Just when we think we’re onto something as far as understanding adolescents, life throws us another curve. As most of you know by now, the latest research shows that the human brain does not stop developing until around age 25 years. For those who attended the VJJA’s Fall Institute, you may recall the plenary address on this topic, but what has caused me to ponder on our business this month is the issue of competency. Not incompetence, but not being competent – not having arrived yet.
It’s not enough to merely understand that juveniles aren’t fully developed. What troubles me today is that current thinking indicates that some juveniles may not beneficially comprehend the consequences of their actions regardless their age. Substantial effort involving specially trained, qualified mental health professionals may be needed to ‘restore’ their competency. More juveniles than we have previously considered may be unfavorably limited in assisting in their own defense or comprehending what is occurring in court. They may be struggling to understand what is going on, what the choices are in their pleadings, and what the effect is that stems from their behavior. It makes me sit up and take notice.
Given this new information, as I back up the mental age line in my mind, I have drawn a few disturbing scenarios for us to consider. At eleven (11) years of age a child may be committed to the Department of Juvenile Justice without truly knowing that they had different choices of action other than the delinquent act they committed that got them committed. When they were read their Rules of Probation, they may not have been processing all of them jointly and severally, nor did they fully understand the expectations required of them to change their life style in the aggregate. When speaking with their attorneys, they offered their only viewpoint, perhaps not fully comprehending what the penalty options constituted. Their defense counsel, being bound by the expressed interest of their client, offered the only summation available to them even if that may not have been in the best interests of the child. Particularly for those offenses when the juvenile is being tried as an adult – how does one plea bargain a forty year prison term when one cannot adequately consider what twenty years may mean? And lastly, unless exceptionally trained at understanding a juvenile’s inability or lack of capability to competently comprehend what is occurring during the legal process, how do we as practitioners exercise prudent judgment in holding juveniles accountable for their actions? All this reminds me of my dog.
The difference between what I say to my dog and what my dog actually hears goes something like this: I say, “Darwin, I told you to stay off of the couch. Look at the mess you’ve made, Darwin. Get down! I’m appalled at your behavior, Dar-Dar.” What he hears is something like, “Darwin, blah-blah-blah. Blah-blah-blah, Darwin. Blah-blah! Blah-blah-blah, Dar-Dar.” While he presents as attentive as a dog might, what he is competent to understand extends way beyond English, tone of voice, or vocabulary choices. He simply doesn’t have the language skills or the capacity to think through his behavior without significant coaching, patient discipline, and repetitive instruction and then, because it is in the nature of a dog to be itself (facultas formatrix), he performs for me but remains incapable of expressing what is being requested of him.
Please don’t misunderstand. I am not making children analogous to canines. I don’t even like that many people call them kids, which is a term we should reserve for goats. My point being that a person cannot appropriately respond to circumstance and situation without being able to do so competently and with children it is a moving target. At different times in their development, children respond best to parental influence; at other times, peers; sometimes community authority figures; and, still other times, a combination. Conscience and the role of consequence evolve during the developmental years, but the justice system is more static. That is not to say our judges and co-workers don’t exercise prudent judgment – they do. However, unfortunately, the equipment the defendants bring to the table cannot match the collective wit of jurisprudence which is codified and cross-referenced with matters thoroughly discussed in case law. This is why juvenile courts were established in the first place – children are not small adults. It takes them a while to catch up to the answers to the questions of life.
Uniquely, though, lawyers have learned to use this to their probative advantage. Question: “Did you see the victim?” Answer: “Yes.” “It was dark. Are you sure? You saw the victim?” Answer: “Yes.” - meaning it was dark is a true statement. “You are sure?” “I think so.” – meaning it surely was dark. “You think so?” “Yes, I do.” – meaning I am sure it was dark. “Wasn’t the victim in the dark, so that you could not clearly see them? “No. Yes.” – meaning they were in the dark, not the victim, but yes they could see them clearly. “No? Yes?” “Yes and no.” “Yes, now we’re getting somewhere, no? You do know what perjury is, don’t you?” “Yes, I think so.” “Do you or don’t you?” “I do. I think.” And on it goes….
So what can we do for children? I offer you my New Years’ proposals:
- First, existing law in Virginia allows a process whereby a child can be restored to competency for purposes of court proceedings. It is time-consuming and currently there are insufficient numbers of trained, qualified mental health professionals who can offer this service; however, attorneys need to become better informed of this process and ask for it on behalf of their clients - most especially for those clients who are younger, or those needing special education, and almost always for those facing “adult” consequences. Pay particular attention to children designated needing special education – it is an indicator that their development may not be equal to same-age peers.
- Second, we can encourage broader use of guardians ad litem. Children need someone in their lives looking out for their best interest; especially, if they cannot understand why they do.
- Third, we can pay much more attention to special education needs and deficits, as well as the need for mental health services. I know working with children is not the glamorous side of mental health, mental retardation, and substance abuse, and often no-shows and no-pays compound the ability to provide service but, for goodness sake, children need help. Childhood depression and resistance is real. Substance abuse and use is real. Working with adolescents using client-centered, client-empowered treatment services models isn’t easy, but they do need our help.
- As a matter of general conscience, a fourth suggestion would be to offer advocacy. Stimulate the Court Appointed Special Advocate process in areas of the state where it does not now flourish. Within our institutions, whether community-based detention or group homes, or the state’s juvenile correctional centers, children need advocates. They should not present themselves before discipline committees, or triennial reviews without someone representing their interest. Juvenile justice is above all else a civil not a criminal process. We are not going to improve society by pointing a finger of blame or shame but, rather, through acceptance, inclusion and guidance we can encourage and stimulate long-term growth and development among the children with whom we work and thereby achieve long-term public safety.
None of this is easy. None of this is without a price. I have long held the belief that the only thing worse than crime is the fear of crime, and unless we willingly tackle the tough issues and wrestle with the difficult challenges, we will fast become a society that ignores the signs and bemoans that nothing can be done. Since we know better, we must guide the field toward a new direction of service and care. I hope some of my suggestions may help motivate you in that process. We can do things to help children. We can take action. We can become positive change agents for children and families throughout the Commonwealth. I thank you for the endorsement you have given me during the recent VJJA election and I invite you to join us in advocating for children during the current legislative session.
Author’s note: No one in our business is the sole proprietor of ideas. Like everyone, I am an amalgamation of thoughts and influences as extensive as my lifespan. I have been the recipient of tremendous support, advice and counsel throughout my career, but I did want to note particular appreciation for the kind insistences and corrections offered me by Dr. Robin Ramsey Telsch, who always encourages and aids me to make my written work as accurate and professionally sound as possible; and, she tolerates my sense of humor. Many of you know Robin as a colleague, some of you know her as my spouse, but I wanted to acknowledge my indebtedness to her and others in her profession who are making ours a better world, one person at a time. - RET
(Ron Telsch is a Probation Supervisor in the Virginia Department of Juvenile Justice's 25th Court Service Unit (covering Lexington, Covington and Botetourt).
