HD42 - Study of Juvenile Competency Issues in Legal Proceedings

Executive Summary:
Competency to stand trial is a due process protection provided by the U.S. Constitution. The standard to evaluate competency has been articulated in the U.S. Supreme Court Dusky and Drope rulings. Assessment of competency generally includes the defendant's factual understanding of the charges and legal proceedings, ability to rationally understand the proceedings, and ability to communicate information to counsel. The Code of Virginia does not address the issue of a juvenile's right to competency when transfer to Circuit Court is not at issue.

Statutory reforms to the juvenile justice system in 1996 have elevated the importance of a juvenile's competency to stand trial. In assessing juvenile competency, there is the additional challenge of how to appropriately incorporate adolescent development, given the impact of age and maturity on the ability to understand and communicate. Statewide surveys of Judges, prosecutors, and public defenders conducted by the Commission on Youth found that 68% of the respondents believe competency for juveniles is a relevant concern. Less than half of the jurisdictions have a standard process in place to handle the evaluation or necessary follow-up services. Additionally, there is an absence of service options to provide restoration to incompetent juveniles.

Based on these findings, it is recommended that the Code of Virginia be amended to effect the following recommendations and that sufficient funds are allocated for service provisions.

A. Establishment of Competency

Recommendation 1

Amend the Code to establish a process for raising the issue of a juvenile's competency to stand trial in delinquency proceedings. The issue can be raised by the Defense Counsel, Judge or Commonwealth's Attorney. Competency is presumed; there must be a court order before the evaluation can be ordered.

Recommendation 2

The statutory definition of juvenile competency should encompass the Dusky and hope standards of having sufficient present ability to consult with one's attorney with a reasonable degree of rational understanding, a rational as well as a factual understanding of the proceedings, and the capacity to assist in preparing one's defense.

Recommendation 3

Age or age-related developmental factors unrelated to the child's capacity to understand or assist in his defense cannot be the sole basis for a finding of incompetency.

B. Competency Evaluations

Recommendation 4

Competency evaluations are to be conducted on an outpatient basis unless hospitalization is clinically indicated.

Recommendation 5

Evaluators (and restorers) must be licensed professionals with training and experience specific to working with juveniles and have forensic training in the evaluation of juveniles.

C. Time Limits

Recommendation 6

Timeframe for the completion of the competency evaluation cannot exceed ten days once the required information is provided to the evaluator.

Recommendation 7

If the Judge finds the juvenile incompetent but restorable, the Judge shall stay the proceedings and order restoration services. The court must review the juvenile's progress towards competency every three months until competency is restored.

Recommendation 8

If not dismissed with prejudice at an earlier time, the charges against an unrestorable incompetent juvenile shall be dismissed one year after the date of arrest for misdemeanor charges and three years after the date of arrest for felony charges.

D. Dispositional Options

Recommendation 9

If the Judge finds the juvenile incompetent and unrestorable, there are four options:

a) commit the juvenile to a mental health facility under Section 16.1 355 et. seq.;
b) certify the juvenile under Section 37.1-65.1 ;
c) file a Child in Need of Supervision (CHINS) petition, placing the individual on supervised probation and ordering treatment; or
d) release the juvenile.

E. Service Needs

Recommendation 10

The Department of Mental Health, Mental Retardation and Substance Abuse Services should maintain sufficient facility capacity to conduct approximately twenty-five juvenile competency evaluations on an in-patient basis annually.

Recommendation 11

Funding for the development and dissemination of competency assessment and restoration tools should be provided to the Department of Mental Health, Mental Retardation and Substance Abuse Services. ($60,600)

Recommendation 12

Funding restoration services, ranging from home-based to placement in a secure setting should be contracted out on a regional basis by the Department of Mental Health, Mental Retardation and Substance Abuse Services. ($1,244,710)

Recommendation 13

Funding for two administrative staff should be provided to the Department of Mental Health, Mental Retardation and Substance Abuse Services to oversee the juvenile competency evaluations and restoration contracts. ($112,280)