TECBD, November Are Youth with Disabilities Able to Participate in the Courtroom? Lili Garfinkel, PACER, and Jeffrey Poirier, AIR

TECBD, November Proposition 21 Gang Violence and Prevention Act of 1998, or Proposition 21, was approved by ballot initiative (62%) in California in March 2000 Key implications: confidentiality protections reduced and more juveniles tried in adult court Allows prosecutors to file charges for certain offenses directly in adult court Requires juveniles 16 years or older convicted in adult court to be sentenced to adult corrections

TECBD, November Proposition 21 Challenged in court on various grounds, including that it violates separation of powers Trial court rejected case but appeals court ruled prop 21 unconstitutional State supreme court reversed appeals court decision in 2002: constitutionality was upheld Proposition 21 has been denounced by various national organizations including Children’s Defense Fund, Child Welfare League of America, National Mental Health Association, and National Urban League

TECBD, November Numbers of Juvenile Offenders Waived to Adult Court (1997) Of the 107,000 youth (under 18) incarcerated on any given day, app. 14,500 are held in adult facilities Of these, 9100 are housed in local jails and 5400 are housed in adult prisons Adult Court

TECBD, November Legal Issues: Adjudicative Competence Defined as the defendant’s ability to consult with his lawyer with a reasonable degree of rational understanding Defendants with serious cognitive deficits or mental health disorders may be found incompetent to stand trial Competence v. effectiveness: even when competent, quality of defense may be affected

TECBD, November Philosophy of Juvenile Justice System JJ system founded in 1899 when the Illinois legislature passed a bill establishing the first U.S. juvenile court Based on the philosophy from English criminal law, parens patriae, that considered youth to be more innocent and impressionable than adults, and less responsible for their actions Evolution of the system: from rehabilitation to punishment/restorative justice (JJ system does not confine offenders beyond age 25)

TECBD, November How Juveniles are Referred to Adult Court Expanded waiver laws or policies that have narrowed the differences between juvenile and criminal court Lowering the age at which juveniles can be transferred to adult court Increasing the types of crimes for which juveniles can be transferred Adult

TECBD, November Community Support of Adult Incarceration Fear of juvenile offenders that has intensified because of school shootings Media distortion of information about teens, crime, and violence Racism Political advantage in being “tough on crime” Adult

TECBD, November Court Competency Are juveniles sufficiently competent to participate in the court process? The standard for determining competence in court is tied to significant mental illness or cognitive disability. Most youth under age 18 who are referred to adult court will not meet these standards. Their disabilities include ADHD, Depression, Learning Disabilities, PTSD, Developmental Disorders, and other emotional disorders.

TECBD, November Court Competency Characteristics associated with these disorders include: Impulsivity Inability to consider consequences Immaturity Limited awareness of options Poor judgment

TECBD, November Court Competency Characteristics associated with these disorders include: Inappropriate interaction with persons in authority Excessive need to please (especially among those who have developmental disorders or have been abused) Substance use and other risk taking behaviors

TECBD, November Court Competency To what degree does their disability or developmental capacity impact judgment and decision making at the time of arrest, processing, or appearance in court? Can they meaningfully participate in their own defense? Do these youth understand the importance and long-term impact of their decisions and actions?

TECBD, November Court Competency There are two components in decision- making: Cognitive and Judgmental (Scott et al., 1995) Cognitive component requires the ability to understand information, understand its implication in the trial, and use it in making choices; Judgmental component includes maturity,experience, and the ability to make good decisions. Neither of these components are sufficiently developed in the population of adolescents referred to adult court

TECBD, November Court Competency Adolescents have an evolving moral compass; depending on their life circumstances, they may have more or less capacity for empathy and an understanding of right and wrong. The need for peer acceptance has great influence, more so if the youth has a difficult family situation or has problems making friends. Adolescents under age 14 are more likely to have trouble understanding the legal process and applying sound reasoning to their legal decisions than older adolescents.

TECBD, November Court Competency A youth may plead guilty out of loyalty to friends who are implicated They may plead guilty even if they are innocent because of fear of others, or to show that they are tough They may believe that if they confess, they will go home, and not have to face a trial. They are often questioned alone, without an attorney or other adult present, thereby increasing the likelihood of being coerced or manipulated into a confession or a plea bargain They do not realize that they are entitled to representation

TECBD, November The Adult System Does not have appropriate programs in place for juvenile offenders with emotional, behavioral learning and cognitive disorders Does not provide the special education, mental health and other services that are developmentally appropriate Is being challenged by a number of cases being litigated on behalf of youth who did not receive mandated services in the adult system Adult Court

TECBD, November Consequences Harm caused to youth (Shiraldi & Ziedenberg, 1999) : Higher suicide rates: 7.7% more likely to commit suicide than children in juvenile facilities Higher victimization within adult placements:  5 times more likely to be sexually assaulted  twice as likely to be beaten by staff  50% more likely to be attacked with a weapon

TECBD, November Consequences Lack of deterrence effect: higher recidivism rates More frequent and more serious offenses (Redding, 1999; Fagan, 1995) FL study followed youth in adult system with matched sample in juvenile system, and found the former were 1/3 more likely to recidivate (Bishop et al., 1996)

TECBD, November Consequences Qualitative studies have found that youth in the JJ system are more likely to describe their experiences as rehabilitative while those in adult prison indicate they are learning new ways to commit crime and would likely re- offend (Shiraldi & Ziedenberg, 1999). Higher recidivism rates suggest belief that adult incarceration is a means to justice for victims is flawed What are the costs of higher recidivism to society and victims?

TECBD, November Consequences Studies have found that minority youth are overrepresented in criminal court, even when comparable crimes were committed (Juszkiewitcz, 2000; Poe-Yamagata & Jones, 2000) African-American juveniles: comprise 15% of the U.S yo population account for 26% of juvenile arrests, 30% of delinquency cases in juvenile court, and 46% of cases waived to adult criminal court (BBFY, 2001) What are the implications for equity?

TECBD, November Recommendations Develop resources and training for the courts, the public and legislature, demonstrating that the focus should not be the offense(s) of juvenile offenders, but their rehabilitation Develop cost benefit analyses to evaluate juvenile transfer to adult court policies. Transfer decisions are largely made by prosecutors based on the offense, but should be based on a number of factors including family and other risk factors, unmet mental health and education needs, and cultural bias. Policymakers should listen to the research: youth emerge from adult prisons less functional members of society

TECBD, November Questions? Comments? Contact us: Lili Garfinkel: Jeff Poirier: