") may reduce the ability of an accused juvenile to assist counsel in the preparation of a defense, or it may preclude the accused from comprehending the consequences of the system, or from understanding what is expected of him during a trial. Acknowledging these diminished capacities, the Supreme Court's 2002 decision in Atkins v. Virginia, (61) held that the Eighth and Fourteenth Amendments prohibited the execution of a mentally retarded person because MR diminishes personal culpability, even if the offender can distinguish right from wrong. (62) The Court stated that premeditation "is at the opposite end of the spectrum from behavior of mentally retarded offenders...." (63) This notion, concerning the diminished culpability of mentally retarded individuals, (64) allows courts to be receptive to challenges of competency to stand trial for these individuals.

Juveniles with MR may constitute a significant number of cases, if the numbers are similar to those of adults with MR:

   Because these individuals exhibit deficits in cognitive abilities, 
   their understanding of, and participation in, criminal 
   proceedings is frequently impaired. Denjowski and Denjowski 
   (1985) estimated that 14,000-20,000 offenders with MR are 
   currently in state and federal prisons, with another 12,500 
   estimated to reside within residential facilities. Many others are 
   likely in mental health facilities, local jails, and on probation 
   (Smith & Hudson, 1995). Most criminal defendants, including 
   those with MR, do not receive CST [competency to stand trial] 
   evaluations. Those who are selected for evaluation are most 
   likely to have an accompanying psychiatric illness (Appelbaum & 
   Appelbaum, 1994). (65) 

Most researchers believe that juveniles diagnosed with severe or profound MR will not likely "regain" or achieve competency in any foreseeable time frame. (66) Thus, systems must anticipate how and where to place these juveniles, and what services if any they require. (67)

The four categories of people who are mentally retarded based upon their IQs, are: mild, moderate, severe, and profound. (68) Roughly 90% of people designated mentally retarded fall into the "mildly retarded" category, while only 1% of this population qualify as "severely" or "profoundly" mentally retarded. (69) Children with complex dual diagnoses, (70) such as those with early-onset schizophrenia (with hallucinations or prominent delusions for at least six months, deterioration in one or more major areas of functioning, and symptoms present before the age of 16) and MR (with IQ scores of 70 or below) present difficult assessment and treatment problems with frequently unexplored linguistic and cognitive obstacles. (71) In 1992, the American Association of Mental Retardation (AAMR) published the most recent definition of MR, which included deficits in both IQ and adaptive behavior:

   Mental retardation refers to substantial limitations in present 
   functioning. It is characterized by significantly subaverage 
   functioning, existing concurrently with related impairments in 
   two or more of the following applicable adaptive skill areas: 
   communication, self care, home living, social skills, community 
   use, self direction, health and safety, functional academics, 
   leisure and work. Mental retardation manifests before age 18 
   (Luckasson et al., 1992, p.1). (72) 

Changes in the definition of MR over the past fifty years have resulted in including or excluding "large percentages of the population with each change in diagnostic criteria." (73) Counsel must be aware that the clinical definition of this condition is not stagnant, and that the instruments used to render the diagnosis also change over time. Each diagnostic classification system employs a two-step approach of assessing IQ and adaptive behavior when making a MR diagnosis. (74)

The Bayley Scales of Infant Development--Revised (Bayley, 1994),-and the Wechsler Scales of Primary and Preschool Intelligence-Revised (Weschler, 1989), are standardized tests of intellectual functioning used to determine a juvenile's IQ and may be utilized with children as young as infants and preschoolers. (75) The Vineland Scales (Sparrow, Balla, & Cicchetti, 1984), Scales of Independent Behavior-Revised (Bruininks, Woodcock, Weatherman, & Hill, 1996), and AAMR Adaptive Behavior Scale (Nihira, Foster, Schellhaus, & Loland, 1974) are used to assess adaptive behavior, and can in some cases be administered as early as birth, but are more commonly used for children as young as two and a half years old. (76) Additionally, there appears to be a higher rate of MR in boys than in girls, and there is evidence that children from consistently impoverished families show an IQ combined score with a mean of 9 points lower than children from nonimpoverished families. (77)

Additionally, counsel should understand that juveniles diagnosed with MR or developmental disabilities have psychiatric disorders at rates four to six times greater than children without developmental disabilities. (78) Children with MR also have a high rate of behavioral disorders and are at high risk for development of serious MI. (79) Thus, a child believed to be mentally retarded should also be assessed for other developmental disabilities as well as possible mental illnesses that might impact the child's ability to assist counsel, to comprehend the legal proceedings, or to make informed decisions necessary to his participation in the legal system. (80) In many court-ordered competency to stand trial evaluations, once the juvenile is found to be mentally retarded, some evaluators go no further. (81) This is not difficult to understand, especially if the child's reading and writing comprehension skills show deficits. Some of the assessment instruments used to determine MI will have limited application with juveniles found to be mentally retarded. This process results in overlooking some of the complicating factors that give rise to the client's incompetence to stand trial, and it also results in failing to identify treatable MI suffered by the juvenile.

Some research suggests that those diagnosed with mild MR can benefit from treatment, and some can enhance their functional abilities by learning strategies, adaptive skills, and social competencies. (82) Although some researchers have identified limited numbers of MR defendants who appear to respond well to individualized treatment and "competency restoration services," (generally those with higher functioning and who do not suffer other psychiatric problems), (83) there does not appear to be a general consensus among researchers about the effectiveness of using training programs, classes, or therapy designed for "restoring competency" to MR defendants. (84) The limited cognitive abilities of this group of juveniles make it difficult to impossible for them to participate meaningfully in the preparation of their defense. This is a major reason for declaring adolescents not competent to stand trial.


Developmental immaturity, the most recent factor identified by researchers as impacting juvenile adjudicative competence, departs from the more traditional factors of MI and MR, and is likely to be observed in a large segment of adolescents in juvenile justice systems. In addition to the more traditional factors that have impacted children's adjudicative competency, developmental immaturity has become the focus of researchers grappling with the limitations of adolescents involved in delinquency and criminal justice systems. Previous research on adjudicative competence tended to categorize the fundamental aspects of competence to stand trial into three areas: "a basic comprehension of the purpose and nature of the trial process (Understanding), the capacity to provide relevant information to counsel and to process information (Reasoning), and the ability to apply information to one's own situation in a manner that is neither distorted nor irrational (Appreciation)." (85)

Recognizing that information and data about juveniles' competence to stand trial was very limited, the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice and the Open Society Institute funded an interdisciplinary research project based at Temple University in Philadelphia. (86) Although researchers had documented the high rates of mental disorders among youths in the juvenile justice system for years, (87) the MacArthur study approached the issue of competency in a very different fashion. Part of the study's conclusion is alarming: "[t]his study confronts policy makers and courts with an uncomfortable reality. Under well-accepted constitutional restrictions on the state's authority to adjudicate those charged with crimes, many young offenders--particularly among those under 14--may not be appropriate participants for criminal adjudication." (88)

Recognizing that factors other than MR and MI impact the ability of adolescents to engage in the preparation of their defense and to assist counsel, the MacArthur study represented a radical departure from the factors previously considered by state courts. (89) Of course, the study was a step in the same direction as medical research that documented the differences between fully developed adult brains and still-developing adolescent brains. (90) Deficits in understanding and appreciating legal proceedings were no longer thought to be solely the result of developmental disability or MI.

It has been noted that:

   The conventional standard by which competence is evaluated 
   focuses on adults' cognitive deficiencies caused by mental illness 
   or mental retardation. Beginning in the 1970s, courts and 
   legislatures have extended this protection to mentally impaired 
   youths adjudicated in juvenile proceedings. However, few 
   lawmakers have addressed the impact of developmental 
   immaturity on competence.... Whether the source of a 
   defendant's incompetence is mental illness or immaturity is not 
   (or should not be) relevant.... On one level, developmental 
   immaturity is simply an additional basis (along with mental 
   illness or mental retardation) for invoking a standard procedural 
   protection available to criminal defendants.... Viewed in this 
   light, developmental incompetence represents a modest doctrinal 
   expansion, which carries some urgency because of the recent 
   punitive reforms. (91) 

When assessing the capacities of youths as trial defendants, researchers discovered significant differences and similarities between juveniles and adult offenders. More than ten years before the MacArthur study was conducted, Richard Bonnie noted that:

   [I]n addition to defendants' basic understanding and reasoning 
   abilities, their "decisional competence" may be significant in 
   cases in which defendants must make important decisions about the 
   waiver of constitutional rights. A potentially important 
   difference between adolescents and adults in this regard involves 
   maturity of judgment. Differences between adolescents and 
   adults not only are cognitive, but also involve aspects of 
   psychosocial maturation that include progress toward greater 
   future orientation, better risk perception, and less susceptibility 
   to peer influence. (92) 

Subsequent to Bonnie's findings, other researchers studied developmental factors and their impact on adjudicative competence: "[s]everal authors

have hypothesized that these developmental factors could result in differences between adolescents' and adults' decision making about important rights in the adjudicative process (Cauffman & Steinberg, 2000; Scott, 1992; Scott, Repucci, & Woolard, 1995; Steinberg & Cauffman, 1996)." (93)

By the time the MacArthur study was underway, researchers were identifying developmental immaturity as a relevant factor for assessing juvenile competence, despite the fact that "[c]urrent law [did] not include these developmental factors as relevant when considering a defendant's adjudicative competence." (94) Although not in the context of competency to stand trial, the Supreme Court in 2005 expressly recognized some of the literature documenting the differences between adolescent and adult maturity levels, proclaiming that:

   .... As any parent knows and as the scientific and sociological 
   studies ... tend to confirm, "[a] lack of maturity and an 
   underdeveloped sense of responsibility are found in youth more 
   often than in adults and are more understandable among the 
   young. These qualities often result in impetuous and ill-considered 
   actions and decisions." (95) 

It has been further noted that "adolescents are overrepresented statistically in virtually every category of reckless behavior." (96) In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. (97)

The Johnson Court's recognition and application of the research on developmental immaturity of adolescents was made two years after publication of the MacArthur study. (98) This recognition should help clear the path for application of the concept of developmental immaturity in legal proceedings involving adolescents. For instance, Florida's juvenile incompetency statute includes a provision allowing for a finding of incompetency due to "age or immaturity." (99)

The MacArthur study was not intended to shed additional light on mental health problems of juveniles in delinquency systems. (100) The juveniles in the study were not diagnosed with conduct disorders or substance abuse addictions, but were found to lack competence because of their developmental immaturity. (101) Many of the children in the MacArthur study simply could not think like competent adult counterparts primarily because of their developmental immaturity. As one of the MacArthur co-authors noted after publication of the MacArthur study:

   New medical imaging techniques, such as PET scans and 
   functional MRI, are starting to reveal aspects of brain 
   development that take place during adolescence. One is the 
   maturation of the frontal lobe that oversees high-level cognitive 
   tasks such as hypothetical thinking, logical reasoning, long-range 
   planning, and complex decision making. We now know that 
   during adolescence, the frontal lobe is a hub of activity: Neurons 
   are wrapping themselves in myelin sheaths that speed the 
   transmission of electrical impulses, while the "pruning" of 
   unneeded synaptic connections is increasing the efficiency of 
   mental processing. Elsewhere in the brain, the lymbic system-the 
   center of emotional processing--is increasing its connections, 
   paving the way for a better integration of emotional and cognitive 
   During the time these processes are developing, it doesn't make 
   sense to ask the average adolescent to think or act like the 
   average adult, because he or she can't--any more than a 
   six-year-old child can learn calculus. (102) 

This is a rather innovative conclusion. The state juvenile justice systems are "processing" children and incarcerating children who should be identified and removed from the process of criminal prosecution, at least until they are found to be competent to stand trial. (103) MacArthur seems to have verified what various professionals who work within the delinquency systems have suspected for years: that many of these adolescents simply lack the competency to proceed with trial or adjudication.

The first phase of the study involved collecting data from 1997 through 2002 from more than 900 youths and more than 450 adults. (104) The study was directed by Thomas Grisso, professor of psychiatry at the University of Massachusetts Medical School, and included research by Laurence Steinberg, Jennifer Woolard of Georgetown University, Elizabeth Cauffman of the University of Pittsburgh, Elizabeth Scott of the University of Virginia School of Law, Sandra Graham from the University of California-Los Angeles, Fran Lexcen of the University of Massachusetts Medical School, N. Dickon Repucci from the University of Virginia, and Robert Schwartz of the Juvenile Law Center in Philadelphia. (105) Because the study was undertaken by a mutidisciplinary team, it was able to address a broad array of medical, legal, psychological, and policy issues created by children whose competency to stand trial is suspect.

One of the first large scale studies of juvenile competence to stand trial, the study involved over 1,400 males and females from four different communities. Phasel of the study involved collecting data from 1997 through 2002, and this yielded some unexpected and seemingly controversial results. (106) Phase II of the study will develop tools to assist courts and mental health evaluators to determine the competency of juveniles to stand trial. (107)

The study strongly suggests that approximately one-third of juveniles between eleven and thirteen years old and one-fifth of juveniles between fourteen and fifteen years old lack the necessary competence to stand trial. (108) Additionally, the study concluded that when reviewing trial-related understanding and reasoning about important information, 30% of the eleven to thirteen year olds and 19% of the fourteen to fifteen year olds performed at the same level as mentally ill adults found not competent to stand trial. (109)

Subsequent to the MacArthur study's findings, other researchers have undertaken efforts to identify the impact of developmental immaturity on legal decision-making by adolescents involved in delinquency and adult criminal proceedings. (100) It is likely that this will prove to be fertile ground for more research in the near future. Clearly, there is a need for additional research to address many of the issues raised by MacArthur, but there is also a need to educate and inform counsel for children about the emerging issues in juvenile competency.

Judges and mental health experts working in this field are painfully aware of the developmental disorders and mental diseases of juveniles in the system, and they are now learning and becoming aware of developmental immaturity and the impact it bears on juvenile competency to stand trial. These distinct factors raise very complicated issues however. Children suffering from treatable mental disorders and found to be lacking competence might respond to treatment programs so as to be able to resume the delinquency trial process. However, for children who are developmentally immature, there is no known medication or behavioral modification treatment program that should be expected to "restore" or "achieve" legal competency. It may well be that the most likely factor to impact the competency of this group of juveniles will be the passage of time and the natural process of maturation. Additionally, for those adolescents diagnosed as mentally retarded, especially those with moderate to severe MR, the vast majority would not be expected to achieve competence in order to stand trial for their offenses.


Many delinquency and criminal systems will refer juveniles found to lack competence to stand trial to various treatment programs, institutions, or hospitals for treatment following the court's ruling of incompetency. These referrals are subject to constitutional mandates with regard to the length of time the patient may be institutionalized. Additionally, much has been written about the effectiveness of different forms of intervention and treatment programs for different conditions and illnesses exhibited by this population.

Some of these juveniles may not "regain" competency, in which case the system must determine what placement and treatment is appropriate, assuming that they may not simply be detained in juvenile detention centers indefinitely. The Supreme Court, in Jackson v. Indiana, (111) ruled that an individual cannot be held in an institution for more time than necessary to determine whether he can become competent to stand trial, and that if he lacks the capacity to become competent, the state must initiate civil commitment proceedings or release the accused. In Jackson, the Court invalidated a statute that allowed indeterminate and potentially lifetime commitment of a mentally retarded, deaf mute who had been adjudicated not competent to stand trial. (112) Although the Court did not indicate when exactly an individual must be either released or subjected to civil commitment, it did rule that the continued detention of an individual was appropriate only for individuals who "probably soon [would] be able to stand trial." (113)

Systems must also consider how long this population might require services. For instance, some juveniles may require long-term placement in group homes rather than hospitalization. This may be necessary because a child's MI is so challenging that it prevents families from providing adequate treatment and care. It may also be necessary because the family itself is dysfunctional or incapable of providing a stable home environment for the child. Additionally, if this population is not expected to be capable of "regaining" competency, then systems must determine what resources should be appropriated to these juveniles to help prevent recidivist conduct. (114)

Many juveniles suffer from mental diseases for which medication and therapy have been shown to be effective. (115) Juveniles suffering from depression, for instance, must be properly diagnosed and treated. (116) These juveniles may be good candidates for competency restoration programs, but they may continue to have other identifiable mental health problems requiring ongoing treatment. Other juveniles may suffer from bipolar disorder, or manic-depressive illness. This is defined as:

   [A] recurrent condition that includes major depressive episodes, 
   like those found in clinical depression, as well as periods of 
   highly elevated mood, known as mania or hypomania. It is a distinct 
   illness from clinical depression, with causes that appear to be 
   predominantly biochemical and genetic, rather than social or 
   psychological in nature. Episodes may last for weeks or months, 
   and will tend to recur every two to four years if the disease is not 
   successfully treated. A large majority of people with bipolar 
   disorder are fully functional between episodes, experiencing no 
   occupational or interpersonal difficulties. (117) 

Such disorders require treatment and medication. They do not improve over time or because a juvenile has been incarcerated following a delinquency conviction. Because of the recurring nature of these disorders, they require monitoring, preferably by a mental health professional able to provide continuity in medical treatment. It may require some time of adjustment before the correct dosage of medication for such patients is determined. (118) Because this population frequently suffers from comorbid psychiatric disorders or secondary psychiatric problems, treatment plans should be carefully monitored. Researchers indicate that:

   [P]atients treated for bipolar disorder who have substance abuse 
   problems or personality disorders have more difficulty following 
   treatment plans (Aagaard & Vestergaard, 1990; Colom et al., 
   2000; Danion et al., 1987; Jacob et al., 1984; Brown et al., 2001). 
   Unfortunately, the majority of people who have been diagnosed 
   with bipolar disorder suffer from one or more secondary 
   psychiatric problems. More than 65% of these individuals have 
   at least one comorbid Axis I diagnosis, and about 43% have two 
   or more comorbid Axis I disorders (McElroy et al., 2001). (119) 

Because of the limited number of medication studies involving children and adolescents, medications used for bipolar disorder to treat manic and depressive episodes require close monitoring as well as additional research. (120) For attorneys with limited training or experience in identifying an adolescent with bipolar disorder, some screening questionnaires may be useful. These questionnaires require self-reporting by the client and appear to correctly detect about 70% of bipolar patients and rule out as many as 90% of those who do not have the disorder. (121) Additionally, the Diagnostic Interview for Children and Adolescents (DICA) is a semistructured interview that assesses lifetime history of DSM-IV diagnostic criteria for child and adolescent disorders, and it appears to be particularly reliable when testing for bipolar disorder in children. (122) It should be noted that approximately 60% of bipolar disorder patients suffer from one or more comorbid psychiatric disorders, with the most common secondary psychiatric diagnoses being alcohol and substance abuse. (123) Competency evaluations for juveniles suspected of suffering from bipolar disorder should therefore include assessment of substance abuse and dependency and its impact on the juvenile's competency to stand trial.


Some juveniles may have disruptive behavior disorders such as so-called "conduct disorders," characterized by repetitive and persistent violation of the rights of others or of age-appropriate social norms or rules. (124) These are more difficult to treat, and some suggest even impossible to treat. (125) These conditions may require different interventions than those given to juveniles more likely to respond to medication and traditional therapy, such as juveniles diagnosed with anxiety and mood disorders. (126) Some have questioned, however, whether "conduct disorder" should be included in the DSM classification system for disorders. (127) The argument is that "conduct disorders" are based upon "a youth's persistent and repetitive manifestation of any three of fifteen behaviors involving aggression, destruction of property, theft, or 'serious violation of rules," (128) and it is thus questionable whether such "behavior is the consequence of a particular underlying causal condition." (129)

Many of the symptoms of this disorder overlap symptoms of many other disorders diagnosed for adolescents. Creating community based programs that provide behavior modification in conjunction with mental health treatment programs may make sense for this population. (130) So-called multisystemic therapy programs, (131) ("MST"), might also provide useful treatment for juveniles once thought to be resistant to therapeutic interventions. …

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