Juvenile Competency Complications: Protocol, Unmet Needs, Developmental Immaturity, FASD, and Comorbidity

Abstract

This Article focuses on unifying the protocol for state competency evaluations, but with special concerns about undiagnosed FASD and developmental immaturity in adolescents. States do not mandate any process whereby psychometric tests are first performed prior to psychiatric mental status evaluations, often causing disparities in evaluations which might easily be avoided in court proceedings. Adding to the complications in current competency evaluations are recent studies from Canada and Australia identifying exceptionally high rates of FASD in incarcerated adolescents following multi-disciplinary teams’ studies directed at identifying FASD. If these studies’ rates of FASD turn out to be similar for children in the U.S. juvenile justice system, then systemic reform is called for as we are failing to identify this congenital condition when adolescents enter the system and then continue on into the adult criminal system without recognition of their prenatal exposure to alcohol.

As juvenile competency challenges increase in criminal and delinquency cases, ¹ various factors impede systemic fairness and improved outcomes: legal protocols, limited availability of mental health professionals, concerns about developmental immaturity, revelations about Fetal Alcohol Spectrum Disorder (“FASD”), comorbid disorders, and systemic dismissiveness toward court-involved juveniles. In jurisdictions with statutory provisions permitting challenges to competency to stand trial, each of these complications merits further exploration. A simple protocol change in the evaluation process might increase consensus building among the diverse professionals charged to evaluate competency. Studies focused on developmental immaturity suggest delays in trials which might take years as adolescents mature and cognitive functions develop, yet legal systems rarely anticipate addressing this factor. Finally, and perhaps most pressing, recent studies reveal a much larger percentage of children with FASD as court involved than had previously been thought.

These factors each complicate the process of raising and responding to juveniles who lack the legal competency to proceed to trial or adjudication. Although legislative input may address some of these factors, increased dedicated resources are necessary to supply a larger number of mental health professionals capable of identifying juvenile competency factors and then in addressing placements and treatment regimens for these adolescents and young adults. This Article discusses the legal standard for determining juvenile competency. It then proposes a protocol for the assessment process of adolescents by interdisciplinary teams of mental health evaluators. It discusses the increasing gap of mental health professionals sufficient to evaluate, and then to treat juveniles who become court involved. Finally, it raises concerns about the failure of systemic responses to handle delays inherent to the adolescent maturity process that would better equip juveniles to stand trial, and the complications posed by FASD and comorbid disorders that have been undiagnosed or simply overlooked for decades as more afflicted individuals enter the court system with their legal representatives—and sometimes the mental health evaluators—remaining unaware of the consequences or the presence of prenatal exposure to alcohol.

Juvenile competency continues to attract legal and cultural attention as understandings and appreciations of adolescent development, mental health issues, and prenatal exposure to alcohol have increased. However, state policy advocates are not always supportive or knowledgeable about systemic responses to juvenile misconduct, some professional evaluators are not yet trained to properly identify conditions such as FASD, ² and in many instances systemic retribution plays a larger role than rehabilitation ³ or preventing recidivist offending patterns in state juvenile justice systems. ⁴ One group of researchers concluded:

Significant evolution has occurred since the establishment of the first juvenile court in Chicago in 1899. At its inception, the juvenile court focused on rehabilitation and finding ways to guide wayward youth back to a better path. At present, juvenile courts look and function in ways largely similar to adult criminal courts. Youthful offenders face intense court proceedings, stand to serve lengthy sentences, and a delinquency adjudication can have collateral consequences that reach well into adulthood. As the evolution of the juvenile court has occurred, the issue of competency has become relevant. ⁵

Ultimately, this Article argues, the complications surrounding juvenile competency are many, but the solutions are in short supply, and require substantial systemic reform and change.

1) Competency to Stand Trial and Dusky

Historically, criminal law recognizes the necessity of a defendant’s competency in order to subject them to accountability in a criminal court; forensic experts acknowledge that

The standard’s historical foundations date back to English common law and are embedded in the principle that an individual who is “mad” cannot conduct his/her own defense (Blackstone, 1783). Noting this historical tradition, the United States Supreme Court stated in Drope v. Missouri (1974) that the prohibition against trying an incompetent defendant is ``fundamental to an adversary system of justice’’ (p. 904). Supporting this position, the American Bar Association (1985) has promulgated standards related to competence to stand trial of mentally impaired defendants. ⁶

In the 1990s, when competency to stand trial assessments in criminal cases numbered roughly 25,000 in the United States, it was asserted that ninety percent of the time, mental health professionals were in complete agreement about defendants’ competency. ⁷ By 1996, however, mental health professionals began to question exactly how courts were appointing clinical evaluators, using “open-textured construct[s]” with little to no appellate review of the evaluation process. ⁸

The legal standard for determining competence to stand trial is almost universally recognized under the U.S. Supreme Court decision in Dusky v. United States, ⁹ where

Dusky suffered from long-term mental health issues. He was charged in a federal case with transporting a kidnap victim, a girl, across state lines. At his first trial, Dusky unsuccessfully tried to claim incompetency to stand trial, and was then convicted over his insanity defense and sentenced to 45 years. This conviction was affirmed by the Circuit Court of Appeals. The Supreme Court then reversed and remanded to the trial court for an appropriate competency hearing, setting forth briefly the now famous standard of review. ¹⁰

When the Supreme Court considered the facts in Dusky, there was so little on the record below that the Court issued a per curiam decision, stating simply enough that

It is not enough for a district judge to find that “the defendant is oriented to time, place and has some recollection of events,” but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him. ¹¹

Although each state is free to adopt its own standard for competency determination, there is relative uniformity throughout the country today, with most states having adopted the Dusky language. ¹²

Dusky was a per curiam decision that simply remanded the case for a trial court to determine very fundamental issues that were nowhere to found in the record below. Yet the Court’s language in Dusky ¹³ is cited as the result of intense discussion, legal debate, and extensive briefing, attempting to shape the most important factors for courts to consider when determining whether an individual was competent to stand trial. With no reference to mental health experts’ testimony, or professional organizations’ input or involvement in crafting standards to apply when determining competency, Dusky is repeatedly cited today without consideration of any advances in knowledge about mental illness, developmental immaturity, or any other factors that play major roles in what is now understood about adolescent behavior. Instead of creating an interdisciplinary team or commission to explore whether the Dusky language should continue to be the hallmark for determining adolescent competency, ¹⁴ lawyers tend to pressure mental health experts to bend to the will of lawyers, ¹⁵ to address legal questions which have nothing in common with their own professional standards, objectives, background or ethical codes. ¹⁶ Dusky never extended any invitation to psychologists or psychiatrists to participate in defining competence to stand trial. Lawyers are not above pressuring the mental health professionals to speculate or testify in a manner not consistent with the original objective of testing instruments employed in competency evaluations. ¹⁷

Additionally, the legal standards created decades ago by courts regarding juvenile competency often bear nothing in common with the objectives of modern psychological testing, or with the reliability of test results and the manner in which they may be extrapolated by lawyers to argue for or against a legal conclusion ¹⁸ that the adolescent is or is not competent. Rarely do legal proceedings examine the foundational objectives of psychometric tests. ¹⁹ Once a mental health professional is sworn in to testify, then subjected to cross examination, it tacitly assumed that whatever testimony they offer into the record is substantiated by the test results. ²⁰ That may be true, but most lawyers lack any training in the compilation of these psychological tests. ²¹ They thus lack the necessary knowledge base to understand how the tests that were once crafted to gather information about individuals in need of professional assistance ²² have morphed into tools used by advocates opposed to one another, seeking some sort of victorious outcome by holding an adolescent charged with acts of misconduct accountable, or excusing the adolescent from the most serious legal consequences assuming there is proof beyond a reasonable doubt of the charges filed by the state. ²³

Thus, when lawyers ask mental health experts whether it is more or less likely that a person on trial might likely reoffend, there is some presumption that, acting without powers of clairvoyance, any person is capable of providing reliable information that might be substantiated and replicated by the use of psychometric tests, or that any individual’s opinion has some scientific reliability ²⁴ which would be replicated by another expert employing the same approach and data employed by the first expert. ²⁵ This may be asking experts to fill gaps that the have been created by the legal system but which have no counterpart or have not been addressed in the professional training or studies of the mental healthcare workers. ²⁶ And yet, lawyers continue to make such demands—and other, more difficult demands—on experts who may feel compelled to supply answers, even if unsupportable from a scientific perspective. ²⁷

2) Competency Protocol

Many jurisdictions now recognize defendants’ rights to challenge their competency determinations. ²⁸ In some jurisdictions, a competency challenge may be initiated by the defendant, the prosecutor, or even by the court itself. There is no uniformity among state juvenile justice systems regarding how or when a juvenile’s competency may be challenged. Many continue to question whether challenges to juvenile competency should ever be considered at all in legal proceedings. ²⁹

What may not have received the same level of attention and scrutiny, however, is the protocol in jurisdictions that do permit competency challenges surrounding court-ordered evaluations of accused individuals. ³⁰ In re Gault marked the recognition and extension of most of “the same procedural safeguards for children that were provided to criminally charged adults.” ³¹

Having all psychometric tests ³² performed and completed prior to a psychiatric evaluation of a juvenile informs the non-psychologists—usually physicians—prior to conducting the competency evaluation. When a panel of mental health experts is assigned by court order to conduct competency evaluations on an accused adolescent, the various professionals often work independently of one another, sometimes meeting to discuss their individual findings and conclusions (although this may not be required by state statute). Consequently, a mental status exam conducted by a psychiatrist may not have been concluded after psychometric tests performed by a psychologist. ³³ Thus, the conclusions reached through psychological testing are not incorporated into the psychiatric evaluation of the adolescent. This disparate approach opens the door for inconsistency among mental health experts’ findings, and places mental health care providers in the awkward position of having to defend their conclusions without having had the benefit of reading the psychometric test results ³⁴ of another professional also ordered to evaluate the adolescent.

Such scenarios could be avoided by the adopting statutory language that creates a specific protocol for the competency evaluations. Otherwise, the possibility of contradictory results adds to the complexity and uncertainty of a competency evaluation, and threatening to undermine the reliability of any conclusions. ³⁵ This Article suggests that the protocol and order of the evaluations is significant: it serves the interests of the community, the defendant, and even the mental health experts called to perform these evaluations in order to contribute to establishing a best practices protocol. ³⁶ The Article also explores recent studies identifying much larger numbers of adolescents in detention afflicted with FASD, suggesting that competency evaluations must be expanded if this population is going to be identified during competency evaluations. Additionally, the Article posits the complications from co-morbid conditions and developmental immaturity as factors frequently overlooked in state competency evaluations of court-involved adolescents.

The first compilation and review of state statutory enactments addressing juvenile competency to stand trial began just within the past twenty or so years:

In 2001, Redding and Frost authored a seminal article entitled Adjudicative Competence in the Modern Juvenile Court, in which they reviewed the issue of competency to stand trial for adults, discussed the complications inherent in extending this right to cases in juvenile court, reviewed the empirical research available, discussed competency restoration services for juveniles, and described the state of Virginia’s experiences developing and implementing JCST legislation during the mid1990s. Their thorough presentation of these issues included the first compilation of state statutes and case law pertinent to JCST across the nation. In their article, Redding and Frost (2001) identified 22 states that had formal JCST laws and four additional states that incorporated juvenile proceedings into their adult statutes in some way. ³⁷

Since the 2001 Redding and Frost article, about seven articles have been published focusing on juvenile competency to stand trial, but with major inconsistencies in the laws identified on topic. ³⁸ The instruments used to evaluate competency to stand trial have changed ³⁹ and improved over time ⁴⁰ as empirical research has contributed to our assessment understanding.

In jurisdictions that recommend or require a panel of experts to examine and evaluate a youthful offender, many statutes allow for the empanelment of psychiatrists, ⁴¹ psychologists, and /or physicians (without the psychiatric residencies or board certifications ⁴²) in a panel which then communicates and attempt to reach a consensus as to whether the juvenile is competent or not competent. ⁴³ In these jurisdictions, often little attention has been paid to the sequence of the evaluations, or the manner of the interactions among the expert mental health witnesses. The proposed protocol calls for a sequencing of examinations and then a sharing of data prior to the deliberation and determination of the panelists as to whether the juvenile is competent or not. If a psychiatrist initially examines the juvenile, prior to any psychological testing, then that doctor must base their conclusion upon whatever amount of time they are able to devote to the evaluation. If the youth is first evaluated and subjected to psychometric tests, ⁴⁴ then there will be objective data available ⁴⁵ to all evaluators who follow in sequence with their interviews, mental status exams and determinations. ⁴⁶

This simple sequence of ordering the various mental health experts serves multiple purposes. First, it provides the greatest amount of objective data about the juvenile’s performance on psychological tests prior to any assessments or findings. ⁴⁷ Second, it helps those professionals who do not utilize or are not trained in administering psychometric tests to better consider the objective data. ⁴⁸ Third, it can help to rule out some behavioral or mental illness concerns based on which tests have been administered and evaluated. ⁴⁹ Fourth, it can also help to identify additional inquiries or tests which might be useful to better complete the evaluation process. ⁵⁰ Ultimately, this protocol should help to inform all of the evaluators prior to their making a legal conclusion or suggesting a legal conclusion as to whether the juvenile is or is not competent to stand trial.

Without a sequential protocol for the evaluations, the administering of psychological tests may occur after the psychiatrist or physician (say a general practitioner) has examined the juvenile and formulated an opinion without the benefit of the test data. ⁵¹ Whatever limited court funds might be available for these competency determinations, the impact of the psychological tests will not have been shared with the other panel members prior to their individual conclusions being reached. Additionally, even within forensic psychology, interrater reliability— the degree of consensus among multiple independent raters who perform routine evaluations in general—“is either unknown or far from perfect.” ⁵² Sequential forensic evaluations used in competency determinations might increase the probability of consensus outcomes from the various members of the competency panel.

Once a professional has invested the time and energy into seeing and evaluating the youth’s competency, they often feel compelled to defend their professional conclusions, even without having had the benefit of exchanging information with the other mental health experts first. ⁵³ This can cause embarrassment among the professionals, but more importantly, it can result in a split of opinion among the experts in their individual assessments of competency simply because not all the mental healthcare experts had not been supplied with the same materials, the same screenings, and the same psychometric test results.

Taking the steps to reduce split opinions among expert witnesses at this stage of the proceeding (i.e., usually in a pre-trial or pre-adjudication hearing), the outcome of the evaluations offered by experts from different professions (psychiatrists, psychologists, general practitioners, social workers) also helps to reduce the costs of these contested hearings, and it can also prevent the hearings form turning into a display of adversarial gamesmanship with the party who moved to challenge competency being pitted against the party who seeks to have the trial or adjudication hearing go forward with no undue delay. ⁵⁴ The sequential process of obtaining the psychometric test results first ⁵⁵ and then disseminating the results and the interpretation of test results ⁵⁶ can help eliminate, or at least reduce, the disagreement among the expert witnesses brought into the court process to inform the lawyers about their opinion as to the issue of the juvenile’s competency to proceed to trial.

Protocols for mental health evaluations of court-involved juveniles have evolved ⁵⁷ to the point where best practices in forensic mental health assessments have been published. ⁵⁸ Establishing standards for the contents of forensic reports which get submitted to the courts ⁵⁹ must be included in any protocol suggestions ⁶⁰ for the jurisdictions ⁶¹ which do not specify information which need be included in the evaluations. ⁶²

3) Unmet Needs

In many communities in the United States, the availability of mental health professionals has been stretched thin. This is not a resource problem limited to adolescents living in the United States:

More than 13% of adolescents worldwide live with a diagnosed mental disorder, yet access to care remains limited, according to the first United Nations State of the World’s Children report to focus on mental health. The report documents the hefty toll mental illness takes on young people globally. One in 5 children and adolescents self-report feeling depressed or losing interest in activities. Suicide claims the lives of nearly 46 000 youth aged 10 to 19 years each year and is the fourth leading cause of death among teens aged 15 to 19 years. In addition to the intangible costs for these young people and their families, the report estimates poor mental health among youth and its economic effects cost the world $387 billion a year. Yet countries invest just 2% of their average health expenditures on mental health care, the report notes. The small investment contributes to shortages of child psychiatrists in wealthy and low-income countries, which severely limits access to care. ⁶³

For those individuals who exhibit signs of mental illness, or developmental immaturity, ⁶⁴ or for reasons unknown appear unable to assist their counsel after being charged with delinquency or criminal charges, a preliminary finding that the individual lacks competency to proceed to trial may be as important or perhaps more important than the outcome of their actual trial. Should the individual be declared not competent, they will not go forward in the justice system until they are found to be competent. ⁶⁵ In some instances where juveniles may not be “restored” to competency, judges may dismiss the petitions against the adolescents, or reduce charges down to misdemeanors or status offenses, or initiate civil commitment proceedings against the juveniles. ⁶⁶

However, “[i]n a study by Whitney and Peterson published online February 11[2019], in JAMA Pediatrics, the researchers found that about half of U.S. children who had a treatable mental health disorder didn’t receive treatment from a mental health professional.” ⁶⁷ So, even if a court is located in a community where mental health evaluators might be available to determine an adolescent’s competency to stand trial, there might not be sufficient professional mental health providers to treat the adolescent following a determination that the adolescent is not competent. ⁶⁸ Providing mental healthcare services to children at school rather than at mental health clinics is thought to help reduce the stigma associated with attending a mental health clinic and for those living in poverty depending upon Medicaid reimbursements, the only available treatment requires a psychiatric diagnosis a problem for many parents who try to avoid having their children received a psychiatric diagnosis. ⁶⁹

The Covid-19 pandemic has only exacerbated the lack of resources, causing the U.S. Surgeon General to issue a rare public advisory in December, 2021, warning of the “devastating” mental health crisis among American teens due to depression, and anxiety with cases having doubled during the pandemic, and with seventy percent of U.S. counties not having a single child psychiatrist, and more than sixty percent of youth with severe major depression not receiving any mental health treatment. ⁷⁰ With the limitation of resources and mental health care providers, only about twenty percent of children with mental with mental, emotional, or behavioral disorders currently receive care from a specialized mental health care provider. ⁷¹

The lack of resources and mental health professionals available to provide treatment to individuals, let alone to adolescents and young adults, has an immediate impact on not just treatment availability, but upon competency evaluations as well. Most of the members of a competency evaluation team will be unavailable to provide any sort of treatment to the adolescents for whom they perform competency evaluations, because of the professional ethics code governing their respective field. For instance, psychologists with membership in the American Psychological Association, a voluntary membership organization, must comply with the Association’s Ethical Principles of Psychologists and Code of Conduct which includes Ethical Standard 3.05:

3.05 Multiple Relationships

(a) A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person.

A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. ⁷²

Thus, a psychologist who performs an assessment on an adolescent to determine competency to stand trial would not be available to provide mental health treatment for the same individual, absent some specific exception. This further complicates the availability of licensed professionals necessary to participate in cases involving adolescents exhibiting signs of possible competency to stand trial considerations. This ethical concern also imposes the greatest burden on communities already experiencing shortages of professional mental health care providers including many urban areas as well as rural and suburban communities.

For psychiatrists seeking to comply with their ethics codes, Section 5(2) of the Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry provides:

In the practice of his or her specialty, the psychiatrist consults, associates, collaborates, or integrates his or her work with that of many professionals, including psychologists, psychometricians, social workers, alcoholism counselors, marriage counselors, public health nurses, and the like. Furthermore, the nature of modern psychiatric practice extends his or her contacts to such people as teachers, juvenile and adult probation officers, attorneys, welfare workers, agency volunteers, and neighborhood aides. In referring patients for treatment, counseling, or rehabilitation to any of these practitioners, the psychiatrist should ensure that the allied professional or paraprofessional with whom he or she is dealing is a recognized member of his or her own discipline and is competent to carry out the therapeutic task required. The psychiatrist should have the same attitude toward members of the medical profession to whom he or she refers patients. Whenever he or she has reason to doubt the training, skill, or ethical qualifications of the allied professional, the psychiatrist should not refer cases to him/her. 3. When the psychiatrist assumes a collaborative or supervisory role with another mental health worker, he or she must expend sufficient time to assure that proper care is given. It is contrary to the interests of the patient and to patient care if the psychiatrist allows himself/herself to be used as a figurehead. 4. In relationships between psychiatrists and practicing licensed psychologists, the physician should not delegate to the psychologist or, in fact, to any nonmedical person any matter requiring the exercise of professional medical judgment. 5. The psychiatrist should agree to the request of a patient for consultation or to such a request from the family of an incompetent or minor patient. The psychiatrist may suggest possible consultants, but the patient or family should be given free choice of the consultant. If the psychiatrist disapproves of the professional qualifications of the consultant or if there is a difference of opinion that the primary therapist cannot resolve, he or she may, after suitable notice, withdraw from the case. If this disagreement occurs within an institution or agency framework, the differences should be resolved by the mediation or arbitration of higher professional authority within the institution or agency. ⁷³

Thus, the psychiatrists seeking to comply with their ethics code must not “delegate” to psychologists any matter requiring the exercise of medical judgment. The issue must be addressed as to whether physicians consider competency assessments as medical issues, or medical-legal issues, or just legal issues. In any event, the physician is not ethically obligated to ignore a psychologist’s psychometric test results, and there is no language in the medical ethics code that suggests a physician/psychiatrist may not be informed by the test results performed by other professionals who are not licensed to practice medicine. Additionally, physicians are bound by the Hippocratic oath to follow a duty of benevolence and non-malevolence when deciding upon treatment which might not be in the patient’s best interests. ⁷⁴

4) Developmental Immaturity

Development-based approaches to juvenile justice acquired great legitimacy following the multi-year study of the MacArthur Foundation competency study in multiple jurisdictions. ⁷⁵ But MacArthur was not alone in focusing on developmental factors that would impact a juvenile’s competency to stand trial. ⁷⁶ Essentially, if a juvenile’s competency determination rests upon developmental immaturity, it would seem reasonable to assume that as the child matures, it is more likely he will eventually become competent to stand trial. Should the child be nine or ten years of age when initially petitioned for the delinquency offense, then it might require years of delay before the juvenile is re-evaluated and found to be legally competent to stand trial. Criminology scholar Franklin E. Zimring has noted that:

The consideration of immaturity as a species of diminished responsibility has some historic precedent but little analytic history. Children below age seven were at common law not responsible for criminal acts by reason of incapacity, while those between seven and fourteen were the subject of special inquiries with respect to capacity. Capacity in this sense was not a question of degree, but an “all or nothing” matter similar to legal insanity…. ⁷⁷

An additional factor is what happens where an adolescent is found not to be competent to stand trial due to developmental immaturity, and then the adolescent is ordered to undergo some form of mental health regimen (not just allowing sufficient time to expire in hopes that the child will mature sufficiently to be competent to stand trial). ⁷⁸ Does the adolescent have the right to refuse treatment, ⁷⁹ or has this individual lost the capacity to consent or refuse to consent to a regimen of treatment? ⁸⁰ Assuming the basis for determining that the child is not competent is solely due to the child’s developmental immaturity ⁸¹ and not mental illness of a congenital disorder such as FASD, courts must appreciate whether or not adolescents and young children ⁸²—or their parents—possess the ability to withhold informed consent ⁸³ for a regimen of treatment recommended by a mental health professional. ⁸⁴ In some instances, religious beliefs ⁸⁵ or philosophical beliefs ⁸⁶ might direct the adolescent’s decision making, ⁸⁷ thus raising possible first amendment challenges to mental health treatment while an adolescent is not found to be competent to stand trial, ⁸⁸ despite the 1944 ruling of the U.S. Supreme Court in Prince v. Massachusetts. ⁸⁹ If the child is fifteen or sixteen years of age, assuming that the child has already been found to not be competent to stand trial, it might still require a year or more before the child can be re-evaluated and determined to be legally competent. ⁹⁰ And that last assertion presupposes that the child can ever be declared competent to stand trial. ⁹¹

5) FASD, Intellectual Disability

Although not entirely dispositive of a person’s legal competency, should the child’s evaluation reveal intellectual developmental disorder, or intellectual disability according to the Diagnostic and Statistical Manual of Mental Disorders (5th Ed. Text Revision) [hereinafter “DSM-5-TR”], ⁹² this may cause the child not to likely become legally competent in the near or even foreseeable future, ⁹³ depending on the level of disability, mild, moderate, severe, or profound. Although once believed to be measured by low IQ scores, ⁹⁴ the DSM-5-TR clarifies that levels of severity are based on “adaptive functioning” rather than IQ scores, because “IQ measures are less valid in the lower end of the IQ range.” ⁹⁵

The prospect of delaying the trial process creates a burden on the adolescents accused, the victims of the offenses, the prosecutors handling the delinquency or adult criminal charges, and the community in which the adolescent resides. States must anticipate that larger numbers and expenses associated with adolescents who are court-involved will likely demonstrate fetal alcohol spectrum disorder ⁹⁶ or fetal alcohol syndrome ⁹⁷ as the evaluation methods for making such diagnoses improve ⁹⁸ and more professionals become better informed ⁹⁹ and receive training ¹⁰⁰ and become better equipped to render such diagnoses. ¹⁰¹ Costs associated with children in care with FASD are quite high. ¹⁰² The condition and consequence of prenatal alcohol exposure is described as:

FASD is the result of maternal alcohol consumption during pregnancy and has implications for the afflicted person, the mother, the family, and the community. Since FAS was first described in 1973, it has become apparent that it is complex; affected people exhibit a wide range of expression, from severe growth restriction, intellectual disability, birth defects and characteristic dysmorphic facial features to normal growth, Facial features and intellectual abilities, but with lifelong deficits in several domains of brain function. FASD requires a medical diagnosis in the context of a multidisciplinary assessment. FASD itself is not a diagnostic term. ¹⁰³

Nevertheless, “[b]ecause of limited capacity and expertise and the need to involve several professionals in a comprehensive multidisciplinary diagnostic evaluation [for FAS/FASD], only a fraction of those affected currently receive a diagnosis.” ¹⁰⁴ Additionally,

[p]renatal alcohol exposure can affect any organ or system of the fetus, therefore, individuals with FASD may have a broad array of physical defects, cognitive, behavioural, emotional, and adaptive functioning deficits, as well as congenital anomalies, such as malformations and dysplasia of the cardiac, skeletal, renal, ocular, auditory, and other systems. These impairments are likely to have lifelong implications. ¹⁰⁵

Thus, adolescents demonstrating one of the four categorical diagnostic entities including fetal alcohol syndrome (FAS), partial FAS, alcohol-related neurodevelopmental disorder, and alcohol-related birth defects will not likely resolve themselves over time but will more likely require additional treatment and services over their lifespan. ¹⁰⁶

One of the more challenging issues facing juvenile justice systems will be what to do and how to handle the juveniles for what might become an extended period of time during which there has been no adjudication, ¹⁰⁷ and while the juvenile continues to be legally presumed innocent until proven guilty? ¹⁰⁸ Additionally, the developing body of literature on FASD and FAS afflicted juveniles will require additional resources to handle the population afflicted with FASD and their families, ¹⁰⁹ but also to help prevent future generations from this affliction, ¹¹⁰ and to ensure that siblings of the FASD-diagnosed adolescents are not also afflicted with FASD. ¹¹¹ As one group of researchers commented:

Clearly, funding for development, training and maintenance of multidisciplinary diagnostic teams is necessary so that major centres will have the expertise and capacity to serve their communities. To optimize the outcome of the diagnosis, the community and the family must be prepared, ready to participate in, and be in agreement with the diagnostic assessment. The diagnostic process should be sensitive to the family’s and the caregiver’s needs. In each community, referrals must be evaluated and their level of priority established. The family and guardian must be in agreement on the purpose of diagnosis. They must be made aware of the potential psychosocial consequences of a diagnosis of FASD (e.g., increasing a sense of guilt and anger, especially with the birth mother, or potential stigmatization of the child). The family or guardian will likely need help to move confidently through the diagnostic process. This help might include some preparatory education concerning FASD and linking them with community supports and resources. ¹¹²

The developing body of literature about FASD in adolescent and adult populations should not be ignored, because this one congenital condition is likely to result in discovering larger numbers of juveniles who are not competent to stand trial for charged misconduct, and it seems unlikely that they will be “restored” to competency given the deficits caused by prenatal alcohol exposure, especially heavy alcohol exposure. ¹¹³

The costs of employing interdisciplinary teams will undoubtedly generate a great deal of opposition, as interdisciplinary teams of physicians, lawyers, psychologists, social workers and whatever other licensed professionals who by statute are permitted under state laws to engage in doing competency evaluations of juveniles will simply increase the burden on the state seeking to enforce laws that were adopted without any understanding or knowledge of congenital factors such as FASD or without regard to developmental immaturity. ¹¹⁴ Given the nature of the legal profession, it is likely to assume that lawyers will continue to disregard the advancements and understanding of prenatal exposure to alcohol, and such stubbornness or notion that our system is perfectly fine, working well, and in need of no reconsideration would be shortsighted. ¹¹⁵

While it is true that high functioning FASD afflicted adolescents—“an estimated 73% of individuals meeting criteria for FAS and 91% of individuals meeting criteria for FASD have intellectual abilities above that typically considered intellectually disabled” ¹¹⁶—may be found competent to stand trial, ¹¹⁷ states must still be prepared for the increase in diagnosed cases involving FASD ¹¹⁸ and the prospects that these children will not benefit from routine competency restoration services in the United States. such as classroom instruction which identifies the parties in a court proceeding and which seek to inform the children what their legal rights might involve. This population may never be competent to stand trial, as we are just beginning to see with large scale studies of the children in detention facilities in other nations such as Canada ¹¹⁹ and Australia ¹²⁰ where the diagnoses were unknown at the time of their adjudications and dispositions or sentencing. ¹²¹

6) Comorbidity

Yet another factor to analyze with this population is the co-morbid disorders FASD afflicted adolescents (and adults) may have:

In combination with co-occurring disorders (e.g., ADHD, autism spectrum disorder, depression, anxiety, and substance use), the identification and assessment of FASD can become a complicated endeavor (Brown, Freeman, Pickett, Watts, & Trnka, 2018; Brown, Rich, & Freeman, 2016; Weyrauch, Schwartz, Hart, Klug, & Burd, 2017). To help address these complexities, evaluators should become familiar with Neurodevelopmental Disorder Associated with Prenatal Alcohol Exposure (ND-PAE). This disorder was identified as a disorder for future study in the Diagnostic and Statistical Manual-5th Edition (DSM-5; American Psychiatric Association, 2013). ND-PAE provides mental health professionals with specific guidance in determining if a person may qualify for a diagnosis related to PAE and may help identify the majority of people with FASD (Burd, 2016). Nonetheless, many cases of FASD still go unidentified (Chasnoff, Wells, & King, 2015). This can be particularly problematic because the disorder increases the likelihood of involvement in the criminal justice system (Popova, Lange, Bekmuradov, Mihic, & Rehm, 2011; Streissguth, Barr, Kogan, & Bookstein, 1996). Further, the symptoms of FASD may interfere with an individual’s ability to participate in the criminal justice system (i.e., waive rights, enter pleas, stand trial, and abide by community supervision) (Conry, Fast, & Loock, 1997; Conry & Lane, 2009; Freckelton, 2016; McLachlan, Roesch, Viljoen, & Douglas, 2014). It is likely due to these wide-ranging deficits and misinformation that mental health professionals may fail to identify possible FASD in defendants. Additionally, the lack of formal training specific to FASD for mental health professionals contributes to the lack of FASD identification (Chudley et al., 2005). Consequently, this population is often overlooked with regard to mental health evaluations, particularly within the criminal justice system (Conry & Fast, 2011).

For those juveniles who are not competent to stand trial for charged misconduct-- and for whom it seems unlikely that they will be “restored” to competency-- given the deficits caused by prenatal alcohol exposure, especially heavy alcohol exposure, ¹²² the evaluators must rule out comorbid conditions in addition to the FASD if the court intends to compel involvement in competency restoration interventions. Medical scholars focusing on FASD have found that over 300 disease conditions coded in the International Classification of Diseases occur in individuals with FASD. ¹²³ This may result in appointing interdisciplinary teams to provide accurate diagnoses of FASD and whatever other comorbid conditions the adolescent might exhibit. The costs of employing interdisciplinary teams will undoubtedly generate a great deal of opposition, as interdisciplinary teams of physicians, psychologists, social workers and whatever other licensed professionals—perhaps even third party lawyers-- who by statute are permitted under state laws to engage in doing competency evaluations of juveniles will simply increase the burden on the state seeking to enforce laws that were adopted without any understanding or knowledge of congenital factors such as FASD or without regard to developmental immaturity. Without an accurate diagnosis for this population, they are likely to develop “secondary disabilities such as mental health problems, trouble with the law, school drop-outs, unemployment, homelessness, and/or alcohol and other drug problems.” ¹²⁴

Identifying professionals with the appropriate training to diagnose individuals afflicted with FASD is an initial hurdle, but then ruling out co-morbid disorders masked by the symptoms of FASD creates yet another hurdle to overcome. All of this presupposes that lawyers will have sufficient understanding about FASD to raise the issue in court by filing a competency challenge, and this is a major assumption given the limitations of legal education and the lack of training available to lawyers who are most likely to encounter the clients afflicted with this congenital condition. Pretending that these children are simply “bad actors” or that they have an attitudinal problem ignores the very condition caused by prenatal exposure to alcohol and it tends to lay blame or responsibility on the person least capable of altering their cognitive deficiency, or altering their behaviors, their susceptibility to manipulation or higher levels of suggestibility and difficulty appreciating the consequences of their actions. ¹²⁵ Systemic responses have included transferring such adolescents out of juvenile courts and into adult criminal courts for prosecution, especially for more serious offenses. ¹²⁶ While it is true that high functioning FASD afflicted adolescents—“an estimated 73% of individuals meeting criteria for FAS and 91% of individuals meeting criteria for FASD have intellectual abilities above that typically considered intellectually disabled” ¹²⁷—may be found competent to stand trial, ¹²⁸ states must still be prepared for the increase in diagnosed cases involving FASD and the prospects that these children will not benefit from routine competency restoration services in the U.S. such as classroom instruction which identifies the parties in a court proceeding and which seek to inform the children what their legal rights might involve. This population may never be competent to stand trial, as we are just beginning to see with large scale studies of the children in detention facilities in other nations such as Canada and Australia where the diagnoses were unknown at the time of their adjudications and dispositions or sentencing.

Conclusion

Systemic change requires focusing on the establishment of universal protocols for performing competency evaluations of juveniles in delinquency and adult criminal courts. Uniformity in and of itself accomplishes nothing or results in disastrous outcomes if the protocol is flawed. Developing protocols jointly with cooperating forensic mental health organizations and individuals is crucial to help ensure that evidence-based practices and appropriate evaluation instruments are utilized exclusively. ¹²⁹ Oftentimes, when legal systems are “reformed” or systemic change is sought, legislative proposals may fall within the exclusive province of lawyers while licensed professionals in other relevant fields are excluded while legislation is drafted. This process minimizes the input of trained professionals with actual training and background to address whatever legal question must be addressed, sometimes resulting in legal foucs on issues far beyond the ability or training experts might be comfortable or even competent in addressing. ¹³⁰ The creation of protocols for conducting competency evaluations is not a panacea for filling all gaps in competency determination, ¹³¹ but it is one step in creating a more universal approach to obtaining evaluations which reduce some of the vagaries and clumsiness ¹³² often caused when professionals are deprived of the opportunity of collaborating with one another before testifying in court and possibly resulting in a more consenus driven evaluation. ¹³³ Not perfect, but better than the status quo.

Given the recent studies about child competency including developmental immaturity and FASD, perhaps a newly created protocol to help measure competency is not enough to steer us in the right direction as our appreciation of Piaget’s developmental stages of childhood ¹³⁴ may lead our juvenile justice system in an entirely new direction recognizing the congenital limitations of some while delaying proceedings for others due simply to their immaturity. Or perhaps we could simply pretend that on the train of justice, all is well; just sit back and relax as the train of juvenile justice jumps the tracks altogether.