Eyewitness Evidence & Competency to Stand Trial
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Group05_CompetencetoStandTrial.pdf
PROSPECTS FOR REMEDIATING JUVENILES’ ADJUDICATIVE INCOMPETENCE
Jodi L. Viljoen Simon Fraser University
Thomas Grisso University of Massachusetts
Medical School
With the application of adjudicative competence requirements to adolescent defen- dants, there is a growing need for interventions to enhance the legal capacities of adolescents who are found to be incompetent. By reviewing developmental, clinical, and educational research, the authors discuss whether it is possible to enhance youths’ legal capacities and, if so, what the most promising approaches may be. Psychoeducational interventions for youth are discussed, as well as the possibility of changing the demands of the juvenile justice system to try borderline-competent youth in juvenile court. The authors conclude that there is evidence to believe it may be challenging to enhance youths’ legal capacities, particularly when youth have limited rational understanding and/or legal reasoning capacities, and when these deficits stem from developmental immaturity and/or mental retardation. A research agenda is proposed.
Keywords: adjudicative competence, competency to stand trial, juvenile offenders, adolescents
Since the 1700s, criminal courts have required that adults accused of a crime must be competent to proceed to adjudication or, in other words, must have the capacity to understand and participate in the adjudicative proceedings against them (Bonnie, 1992). The purpose of this requirement is to protect the fairness and dignity of adjudicative proceedings, the accuracy of adjudications, and defendants’ decision-making autonomy.
Within juvenile court, this requirement that defendants must be competent was historically considered unnecessary given the rehabilitative ideals of the early juvenile justice system (Scott & Grisso, 2005). However, as the legal system has become more punitive toward youth, courts have increasingly required that adolescent defendants in juvenile court, like adult defendants in criminal court, must be competent to proceed with adjudication.
With the application of competency requirements to juveniles, there is a pressing need for evidence-based interventions to improve incompetent youths’ legal capacities. A growing number of youths are referred to mental health clinicians for competency evaluations and are found incompetent (Grisso & Quinlan, 2005). Furthermore, research has indicated that adolescents aged 15 years and under are more likely than adults to exhibit deficits in competence-
Jodi L. Viljoen, Department of Psychology, Simon Fraser University, Burnaby, British Co- lumbia, Canada; Thomas Grisso, Department of Psychiatry, University of Massachusetts Medical School.
Correspondence concerning this article should be addressed to Jodi L. Viljoen, Department of Psychology, Simon Fraser University, 8888 University Drive, Burnaby, British Columbia, V5A 1S6, Canada. E-mail: [email protected]
Psychology, Public Policy, and Law 2007, Vol. 13, No. 2, 87–114
Copyright 2007 by the American Psychological Association 1076-8971/07/$12.00 DOI: 10.1037/1076-8971.13.2.87
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related legal capacities (e.g., factual understanding, appreciation, and reasoning; Grisso et al., 2003).
However, at this point, little research has examined the effectiveness of interventions designed to enhance the legal capacities of youth. Therefore, it is unclear if it is even possible to enhance the legal capacities of many youth (Grisso, 2005). Although some techniques for restoring competence among adults have been described (i.e., Anderson & Hewitt, 2002; Bertman et al., 2003; Brown, 1992; Davis, 1985; Noffsinger, 2001; Pendleton, 1980; Siegel & Elwork, 1990; Wall, Krupp, & Guilmette, 2003), these techniques may be inappropriate for adolescents because reasons for incompetence in adolescents and adults differ. Also, adult-based interventions may ignore critical developmental factors, such as adolescents’ relative immaturity.1 Therefore, it is important to develop interven- tions specifically for adolescents.
This article discusses (a) whether it is possible to enhance incompetent youths’ legal capacities and, if so, (b) which youths in what period of time and (c) what the most promising approaches may be. To begin, legal standards regarding adults’ and youths’ legal capacities are reviewed, and the potential causes of adjudicative incompetence in youth are examined. Following this, psychoeduca- tional interventions for youth are discussed, as well as the possibility of changing the demands of the legal system to adjudicate borderline-incompetent adolescents.
Throughout this article, the term remediation is used to describe interventions for incompetent youth rather than the term restoration. Although restoration is consistent with the language used in criminal law, this term may be misleading when applied to juvenile defendants because it implies that a defendant was previously competent but has been rendered incompetent by some factor, such as by mental illness. As described in this article, some adolescents may be incom- petent because of their developmental stage, meaning they have never yet achieved competence. The term remediation may be preferable to restoration in describing the goal of interventions for such youths because this term does not assume prior competence.
Legal Standards for Competence
Adult Defendants
In the United States, there are a number of criteria that adult criminal defendants are required to meet to be considered competent to proceed to adjudication. First, defendants must have a factual understanding of the adjudicative proceedings they face (Dusky v. United States, 1960). In partic- ular, they must have a basic understanding of the role of legal personnel (e.g., judges and attorneys) and legal procedures (e.g., trials, pleas and plea bar- gains, evidence, oaths, and cross-examination; see Grisso, 2003; Roesch, Zapf, & Eaves, 2006).
Second, defendants must have rational understanding (Dusky v. United States,
1For a general discussion of the importance of considering developmental issues in interven- tions for youth, see Holmbeck, O’Mahar, Abad, Colder, and Updegrove (2006); Shirk (2001); Stallard (2002); and Weisz and Hawley (2002).
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1960), often called appreciation, which is typically defined as the capacity to apply what one knows to one’s own situation rationally—that is, without distorted or delusional beliefs often related to mental disability (Grisso, 2003; Roesch et al., 2006). For example, defendants may factually understand that they are supposed to be represented by defense counsel who will help them, but their rational understanding may be impaired such that they believe that their defense counsel is collaborating with the state to find them guilty.
Third, defendants must be able to communicate with and assist their attorneys (Drope v. Missouri, 1975; Dusky v. United States, 1960). Specifically, defendants must have the capacity to communicate facts to their attorney, understand and respond to their attorney’s inquiries, and collaborate with their attorney in developing a defense (Grisso, 2003; Roesch et al., 2006). In addition, defendants must not be impaired by disabilities that might threaten their control over their behavior (e.g., responding impulsively in the courtroom because of a mental disorder that reduces one’s control).
Finally, recent court cases have also required that defendants be able to adequately reason about legal decisions that may arise during adjudicative pro- ceedings. These decisions include whether to waive the right to counsel, how to plead, whether to accept a plea bargain, and, if tried, whether to testify (Godinez v. Moran, 1993; see also Bonnie, 1992).
Juvenile Defendants
Within the early juvenile justice system, legal rights and protections, includ- ing the requirement that defendants be competent to proceed to adjudication, were considered unnecessary because of the focus on rehabilitation (Bonnie & Grisso, 2000; Redding & Frost, 2001; Scott & Grisso, 2005). In the 1990s, however, the juvenile court underwent dramatic revisions that introduced more punitive sanc- tions for juvenile offenders. Also, transfers to adult court became more common. Since then, all state courts that have considered the matter have ruled that competence to proceed applies to youth in delinquency cases (except Oklahoma: G.J.I. v. State, 1989). The majority of states have now established this require- ment through case law or legislation.
However, the particular legal standard for competence in juvenile courts remains unsettled. Although some courts have made it clear that youth tried in juvenile court must have the same types of legal capacities as adults (e.g., factual understanding, rational understanding, communication with counsel, and reason- ing capacities), the level or degree of the abilities required in juvenile court may or may not be similar to that applied in adult criminal court (Scott & Grisso, 2005).
Michigan (In re Carey, 2000), for example, allows for a lower level of competence in juvenile court. In general, however, the vast majority of state laws in the United States are silent on the matter. This has implications for the present review of remediation of incompetence because it does not allow one to know how much improvement in abilities is required when youths are found incompe- tent and remanded for remediation of incompetence.
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Legal Rules Regarding Interventions
If a defendant is deficient in one or more of the required legal capacities, he or she may be found incompetent. A finding of incompetence typically requires a determination as to whether the defendant can be made competent with appro- priate intervention (e.g., treatment of the person’s mental disorder). If the defen- dant is considered restorable (remediable), the trial is suspended until treatment results in attainment of competence, at which time the adjudication continues. However, if it is determined that intervention cannot produce competence or if intervention itself proves unsuccessful, the law typically provides for charges to be dismissed (with or without further civil commitment or some other intervention authorized for noncriminal/nondelinquent cases; see Redding & Frost, 2001).
In general, state statues and case law voice a preference for community-based treatment of incompetent youth unless inpatient treatment is required (Redding & Frost, 2001). This is consistent with legal and ethical principles, which emphasize that interventions should occur in the least restrictive setting possible (Miller, 2003; Pumariega, Winters, & Huffine, 2003). Also, all states provide a limit on the time—often 6 months to 2 years—by which remediation of incompetence for adult defendants in criminal court must be accomplished (Jackson v. Indiana, 1972). The application of these rules to adolescents in juvenile court is presumed in most states. Although the specific time periods allowed for remediation may vary across states, it is clear that the remediation processes for incompetent youths can delay their adjudication for a significant period of time, sometimes occupying several of their adolescent years.
Potential Causes of Incompetence in Youth
As described below, adjudicative incompetence in youth may stem from different causes, including psychopathology, mental retardation, and/or immatu- rity. These different causes may affect the type of competency interventions needed, as well as the likelihood that interventions will be effective.
Psychopathology
Psychopathology is a common cause of incompetence in adults. Many adult defendants who are found incompetent have psychotic disorders (V. G. Cooper & Zapf, 2003). Therefore, interventions for adults found incompetent often focus on treating psychotic disorders, typically with psychotropic medication (Heilbrun & Griffin, 1999; Roesch, Ogloff, & Golding, 1993; Siegel & Elwork, 1990). How- ever, although psychotic disorders may also lead to incompetence in youth (see Warren, Aaron, Ryan, Chauhan, & DuVal, 2003), research has suggested that this may be a relatively rare cause of incompetence in youth (McGaha, Otto, Mc- Claren, & Petrila, 2001). This difference occurs because psychotic disorders often do not develop until late adolescence or early adulthood.
A number of other mental disorders may contribute to incompetence in youth. Preliminary evidence suggests that adolescent defendants with symptoms of Attention-Deficit/Hyperactivity Disorder may be more likely than other adoles- cent defendants to have problems, particularly in their ability to communicate with and assist counsel (Viljoen & Roesch, 2005). Also, symptoms of depression,
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anxiety, and trauma can be linked to impaired legal capacities in youths (see Grisso, 2005). For instance, an anxiety disorder may impair a youth’s capacity to testify and communicate with his or her attorney, or depression may cause a youth to be inadequately motivated to engage in his or her defense. A history of trauma might cause a youth to have difficulties trusting his or her attorney, or anger related to depression in children might lead to an irrational refusal to consider an attorney’s advice.
When youth are found incompetent on the basis of psychological disorders, it is possible that treating the underlying psychopathology may help remediate incompetence (see Kazdin & Weisz, 2003; Kendall, 2006; Weisz, Weiss, Han, Granger, & Morton, 1995, for descriptions of empirically supported interventions for child and adolescent psychopathology). In such cases, treatment does not need to entirely eliminate psychological symptoms per se but instead only the incom- petence caused by the psychological symptoms (Grisso, 2005).
Mental Retardation and Cognitive Deficits
A second major source of adjudicative incompetence in youth is mental retardation and cognitive deficits (see Grisso et al., 2003). Mental retardation may be a particularly common cause of impaired legal capacities among adolescents found to be incompetent. For instance, McGaha et al. (2001) found that 58% of youth deemed incompetent in Florida were diagnosed with mental retardation, whereas only 6% of adults are typically found incompetent on this basis.
Incompetence that is caused by mental retardation is likely to be particularly challenging to remediate. Not surprisingly, mentally retarded youth who are found incompetent are less likely than other incompetent youth to achieve competence (McGaha et al., 2001). Also, research with adults has noted that although psy- cholegal education programs have shown some success with adults with mild mental retardation, the impact has generally been quite modest (Anderson & Hewitt, 2002; Haines, 1983).
Even when youth do not meet criteria for mental retardation, they may have other types of cognitive impairments (e.g., low IQ, learning disabilities, and/or neuropsychological deficits in verbal abilities, abstract reasoning, memory, atten- tion, and executive abilities) that could contribute to impaired legal capacities (Grisso et al., 2003; Viljoen & Roesch, 2005). Low IQ and deficits in verbal ability and executive functioning are common among adolescent offenders (Mof- fitt, 1993), as are mental disorders, such as Attention-Deficit/Hyperactivity Dis- order, which are associated with neuropsychological impairments (Seidman, Biederman, Faraone, Weber, & Ouellette, 1997; Teplin, Abram, McClelland, Dulcan, & Mericle, 2002).
Youth with these types of cognitive limitations may be more difficult to remediate than youth with average or above-average cognitive capacities. For instance, preliminary research has indicated that youth with low IQ scores are less likely than other youth to benefit from brief teaching about basic legal concepts (Viljoen, Odgers, Grisso, & Tillbroook, in press). Although such youth may be able to memorize correct responses to competence-related questions, such rote memorization of responses is insufficient for a defendant to be considered com- petent without comprehension of the task (United States v. Duhon, 2000).
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Developmental Stage
Although legal standards of competency have historically focused on severe psychopathology or mental retardation as possible sources of incompetence (Bonnie & Grisso, 2000), impaired legal capacities in youth may also stem from normal developmental differences between adolescents and adults. In other words, even when adolescents do not have mental disorders or mental retardation, they may lack adequate legal capacities simply because their cognition and psychosocial capacities are still developing and have not reached their adult potential. Furthermore, when adolescents do have mental disorders or mental retardation, adolescents’ normal developmental immaturity relative to adults may contribute to or compound these deficits in legal abilities. Incompetence due to normal developmental immaturity relative to adults has been referred to as developmental incompetence (Scott & Grisso, 2005) or incompetence due to “age-appropriate immaturity” (Frost & Volenik, 2004, p. 333).
The relationship between developmental immaturity and adjudicative capac- ities has been empirically investigated in an important study. This study, referred to as the MacArthur Juvenile Adjudicative Competence Study (Grisso et al., 2003), found that youths aged 11 to 13 years are significantly more likely than adults to demonstrate impairments in legal understanding and reasoning abilities. These age-related differences appear to stem from the fact that younger adoles- cents have not yet attained adult levels of cognitive functioning (Viljoen & Roesch, 2005) or psychosocial capacities (Grisso et al., 2003; Scott, Reppucci, & Woolard, 1995; Steinberg & Cauffman, 1996).
Consistent with research on age-related legal capacities, courts have increas- ingly recognized legal impairments associated with developmental immaturity as a basis for findings of incompetence in juveniles even when there is no specific legal mandate to do so (Grisso, 2005). However, in some jurisdictions, such as Florida (Fla. Stat § 985.19(2), 2006), youths cannot currently be found incom- petent on the basis of developmental immaturity alone.
The goal of adult competency interventions is typically to restore the com- petence of previously competent individuals rendered incompetent by mental illness. However, when adolescents are incompetent because of developmental immaturity, the goal of interventions may be to remediate deficits that exist because a youth is at a relatively normal, immature stage of development rather than to cure a temporary condition (Scott & Grisso, 2005). Simply waiting for youths to mature is likely to be unacceptable to courts, yet, as described below, it is unclear whether it is possible to accelerate the acquisition of normal devel- opmental capacities.
Psychoeducational Interventions for Youth Found Incompetent
With the growing application of competence requirements in juvenile courts, a number of jurisdictions have begun to develop psychoeducational interventions for remediating incompetence in youths. To our knowledge, the longest standing juvenile competence programs are those in Florida and Virginia. Because there is no unanimous model for the delivery of competence interventions to youth, jurisdictions have adopted different service delivery approaches. For instance, whereas the program in Virginia is entirely community based, Florida runs
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outpatient and inpatient services (J. DuVal, personal communication, June 29, 2006; McGaha et al., 2001; D. Zavodny, personal communication, June 23, 2006). In addition, the curriculum and intervention approaches used in various jurisdic- tions differ considerably.
At this point, research has not yet examined what types of approaches are most effective in enhancing legal capacities among youths. Therefore, jurisdic- tions that are now being faced with the task of developing juvenile competence interventions have very little guidance. Specifically, only two studies (D. K. Cooper, 1997; Viljoen et al., in press) have investigated efforts to enhance youths’ legal capacities. Although these studies have provided some information, they were limited in scope because they examined only brief teaching modules that target youths’ factual understanding rather than comprehensive interventions that target the broader set of capacities required of defendants. In light of the lack of research on competency interventions for adolescents, the following section reviews relevant research from the fields of developmental psychology, clinical psychology, and education in an attempt to identify potential challenges as well as possible directions in remediating incompetent youth.
It is important to note that the particular nature of psychoeducational inter- ventions needed to remediate incompetent youths tried in juvenile and adult court will likely differ depending on the competence standards that are adopted in juvenile courts. Although basic factual understanding and communication abilities are relevant to both juvenile and criminal court, some jurisdictions may decide that lower levels of these legal capacities are needed for juvenile court and/or that certain higher order capacities, such as reasoning abilities, may not be as neces- sary for juvenile court proceedings (Bonnie & Grisso, 2000; Scott & Grisso, 2005). Given that juvenile competence standards are currently unsettled, the following section discusses various legal capacities that courts could potentially consider relevant to youths’ adjudication in juvenile or adult court. Because different types of legal capacities may require different types of interventions, specific types of legal capacities (e.g., factual understanding, rational understand- ing) are discussed separately.
Factual Understanding
Factual understanding focuses on comprehending the roles of attorneys and judges, the meaning of guilty and not-guilty pleas, and other basic legal concepts or facts. Attaining adequate factual understanding may be a necessary first step in achieving other legal capacities. It is axiomatic that one needs to understand basic legal concepts prior to being able to apply them to one’s own case or before being able to adequately reason about legal decisions.
Although older adolescents often have an adequate basic understanding of legal proceedings, many adolescents aged 13 years and under do not (Grisso et al., 2003). For some youths, this limited factual understanding may stem from cognitive impairments or possibly from cognitive immaturity relative to adults. For others, it may originate from limited life experiences, education, and exposure to the legal system. In such cases, some jurisdictions will not consider youth legally incompetent as long they have the capacity to learn this information with ordinary instruction from their attorney or other advocates.
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Although factual understanding is typically considered the lowest legal ability in the sense of being easier to attain than other legal capacities (Bonnie, 1992), preliminary research has nevertheless indicated that it may be difficult to sub- stantially improve youths’ factual understanding with brief interventions. D. K. Cooper (1997) investigated whether viewing a 1-hour competency training vid- eotape improved the legal capacities of juvenile offenders aged 11 to 16 years. Cooper found that youth showed an improved understanding of the role of legal players, the layout of the courtroom, and how they could assist their attorneys after viewing the videotape. However, even with this training, the large majority of youth (89%) in that study still did not reach acceptable levels of legal capacities.
Using data from the MacArthur Juvenile Adjudicative Competence Study, Viljoen et al. (in press) also examined whether brief teaching improved youths’ factual understanding of legal proceedings. Participants included 927 youth and 466 young adults recruited from juvenile detention facilities, jails, and community sites. Youth who did not initially demonstrate adequate understanding of basic legal concepts on the MacArthur Competence Assessment Tool—Criminal Ad- judication (Poythress et al., 1999), such as the roles of judges and the meaning of guilty pleas, were briefly instructed on those concepts and then retested (using procedures that are a standard part of the assessment tool). Results indicated that although scores generally improved after adolescents were instructed, young adolescents (aged 11 to 13 years) were less likely than adults and older adoles- cents (aged 16 to 17 years) to benefit from teaching. Also, even after instruction, young adolescents showed significantly poorer understanding of legal concepts than older individuals.
These studies suggest that youth may be able to show an immediate benefit from brief teaching, although brief teaching is unlikely to sufficiently alleviate limitation in factual understanding. Furthermore, given that these studies reas- sessed understanding immediately after teaching, it is unclear if adolescents adequately retain the information they are taught. The capacity for factual under- standing seems to include the capacity to retain understanding of information across time so as to apply the information later, not merely understanding the information at the moment it is taught.
In developing interventions to enhance youths’ factual understanding of adjudicative proceedings, it may be possible to examine approaches that have been used within the field of law-related education. Law-related education refers to legal education for secondary and elementary school students, as opposed to legal education for lawyers. The field of law-related education, which became a new focus within school settings in the 1970s, aims to demystify the law by educating youth about the legal system and legal processes and helping them develop the skills necessary to become active and effective citizens (Cassidy, 2000; Cassidy & Yates, 1998; McKinney-Browning, 1998).
Given the broad goals of law-related education, the curriculum is clearly much wider than the appropriate focus necessary for interventions to enhance defendants’ factual understanding. However, the law-related education field offers a number of teaching principles that may be useful to examine in the context of interventions for adjudicative competence. The American Bar Association (1995) report on law-related education described teaching methods that focus on inter-
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active and participatory instructional strategies, such as simulations, mock trials, case studies, stories, games, and courtroom visits (see also Yates, 1998). Educa- tional research has demonstrated that these types of active learning techniques contribute to learning by facilitating a deeper processing of information (e.g., Hendrikson, 1984; National Research Council, 1996).
In addition, given that cognitive deficits are common among adolescent offenders and appear to contribute to deficits in factual understanding, it may be useful to investigate the application of teaching methods developed specifically for individuals with cognitive limitations. Research in the area of special educa- tion has supported the use of what is referred to as systematic and explicit instruction (Browder, 2001; Hallahan & Kauffman, 2006; Heward, 2006). With this approach, instructors initially use frequent prompts to elicit appropriate responses to tasks, and visual aids are often used. Over time, the prompts and assistance provided by instructors are reduced so that youth become increasingly independent. To facilitate learning, tasks are broken down into smaller compo- nents so that they can be taught separately before being combined together to form the larger skill. Systematic feedback, including praise and reinforcement for correct responses and error correction for inadequate responses, is provided to students. Also, efforts are made to promote the generalization and maintenance of skills, such as teaching skills in the setting in which students will ultimately apply them.
Rational Understanding
Rational understanding is generally considered a higher order ability than factual understanding because it requires that an individual have the capacity to apply information to his or her own case, rather than simply memorizing facts. It is often called appreciation, referring to the person’s ability to appreciate the relevance of information to his or her own circumstances. To know something does not necessarily mean that one can apply it. For example, a youth might know that a defense attorney is “someone who is on your side” but might believe that his or her own attorney is “just like all other adults . . . against me” because of oppositionality, which has been referred to as a “typical feature” of adolescence (American Psychiatric Association, 2000, p. 102).
Deficits in rational understanding may stem from several sources. First, symptoms of a mental disorder may interfere with a youth’s rational understand- ing. For instance, a youth with a prepsychotic disorder may have bizarre ideas that his or her attorney is actually part of a plot to harm him or her. Similarly, a youth with a history of trauma and symptoms of posttraumatic stress disorder may have difficulty seeing an attorney as someone who is trustworthy because of past victimization experiences. When deficits in a youth’s rational understanding result from a mental disorder, treating the disorder might alleviate these deficits, although research has yet to determine this.
Second, deficits in rational understanding may be due to psychosocial imma- turity. Youths’ beliefs about the legal process and its consequences may be related to the developmental phases that they are going through. For instance, a youth facing a plea decision might know that the odds of being found guilty are great yet might believe (because of feelings of invulnerability associated with the period of
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adolescent development) that “it won’t happen to me.” There is no clear, easy solution to remediating such deficits. Some youths might move through the relevant developmental phases fairly quickly, or there might be ways to alter their perceptions so as to move them beyond their developmental limitations. For others, it might not be a brief process, and they simply have to age out of that stage. Developmental psychology offers no clear answers, however, to questions about how to assess the likelihood that specific youth will or will not make these developmental transitions quickly.
Third, deficits in rational understanding may be due to limited abstract reasoning abilities. Rational understanding requires abstract thinking, which is still developing during adolescence. Within Piagetian theory, formal operations, which are characterized by the capacity for abstract thinking, are thought to be acquired during early adolescence (Flavell, Miller, & Miller, 2002), although more recent research suggests that such capacities continue to be refined through- out adolescence (e.g., Steinberg, 2005). Abstract thinking is relevant for legal competency because defendants must be able not only to know about alternative possible penalties, but also to imagine them happening in their own case and to estimate the probability of these outcomes for themselves (see Grisso, 2005).
If rational understanding requires abstract thinking, is it possible to speed up development of the ability to think about abstractions so that youth may be able to acquire rational understanding of adjudicative proceedings? In attempting to answer this question, educational research on cognitive acceleration may be relevant.2 Since the 1980s, Adey, Shayer, and colleagues have developed a number of cognitive acceleration programs, which aim to speed up the acquisition of youths’ abstract thinking (see Adey, 2004; Adey & Shayer, 2002). Cognitive acceleration programs are based on Piagetian theory, as well as Vygotsky’s (1978) sociocultural theory of cognitive development, which emphasizes the role of adults and more capable peers in facilitating youths’ learning. Rather than assuming that cognitive development occurs simply by waiting for youth to mature, these programs assume that cognitive development is influenced not only by maturation but also by the environment. Once maturation has created the threshold capacity for a new cognitive function, the time needed for that function to appear and be refined may depend on social and environmental circumstances.
A number of principles are applied in cognitive acceleration programs. Youth are first provided some instruction in the relevant domain so that they understand its basic vocabulary and concepts. Then, to challenge youths’ thinking, they are presented with problems that are intended to induce cognitive conflicts. These problems are discussed and worked through in small interactive groups. During this process, youth are encouraged to reflect on their own thoughts. Adey and Shayer, the founders of this approach, hypothesized that these teaching methods would promote cognitive development and that this would, in turn, enable students to perform better in a variety of school subject areas. There is some
2In the child clinical literature, there has been a similar interest in the idea of cognitive acceleration. Specifically, some scholars have recently argued that youth may be better able to benefit from cognitive–behavioral therapy if efforts are first made to accelerate their cognitive development (Holmbeck et al., 2006). However, specific techniques for achieving this have not been documented.
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evidence in support of these hypotheses (e.g., Adey, Robertson, & Venville, 2002; Adey & Shayer, 1993; Mbano, 2003).
Although these findings are noteworthy, there are a number of issues that may limit the generalizability of this research to the domain of adjudicative compe- tence. First, although these studies examined the impact of cognitive acceleration programs on abstract reasoning in a variety of school-based contexts, they did not specifically examine the impact of these programs on how youth think about personal, case-specific information, as is required of defendants. This may rep- resent a very different type of cognitive capacity, which might vary in its capacity to be taught. Second, cognitive acceleration programs are long, typically 1 to 2 years, and interventions for incompetent youth may need to occur within much shorter time periods. Third, studies of cognitive acceleration programs have focused on general community samples of youth rather than youth involved with the justice system. Justice-involved youth may be less likely to benefit from interventions because of the higher prevalence of cognitive deficits and psycho- logical disorders. Nevertheless, future research might examine the application of cognitive acceleration principles to adolescent competence interventions to de- termine their ability to be generalized to this context.
Communication With Counsel
Defendants’ ability to communicate with counsel is important for three reasons. First, attorneys need to be able to obtain information from their clients (e.g., information about the alleged offense) to ensure every opportunity for developing a defense. Second, defendants need to be able to listen to and comprehend the advice of their attorneys to make decisions about the waiver of constitutional rights that only defendants are allowed to make. Third, defendants ultimately have the authority to decide how their attorneys will proceed and therefore must be able to initiate expressions of objection or alternative desires. They must have the capacity to take responsibility for communicating and asserting their opinions.
These various demands suggest that to effectively communicate with attor- neys, defendants require a variety of basic skills. These include adequate receptive and expressive language abilities, and social skills such as interpreting social cues, understanding others’ perspectives, and effectively communicating opinions. In addition, defendants must have a sense of agency and self-determination; they must have the self-perception that they have the authority, need, and ability to act on their own behalf. The threshold required for these abilities to meet competency criteria may not be great, but serious deficits in any of them could raise concerns about legal competence.
Deficits in these areas may stem from various sources. Youths may be unable to understand their attorney and to communicate coherently with him or her because of mental retardation or other cognitive deficits. To some extent, it may be possible to improve the communication skills of such youth. One study reported “small but significant” improvements in youths’ communication abilities following a 12-week communication skills intervention for youth with moderate learning disabilities (Lamb, Bibby, & Wood, 1997, p. 275). Also, the use of augmentative communication aids (e.g., graphic symbols, communication boards)
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has been found to improve communication capacities of individuals with intel- lectual disabilities (Snyder, Freeman-Lorentz, & McLaughlin, 1994). However, it is unclear if these types of interventions could enhance a youth’s communication capacities to the extent necessary to be considered competent. To determine this, these approaches could be examined as a potential means of enhancing commu- nication capacities relevant to adjudication.
Psychopathology may also contribute to deficits in a youth’s ability to communicate with counsel and ability to behave appropriately in the courtroom. Symptoms of an early-onset thought disorder, such as hallucinations, may inter- fere with a youth’s ability to attend to information that his or her attorney communicates. Youth with symptoms of Attention-Deficit/Hyperactivity Disorder may have difficulties reading social cues and generating appropriate responses to social situations (Matthys, Cuperus, & Van Engeland, 1999). Various other forms of psychopathology, such as conduct disorders, anxiety disorders, and autism spectrum disorders, have been found to be associated with communication diffi- culties in youth, language problems, and social skills deficits (Cohen, Davine, Horodezky, Lipsett, & Isaacson, 1993; Spence, 2003).
Social skills programs have been used to treat general communication and social skills deficits in youth with psychopathology (Spence, 2003). Programs that include multimodal and behavioral skills strategies have often been found to be effective in producing short-term improvements in social skills and communica- tion. For instance, Spence and his colleagues (Spence, 1995; Spence, Donovan, & Brechman-Toussaint, 2000; Spence & Marzillier, 1979) found that a combination of techniques such as modeling, role-playing and rehearsal, feedback, self-mon- itoring, social problem solving, and self-regulation was effective in enhancing specific social skills (e.g., expressing opinions, refusing unreasonable requests) in youth who had a range of psychological problems, including Conduct Disorder and anxiety disorders. However, some populations appear particularly challenging to treat. For instance, research has found that it is challenging to enhance the social competence of youth with Attention-Deficit/Hyperactivity Disorder (Ant- shel & Remer, 2003; Pfiffner, Calzada, & McBurnett, 2000).
In addition to cognitive limitations and psychopathology, deficits in a youth’s capacity to communicate with counsel, especially to communicate opinions, may be related to developmental immaturity. During adolescence, youth gradually become more capable of acting in an autonomous manner (Steinberg & Cauffman, 1996). Most adolescents are unlikely to have previously been in a relationship like the attorney–client relationship, in which their opinions are so critical and their decisions determine how an adult will act on their behalf. They may not under- stand that they not only have the authority to act on their own behalf but also that it is necessary to do so. Therefore, not surprisingly, many adolescent defendants, particularly young adolescents, show a strong tendency simply to comply with or acquiesce to their attorneys (Grisso et al., 2003; Viljoen, Klaver, & Roesch, 2005).
Conversely, a youth’s developmental immaturity may sometimes manifest as confrontational and oppositional behavior. Youth, particularly young adolescents, are still developing the ability to understand others’ perspectives (Selman, 1980; Steinberg & Cauffman, 1996). Thus, they may be overly dismissive toward their attorneys, such as by threatening to fire them over minor disagreements (Viljoen
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et al., 2005), or may disagree for merely oppositional reasons. Research offers little guidance for enhancing a normally developed youth’s competence-related communication capacity, although communication and social skills programs used in interventions for youth with mental disorders may be a possible avenue to explore.
Reasoning and Decision-Making Skills
Recent American court cases have suggested that to be competent to be adjudicated, defendants must be able to adequately reason about legal decisions, such as whether to waive the right to a trial and the right to an attorney (Godinez v. Moran, 1993). Defendants are permitted to waive their rights and make decisions that, to others, would seem ill advised as long as their reasoning processes are rational.
However, broad-based developmental research has reported that compared with adults, adolescents may have deficits in their decision-making capacities as a result of immature psychosocial development. Specifically, in comparison to adults, adolescents often fail to adequately recognize risks, long-term conse- quences, and alternative points of view. In addition, they are highly influenced by others (especially peers) and tend to act in an impulsive manner (Scott et al., 1995; Steinberg & Cauffman, 1996). Furthermore, children and young adolescents may lack the abstract reasoning capacities needed to weigh various options.
Research has begun to examine adolescents’ decision making in adjudicative contexts (Scott et al., 1995; Steinberg & Cauffman, 1996). For example, in a study by Grisso et al. (2003), adolescents aged 13 years and under performed in ways suggesting that they were less likely than adults to recognize the risks associated with legal decisions, were less likely to see these risks as serious or as likely to occur, and less often considered long-term consequences in their legal decision making. In addition, youth more often make choices that comply with authority figures, such as the police, when they are in custody (Grisso, 1981; Grisso & Pomicter, 1978).
Low IQ and symptoms of psychopathology may potentially add to normal developmental limitations in decision-making capacities. For instance, youth with low IQ scores may be particularly compliant with authority figures in legal settings (Grisso et al., 2003; Viljoen & Roesch, 2005). In addition, youth with certain types of psychopathology, particularly externalizing disorders and sub- stance abuse, may be more likely than other adolescents to make risky decisions (Byrne et al., 2004; Kazdin, 2000; Teplin et al., 2005).
Research has not yet investigated interventions to improve adolescent defen- dants’ decision making and reasoning in adjudicative contexts. However, on the basis of developmental decision-making research and the literature on interven- tions for adolescent risk-taking behaviors (e.g., sexual risk taking, substance abuse), there may be a number of significant obstacles to efforts to enhance youths’ reasoning and decision making (Reyna, Adam, Poirier, LeCray, & Brain- erd, 2005; Steinberg, 2004).
First, research has indicated that efforts to change adolescents’ ability to appraise risks and understand the long-term consequences of decisions have met with varying degrees of success (Pedlow & Carey, 2004; see also Coyle et al.,
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2001; Jemmott, Jemmott, & Fong, 1998; Kipke, Boyer, & Hein, 1993; Rother- ham-Borus, Gwadz, Fernandez, & Srinivasan, 1998; St. Lawrence, Jefferson, Alleyne, & Brasfield, 1995). Furthermore, young adolescents are less likely than adults to change their decision-making strategies in response to feedback about the outcomes of decisions (Byrnes, 2005) or in response to changes in the odds of various outcomes (Peterson-Badali & Abramovitch, 1993).
Also, it can take a long time to invoke changes in decision-making skills, and these changes do not necessarily translate to other settings or sustain over time (D’Amico & Fromme, 2002; Howse, Best, & Stone, 2003; Reyna et al., 2005). Finally, to effectively reason through legal decisions, it is likely necessary for youth to have an adequate factual and rational understanding about adjudicative proceedings (Grisso, 2005), and as reviewed earlier, it may be difficult for some youth to even obtain these necessary prerequisite abilities.
Whether such deficits can be remediated in youth, therefore, is questionable. As a starting point, researchers could examine problem-solving and decision- making programs that have been used in treating adolescent psychopathology and impulsivity (e.g., D’Zurilla & Nezu, 1999; Kendall & Bartel, 1990; Kendall & Braswell, 1993). Also, the cognitive acceleration programs described earlier include a focus on problem solving, and therefore, it may be useful to investigate these programs as a potential means of enhancing legal reasoning and decision making (see Adey, Shayer, & Yates, 2001).
A Research Agenda on Psychoeducational Interventions
Jurisdictions are increasingly faced with the need to develop ways to reme- diate incompetent youth. Yet the dearth of research in this area makes it difficult to know how best to approach this task. Rather than providing hasty answers, it may be better to begin with a set of key questions that might guide future thinking and research in this area.
Factual Understanding
• Preliminary research has suggested that it may be difficult to sufficiently improve the factual understanding of youth, particularly young adolescents and youth with low IQ scores, through brief teaching modules (D. K. Cooper, 1997; Viljoen et al., in press). Might more comprehensive teaching programs be effective with these youth? If so, will they improve not only the immediate recall of the youth but also their retention over a sufficient time period?
• Could the systematic and explicit instruction methods used within special education facilitate the learning of factual legal information?
• Similarly, could the active learning strategies used in law-related education (e.g., stories, games, courtroom visits) facilitate learning?
Rational Understanding
• When adolescents’ deficits in rational understanding stem from psychopathol- ogy, is it possible to sufficiently improve their rational understanding simply by treating the underlying mental disorder? If not, are psychoeducational inter- ventions beneficial with such youth?
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• When deficits in rational understanding stem from psychosocial immaturity, is it necessary simply to wait for youth to age out of this stage? Can something be done to enhance the rational understanding of these youth?
• When deficits in rational understanding stem from limited abstract reasoning capacities, is it possible to speed up the acquisition of abstract thinking so that youth may be able to acquire a rational understanding of the adjudicative proceedings? Can the techniques used in educational cognitive acceleration programs be fruitfully applied to this context?
Communication With Counsel
• Is it possible to sufficiently improve the communication abilities of youth with cognitive deficits through psychoeducational interventions and/or communica- tion aids (e.g., graphic symbols)?
• When a youth’s deficits in communication with counsel stem from psychopa- thology, does treating the underlying psychopathology eliminate these deficits? Are communication deficits that are associated with certain types of psycho- pathology (e.g., Attention-Deficit/Hyperactivity Disorder) resistant to treat- ment?
• How can a normally developing youth be taught to adequately consider his or her attorney’s advice while at the same time expressing his or her own opinions?
• Can the social skills and communication programs that are used in treating youth with psychopathology be effectively adapted for use in enhancing a youth’s ability to communicate with counsel?
Reasoning
• Is it possible to sufficiently improve deficits in reasoning that are caused by developmental immaturity? If so, how long does this typically take?
• How do psychopathology and cognitive deficits contribute to deficits in rea- soning, and how do they impact the effectiveness of interventions?
• Can the decision-making and problem-solving programs used in treating youth with psychopathology be effectively adapted for use in this context?
Methodological Issues
In examining these questions, one cannot simply ask whether an intervention is effective. Instead, one must ask what works for whom under what conditions. There is no reason to imagine that the same methods would work with youths who are incompetent because of mental illness and youths found incompetent because of age-appropriate immaturity. Similarly, there is no reason to believe that the same types of interventions are appropriate for youth with deficits in factual understanding and those with deficits in reasoning capacities.
In addition, to effectively examine these issues, one cannot simply ask whether an intervention results in improvement. Instead, it is important to under- stand how an intervention impacts each of the youth’s relevant functional abilities. Also, it is important to understand how much improvement has been found and whether the intervention has been sufficient to render the youth competent to proceed to adjudication.
Finally, for research results to have legal relevance for competence to stand trial, it is not sufficient simply to ask whether the relevant abilities can be
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improved with particular interventions; one must also consider the necessary length of such interventions. Most jurisdictions place a time limit on remediation of competency deficits (e.g., 1 or 2 years), requiring a dismissal of charges if a person’s deficits are unlikely to be remediated within that time.
Changing the Demands: Exploring Ways to Compensate for Youths’ Lesser Capacities in Juvenile Court
This review has suggested that it may be difficult to enhance some youths’ adjudicative capacities—especially those pertaining to rational understanding and decision making—through psychoeducational interventions that are aimed at changing the youths’ functioning. In cases that are unsuccessful, one might ask whether all such youths must be deemed irremediable or whether some other efforts might allow some youths to proceed to trial under certain conditions.
Specifically, most legal competencies are in part interactive concepts (Grisso, 2003) that are concerned with the match or mismatch between an individual’s capacities and the demands of the legal situation that he or she faces. From this functional perspective, if a defendant lacks sufficient capacity to participate in a trial, there may be two ways to remedy the situation. One may improve the individual’s capacities, or one may reduce the demands of the trial itself. When remediation efforts result in less than successful gains in a juvenile’s capacities, might one be able to go forward (adjudicate competence) by making adjustments in the youth’s milieu that reduce the degree of demands on the youth’s abilities? If so, what adjustments in the youth’s milieu might be relevant to consider?
The degree to which this approach to incompetency remediation can be applied within the context of today’s juvenile courts is uncertain. We are aware of no laws and very little legal doctrine that support this approach. Yet, from a psychological perspective and perhaps from the perspective of judicial manage- ment of juvenile cases, the potential of such an approach is worth exploring.
In the following section, we first discuss whether youth who may be consid- ered incompetent by adult standards could potentially be adjudicated in juvenile court. Then, we discuss whether enhanced attorney support, caretaker involve- ment, adult support persons, and modification of juvenile court proceedings could help compensate for limitations in youths’ legal capacities and enable the adju- dication of some borderline-competent youth in juvenile court. The purpose of this section is not to endorse these approaches but merely to anticipate some of the possibilities that courts may consider and to outline key issues that should be examined prior to adopting such approaches. It is important to note that this discussion focuses specifically on juvenile court settings rather than criminal court settings. In criminal court, adjustments to facilitate the adjudication of borderline- competent youth raise much more complex issues given the higher stakes. Therefore, adjustments to facilitate borderline-competent youth may not be fea- sible even to consider in criminal court settings.
Trial of Youth Who Are Incompetent by Adult Standards in Juvenile Court
Changes in the juvenile justice system have made transfers of youth to adult criminal court easier and more common (Redding, Goldstein, & Heilbrun, 2005).
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However, many transferred youth, particularly young adolescents, may have significant legal impairments when adult standards are applied (Grisso et al., 2003). As discussed, these youth, who may be incompetent because of their developmental stage, could be particularly difficult to remediate.
This raises the question of whether youth who are incompetent in criminal court could be tried in juvenile court instead. Although legal standards for competence remain unsettled, some jurisdictions have chosen to adopt more relaxed legal standards for youth tried in juvenile court than for youth tried in adult court (e.g., Ohio v. Settles, 1998). In jurisdictions with these types of relaxed standards, it is possible that a youth who is considered incompetent to be adjudicated in criminal court could be considered competent to be adjudicated in juvenile court.
Scott and Grisso (2005) recently provided a comprehensive analysis of the possibility of adopting a lower competence standard for juvenile court as a means of enabling the adjudication of youth who are impaired by adult competence standards. As they described, holding youth tried in both juvenile and adult court to an adult standard of competence may lead to a situation in which a high proportion of young adolescents could be “immune from prosecution in any court” (Scott & Grisso, 2005, p. 798), thereby undermining “government efforts to protect the public from youth crime, to hold young offenders accountable, and to provide them with rehabilitative services” (p. 836). Trying youth who are incompetent by adult standards in juvenile court could help avoid such impasses and ensure that youth charged with serious crimes could be adjudicated.
Although Scott and Grisso (2005) noted that this is an appealing option, they emphasized that lower competency standards for juvenile court could be consti- tutionally justifiable only if the penalties available within juvenile court are less punitive than the penalties available within criminal court. Although historically there was a clear distinction between penalties in juvenile and criminal court, the penalties available within juvenile court have become increasingly severe over the past couple of decades (Redding et al., 2005). Furthermore, in many jurisdictions, the purpose of juvenile court has shifted from a focus on treatment and rehabil- itation to more of a focus on punishment and incapacitation. Therefore, if a lower, more relaxed standard of competency were adopted in juvenile court, jurisdictions with more punitive consequences for delinquency might need to make significant changes in the nature and purpose of juvenile court dispositions (Scott & Grisso, 2005).
Even if more relaxed standards made it possible to adjudicate in juvenile court some youth who would not meet adult standards for competence, some youths’ competence would still be considered questionable even for adjudication in juvenile court. The following alternatives, therefore, are worth exploring, espe- cially in regard to their limitations.
Enhanced Attorney Support in Juvenile Court
Some legal scholars have suggested that attorneys may be able to facilitate competence by providing legal instruction and developing a strong working relationship with their clients (Buss, 2000). Consistent with this assertion, pre- liminary research has suggested that spending time with attorneys may be asso-
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ciated with improved legal capacities among adolescents (Viljoen & Roesch, 2005). Therefore, perhaps enhanced attorney support might be a remedy to borderline competence that cannot be further remediated by direct intervention with the youth in juvenile court.
However, there are a number of potential barriers to relying on enhanced attorney support as a remedy to borderline competence. Some of these barriers are practical, whereas others may be constitutional. From a practical perspective, lawyers for juveniles are typically required to carry large caseloads, leaving them little time to spend with individual clients, even clients who may need additional support (American Bar Association Juvenile Justice Center, 1995; Feld, 2000). In addition, many attorneys may not have the skills or interest needed to provide additional support to borderline-competent youth.
To help obtain the skills relevant to working with borderline-competent youth in juvenile court, attorneys might benefit from training on adolescent development and competency (see, e.g., Rosado, 2000). As part of this training, attorneys could be educated that young adolescents have high rates of competence-related deficits (even in the absence of mental retardation or mental illness) and that these deficits might not be immediately apparent. Jurisdictions may also consider whether it would be beneficial to assign specialized attorneys, trained in adolescent devel- opment and competency, to work with youth whose capacities are marginal relative to competence criteria.
Even if these strategies were to succeed, there are dangers in policies that allow attorneys to compensate for their clients’ limited capacities. This might create a situation in which the attorney would proceed to trial despite the client’s potentially insufficient capacities for autonomous participation in his or her own defense. No one but defendants themselves may properly make decisions that involve the waiver of their constitutional rights when they face adjudication for crimes or delinquencies. Attorneys cannot make such decisions without their clients’ meaningful, autonomous choices. Therefore, unlike civil proceedings, delinquency proceedings (at least since In re Gault, 1967) provide little room for policies that might allow youths with significant deficiencies in their trial capac- ities to proceed to adjudication simply because they have an understanding and developmentally sensitive attorney. We are not sure if there is an effective argument to the contrary. If there is, it would be limited to cases in which (a) youths do not meet legal criteria for incompetence but rather have capacities that are marginal or questionable and (b) the consequences of adjudication are pri- marily beneficent (as explained in the previous section referencing Scott & Grisso, 2005).
Caretaker Involvement in Juvenile Court Proceedings
Although civil laws and procedures typically allow for and encourage parental involvement in legal proceedings (such as assigning parents legal responsibility for making medical decisions for their children), parents are generally not allowed to make legal decisions regarding adjudicative proceedings (e.g., plea decisions) on behalf of their children. That being said, parents are often permitted, and encouraged, to be involved in other ways in their children’s adjudicative proceed- ings, such as by attending proceedings and offering support and assistance.
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Research has indicated that although a sizable proportion of parents choose not to be involved in adjudicative proceedings, many parents are involved, at least to some extent (Peterson-Badali & Broeking, 2005).
Although courts assume that parents have adequate legal capacities to assist their children, recent research suggests that some parents have inadequate legal capacities (Woolard, 2005). In addition, parents may advise their children to make legal decisions that, from a lawyer’s point of view, are not necessarily in youths’ interests, such as advising children to waive their right to silence (Grisso & Ring, 1979; Viljoen et al., 2005). This suggests that it is risky to depend on parents to have the primary responsibility or a significant role in facilitating or compensating for their children’s legal capacities. Potential conflicts of interests between parents and their children offer another reason to be wary of automatically involving parents in legal decisions on behalf of their children (Frost & Volenik, 2004).
On the other hand, one could argue that if there is strong evidence that a particular caretaker can offer positive assistance to the child, this could provide a rationale for considering whether a youth with marginal competency abilities might be able to proceed to adjudication in juvenile court with that assistance. However, such an argument would have to address whether children with mar- ginal capacities can be relied on to do anything other than merely acquiesce to their parents’ guidance or if they can make an autonomous choice, as legally required, in a delinquency proceeding.
Use of Adult Support Persons in Juvenile Court Proceedings
Adult support persons have been used in a number of legal contexts. In some jurisdictions, child witnesses (McAuliff & Kovera, 2002) and developmentally disabled witnesses (Cooke, Laczny, Brown, & Francik, 2002) are allowed to have an adult support person present when they testify. Similarly, as a safeguard to protect suspects’ rights, in places such as the United Kingdom, vulnerable suspects (e.g., mentally ill suspects and juvenile suspects) must have what is called an appropriate adult present while they are interrogated by the police. Therefore, it is possible that courts may consider using adult support persons to provide support and assistance to borderline-competent youth as well.
Upon first glance, such an initiative would seem to offer some potential benefits in compensating for contextual issues that may contribute to youths’ limited legal capacities. Specifically, given the limited time that juvenile court attorneys typically have to spend with individual clients and the fact that many parents are not actively or optimally involved in juvenile court proceedings, many juvenile defendants lack adequate support and guidance. An adult support person could, therefore, be conceptualized as a specialized guardian ad litem who could provide emotional support, assist the youth in communicating with and under- standing his or her attorney, and help ensure that the youth has adequate legal representation. However, like caretakers, this support person would have no authority to make decisions related to the adjudicative process for the youth. Likewise, as adult support persons are usually not trained attorneys, they would not be qualified to offer legal advice.
Despite the fact that many juvenile defendants need additional adult support and guidance, there are a number of reasons to be apprehensive about the use of
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adult support persons for facilitating the adjudication of borderline-competent youth in juvenile court. A number of studies have suggested that the use of adult support persons for vulnerable suspects may not necessarily achieve its intended effect. Research has indicated that appropriate adults often passively observe police interrogations rather than actively participating in them (Evans, 1993; Medford, Gudjonsson, & Pearse, 2003). Furthermore, when they do participate, it may be in a manner that is inappropriate or unsupportive, such as by providing incriminating evidence against the suspect or by challenging the suspect’s account of the event.
In addition, it is possible that the use of adult support persons may lead to a reduced emphasis on the importance of competent legal representation. Although some research has found that the use of adult support persons for vulnerable adult suspects can be associated with increased attorney involvement and support, possibly because these support persons may increase attorney accountability, this was not the case when adult support persons were used with vulnerable juvenile suspects (Medford et al., 2003). Given the significant and diverse possible outcomes that may stem from the use of adult support persons, research would need to carefully examine the possible outcomes if courts were considering using adult support persons for borderline-incompetent youth in juvenile court.
Modification of Juvenile Court Proceedings
Legal proceedings for juveniles are often conducted in a manner that hinders rather than facilitates juveniles’ ability to understand and participate. The lan- guage used in legal proceedings is complex and difficult for adults, let alone youth, to understand. Furthermore, in the juvenile courts, large numbers of cases are typically processed within very short periods of time. This creates a rushed atmosphere with little time for explanations or questions, thereby exacerbating difficulties the youth may have in comprehending legal proceedings.
Therefore, courts might consider whether some compensation for deficits in youths’ legal capacities could potentially be acquired through modifications that make juvenile court proceedings more developmentally appropriate. One possible modification may be to ensure that simple language is used. That being said, just simplifying the language is unlikely to be sufficient to compensate for limitations in youths’ understanding. For instance, several studies have found that simplifi- cation of Miranda warnings does not significantly improve youths’ legal under- standing (Ferguson & Douglas, 1970; Manoogian, 1978). Moreover, using sim- pler words only addresses the matter of factual understanding, rather than addressing deficits in appreciation or reasoning.
To address problems in reasoning abilities, efforts could be made to ensure that there is more time to process individual cases. This would allow for attorneys and judges to have sufficient time to explain legal concepts and processes to the youth (and his or her caretaker) as they arise during the legal proceedings. This type of format may potentially mitigate difficulties youths might have in process- ing and retaining legal information. For example, when entering a plea, the youth’s attorney (and/or the judge) could carefully reexplain the various plea options to the youth. At critical junctures in the proceedings, such as when entering a plea, the youth could also be asked to paraphrase relevant legal
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concepts and processes in his or her own words to monitor the youth’s level of understanding and to correct any misconceptions he or she might have.
Proceedings in some juvenile courts are intentionally designed to be less formal than adult criminal court proceedings. Therefore, these types of accom- modations to make juvenile court proceedings simpler, more education focused, less rushed, and more interactive are consistent with the juvenile court philoso- phy. However, at least logistically, such modifications may be difficult to imple- ment because of limited resources and the need to process cases quickly. In addition, considerable attention needs to be given to designing such accommo- dations in a manner that would not sacrifice due process for child friendliness. Finally, there is no empirical evidence that such modifications have any beneficial effect. Therefore, research is needed to examine their effectiveness before any recommendations can be made regarding the value of modifying juvenile court procedures to assist marginally competent youth to proceed to trial in juvenile court.
Conclusions
As more courts apply the requirements of competency to juveniles, there is a growing need for empirically supported interventions for remediating incompe- tent youths’ legal capacities. This article has discussed whether it is possible to enhance youths’ legal capacities and, if so, what the most promising approaches may be. Although little research has directly examined efforts to remediate adjudicative incompetence in youth, research in developmental psychology, clin- ical psychology, and education suggests that there may be significant challenges in improving youths’ legal capacities.
The likelihood of success may vary depending on the types of legal impair- ments shown. Deficits in decisional skills may be particularly challenging to remediate (see Grisso, 2005) considering that they require complex skills, such as an ability to weigh the risks and long-term consequences of various options. Additionally, even factual understanding, which focuses only on basic knowledge of legal proceedings, has been found to be difficult to sufficiently improve (D. K. Cooper, 1997; Viljoen et al., in press).
The goals of interventions and the likelihood of success may also vary depending on the causes of incompetence. When youth are incompetent as a result of psychopathology, the goal of competence interventions is to enhance the competence of youth who may or may not have previously been competent. In such cases, treating psychopathology might help to alleviate deficits. However, much remains unknown about how to effectively treat youth with mental disor- ders. For instance, the social skills deficits found in youth with psychopathology (potentially leading to difficulties in communicating with counsel) are often resistant to treatment (Pfiffner et al., 2000).
When youth are found incompetent as a result of mental retardation or severe cognitive deficits, the goal is typically to create competence in youth who have never previously been competent. This task is likely to be particularly challeng- ing. Mentally retarded youth who are found incompetent are less likely than other incompetent youth to be considered restorable (McGaha et al., 2001), and psy-
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cholegal education programs have reported only modest success with adults with mild mental retardation (Anderson & Hewitt, 2002).
When youths’ adjudicative incompetence partially or completely stems from age-appropriate immaturity relative to adults, the goal of competence interven- tions is to accelerate the acquisition of normal developmental capacities. It is unclear whether this is even possible. Interventions for improving adolescents’ decision making in various contexts have often met with limited success (Reyna et al., 2005; Steinberg, 2004), and especially little is known about how to improve immaturity-related deficits in rational understanding and communication with counsel.
Even when the youths’ incompetence is not due solely to developmental immaturity, developmental factors may add to the difficulty of remediating incompetent youths. Young adolescents may be less likely to benefit from psychoeducational interventions as a result of cognitive and psychosocial imma- turity. For instance, Viljoen et al. (in press) found that young adolescents were less likely than older adolescents to benefit from brief teaching about basic legal concepts. Also, many adolescent offenders have cognitive deficits that may make it difficult to effectively teach them relevant legal knowledge and skills (e.g., Moffitt, 1993).
Although this review suggests a number of noteworthy challenges in reme- diating incompetent youth, there is too little research to know how best to approach these challenges. The growing application of competency requirements to youths makes it critical to develop a further understanding of possible inter- ventions. In particular, research is needed to address whether it is possible to improve specific legal capacities among adolescents (and, if so, whether some of the approaches used in education, developmental psychology, and clinical psy- chology may be of assistance), how the causes of adjudicative incompetence influence the effectiveness of interventions, the length of time required for remediation, and whether changing the demands of adjudicative proceedings (e.g., provision of enhanced attorney support, adjudication of youth who are incompe- tent by adult standards in juvenile court) could help compensate for limited legal capacities in borderline-competent youth. It is hoped that researchers and clini- cians will rise to the challenge of conducting this needed research so as to help enable the development of effective interventions for adolescent defendants who are found incompetent, to provide direction to clinicians faced with the task of remediating incompetent youth, and to guide law, policy, and legal practice.
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Received August 29, 2006 Revision received January 3, 2007
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