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Comments on Ohio’s Juvenile Competency Statute

Written by Terry Kukor, Director of Forensic and Specialized Assessment Services, Netcare Access

In July of 2011, when Ohio HB 86 was passed by the legislature and signed by the governor, Ohio took a huge stride forward in defining what it means for a juvenile to be found “Incompetent to Stand Trial.”  In doing so, Ohio became the 22nd state to define juvenile competency by statute.  Prior to the new law, Juvenile Rule 32 provided scant guidance for the forensic evaluation of juvenile competency, holding only that a court may order a mental examination where the issue of competency has been raised. Ohio Juv. R. 32(A)(4).  The problem, of course, was that there was no well-articulated standard by which competency determinations in juvenile proceedings could be made.  There was case law in Ohio that provided some relief to the forensic examiner.  Specifically, In re Williams,  687 N.E.2d 507, 511 (Ohio Ct. App. 1997), the court held that a juvenile court may properly adopt the adult standard in determining competency for purposes of juvenile delinquency hearings, provided that the court assesses juveniles by “juvenile rather than adult norms.”  While such a finding may sound fair-minded, there were three associated issues: (1) “juvenile norms” were undefined, (2) the process for examination and disposition was not articulated, and (3) the law was silent regarding developmental immaturity relevant to juvenile incompetence to stand trial.

This situation was in marked contrast to the evaluation of competency to stand trial for adults.  Every state in the union defines adult competency to stand trial in a manner consistent with the United States Supreme Court’s definition articulated in Dusky v. United States, 362 U.S. 402 (1960).  This landmark case established that for adults, the defendant needed to have a “rational as well as factual understanding of the proceedings against him” or her, as well as have “sufficient present ability” to consult with one’s attorney “with a reasonable degree of rational understanding.” Id. at 402.  Operationally, forensic examiners might evaluate whether the defendant had the capacity to understand the roles and function of key courtroom figures, understood basic legal procedures (e.g., the types of pleas available to a defendant), and had the requisite skills to work in a cooperative and meaningful fashion with one’s attorney (e.g., had the capacity to disclose pertinent facts, challenge prosecution witnesses, etc.).
The provisions of Ohio’s new law, in effect since 2011, established similar considerations for juveniles.  First, threshold conditions must be met.  That is, the forensic examiner must first decide if the juvenile has a “mental illness, intellectual disability, or developmental disability, or… a lack of mental capacity.” Ohio Rev. Code Ann. § 2152.51(A)(1) (West 2011).  Second, there must be some connection between the threshold condition and problems with the functional legal capacities, i.e., the problem with understanding courtroom procedures or being able to assist in one’s defense must be “due to” the threshold condition.  Id.  Third, the examiner must make a careful assessment of functional legal capacities related to understanding of the legal proceedings and ability to assist in one’s defense. § 2152.56(B).  Unlike the law related to adult competency to stand trial, there is not a full presumption of competence.  Ohio’s new law stipulates that the presumption of competence (which is rebuttable) extends only to juveniles 14 or older, who do not have mental illness or developmental disabilities. § 2152.52(A)(2).  This is consistent with research conducted by the MacArthur research network on Adolescent Development and Juvenile Justice, which found that approximately 30% of 11- to 13-year-olds and approximately 20% of 14- to 15-year-olds were as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts. Laurence Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question, 18 Crim. Just. 20, 23 (2003).  A similar study by Grisso found that “[a]dolescents also tended more often than young adults to make choices (e.g., about plea agreements) that reflected compliance with authority, as well as influences of psychosocial immaturity.” Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, 333 (2003).  These studies suggest that care must be taken to challenge misguided assumptions that 12-year-old Charlie is exactly the same as 16-year-old Rose, which we know not to be true.
Ohio’s new law, while solving certain problems, does not come without challenges.  First, a clear emphasis on developmental issues, prior working experience with youth, and a good understanding of developmental considerations is essential for the examiner.  Mental disorders among youth are, by and large, different than those diagnosed in adults.  Since there is no statutory definition (for the purposes of competency determination) of mental illness, the forensic examiner of juveniles needs to be astute in the diagnosis of youths’ developmental capacities as well as juveniles’ mental disorders.  The examiner also needs to be knowledgeable about how the complexities and nuances of these disorders may potentially impact functional legal capacities.  Youths are regarded by many as “moving targets,” i.e., they change
more than they stay the same, they experience spurts, delays, and regressions, and perhaps most importantly, gains consolidated in one developmental area (e.g., cognitive maturity) may not be associated with increases in other developmental areas (e.g., interpersonal maturity).  We know that reasoning capabilities increase through childhood into adolescence, and that youth differ substantially from adults in their cognitive abilities, particularly in terms of sensitivity to coercive influence and how they appraise risk.  We also know that developmental improvements in reasoning are complemented by increases in knowledge gained through education and life experience, as well as by concurrent improvements in skills related to information processing, such as attention, short- and long-term memory, and organization. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011 (2003).[a1]
Second, in light of the significant potential impact of developmental status, the examiner of juvenile competency needs to carefully assess not just factual knowledge, but also the youth’s ability to appreciate what is known and the youth’s reasoning capacity.  “Appreciation” refers to youths’ perceptions and beliefs about the implications of the legal concept in question.  That is, does the youth have a sufficiently mature grasp of the significance of the situation and can reasonably apply what he/she knows to one’s own situation?  “Reasoning” in this context refers to decision-making abilities often involved in decisions youths must make in juvenile court.  The emphasis is not on what the youth would choose, but rather on how the youth would make decisions.
Third, the adult law is typically seen by the court as a black or white standard, i.e., one either is or is not competent.  One of the statutory provisions is that if the evaluator concludes that the child’s competency is impaired but that the child may be enabled to understand the nature and objectives of the proceeding against the child and to assist in the child’s defense with reasonable accommodations, the report shall include recommendations for those reasonable accommodations that the court might make. § 2152.59(C).
Fourth, the statute has provisions for competency attainment services. § 2152.59(E)(2).  It may take some time for providers of clinical treatment services to youth determined to be incompetent to catch up to the full significance of competency attainment services.  At this time, Netcare is preparing to offer attainment services at an outpatient level, and Pomegranate Health Systems at a residential level.  As these services begin, it will be important for clinicians to evaluate both the clinical progress in terms of threshold conditions and gains made in the functional legal capacities.

 Written by Terry Kukor

 Terry Kukor, Ph.D., ABPP, is board certified in forensic psychology by the American Board of Professional Psychology. He is the Director of Forensic and Specialized Assessment Services for Netcare Access in Columbus, Ohio.  He serves as an adjunct professor in the Departments of Psychology at Miami University and Drexel University, and as a member of the Auxiliary Faculty, Department of Psychiatry, at The Ohio State University.  Dr. Kukor has specialized in criminal forensic evaluation for more than 20 years, during which time he has performed a wide variety of forensic evaluations, including criminal responsibility, competence to stand trial, juvenile competency & waiver, violence risk assessment, and threat assessment.  At the Netcare Forensic Center, he performs and supervises criminal forensic evaluations on court-referred adults and juveniles.