Photo: Jen Pagonis (_ pidge )

1. Competence to Stand Trial in Juvenile Delinquency Proceedings Tuesday, September 3, 2013 2:00-3:00 p.m. EST Kimberly Larson, J.D., Ph.D. University of Massachusetts Medical School Michelle Weemhoff, M.S.W. Michigan Council on Crime and Delinquency Photo: Jen Pagonis (_pidge)

2. Leads a national movement • State-based juvenile justice coalitions and organizations (43 members in 33 states) • Laws, policies and practices that are fair, equitable and developmentally appropriate for all children, youth and families Photo: Moriza

3. Our Speakers Kimberly Larson, J.D., Ph.D. University of Massachusetts Medical School Michelle Weemhoff, M.S.W. Michigan Council on Crime and Delinquency

4. Competence to Stand Trial in Juvenile Delinquency Proceedings Kimberly Larson, J.D., Ph.D. University of Massachusetts Medical School Michelle Weemhoff, M.S.W. Michigan Council on Crime and Delinquency September 3, 2013

5. Agenda • Competence to Stand Trial (brief general overview) • Juvenile Competence to Stand Trial (JCST) • Overview of Research on JCST • National Trends & Legislative Issues • Considerations for Advocates

6. CST Basics: Dusky Standard A defendant must have: …sufficient present ability to consult with his attorney with a reasonable degree of rational understanding.. …and a rational as well as factual understanding of the proceedings against him (Dusky v. U.S, 1960)

7. Defining CST • What Competence Is: Breaking down Dusky • 3 “prongs” of Dusky standard • Functional Abilities • Traditional “Predicates” • Note: CST is a decision made by the judge with the clinician’s input.

8. What Competence is Not • Ex: Mental Illness ≠ IST • Difference between CST & criminal responsibility

9. What’s Different When Applied to Juveniles? Reasons why some adolescents might have deficits that impair competence…. • Same as in adults…. • Intellectual disabilities • Mental disorders (but somewhat different disorders) • Different from adults…. • “Developmentally” less capable • Even without disorders, greater risk of incompetence • And with disorders, more vulnerable

10. Evidence About Youths’ Abilities relevant for Competency to Stand Trial MacArthur Juvenile Competence Study (2003) • About 15% of adults were seriously impaired on competence measures used by forensic examiners • For adolescents…. • About the same (15%) for 16-17 year olds • About 25% of 14-15 year olds • About 40% of 11-13 year olds • And about 55% of 11-13’s with low IQs

11. National Trends • Many states are now creating juvenile specific legislation for CST • Michigan is in line with this trend

12. Important Issues to be Resolved Issue #1 - Is there an age when competence should be presumed?

13. Age of Presumed Incompetency • In Michigan, a juvenile 10 years of age or older is presumed competent to proceed unless the issue of competency is raised by a party. • A juvenile less than 10 years of age is presumed incompetent to proceed.

14. Important Issues to be Resolved: Issue #2 • Who should conduct JCST evaluations • Being a licensed psychologist or psychiatrist not enough • Examiner must be specialized in child/adolescent forensic evaluations

15. Qualified Examiners • “Qualified forensic mental health examiner” means 1 of the following who performs forensic juvenile competency examinations but does not exceed the scope of his or her practice as authorized by state law: • (1) A psychiatrist or psychologist who possesses experience or training in the following…

16. Required Training & Experience • (i) Forensic evaluation procedures for juveniles. • (ii) Evaluation, diagnosis, and treatment of children and adolescents with emotional disturbance, mental illness, or developmental disabilities. • (iii) Clinical understanding of child and adolescent development. • (iv) Familiarity with competency standards in this state.

17. Qualified Examiners • (2) Beginning 18 months after the effective date of the amendatory act that added this section, a mental health professional other than a psychiatrist or psychologist who has completed a juvenile competency training program for forensic mental health examiners that is endorsed by the Department • AND who possesses experience or training in ALL of the following…

18. Court Determines Expert Witness • The court has the final determination of an expert witness serving as a qualified forensic mental health examiner. • The qualified forensic mental health examiner appointed by the court shall be allowed reasonable fees for services rendered.

19. Important Issues to be Resolved: Issue #3 - What should a CST evaluation / report contain?

20. Written Report • The qualified forensic mental health examiner shall submit a written report to the court not later than 30 days from receipt of the court order • The evaluation shall be based on the Juvenile Adjudicative Competence Interview (JACI) or another interview method approved by the court

21. Report Must Contain… • A description of the nature, content, and extent of the examination; • A clinical assessment; • Description of abilities and deficits in the mental competency functions related to the juvenile’s competence to proceed

22. Report to Court • The qualified forensic mental health examiner shall provide the court with an opinion about the juvenile’s competency to proceed. • Report must comment on the nature of any psychiatric or psychological disorder or cognitive impairment, the prognosis, and the services needed and expertise required to restore the juvenile to competency

23. Information to Examiner • The court shall order the prosecuting attorney to provide to the juvenile’s attorney all information related to competency • The court shall order the prosecuting attorney and juvenile’s attorney to submit relevant information about the offense and juvenile’s background with 10 days. Except as prohibited by federal law, the court shall require the juvenile’s attorney to provide available records, including: • (a) Psychiatric records. • (b) School records. • (c) Medical records. • (d) Child protective services records.

24. Information to Examiner • The requirement to provide records or information does not limit, waive, or abrogate the work product doctrine or the attorney-client privilege, and • Release of records and information is subject to the work product doctrine and the attorney-client privilege. • Within 5 working days, copies of the written report shall be provided by the court to the juvenile’s attorney, the prosecuting attorney, and any guardian ad litem.

25. Important Issues to be Resolved: Issue #4 - What is Restoration / Remediation? - What are some of the differences in applying this concept to youth?

26. Restoration The court may issue a restoration order that is valid for 60 days (with one possible 60-day extension). • The qualified restoration provider shall submit a report to the court and the qualified forensic mental health examiner every 30 days, or sooner if: • (i) The qualified restoration provider determines that the juvenile is no longer incompetent to proceed. • (ii) The qualified restoration provider determines that there is no substantial probability that the juvenile will be competent to proceed.

27. Incompetent, unable to be Restored • Determine custody of the juvenile as follows: • (i) The court may direct that civil commitment proceedings be initiated, as allowed under the Mental Health Code, OR • (ii) the juvenile shall be released to the juvenile’s parent, legal guardian, or legal custodian under conditions considered appropriate to the court. • (b) Dismiss the charges against the juvenile.

28. Unable to be restored due to SED • If a youth in incompetent and unable to be restored due to a serious emotional disturbance, the court may in its discretion, order that mental health services. • The court shall retain jurisdiction over the juvenile throughout the duration of the order. • The entity ordered to provide mental health services shall continue to provide services for the duration of the period of treatment ordered by the court.

29. Considerations for Advocates • Clarify the issue • Compile cross-state research • Compile in-state research • Partner with key stakeholders • Develop implementation plan

30. Clarify the Issue • Emphasize that this is a constitutional issue • Difference between competency and criminal responsibility • Difference between competency and mental health • Different standard between youth in juvenile system and youth in adult system

31. Compile cross-state research • Grid that compares statutes from all other states to assess how your state compares • Compile data from states with successful programs • # found incompetent and reason • # successfully restored • Increases and level off after implementation

32. Compile in-state data • # of competency evaluations by county • # of youth by age (particularly under 10) • Description of your system (state evaluators, court clinic, privately contracted evaluators)

33. Partner with key stakeholders • Champion legislators • Judges • Prosecutors • Defense attorneys • Dept of Community Health • Forensic clinicians • Mental health associations

34. Understand opposition • Costs (of great concern to county assoc.) • Presumed age is too high/too low • Scope of practice among evaluators • “but these kids need services available from the court…”

35. Create implementation plan • Who will educate/train on the new law? • Which agency is going to monitor quality of evals and provide ongoing training to clinicians and restoration providers? • What infrastructure exists for restoration? • Address costs

36. Questions or Comments Kimberly Larson (508) 856-2653 Kimberly.Larson@umassmed.edu Michelle Weemhoff (517) 482-4161 mweemhoff@miccd.org www.miccd.org