Introduction

In 2003, the Florida District Court of Appeal reversed the murder conviction and life sentence imposed on Lionel Tate, who was twelve years old when he killed his six-year-old neighbor.¹ Since Lionel was reported to be the youngest person in modern times to be sent to prison for life, the case had generated considerable debate, and the decision was appealed on several grounds. What persuaded the appellate court that the conviction could not stand, however, was the trial court's rejection of a petition by Lionel's attorney for an evaluation of his client's competence to assist counsel and to make a decision about the state's plea offer.²

This case highlights an issue that has hovered almost unnoticed in the background of the recent punitive juvenile justice reforms that have resulted in criminal prosecutions of young teens and. adult-like sentences in juvenile court. This legal trend has been the subject of intense political and academic debates, focusing on whether the reforms fulfill the criminal law goals of public protection, individual accountability, and proportionate punishment-- and generally, whether imposing harsh punishment on young offenders ultimately serves the public interest.³ By comparison, whether youths who face serious legal jeopardy have the developmental capacities to function adequately as criminal defendants has received little attention.

And yet, even a cursory examination of constitutional doctrine in this area and its application to the recent reforms make clear that this issue cannot be ignored. It is well established in American law that a defendant cannot be subject to criminal adjudication if he is incompetent to stand trial because he is unable to understand the charges against him or the nature of the proceedings, or to assist his attorney in his defense.⁴ The Supreme Court has emphasized that these requirements are essential for fundamental fairness and are mandated by the Due Process Clause because they protect the accuracy and integrity of criminal proceedings.⁵ The conventional standard by which competence is evaluated focuses on adults' cognitive deficiencies caused by mental illness or mental retardation.⁶ Beginning in the 1970s, courts and legislatures have extended this protection to mentally impaired youths adjudicated in juvenile proceedings.⁷ However, few lawmakers have addressed the impact of developmental immaturity on competence.⁸

Under contemporary juvenile justice regulation, however, this issue has become highly salient. Adjudicative competence is a functional requirement. The constitutional mandate is satisfied if a defendant has certain capacities that allow her to participate adequately in the proceedings against her; if she lacks those capacities, the prosecution cannot go forward.⁹ Whether the source of a defendant's incompetence is mental illness or immaturity is not (or should not be) relevant. Thus, policymakers and courts face a constitutional imperative to incorporate developmental competence into the procedural architecture of juvenile justice policy.

This challenge, on first inspection, may seem to be a modest one. On one level, developmental immaturity is simply an additional basis (along with mental illness or mental retardation) for invoking a standard procedural protection available to criminal defendants. Legislatures and courts can establish procedures by which attorneys who find their clients too uncomprehending or confused due to immaturity¹⁰ can petition for an evaluation and judicial competence determination. Viewed in this light, developmental incompetence represents a modest doctrinal expansion, which carries some urgency because of the recent punitive reforms.

The issue is more complex, however. Although immaturity and mental illness or disability may all produce cognitive and behavioral deficits that impede trial competence, several distinctive features of developmental incompetence create major challenges for policymakers devising juvenile crime policy. Relatively few adult defendants are found to be incompetent to stand trial, and procedures for restoration to competence are straightforward and usually effective. In contrast, powerful research evidence indicates that many younger adolescents may lack the capacities needed to participate as defendants in a criminal proceeding. An important study sponsored by the MacArthur Foundation recently found a high risk of trial incompetence among younger teens and even mid-adolescents using the measures applied to adults.¹¹ This research confirms earlier studies of youths' capacities in legal settings as well as general developmental psychology evidence about maturation.¹² It shows that the risk of developmental incompetence is correlated predictably with age and concentrated in a readily identified group-- younger teens. In that group, the incidence of developmental incompetence is likely to be high. Moreover, the conventional remedy for incompetent defendants, the restoration of competence, may often have little meaning as applied to youths who have never been competent, and for whom maturation is the only effective remedy.

Because of these distinctive features, developmental incompetence poses institutional challenges beyond those raised by the conventional forms. Even under the most parsimonious account of the impact of recognizing this construct, the evaluation and determination of trial competence will play a prominent role in most criminal prosecutions of younger and mid-adolescents. Beyond this, lawmakers must also confront the challenge of creating dispositional remedies that respond to this unique form of incompetence. In contrast to adults, many immature youths cannot attain competence through medical or instructional interventions. We will argue that an efficient disposition for most youths deemed incompetent to proceed in criminal court is adjudication in a juvenile delinquency proceeding. This implies, of course, that the competence requirements in delinquency proceedings must be less demanding than those applied to criminal trials.¹³ A less demanding juvenile court standard avoids an institutional crisis that would arise if a unitary standard were applied to juvenile and criminal proceedings; under such a regime, a sizeable group of younger teens might be immune from prosecution in any court, whereas under the dual standard regime that we propose, most youths could be adjudicated and subject to juvenile dispositions. Our analysis demonstrates that dual competence standards are compatible with fundamental fairness as required by the Due Process Clause.¹⁴

An important caveat is in order here. The adoption of a less demanding competence standard can be constitutionally justified only if the punishment stakes in delinquency proceedings are lower than those facing criminal defendants and the objectives of juvenile justice policy are broader than punishment. These constraints challenge the recent reforms creating more punitive juvenile court dispositions, at least as applied to those teens who are incompetent under adult standards.¹⁵

A road map of the Article may be useful. Part I describes the legal and constitutional landscape of the trial competence requirement and how it has been applied to juveniles. We explain how the issue of developmental competence emerged only in the context of the recent punitive reforms in juvenile justice policy and why this construct must be incorporated into legal doctrine. Part II examines the scientific evidence regarding the link between immaturity and incompetence. We describe the developmental psychology knowledge about adolescent capacities that are related to trial performance, as well as research evidence on adjudicative competence among juveniles. Part III examines the implications of this research for legal policy, exploring both the threshold importance of adjudicative competence for assuring fundamental fairness in criminal and delinquency proceedings as well as the implications for institutional reform.

I. Applying the Trial Competence Requirement to Juveniles: A Doctrinal History

In this Part, we briefly describe the legal and constitutional mandate that defendants must be competent to stand trial and then turn to its application to juvenile defendants. The latter account has unfolded against the backdrop of evolving juvenile justice policy over several decades. The issue of adjudicative competence simply was not deemed relevant in traditional juvenile delinquency proceedings. Competence doctrine was introduced into this setting beginning in the 1970s, after the Supreme Court announced in In re Gault¹⁶ that juvenile defendants were entitled to many of the procedural protections provided to adults in criminal trials.¹⁷ During the post- Gault period, the competence inquiry focused on the incapacities of mentally ill or retarded youths. However, beginning in the late 1980s, dramatic reforms in juvenile justice policy have resulted in the institutional challenge the justice system faces today-- that of meeting the constitutional mandate in an era when many young defendants facing serious legal jeopardy may be incompetent due to immaturity.

A. The Legal and Constitutional Requirements of Competence To Stand Trial

The procedural requirement that criminal defendants must be competent to stand trial has long been established as a mechanism to assure that minimum standards of fairness are met in criminal proceedings.¹⁸ The requirement originally served a rather formalistic function. A criminal trial could proceed only after the defendant entered a plea; thus, adjudication was barred if a defendant's disability prevented him from entering a plea, but not if he was "mute of malice."¹⁹ The doctrine evolved to focus on defendants' capacities to understand the proceedings and the charges against them, and to assist counsel in offering a defense; those whose mental disabilities precluded effective participation could not be tried. This contemporary understanding is captured in the federal standard announced by the Supreme Court in Dusky v. United States,²⁰ which has since been adopted uniformly by American courts. Under Dusky, the competence determination focuses on "whether [the defendant] 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."²¹

It is generally agreed that the requirement of trial competence serves three independent functions. First, it preserves the integrity of criminal trials, which would be undermined if a mentally impaired and uncomprehending defendant faced the power of the accusing state in a proceeding in which his liberty is at stake. Second, the requirement reduces error and promotes the accuracy of the proceedings. Again because of the high stakes, error in criminal proceedings that could result in a wrongful conviction undermines basic fairness. An incompetent defendant may be unable to challenge prosecution evidence or to offer exculpatory information. She may also be disabled from raising defenses that an individual with better comprehension could assert. Finally, the competence requirement safeguards defendants' autonomy-based interest in meaningful participation in criminal proceedings-and thus protects a core value underlying due process in this setting.²² In Pate v. Robinson,²³ the Supreme Court affirmed the constitutional importance of thisrequirement, holding that the Due Process Clause requires that criminal defendants must be competent to stand trial.²⁴

B. Trial Competence of Juveniles

1. The Incorporation of the Competence Requirement in Delinquency Proceedings

The requirement that criminal defendants be competent to stand trial had no place in delinquency proceedings in the traditional juvenile court. In a system in which the government's announced purpose was to rehabilitate and not to punish errant youths, the procedural protections accorded adult defendants-- including the requirement of adjudicative competence_-were deemed unnecessary.²⁵ This all changed with In re Gault, which led to an extensive restructuring of delinquency proceedings to conform to the requirements of constitutional due process.²⁶ Although the Supreme Court has never considered whether due process requires that defendants in juvenile delinquency proceedings be competent to stand trial, many state courts have addressed this issue. Almost all have held that the requirements of due process and fair treatment can be satisfied in juvenile delinquency proceedings only if defendants are competent to stand trial.²⁷

Courts addressing this issue generally have not offered extensive analysis of why the requirement of trial competence should apply to delinquency proceedings. As a general matter, courts note the quasi-criminal nature of these proceedings and the potential loss of liberty that can result from adjudication. Some courts have found the requirement of adjudicative competence to be important because other procedural rights accorded to juvenile defendants would have little value if the defendant were incompetent.²⁸ Most important, perhaps, the value of the right to counsel is thought to be greatly diminished if the youth cannot communicate with her attorney or is unaware of the nature of the proceedings due to mental illness or disability.²⁹ Other courts emphasize that the value of accuracy, which is promoted by requiring that defendants be capable of assisting counsel, is compatible with the purposes of juvenile delinquency proceedings.³⁰

Courts incorporating the adjudicative, competence requirement into delinquency proceedings have assumed that the incapacities of incompetent juveniles are analogous to those of their adult counterparts: the cases have almost exclusively involved youths who are mentally ill or mentally retarded.³¹ Although a few courts have suggested in passing that immaturity might exaggerate the challenges faced by incompetent youths,³² developmental incompetence per se has received little attention in the case law.

On reflection, this is not surprising. The project undertaken by post-Gault courts was to examine discrete legal protections enjoyed by criminal defendants to determine whether they should be incorporated into delinquency proceedings.³³ Since adjudicative competence doctrine almost exclusively focused on mental illness and disability as sources of incompetence,³⁴ courts extending this protection to juveniles were seldom confronted with the issue of incompetence solely based on immaturity. More importantly, the underlying rationale for maintaining a separate system for the adjudication and correction of juveniles is that young offenders, because of their immaturity, warranted differential treatment. Thus, the idea that immaturity should be a basis for disqualification from adjudication in juvenile court understandably might have seemed incoherent, or at least incompatible with the rationale for the system. The post-Gaultlegal developments took place in a context in which courts, even as they incorporated adult rights, continued to assumethat the juvenile court was very different from the criminal justice system in its purposes and in the severity of its sanctions. Courts considering due process claims emphasized these differences, at least rhetorically, and evaluated procedural protections in part on the basis of their compatibility with the unique purposes and character of the juvenile court.³⁵ Thus, it is understandable that delinquency jurisdiction was assumed to extend to youths charged with crimes, without regard to their immaturity.

In concluding that trial competence is required in delinquency proceedings, courts divided on the competence standard to be applied. Some courts assumed that the Dusky standard should simply be incorporated into delinquency proceedings, while others were less clear about the standard to be applied, emphasizing that juveniles should be assessed by "juvenile rather than adult norms."³⁶ Although little elaboration of the meaning of "juvenile norms" was offered, these courts stressed that youths in juvenile delinquency proceedings cannot be expected to have the same level of comprehension as adults, and that a lower standard of competence applies to these proceedings.³⁷ This approach amounts to an implicit recognition that the distinctive purposes of the juvenile court may warrant less exacting procedural requirements.

2. The Criminal Adjudication of Youths

Both before and after Gault, youths were occasionally transferred to criminal court and tried and punished as adults. Even in this context, the doctrine prohibiting the adjudication of incompetent defendants has not been adapted in most states to exclude immature youths from criminal prosecution. Under a few statutes, courts conducting transfer hearings are expressly directed to consider whether the youth's immaturity would render her unable to participate in a criminal proceeding.³⁸ More indirectly, courts evaluating amenability to treatment in the juvenile system, a factor in the transfer decision under most statutes, likely consider generally the developmental immaturity of the youth, although not focusing explicitly on trial competence. In this way, courts almost inadvertently might exclude immature youths from criminal adjudication, but with no explicit evaluation of trial competence.

Similarly, little evidence suggests that criminal courts ordered competence evaluations on the basis of immaturity after transfer.³⁹ In part, this may not be surprising when it is remembered that, until the 1990s, immature youths generally were not subject to adult criminal proceedings because younger adolescents could not be transferred under most statutes. Thus, the occasional sixteen- or seventeen-year-old criminal defendants may not have raised concerns about trial competence, because they were mature enough to participate adequately in the proceedings.

In sum, until the 1990s, the issue of the trial competence of juveniles involved a straightforward doctrinal exercise of incorporating a procedural protection that is relevant to a relatively small number of impaired adult defendants into delinquency proceedings, where it was assumed also to protect a small number of mentally ill or disabled youths. Thus, the adjudicative competence requirement had a modest institutional impact on delinquency proceedings. The issue of developmental incompetence simply did not become salient during this period either in juvenile court, which was established to deal with a population of immature lawbreakers, or in criminal court, because those youths who were tried as adults tended to be older adolescents.⁴⁰ Although the introduction of this procedural requirement created some challenges for the juvenile system, which often lacked the statutory procedures and institutional mechanisms for dealing with youths found to be incompetent,⁴¹ these challenges were generally modest.

C. The Punitive Juvenile Justice Reforms

The punitive reforms of juvenile justice policy that began in the late 1980s destabilized this equilibrium by increasing the punishment stakes facing many young offenders and eroding the boundary between the adult and juvenile systems. We will show how these legal developments unwittingly have transformed adjudicative competence from a minor procedural reform in delinquency proceedings into a major institutional challenge and introduced developmental incompetence as a construct that demands attention.

The history of the recent reforms is familiar. Responding to an increase in the rate of violent juvenile crime in the late 1980s and early 1990s,⁴² advocates for tougher policies argued that young criminals represented a serious threat to public safety that could only be contained if they were punished as adults.⁴³ Disenchantment with the juvenile court also played a role, with critics claiming that excessive leniency toward young offenders contributed to the youth crime problem.⁴⁴ To be sure, the reforms generated controversy. Some observers argued that adult punishment was likely to diminish the prospects for productive adulthood in youths who might otherwise outgrow their criminal tendencies; others challenged the reforms as illegitimate on proportionality grounds, for holding youths to adult standards of criminal responsibility.⁴⁵ The overriding political sentiment, however, was captured in the slogan, "Adult time for adult crime.⁴⁶

The reforms are embodied in several legislative strategies under which juveniles facing criminal charges increasingly have been treated like their adult counterparts. First, the age at which a juvenile can be subject to criminal proceedings has been lowered in most states, such that in many jurisdictions, pre-teens can be tried as adults and sentenced to prison.⁴⁷ Moreover, the range of felonies that can result in adult prosecution has been substantially broadened to include not only serious violent crimes, but also less serious felonies, particularly drug crimes.⁴⁸ Under legislative waiver statutes, criminal court jurisdiction is triggered automatically, based solely on the youth's age and the offense, with no individualized evaluation of amenability to treatment or immaturity.⁴⁹ Finally, in some states, prosecutors have substantial discretion to decide without judicial approval whether youths will be adjudicated in juvenile or criminal court.⁵⁰

Lawmakers have also responded to criticism of the juvenile system by narrowing the gap between juvenile court dispositions and criminal sentences. Dispositional jurisdiction for serious crimes has been extended into adulthood in many states, and others have introduced blended sentences completed in adult prison.⁵¹ Moreover, whereas juvenile crimes were viewed traditionally as the mistakes of wayward youth and records were sealed, today youthful transgressions carry adult consequences. Juvenile convictions can be considered in adult sentencing, and can count under three-strikes laws.⁵² In some states, juveniles who commit sex offenses against minors are subject to statutory registration requirements, under which they are permanently labeled and publicly identified as sex offenders.⁵³

As legislatures across the country enacted laws that dramatically altered the landscape of juvenile crime policy, the procedural issue of whether youngsters charged with crimes might be less able to participate in criminal proceedings than adult defendants was not central to the policy debates. Nor, for the most part, was it considered by legislatures toughening sanctions in juvenile court.⁵⁴ This is perhaps not surprising; as we have suggested, courts traditionally did not think of immaturity as a basis of trial incompetence, because youths (especially younger teens) were tried in juvenile court, a context that was presumed to be appropriately adapted to deal with this population.

Given that developmental incompetence has largely escaped the attention of courts and policymakers, it is worth asking directly whether the constitutional prohibition against criminal adjudication of incompetent defendants must be applied to this form of incapacity. The answer is surely "yes." The competence requirement is functional at its core, as it is directed toward particular purposes that are important in a criminal proceeding because the defendant's liberty is at stake. The requirement exists to protect the integrity of the proceedings, reduce error, and promote meaningful participation by the defendant. These purposes embody the underlying commitment to fair proceedings that is the essence of due process, and they are undermined when a defendant is incompetent, whatever the source of that defendant's incapacity.⁵⁵ Thus, the policy concerns that support the requirement of trial competence on the basis of mental illness or disability are implicated to the same extent when immature youths are subject to criminal proceedings.

The issue of developmental incompetence began to surface as reform policies were implemented and increasing numbers of immature youths faced prosecution in criminal court. The story of thirteen-year-old Lionel Tate focused national attention on the issue: Lionel rejected the state's generous plea offer against his attorney's advice and ultimately received a life sentence from the jury.⁵⁶ The unease expressed by many observers about Lionel's prosecution and conviction reflected, at least in part, a concern that the youth lacked the maturity to comprehend the stakes he faced or the consequences of his choice.⁵⁷ This case highlights a dilemma that now confronts policymakers-- how to respond to the reality that immature youths may simply be less capable trial participants than adults and that some portion may be unable to adequately comprehend the meaning and consequences of criminal proceedings or to assist their attorneys in their defense.⁵⁸

The punitive reforms present a more subtle challenge in the context of delinquency proceedings. Courts extending the competence requirement to delinquency proceedings in the post- Gault period did not focus on the immaturity of juveniles; indeed, as we have suggested, this provided the premise for maintaining a separate justice system. However, when adult sanctions are imposed in juvenile court, any distinction from a criminal proceeding evaporates and developmental incapacity becomes as important in this setting as it is in a criminal proceeding. Under some modern statutes, a twelve-year-old can face a twenty year sentence on homicide charges in a delinquency proceeding.⁵⁹ In this situation, his capacity to comprehend the jeopardy he faces and to assist his attorney is as important as it would be in a criminal trial.

II. Adolescent Development and Trial Competence

In this Part, we examine the scientific basis of the construct of developmental incompetence. We begin by describing generally the developmental status of pre-teens and adolescents which clarifies important dimensions of psychological immaturity. This account, based on recent research, supports conventional intuitions that adolescents are less mature than adults. We then translate the legal criteria for competence to stand trial into specific abilities expected of the competent defendant. Finally, we will describe recent research that links scientific knowledge about youths' developmental status to capacities needed for trial participation. The analysis concludes that youths below age sixteen are significantly more likely than are adults to have deficiencies in capacities necessary for competent participation in criminal proceedings, and that, below age fourteen, the risk is substantial.

A. Psychological Development in Adolescence

Lawmakers usually define immaturity through bright line rules that establish the legal boundaries between childhood and adulthood for various purposes on the basis of age.⁶⁰ These boundaries are based partly on crude judgments about psychological development and partly on other policy concerns.⁶¹ From a developmental perspective, age is a convenient but imprecise marker of the maturation process.⁶² Thus, in creating (and evaluating) optimal legal age categories, the first step is to examine psychological development in the domains relevant to the legal task.

Four spheres of development-neurological, intellectual, emotional and psycho-social-affect the capacities of individuals to understand information and make decisions. In recent years, developmental research has enhanced our understanding of adolescent development in these spheres, confirming what parents know from experience-that adolescents are in the process of developing adult capabilities, but they have not attained maturity.

1. Neurological Development

Neuroscience research on adolescent brain functioning, which probes the biological basis of psychological development, is a recent development; only in the past decade have scientists learned that brain development continues through adolescence.⁶³ This neurological development is especially evident in the early adolescent years, although it continues more slowly through middle adolescence.⁶⁴ One of the last areas of the brain to develop is the prefrontal cortex, which functions as a center for "executive cognitive functions" such as planning, organizing information, and thinking about possible consequences of action.⁶⁵ Another important function of the prefrontal cortex is "affect regulation"-the capacity to inhibit or delay impulsive and emotional reactions sufficiently to allow for rational consideration of appropriate responses.⁶⁶ Development of the pre-frontal cortex and of connections from this area to other regions of the brain continues through adolescence.

Youths in early and mid-adolescence generally are neurologically immature. Their brains are "unstable";⁶⁷ they have not yet attained their adult neurological potential to respond effectively to situations that require careful or reasoned decisions and they may be more inclined than adults to act impulsively and without planning. The upshot is that the recent neurological research reveals that psychological immaturity in adolescents (to which we now turn) likely has a basis in biology.

2. Intellectual Development

Cognitive development during adolescence has been the focus of scientific interest for many years and is now well documented. Intellectual capacities increase in childhood and into adolescence; although there is much variability among individuals, children and younger teens differ significantly from adults in their cognitive functioning. In part, this is simply because adults have more extensive experience. As youths enter and proceed through adolescence, they acquire new information through experience and education, and "practice" their cognitive abilities in a broader range of contexts.⁶⁸ Beyond the accumulation of knowledge and experience, intellectual development in adolescence also involves improvements in basic information processing skills, including organization, attention and short and long term memory. Early adolescence is characterized by gains in deductive reasoning and abstract thinking, including the ability to think about hypothetical situations and to consider that others have perspectives different from one's own.⁶⁹

By mid-adolescence, tentative evidence suggests that teens' capacities for reasoning and understanding may roughly approximate that of adults-- at least in the abstract.⁷⁰ However, little research examines adolescent decisionmaking in stressful and unstructured contexts, where choices have personal salience and decisionmakers must rely on experience and knowledge.⁷¹ These factors may impede the effective use of youthful cognitive capacities.

3. Emotional Development

Youths and adults also differ in their capacity for impulse control-- the ability to delay response in situations in which emotional arousal is high. Impulse control allows reactions to be influenced not only by emotion, but also by reason, and particularly by consideration of probable consequences. Children acquire impulse control in stages from birth through adulthood through an iterative learning process that must be undergone at each new developmental stage.⁷² This is necessary because, as children acquire capacities, their unfamiliarity with the consequences of new-found abilities results in inevitable "miscalculations," requiring parental or societal responses that define acceptable limits of behavior. During the years between twelve and fifteen, impulse control improves, as adolescents struggle with new demands for self-direction and self-management; for some adolescents the process extends well into middle or late adolescence.⁷³

4. Psychosocial Development

Adolescents generally are less mature than adults in psychosocial development, which influences the way they approach decisions, particularly in the context of social relations.⁷⁴ Several dimensions of psychosocial development may be of particular interest for our purposes: risk perception and preference, future orientation, and response to adult and peer influence. Each of these factors maycontribute to adolescent decisions that reflect immature judgment.⁷⁵

Research evidence indicates that adolescents differ from adults in their perception of and attitude toward risk. Adolescents are less risk averse than adults, in that they tend to weigh anticipated gains more heavily than losses in making choices to a greater extent than adults.⁷⁶ Youths also, on average, tend to be greater risk-takers, engaging more frequently in behaviors such as drunken driving, unprotected sex and criminal activity.⁷⁷ It is uncertain how much youthful discounting of risk represents a lesser ability than adults to recognize risks (risk perception) or a greater inclination to discount their likelihood or seriousness (risk preference).

Future orientation, the capacity and inclination to project events into the future and consider future consequences, increases in the period between childhood and young adulthood.⁷⁸ Adolescents tend to focus on the short-term risks and benefits of decisions and to pay less attention to long-term consequences than do adults.⁷⁹ The age gap in future orientation may be due to the limited cognitive abilities of adolescents to think hypothetically; it may be harder for them to think of remote events. The gap may also be due to adolescents' more limited life experience; a consequence that will take place years in the future may simply seem too remote to be given substantial weight.⁸⁰

Finally, adolescents may differ from adults in the extent to which others, including adult authority figures and peers, influence their choices. Adolescence is a sometimes turbulent period of individuation, separation from parents, and movement toward autonomy and self-direction-processes that can generate ambivalence.⁸¹ Thus, adolescents can respond to authority figures compliantly or oppositionally, depending on their mood, developmental stage, or personal predilection. In addition, substantial evidence supports that adolescents are more susceptible to peer influence than are adults. This susceptibility increases in early adolescence as part of the process of individuating from parents; it peaks at about age fourteen and declines slowly thereafter.⁸² At least during the period of early- and mid-adolescence, decisions often are driven by acquiescence or opposition to authority or by efforts to gain peer approval (or avoid peer rejection).⁸³

5. Age and Development

Although policymakers draw age boundaries between childhood and adulthood, it is not possible to point to a particular age at which youths attain adult-like psychological capacities. First, the changes associated with the four spheres of development do not necessarily occur together, and even within spheres, different capacities may develop at different rates.⁸⁴ Second, there is a great deal of individual variability among youths at any given age in all spheres of development. For example, an intelligent twelve-year-old may have a greater capacity to think abstractly than many fifteen-year-olds. Nevertheless, a significant body of developmental research indicates that, on average, youths under the age of fourteen differ significantly from adolescents sixteen to eighteen years of age in their level of psychological development, with youths in the middle years showing similarities to and differences from both groups.⁸⁵

B. A Taxonomy of Competence-Related Abilities

The spheres of psychological development described above affect the functioning of individuals as trial participants; thus, the research on differences between adolescents and adults provides the basis for understanding how developmental immaturity affects youths' competence to stand trial. We turn now to the legal requirements of competence to identify those abilities that are important to functioning adequately in the role of criminal defendant.

Three broad types of abilities are implicated under the Dusky standard for competence to stand trial: (1) a factual understanding of the proceedings, (2) a rational understanding of the proceedings, and (3) the ability to assist counsel.⁸⁶ Although the standard directs courts to consider these types of abilities, it provides no clear guidance about their relative importance or about the level of competence required for each. Few adult defendants have a comprehensive mastery over all information that is relevant to their criminal trial or function as a sophisticated partner to their attorney in developing a defense. The standard permits courts to exercise substantial discretion in deciding "how much ability is enough" for competence, as long as each of these factors is weighed in the deliberation.

1. Factual Understanding

The factual understanding component of the Dusky standard has been extensively described and analyzed.⁸⁷ This requirement focuses on the defendant's knowledge and awareness of the charges and understanding of the nature of available pleas and possible penalties, the general steps in the adjudication process, the roles of various participants in the pre-trial and trial process, and the defendant's rights in this process. Courts assessing factual understanding are concerned with capacity rather than actual understanding to the extent that these can be distinguished; thus, a defendant's deficits in this realm will rarely be the basis of a finding of incompetence to stand trial, as long as she has the capacity to learn from brief instruction.⁸⁸ Adult defendants with mental retardation may be disadvantaged in this area. Intellectual immaturity in juveniles may also undermine this capacity, especially in light of their lesser experience and more limited ability to grasp abstract concepts such as "rights."⁸⁹ Juveniles also may be more likely than adults to have extensive deficits in their basic knowledge of the trial process, such that more than brief instruction is needed to attain competence.

2. Rational Understanding

The rational understanding requirement of Dusky has been interpreted to mean that defendants must comprehend the implications and significance of what they understand factually regarding the trial process.⁹⁰ Deficits in rational understanding typically involve distorted or erroneous beliefs that nullify one's factual understanding.⁹¹ For example, an immature defendant may know that he has a right to remain silent, yet believe that the judge can take this "right" away at any time by demanding a response to questions.⁹² In general, immaturity in the intellectual, emotional and psychosocial spheres may undermine the ability of some adolescents to grasp accurately the meaning and significance of matters that they seem to understand factually.

3. Assisting Counsel and Decisionmaking

The function of assisting counsel in a criminal proceeding has been associated with three types of abilities.⁹³ One is the defendant's capacity to receive and communicate information adequately to allow counsel to prepare a defense. This ability may be impaired by deficits that interfere with attention and concentration, which may undermine the defendant's ability to respond to instructions or to provide important information-- such as a coherent account of the events surrounding the offense. Second, the ability to assist counsel requires a rational perspective on the attorney and her role, free of notions or attitudes that could impair the collaborative relationship. Third, defendants must have the capacity to make decisions about pleading and the waiver or assertion of other constitutional rights.⁹⁴ These decisions involve not only adequate factual and rational understanding, but also the ability to consider alternatives and make a choice in a decisionmaking process. These abilities can be compromised by mental disorders and mental retardation. In addition, due to intellectual immaturity, youths may lack adequate capacities to process information and reason in making trial decisions, especially when the options are complex and their consequences far- reaching. Moreover, emotional and psychosocial immaturity may influence youths to make choices that reflect immature judgment.⁹⁵

As the last Section demonstrated, scientific knowledge clarifies that adolescents are in a process of acquiring the intellectual, emotional and psychosocial abilities of adults. Because of their psychological immaturity, youths may be less capable than are adults of exercising the various abilities associated with competent trial participation. However, general developmental psychology knowledge provides only indirect evidence about the capacities of youths in this context. What has been lacking until recently is research that addresses directly whether adolescents' immaturity actually impairs the abilities required for competent trial participation.

C. The MacArthur Juvenile Adjudicative Competence Study

As juveniles' competence to stand trial began to emerge as an important issue in recent years, the need for a comprehensive study comparing the abilities of adolescents and adults in this setting became apparent. In this Section, we will describe the MacArthur Juvenile Adjudicative Competence Study, which was conducted in response to that need. The study was designed to examine empirically the theoretical relationship between developmental immaturity and the abilities of young defendants to participate in their trials.⁹⁶ It did not aim to evaluate explicitly adolescents' competence to stand trial, recognizing that this is a legal judgment. Rather the purpose of the study was to determine: (1) whether adolescents and adults differ in abilities implicated under the Dusky standard; (2) if so, in what ways and to what extent; (3) whether abilities are related to age, gender, justice system involvement, and to intellectual and psychosocial development.

1. The Study's Method

a. The Sample

The MacArthur Juvenile Adjudicative Competence Study included 927 youths and 466 young adults (age eighteen- to twenty-four) in four communities in the United States.⁹⁷ The adult and youth groups each included two subgroups matched for age, gender and ethnicity-- participants involved in the justice system and "community" participants--individuals from the same neighborhoods without justice system involvement.⁹⁸ The youth participants included three age categories-- eleven to thirteen (20% of the youth sample), fourteen to fifteen (37%), and sixteen to seventeen (43%).

b. Measures

Along with an intelligence test⁹⁹ and a measure of symptoms of mental or emotional disturbance,¹⁰⁰ all study participants were administered two instruments designed to assess abilities relevant to competence to stand trial.¹⁰¹ The first, the MacArthur Competence Assessment Tool-Criminal Adjudication ("MacCAT-CA"), was developed independent of this study specifically to assess (1) individuals' understanding of charges, penalties, pleas, and roles of trial participants, and (2) their ability to communicate relevant facts to counsel and to reason about a plea offer through a standardized interview procedure.¹⁰² The MacCAT-CA was administered by its developers to large numbers of adult defendants (in jails) for whom competence was not questioned, as well as to individuals in forensic psychiatric facilities who had recently been found incompetent to stand trial.¹⁰³ The norms based on these adult defendants were used to set a cut-off score. Scores below the cut off were considered torepresent significant impairment and were far more frequently achieved by persons who had been found incompetent to stand trial.¹⁰⁵

The study also used a second measure of performance, the MacArthur Judgment Evaluation ("MacJEN"), which was designed for this study to assess psychosocial influences on decisionmaking related to trial participation. Through a standardized interview process, participants were asked to make choices and to explain their reasons, in response to three hypothetical vignettes involving police questioning, consultation with an attorney, and a plea offer.¹⁰⁶ The instrument was designed to assess whether individual responses and explanations for their choices were related to risk perception, future orientation, or influence.¹⁰⁷

2. The Study's Results

The findings of the study confirmed the hypothesis that competence-related abilities improve with age during adolescence.¹⁰⁸ On average, youths ages eleven to thirteen demonstrated significantly poorer understanding of trial matters, as well as poorer reasoning and recognition of the relevance of information for a legal defense, than did fourteen- to fifteen-year-old youths, who in turn performed significantly more poorly on average than did sixteen- to seventeen-year-olds and young adults. There were no differences between the sixteen- to seventeen-year-olds and the young adults. The study produced similar results when adolescents and adults were identified according to their scores above or below cut-off scores for significant impairment. Thirty percent of eleven- to thirteen-year-olds and 19% of fourteen- to fifteen-year-olds, but only 12% of sixteen- to seventeen-year-olds and of young adults evidenced deficits in either (or both) Reasoning or Understanding in their responses on the MacCat-CA.¹⁰⁹

Intelligence test scores ("IQ") were also significantly related to MacCAT-CA Understanding and Reasoning,¹¹⁰ with low IQ youths in the younger age groups being particularly likely to evidence serious deficits, showing "significant impairment." For example, for youths who scored 60-74 on IQ measures, 55% of eleven- to thirteen-year-olds and 40% of fourteen- to fifteen-year-olds scored in the significantly impaired range on the Understanding or Reasoning sections on the MacCAT-CA. These results are especially important because a greater proportion of detained youths were in the lower 10 ranges compared to community youths, a finding that is consistent with other research.¹¹¹ However, although intelligence was a significant factor in accounting for individuals' performance on the MacCAT-CA, the relation between age and performance was important independent of intelligence.¹¹²

Further analyses indicated that MacCAT-CA Understanding and Reasoning scores did not differ significantly according to gender, ethnicity, or, in the detained groups, to the extent of prior justice system experience. They also were not related to youths' scores on the measure of mental and emotional disturbances.¹¹³

The MacJEN interview instrument, designed to measure psychosocial influences on decisionmaking, assessed individuals' choices in three hypothetical legal situations. Significant differences among age groups were found in choices on the police interrogation and the plea agreement vignette. For example, youths were much more likely to recommend waiving constitutional rights in interrogation than were adults, with 55% of eleven- to thirteen-year-olds, 40% of fourteen- to fifteen-year-olds, and 30% of sixteen- to seventeen-year-olds choosing to "talk and admit" involvement in an alleged offense (rather than "remain silent"), whereas only 15% of the young adults made this choice.¹¹⁴ The plea agreement vignette was styled so as not to clearly favor accepting or rejecting the state's offer, which probably accounted for the fact that young adults were evenly divided in their responses. In contrast, 75% of the eleven- to thirteen-year-olds, 65% of fourteen- to fifteen-year-olds, and 60% of the sixteen- to seventeen-year-olds recommended accepting the plea offer. Together, these results suggest a much stronger tendency for adolescents than for young adults to make choices in compliance with the perceived desires of authority figures.

Analysis of participant responses to the MacJEN vignettes also found evidence of differences in risk perception and future orientation between the youngest age group and older subjects. Participants were asked to explain their choices, including perceived positive and negative consequences of various options; questions probed the subjects' assessment of the seriousness of risks (the perceived negative consequences) and likelihood of occurrence.¹¹⁵ Analyses indicated age differences for all of these dimensions of "risk perception," with the eleven- to thirteen age group scoring lower than the sixteen- to seventeen-year-olds and young adults. Similarly, eleven- to thirteen-year-olds reported significantly fewer long-range consequences than did older adolescents, suggesting differences in future orientation.¹¹⁶

3. Other Research on Youths' Capacities in the Adjudicative Process

The MacArthur Juvenile Adjudicative Competence Study provides the most comprehensive and targeted investigation to date comparing youths' and adults' abilities as trial defendants. Several other studies, however, have produced results that are consistent with the MacArthur study findings. For example, a study of youths' and adults' capacities to understand Miranda rights found that, as compared to adults in the criminal justice system, fourteen-year-old youths in juvenile detention manifested significantly inferior comprehension of the meaning and importance of Miranda warnings.¹¹⁷ Other studies using smaller samples have found age differences across the adolescent years with regard to knowledge of legal terms and the legal process in delinquency/criminal adjudication.¹¹⁸ Although few studies before the MacArthur study examined youths' reasoning and decisionmaking in the context of adjudication, an exception is a series of studies that found significant age differences across the adolescent years in "strategic thinking" about pleas. The researchers found older adolescents more likelythan younger subjects to make choices that reflected calculations of probabilities and costs based on information provided.¹¹⁹

4. Summary and Implications

The MacArthur Juvenile Adjudicative Competence Study found that adolescents younger than sixteen years of age are significantly more likely than adults to manifest deficits in abilities that are important to competent trial participation. The risk of competence-related deficits was high for youths under fourteen years of age, and those younger adolescents with poor intellectual abilities showed the highest level of risk. This is significant, because the average IQ for youths in detention centers (the group whose competence is actually at issue in criminal proceedings) is about 85, far below the average of 100 for youths in general. In addition, the study found significant differences between adolescents and young adults in choices related to adjudication, with the youngest group more often making choices that seemed to reflect acquiescence to the perceived wishes of authority figures. Moreover, younger adolescents' reasons for their choices were consistent with expectations based on developmental psychology research that many adolescents display psychosocial immaturity in the areas of risk perception and consideration of long-range consequences.

The limitations of these results should be emphasized. The fact that younger participants scored more frequently than adults in the "significantly impaired" range on the MacCAT-CAdoes not necessarily mean that all such youths should be considered incompetent to stand trial.¹²⁰ That is a legal judgment that may be based on a broader range of abilities than is measured by the MacCAT-CA, which only inquires about understanding of a limited number of facts about the charges and roles of trial participants, reasoning regarding a hypothetical decision (not the youth's own case), and does not probe communication and other abilities that might be important in assisting counsel. ¹²¹

For several reasons, however, the results of this study likely do not overstate the risk of incompetence to stand trial among youths charged with crimes. First, as mentioned, the intellectual functioning of youths in the justice system is likely to be lower than community means, and this deficit is likely to be associated with impaired competence. Second, some youths who performed marginally (but not in the "significantly impaired" range) on the MacCAT-CA may be impaired in other capacities related to adequate trial performance that are not measured by this instrument. Finally, although the MacArthur Study included youths with mild or moderate mental illness or retardation, youths with serious illness or disability were excluded.¹²² The inclusion of such youths would undoubtedly have produced a greater proportion of youths with "significantly impaired" performance on the MacCAT-CA.

In light of general developmental knowledge about psychological maturation in early- and mid-adolescence, the findings of the MacArthur study are not surprising. Indeed, given the abilities required of defendants in criminal proceedings, it would be puzzling if youths and adults performed similarly on the competence-related measures. The study provides powerful and tangible evidence that many youths facing criminal charges may function less capably in the role of criminal defendant than do their adult counterparts.

III. TAKING COMPETENCE SERIOUSLY: A FRAMEWORK OF REFORM

In this Part, we explore the implications for contemporary criminal justice policy of taking seriously the scientific evidence that we have described. At a minimum, the research on adolescent development and adjudicative competence challenges courts to consider incompetence claims based on immaturity along with those caused by mental illness and disability. We will argue, however, that the features that distinguish incompetence based on immaturity from the more familiar variations make this simple doctrinal response inadequate. The incorporation of a developmental competence requirement into youth crime regulation necessitates more extensive institutional and doctrinal adjustments, if substantial disruption of criminal and juvenile proceedings is to be avoided. Most importantly, the adoption of dual standards of competence is necessary if juvenile delinquency proceedings are to serve as default dispositions for youths found incompetent in criminal courts; generally, this is the key to avoiding an institutional crisis under which large numbers of incompetent youths cannot be adjudicated in either court. We argue that youths who are incompetent under the Dusky standard can be subject to a relaxed competence standard in juvenile court without violating constitutional norms so long as the dispositions to which they are subject are different in purpose and punitiveness from criminal sentences. We then explore dispositional options for the (small number of) youths who are incompetent even under the standard applied in juvenile court. Finally, we examine the options for institutional reform of the juvenile court available to lawmakers responding to the challenge we raise.

A. The Unique Features of Developmental Incompetence

In the context of the recent punitive reforms, the scientific evidence that we have described challenges both juvenile and criminal courts to assure that youths who are incompetent on the basis of immaturity are not subject to adjudication. This information may lead courts and legislatures simply to expand the category of juvenile defendants subject to assessment, determination, and treatment of competence to include youths of questionable capacity due to their immaturity. Predictably, as developmental incompetence gains recognition, attorneys and judges will become attuned to discerning these incapacities in immature youths in the trial context and take steps to protect them. Under this "minimalist" response, courts applying the Dusky standard will determine whether individual youths are capable of understanding the proceedings and assisting counsel and will exclude those who are not until their competence is demonstrated.

Although a few jurisdictions appear to have adopted this approach to developmental competence,¹²³ it likely will prove inadequate as a response that satisfies the requirements of fairness and due process without seriously disrupting the functioning of the justice system. This is so because two features of developmental incompetence distinguish the incapacities of youths from those of mentally ill or retarded defendants whose competence is uncertain- features that may point to a need for different policy responses. First, the incidence of trial incompetence is likely to be much higher among teens (until age sixteen) than among adult defendants. Second, the standard "remedy" for incompetence-a brief intervention based on medication and instruction-may not suffice for youths whose incapacities are due to immaturity.

As we have indicated, a small percentage of seriously impaired adult defendants are referred for competence evaluations and an even smaller percent are found to be incompetent to stand trial. In contrast, the MacArthur study indicates that more than one-third of youths age eleven to thirteen years may have significant impairments in competence-related abilities, and the capacities of a substantial percentage of fourteen- and fifteen-year-olds are questionable as well. The significance of these findings, which are compatible with other competence studies and with general developmental knowledge, should not be minimized. If a substantial portion of defendants under age sixteen are likely to be of questionable competence, then a youth in this age category should not be subject to criminal prosecution until a court has determined that she is competent on the basis of an evaluation, unless the defense, prosecution, and court agree that it is unnecessary. Moreover, the research suggests that, under the conventional Dusky standard, a substantial percentage of younger adolescents in juvenile court may be at risk for incompetence. The upshot is that, in contrast to the incidence of competence inquiries among adult defendants, the issue is salient for most, if not all, youths under the age of sixteen.¹²⁴

The second difference between immaturity-based impairments of competence and those caused by mental illness and retardation is that the standard disposition provided to incompetent defendants may not be appropriate or effective for many youths. Defendants found incompetent to stand trial under most statutes are committed to a mental health facility for a brief period to be restored to competence through a program that usually combines intensive instruction and psychotropic medication directed at alleviating psychotic symptoms.¹²⁵ This regimen is effective with most defendants, who generally are restored to competence in a few months and returned to court.¹²⁶ Incompetent defendants cannot be held indefinitely; in Jackson v. Indiana,¹²⁷ the Supreme Court held that indeterminate long-term commitment violates constitutional due process.¹²⁸ In response to Jackson, many states provide for a statutory restoration period of a year or less after which charges must be dropped and the defendant released.¹²⁹

This framework may be ill-suited to immature youths who have never attained competence. Although some youths may become competent with instruction about the trial process, their attorney's role and other matters necessary for adequate participation, many will simply need time to mature. Immaturity-based incompeten ce that relates to rational understanding and decision making capacity often can be remedied only through the process of psychological development. If this period of maturing extends into the future for a year or more, it becomes problematic on due process grounds under Jackson. Although child advocates might be satisfied with dismissal of the charges against immature youths who cannot be made competent with instruction, this solution is unlikely to be acceptable to those whose primary concern is public protection.¹³⁰ Moreover, many observers believe that accountability for criminal conduct is an important component in the rehabilitation of young criminals; on this view, dismissal of charges harms young offenders as well as society.¹³¹

Because of the distinctive features of developmental incompetence, adoption of the minimalist approach may impose an unacceptable burden on courts and on society that ultimately may result in a weakening of the due process rights of youths. Predictably, under this approach, both criminal and (particularly) juvenile courts are likely to be flooded with petitions for competence evaluations and large numbers of youths could be found incompetent, with no satisfactory disposition available for many of them. Under these circumstances, this constitutional requirement is likely to be given lip service without providing any substantial protection for immature youths. The upshot is that a minimalist approach that simply recognizes this form of incapacity without making other doctrinal and structural adjustments is likely to be inadequate.

B. The Case for Dual Competence Standards

1. Why Dual Standards Are Necessary

The unique features of developmental incompetence create a dilemma for courts unless appropriate mechanisms are available for responding to youths who are incompetent to proceed under the conventional legal standard. To be sure, some youths may be found incompetent simply because they lack adequate understanding about the purposes and operation of a criminal trial.¹³² They may respond to focused "competence training" programs designed to provide instruction that will enable them to function in their assigned role with at least minimal effectiveness. The question is how to respond to youths whose developmental incapacity is not correctable with short-term remedial instruction.

It is critically important to find a satisfactory answer to this question. Consider the dilemma faced by a criminal court judge deliberating about the competence of a thirteen-year-old charged with aggravated assault and armed robbery. The charges arose from an incident in which the youth and his friends allegedly ran off with an elderly woman's purse after attacking her brutally with a tire iron, causing her to suffer serious injuries. The youth, because of his extreme immaturity and low IQ, fails to comprehend the seriousness of the charges or the consequences of conviction. He can provide little assistance to his attorney, and it seems highly unlikely that these deficits can be remedied in the near future. If the court decides, as it should, that the youth is incompetent, neither dismissal of the charges nor long-term indefinite confinement ("waiting for maturity") will be acceptable dispositions; the former sacrifices public safety and accountability, and the latter violates constitutional norms.

In our view, the disposition that is appropriate for this youth and for most developmentally incompetent youths is adjudication in a juvenile delinquency proceeding. If a juvenile court adjudicates the charges against the youth, it can determine whether he committed thecrime and, if so, it can structure a disposition based on remediation, accountability, and public safety. This outcome is possible only if criminal and juvenile courts apply dual standards of competence, such that a youth who is found incompetent in a criminal proceeding can be adjudicated under more relaxed criteria in juvenile court. Such a regime largely resolves the dispositional quandary faced by courts dealing with immature youths charged with serious crimes. On the other hand, if a uniform standard is applied in both judicial contexts, the youth excluded from criminal court on grounds of incompetence would also be unable to participate in delinquency proceedings.

The application of dual competence standards in criminal and delinquency proceedings is important for another reason; it is the means to avoid profound disruption of juvenile delinquency proceedings. Although few thirteen-year-olds are subject to criminal charges, many face adjudication in juvenile court. The research evidence suggests that even handed application of adult competence criteria may well result in the disqualification of a substantial percentage of youngsters from adjudication in any court. This outcome is jarring in light of uncontroversial premises of juvenile court jurisdiction; few would challenge the appropriateness of delinquency proceedings for younger teens. Thus, as a policy matter, a strong case can be made for a relaxed juvenile court competence standard under which immature youths could be tried in delinquency proceedings, even though they are incompetent to stand trial under adult criteria.

2. Dual Standards Under the Due Process Clause

The critical question then becomes whether less demanding competence criteria in juvenile court satisfy the mandates of due process. As we have indicated, some post-Gaultcourts have assumed that the adult competence standard must be applied in delinquency proceedings. Other courts effectively have adopted dual standards, suggesting that the juvenile court standard is based on "juvenile norms" and emphasizing that a finding of incompetence in a criminal proceeding would not necessarily bar delinquency adjudication.¹³³ These courts assume, rather than conclude on the basis of analysis, that dual standards violate no constitutional norm. Thus, their observations, at most, simply reflect an intuition that delinquency and criminal proceedings differ in their clientele, purposes and consequences, and that a relaxed competence standard in juvenile court is acceptable because of these differences. However, because the central feature of the legal framework that we endorse is a regime of dual standards, and because that feature is likely to be somewhat controversial, it is important to demonstrate that this approach satisfies due process.¹³⁴

The principle of fundamental fairness is the broad constitutional standard under which courts evaluate procedural challenges in both criminal and delinquency proceedings. The Supreme Court has made clear, however, that due process does not require that the constitutional protections afforded youths in juvenile court replicate those offered defendants in criminal trials. Emphasizing the unique features of juvenile proceedings, the Court has found that some important safeguards, such as the rights to a jury trial and to bail, would undermine the purposes of the juvenile justice system and are not essential to fair process in this setting.¹³⁵

The question that we address is not whether delinquency proceedings are subject to the competence requirement at all-we take that to be settled-but whether the application of a relaxed standard in this setting (requiring less competence than is required in a criminal proceeding) can satisfy the demands of due process. As a purely conceptual matter, the adoption of dual standards is quite feasible because competence, unlike many procedural protections is largely a continuous rather than binary construct. Typically, the inquiry about incorporation of constitutional safeguards is posed as a categorical choice between extending or not extending a particular protection to delinquency proceedings. However, the legal boundary between competence and incompetence is located along a continuum by legal authorities on the basis of a mix of policy concerns. Thus, in theory, lawmakers could require a higher level of competence than Dusky mandates-- the capacity to independently make all key trial decisions, for example.¹³⁶ That the standard is not so demanding reflects an implicit balancing of defendants' rights and interests against the public interest in bringing criminals to justice. The upshot for our purposes is that the competence thresholds for delinquency and criminal proceedings can be fixed at different locations on the basis different policy demands.

This, of course, does not resolve the question of whether dual standards satisfy the mandate of due process. The Supreme Court has emphasized that the Constitution does not require the wholesale incorporation of adult procedural rights into delinquency proceedings, but has offered no test to guide the determination of whether a contested procedural protection is required by fundamental fairness. However, several themes that can be extracted from the Court's examination of due process claims in this context inform our analysis. First, the Court has emphasized that a procedural safeguard that is likely to be "disruptive of the unique nature of the juvenile process"¹³⁷ and to dilute its beneficial aspects may not be required in juvenile court.¹³⁸ For reasons that we have discussed, this consideration is highly salient in evaluating the impact of a uniform competence standard. However, this deference rests on the assumption that a juvenile delinquency proceeding is different from a criminal trial in ways that serve the interests of youths facing charges in juvenile court.¹³⁹ This qualifying condition is important to our analysis, leading us to conclude that, regardless of its disruptive impact, a relaxed juvenile court competence standard is constitutionally sufficient only if delinquency proceedings promote the welfare of youths who do not meet the adult standard.¹⁴⁰ Finally, the Court has focused on whether a contested procedural safeguard is important for accurate factfinding in the adjudication of criminal charges.¹⁴¹ We extend this concern to examine whether a relaxed juvenile court competence standard adequately satisfies the purposes of the competence requirement as applied in this setting.

As to the first consideration about the disruptiveness of the proposed procedure, the earlier discussion makes clear that serious disruption of delinquency proceedings is likely to follow if a uniform competence standard is applied in criminal and juvenile courts and that this can be avoided by adopting a relaxed standard. First, juvenile courts that apply the adult standard are likely to be burdened with a flood of petitions for competence evaluations and hearings, resulting in a major diversion of financial and human resources to a process that most would agree should have limited importance in this legal setting. Also, if many younger defendants are found incompetent under the adult standard, government efforts to protect the public from youth crime, to hold young offenders accountable, and to provide them with rehabilitative services will be undermined. As we have argued, a doctrinal regime under which many younger teens-particularly those charged with serious crimes-might be immune from prosecution probably would be rejected as unacceptable, and ultimately, would undermine the legitimacy of the juvenile court. Under a tailored juvenile court standard, this procedural safeguard can function to exclude only those youths whose extreme immaturity makes even juvenile court adjudication inappropriate.

Although the potentially disruptive impact of a uniform competence standard seems clear, the constitutional adequacy of a dual-standards regime also depends on whether delinquency proceedings differ substantially from criminal proceedings, such that the more protective adult standard is not mandated in this setting. The interest of adult defendants facing criminal punishment justifies the existing competence requirement and serves as a baseline for evaluating the interests of juveniles in delinquency proceedings. In other cases dealing with procedures resulting in deprivations of liberty, the Court has made clear that the state's purposes in restricting liberty and the impact on affected individuals are key to evaluating the mandates of due process. For example, where the state's purpose in confining an individual is to provide treatment for mental illness, the procedural requirements of criminal proceedings can be relaxed.¹⁴²

A relaxed competence standard will meet this second condition of "distinctiveness" if delinquency proceedings are different from criminal trials in two important dimensions. The first concerns the severity of punishment and its impact on the future lives of young offenders. Juvenile court sanctions, especially for serious crimes, must be of shorter duration than those imposed on adult criminals. Moreover, dispositions should be completed within a self-contained juvenile correctional system, such that they do not extend into adulthood or affect adult status or opportunities.¹⁴³ The traditional juvenile justice system was characterized by dispositions more lenient than the adult system, and contemporary regimes can be evaluated along this dimension as well.¹⁴⁴ If the dispositional differences are insufficient in this regard, the adult standard must be applied.

The distinctiveness condition also requires that the purposes of delinquency proceedings must be broader than those of criminal proceedings and must include consideration of the welfare of young offenders. Today, to be sure, criminal and delinquency proceedings both aim to punish offenders, deter crime and protect public safety through the incapacitation of dangerous persons. However, the juvenile system, traditionally at least, also has been committed to treatment and to offering dispositions that enhance the likelihood that delinquent youths will become productive adults. This distinction from the adult justice system is important in the justification of a relaxed competence standard in delinquency proceedings.

The upshot of our analysis is that whether a juvenile court adjudication is sufficiently different from a criminal trial to justify relaxing the constitutionally required competence standard depends in part on institutional features defining the juvenile justice system and its purposes. If youths facing adjudication in juvenile court are subject to dispositions that are more lenient than criminal punishment and that are aimed (in part) at promoting youth welfare, then the stakes they face are lower than (and different from) those facing criminal defendants and the need for adult procedural safeguards to protect their interests is less compelling. Under these conditions, a relaxed standard in delinquency proceedings may be justified, given the disruptive impact on delinquency proceedings of applying a uniform standard. On the other hand, if juvenile proceedings and criminal trials are alike in their consequences and purposes, then accused youths should receive the same protections as criminal defendants.

Assuming the institutional preconditions are met (for now), a relaxed standard will meet the mandate of fundamental fairness only if it also satisfies the underlying purposes of the criminal competence requirement-the promotion of dignity, accuracy, and defendant participation. Under the competence criteria that we endorse, a youth facing a delinquency proceeding must have a basic understanding of the charges and proceeding and of her position as defendant in that proceeding, and the capacity to communicate with her attorney.¹⁴⁵ This standard accommodates the developmental incapacities that might leave many youths incompetent to be tried as adults, while at the same time requiring basic comprehension of the delinquency proceeding, its meaning, and consequences.

To elaborate a bit on the operation of a relaxed standard, a youth faced with a serious delinquency charge must understand why he faces a deprivation of liberty and the possible extent of that confinement. But, because the consequences are less far-reaching than those of a criminal proceeding, a lesser ability to foresee remote consequences would be sufficient. The youth must also understand that his attorney's role is to advocate for him, that the prosecutor aims to convict and punish him, and that the judge will decide whether he committed the crime based on the evidence. But he need not understand how advocacy is translated into practice in a way that would be required of an adult. He must also have the capacity to provide his attorney with an account of relevant events and to answer questions so that the attorney can plan and execute a defense. But he need not have the ability to weigh the value of defense strategies, or to advise counsel accordingly. In delinquency proceedings, attorneys will often have an additional burden of explanation and solicitation of assent in planning a defense. It seems likely, however, that in practice, attorneys already play this role with younger clients, whose questionable competence heretofore has not been expressly acknowledged.

This standard satisfies the purposes of the competence requirement sufficiently to protect the interests of youths in delinquency proceedings-assuming the pre-conditions are met. The dignity and integrity of the proceedings are preserved if youths are not confused about the jeopardy they face or bewildered at the purpose and nature of the proceedings. Accuracy is satisfied if a young client can describe relevant events to her attorney; this communicative role also satisfies the purpose of promoting participation by the youthful client. What may also be important in realizing these purposes is the development of a set of guidelines and practices by which young defendants' understanding and effective participation in delinquency proceedings can be enhanced. Such guidelines might include the creation of a process that provides adequate time for attorney-client consultation and the development of strategies for explaining trial-related concepts grounded in educational principles and developmental knowledge. If these goals are taken seriously, most youths should be capable of participating in delinquency proceedings with sufficient competence to satisfy due process.

C. Dispositions of Incompetent Youths in Delinquency Proceedings

Even under a relaxed standard, of course, some small number of youths will not be competent to be adjudicated in a delinquency proceeding. In this section, we examine the responses available to juvenile courts for the disposition of these youths. At the outset, note that some portion of youths found incompetent by juvenile court judges can acquire the requisite understanding through age-appropriate instruction. Thus, a variation of the "competence training" described earlier may be usefully deployed in delinquency proceedings as well as criminal trials. However, immature youths who do not respond sufficiently to instruction or cannot learn to communicate with their attorneys in a reasonable time period cannot be adjudicated. On a far more limited scale, we face again the challenge that we described earlier in the context of criminal proceedings, except that the simple solution of adjudicating incompetent youths in a different venue is unavailable here.

Although no dispositional response will deal with every youth in this category, several options are available that together will resolve most cases adequately. Mental health and social service dispositions may be appropriate for most of these youths. For some young delinquents, mental illness may be a contributory factor to incompetence or to the delinquent conduct; these youths may be subject to mental health interventions including admission to inpatient facilities.¹⁴⁶ Other youths may be involved in criminal activity due to inadequate supervision and control by their parents. In these situations, intervention by social service agencies may be appropriate, to provide parents and their delinquent children with services to correct problems that have contributed to the child's delinquent behavior. If parents cannot provide adequate care and oversight, removal of the child from the family and placement in foster care sometimes may be necessary. Finally, in the rare case, dismissal of the charges with no other action will be the appropriate response.

In a regime of dual standards, very few youths will be in the category of defendants who cannot be adjudicated in juvenile proceedings due to their incompetence. Of this small group, some may attain competence in a reasonable period through training, and most of the rest will be subject to dispositions that assure that they receive adequate supervision and useful, remedial services. Thus, dealing with this group creates little threat of systemic crisis, in sharp contrast to the potential disruption of both juvenile and criminal proceedings that is likely to occur under a uniform standard.

D. Juvenile DispositionsUnder a ConstitutionallyAdequate Regime

We have argued that dual standards will satisfy the demands of due process if dispositions in delinquency proceedings are less punitive than criminal sentences and have broader purposes that include promotion of the welfare of young offenders. In this section, we examine the institutional implications for the juvenile justice system of these conditions. Legal authorities can satisfy these conditions through institutional changes that range from broad reform of juvenile dispositions to more limited accommodations that are tailored to apply only to those youths of questionable competence. A narrow approach presents a more modest political challenge, but the administrative complexities will be substantial.

Lawmakers responding to the constitutional challenge we have raised face a dilemma created by the recent trend toward harsher juvenile justice sanctions. Under the recent reforms, the boundary between the juvenile and adult systems has eroded in several ways. In many states, juvenile court dispositions can extend into adulthood and delinquency adjudication can have far reaching consequences on the adult lives of young offenders. These features of the modern juvenile justice system undermine the justification for relaxed procedural safeguards in delinquency proceedings. At a minimum, youths who do not meet adult competence standards cannot be subject to sanctions that approximate adult punishment or carry consequences into adulthood.¹⁴⁷ To justify a relaxed competence standard, the juvenile court dispositions imposed on these youths should also be briefer in duration than adult sentences. For serious felonies that carry long criminal sentences, shorter dispositions would usually result if juvenile court age boundaries are set close to the traditional lines.¹⁴⁸ However, since immature youths are likely to be younger teens, even dispositions within these boundaries could approximate adult sentences in duration. If so, the jeopardy facing youths in delinquency proceedings would be similar to that of adult defendants, and the justification for a relaxed competence standard would not hold.

Shorter sentences and more limited consequences of juvenile dispositions are important, but these conditions alone may be insufficient to support applying a relaxed competence standard to immature youths in delinquency proceedings.¹⁴⁹ Beyond differences in the amount of punishment, a relaxed standard is more readily justified if these immature youths are offered correctional programs that are tailored to the needs of young offenders and are clearly different from those available in adult prisons. As we have mentioned, due process analysis frequently focuses on the government purpose in restricting liberty when procedures are challenged for insufficient rigor.¹⁵⁰ In the juvenile justice setting, a key purpose of programs should be to prepare immature youths for productive, non-criminal adult lives and not simply to punish and incapacitate them as lawbreakers. A programmatic focus emphasizing education, job training and the acquisition of life skills, together with substantial investment in clinical and family support networks to facilitate the transition to life outside of the correctional system, define the distinctive purposes of the juvenile system in ways that support a relaxed competence standard.¹⁵¹

Despite the punitive tilt of juvenile justice policy recently, many states have embraced these objectives. Pennsylvania, for example, has adopted an approach based on "balanced attention" to accountability, public protection and "the development of competencies to enable children to become responsible and productive members of the community."¹⁵² That state's Juvenile Act describes goals of committing resources to skill assessment and development in young offenders and responding to their individual needs, and of providing opportunities for competence development. This approach, which has been adopted by other jurisdictions as well,¹⁵³ contrasts sharply with the conventional purposes of criminal punishment and signals that the purposes of a delinquency proceeding are broader than those of a criminal trial. It also demonstrates that a goal of investing in young offenders as future citizens can be accommodated within a justice policy that emphasizes individual accountability and public protection.

The conditions that we have described-- more lenient dispositions that do not extend into adulthood either in duration or consequences, and distinct programmatic goals-- are essential to the constitutional sufficiency of a relaxed competence standard in juvenile delinquency proceedings. In executing the constitutional mandate, some jurisdictions may opt for a "limited" approach, insulating from punitive sanctions and regulations only those youths who fail to meet adult competence standards, who also will be offered educational and therapeutic programs to promote their welfare.¹⁵⁴ Other states may undertake more comprehensive reform of their juvenile justice systems. How the conditions are implemented will depend in part on other policy goals.

Those who favor the recent reforms and believe that the legitimacy of the juvenile court depends on cracking down on serious juvenile offenders may opt for the limited approach. This response will require the adoption of juvenile court policies and procedures that distinguish between youths who meet adult competence standards from those who do not. Youths facing dispositions with adult-like consequences must meet the adult standard of competence, while such dispositions cannot be imposed on immature youths who are not competent under the adult standard (and will not attain competence in a reasonable time).¹⁵⁵ The upshot is that the juvenile justice system would become a two-tier institution in which dual competence standards are applied (within the juvenile court itself) and youths are assigned to different dispositional regimes in part on the basis of their developmental competence. A consequence of adopting this approach is that juvenile court competence hearings would become commonplace, resulting in considerable administrative costs.¹⁵⁶ Those who wish to retain the punitive reforms face a tough choice; either create a costly two-tiered system of competence within the juvenile court itself or adopt a uniform standard under which immature youthful offenders who do not meet the adult trial competence standard cannot be adjudicated at all.

An alternative approach is to undertake broader reforms of the juvenile system. The dilemma that we have described will not in itself lead lawmakers to revise punitive policies or undertake major changes that alter the character of the modern juvenile system-- and such comprehensive juvenile justice reform would likely face substantial political obstacles.¹⁵⁷ However, as trial competence gains attention in policy discourse, those who have reservations about the recent punitive trend may well conclude that this challenge provides the opportunity to re-evaluate the wisdom of punitive policies and to reassess the purposes and programs of the juvenile justice system.

E. Reevaluating the Boundary of Juvenile Justice

Incorporating developmental competence into criminal justice policy may result in the reevaluation of another dimension of the recent punitive trend-- the expansion of the pool of juveniles potentially subject to criminal court jurisdiction.¹⁵⁸ Whether introducing developmental competence into criminal proceedings creates a substantial burden on the administration of justice in that setting will depend in large part on how commonly younger teens are tried as adults. This in turn depends, of course, on background legislative policy, as well as on the inclinations of prosecutors regarding the appropriate forum for adjudicating minors.

As the salience of this issue becomes clear, the costs of evaluating and determining the developmental competence of younger juveniles who are eligible for waiver to criminal court may influence the legislative judgment about the age boundary between juvenile and criminal courts. This is not to say that the minimum age of criminal adjudication or the range of crimes for which juveniles can be prosecuted as adults will or should be determined solely on the basis of research-based predictions about trial competence. Many states may conclude that the costs of competence determinations are justified as a means to assure that youths charged with serious crimes can be tried as adults. Moreover, in most states today, not many younger teens are charged as adults. However, some legislatures may conclude that excluding younger juveniles from criminal court is an efficient means of limiting the cost of procedural protections that would be invoked categorically by all members of this class of defendants.¹⁵⁹ This consideration would support adjusting the minimum age boundary for criminal adjudication to a point nearer to its traditional location, such that most youths tried as adults could be expected to satisfy trial competence requirements.¹⁶⁰

Conclusion

Many legal reforms have unintended consequences that create costs and challenges not contemplated by lawmakers. The recent legal trend toward criminal prosecution and punishment of juveniles has unintentionally created a challenge of constitutional proportions. It is clear under conventional constitutional doctrine that youths who are incompetent to stand trial due to immaturity under the prevailing legal standard cannot be tried as adults or subject to adult-like sentences in juvenile court. We have suggested that the adoption of dual competence standards in criminal and juvenile court can satisfy due process and goes a long way toward resolving the problem faced by lawmakers-but only if juvenile court dispositions meet certain conditions. Our analysis demonstrates that an innocuous procedural protection relevant to a small group of adult defendants becomes far more important when applied to immature youths. Both doctrinal and institutional changes of some magnitude will be necessary to bring criminal and juvenile delinquency proceedings into compliance with the mandate of constitutional due process.

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Summary

This article examines the legal and constitutional issues surrounding the competence of young offenders to participate in criminal and delinquency proceedings. It argues that recent punitive juvenile justice reforms have inadvertently highlighted the need to consider developmental immaturity as a factor in determining trial competence.

I. Applying the Trial Competence Requirement to Juveniles: A Doctrinal History

This section outlines the legal and constitutional mandate for ensuring trial competence in both criminal and delinquency proceedings. It traces the historical development of this requirement and its application to juveniles, particularly in light of the In re Gault decision, which extended due process protections to juvenile defendants. The section also highlights the lack of attention to developmental immaturity as a basis for incompetence, particularly in the context of traditional delinquency proceedings.

A. The Legal and Constitutional Requirements of Competence To Stand Trial

This section explains the legal and constitutional basis for the requirement of trial competence, highlighting its purposes of preserving the integrity of trials, reducing errors, and promoting meaningful defendant participation. It also reviews the Supreme Court's decision in Pate v. Robinson, which affirmed the constitutional importance of this requirement.

B. Trial Competence of Juveniles

This section explores the application of the competence requirement to juvenile defendants, both in delinquency proceedings and in cases where youths are tried as adults. It examines the evolution of this requirement in delinquency proceedings, highlighting the emphasis on mental illness and disability as sources of incompetence, and the relative lack of attention to developmental immaturity.

1. The Incorporation of the Competence Requirement in Delinquency Proceedings

This subsection discusses the incorporation of the competence requirement into delinquency proceedings following In re Gault. It examines the rationale for applying this requirement to juveniles and explores the different standards of competence adopted by various courts.

2. The Criminal Adjudication of Youths

This subsection examines the application of the competence requirement to youths tried as adults. It highlights the lack of explicit consideration of developmental immaturity in transfer hearings and the limited evidence of competence evaluations based on immaturity after transfer.

C. The Punitive Juvenile Justice Reforms

This section examines the impact of recent punitive juvenile justice reforms on the issue of adjudicative competence. It highlights how these reforms have increased the punishment stakes facing young offenders and blurred the boundaries between adult and juvenile systems, making developmental incompetence a more salient issue.

II. Adolescent Development and Trial Competence

This section explores the scientific basis for the construct of developmental incompetence, drawing on research on adolescent brain development, intellectual functioning, emotional maturity, and psychosocial development. It demonstrates how these areas of development influence adolescents' ability to understand information and make decisions, particularly in legal settings.

A. Psychological Development in Adolescence

This section discusses the four key spheres of development—neurological, intellectual, emotional, and psychosocial—that contribute to adolescents' psychological maturity. It examines the differences between adolescents and adults in these spheres, highlighting the continuing development of the brain during adolescence, the evolving cognitive abilities of adolescents, and the challenges they face in regulating emotions and managing psychosocial relationships.

1. Neurological Development

This subsection explores the neurobiological basis of adolescent development, highlighting the ongoing development of the prefrontal cortex and its role in executive functions and affect regulation. It emphasizes the “unstable” nature of the adolescent brain and its impact on decision-making abilities.

2. Intellectual Development

This subsection examines cognitive development during adolescence, highlighting the increase in intellectual abilities with age, the acquisition of knowledge and experience, and the improvement in information processing skills. It also acknowledges the evidence suggesting that by mid-adolescence, teens' reasoning and understanding may approximate those of adults.

3. Emotional Development

This subsection discusses the development of impulse control in adolescence, highlighting the increasing ability to delay responses, to regulate emotions, and to consider consequences. It also acknowledges the variability in this development and the challenges adolescents face in managing impulsive behaviors.

4. Psychosocial Development

This subsection examines psychosocial development during adolescence, highlighting the influence of risk perception, future orientation, and susceptibility to peer influence on adolescents' decision-making processes. It provides evidence of adolescents' differences from adults in these areas.

5. Age and Development

This subsection acknowledges the limitations of using age as a precise marker of development and highlights the individual variability in developmental rates among adolescents. It emphasizes the significant differences in development between younger adolescents and older adolescents, while acknowledging the individual variability that exists.

B. A Taxonomy of Competence-Related Abilities

This section translates the legal criteria for competence to stand trial into specific abilities expected of a competent defendant. It identifies three broad categories of abilities: factual understanding, rational understanding, and the ability to assist counsel. It then explores each of these categories in detail, highlighting the ways in which developmental immaturity can impact these abilities.

1. Factual Understanding

This subsection examines the factual understanding component of the Dusky standard, focusing on the defendant's knowledge and awareness of charges, pleas, penalties, and the legal process. It acknowledges the challenges that adolescents face in understanding these concepts due to their lesser experience and limited ability to grasp abstract concepts.

2. Rational Understanding

This subsection examines the rational understanding component of the Dusky standard, focusing on the defendant's ability to comprehend the implications and significance of factual information. It emphasizes the challenges that adolescents face in understanding the meaning and consequences of legal proceedings due to intellectual, emotional, and psychosocial immaturity.

3. Assisting Counsel and Decisionmaking

This subsection explores the ability to assist counsel, highlighting the key abilities involved, including receiving and communicating information, maintaining a rational perspective on the attorney's role, and making informed decisions about legal strategies. It acknowledges the challenges adolescents face in these areas due to their limited information processing capabilities, immature judgments, and susceptibility to external influences.

C. The MacArthur Juvenile Adjudicative Competence Study

This section describes the MacArthur Juvenile Adjudicative Competence Study, which was designed to examine the relationship between developmental immaturity and trial competence in adolescents. It details the study's methodology, including its sample, measures, and key findings.

1. The Study's Method

This subsection describes the study's design, including its sample of adolescents and young adults, the measures used to assess competence-related abilities, and the specific instruments employed.

a. The Sample

This subsubsection describes the study's sample, including its composition of adolescents and young adults, both involved in the justice system and from the community, and its division into three age categories for adolescents.

b. Measures

This subsubsection describes the study's measures, including the intelligence test, the measure of mental and emotional disturbance, the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA), and the MacArthur Judgment Evaluation (MacJEN).

2. The Study's Results

This subsection presents the study's key findings, highlighting the age-related differences in competence-related abilities, the relationship between intellectual functioning and competence, and the influence of psychosocial factors on adolescents' decision-making.

3. Other Research on Youths' Capacities in the Adjudicative Process

This subsection reviews other research that supports the findings of the MacArthur study, including studies examining adolescents' comprehension of Miranda rights, their knowledge of legal terms and processes, and their strategic thinking about plea decisions.

4. Summary and Implications

This subsection summarizes the study's findings and their implications for understanding the developmental competence of adolescents in legal settings. It emphasizes the increased risk of competence-related deficits in younger adolescents, particularly those with lower intellectual functioning, and highlights the influence of psychosocial factors on their decision-making.

III. TAKING COMPETENCE SERIOUSLY: A FRAMEWORK OF REFORM

This section explores the implications of recognizing developmental incompetence for criminal justice policy. It argues that the unique features of developmental incompetence require a more comprehensive approach than simply expanding the category of defendants subject to competence evaluations. It proposes a framework of reform that includes the adoption of dual competence standards in criminal and delinquency proceedings.

A. The Unique Features of Developmental Incompetence

This section highlights the distinctive features of developmental incompetence, arguing that the high incidence of trial incompetence among younger adolescents and the limited effectiveness of conventional competence restoration programs require more than a minimalist response. It emphasizes the need for more extensive institutional and doctrinal adjustments to avoid systemic disruptions.

B. The Case for Dual Competence Standards

This section argues for the adoption of dual competence standards in criminal and delinquency proceedings, arguing that it is necessary to avoid an institutional crisis where youths are deemed incompetent for both criminal and delinquency proceedings. It also addresses the constitutionality of dual standards under the Due Process Clause.

1. Why Dual Standards Are Necessary

This subsection explains why dual standards are necessary to address the dilemma of incompetent youths who cannot be made competent with instruction. It emphasizes the need for a less demanding competence standard in delinquency proceedings to allow for adjudication while avoiding the disqualification of large numbers of youths from any legal process.

2. Dual Standards Under the Due Process Clause

This subsection examines the constitutionality of dual standards under the Due Process Clause, arguing that they are compatible with the principles of fundamental fairness, as long as delinquency proceedings differ substantially from criminal trials in terms of punishment stakes and purposes.

C. Dispositions of Incompetent Youths in Delinquency Proceedings

This section examines the dispositional options for youths who are deemed incompetent to participate in delinquency proceedings. It highlights the potential for competence training in this context and outlines alternative dispositions, including mental health and social service interventions, as well as dismissal of charges.

D. Juvenile Dispositions Under a Constitutionally Adequate Regime

This section examines the implications of adopting a relaxed competence standard for juvenile justice policy. It emphasizes the need for juvenile court dispositions to be less punitive and to focus on the promotion of youth welfare. It explores the potential for institutional changes, ranging from broader reforms to more limited accommodations, to address the constitutional challenge of developmental incompetence.

E. Reevaluating the Boundary of Juvenile Justice

This section explores the potential impact of incorporating developmental competence on the minimum age of criminal adjudication. It acknowledges that while many states may justify the costs of competence evaluations to ensure the ability to try younger teens as adults, some legislatures may opt to adjust the age boundary to limit procedural costs and minimize the risk of excluding large numbers of youths from any legal process.

Conclusion

This article concludes by highlighting the unintended consequences of recent juvenile justice reforms and the need for a more nuanced understanding of developmental competence. It argues that incorporating developmental competence into criminal justice policy requires significant doctrinal and institutional changes to ensure that young offenders are not unfairly excluded from legal processes or subject to inappropriate punishments. It emphasizes the importance of adopting dual competence standards, ensuring that juvenile court dispositions are less punitive and focus on rehabilitation, and potentially adjusting the age boundary for criminal adjudication to minimize the burden of competence evaluations on younger adolescents.

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Summary

The legal trend of criminalizing juvenile behavior, resulting in adult-like sentences in juvenile courts, has raised concerns about whether young offenders possess the developmental capacity to function as defendants. This paper examines the issue of adjudicative competence, specifically focusing on developmental immaturity as a factor influencing a defendant's ability to participate in legal proceedings.

I. Applying the Trial Competence Requirement to Juveniles: A Doctrinal History

The requirement that criminal defendants be competent to stand trial has long been established to ensure fairness in criminal proceedings. This requirement was traditionally absent in juvenile delinquency proceedings, but after In re Gault mandated due process in juvenile courts, the competence inquiry shifted to focus on the incapacities of mentally ill or retarded youths.

A. The Legal and Constitutional Requirements of Competence To Stand Trial

The Dusky v. United States standard emphasizes that a defendant must have the present ability to consult with their lawyer and possess a rational and factual understanding of the proceedings against them. The competence requirement serves to preserve the integrity of criminal trials, reduce errors, and safeguard defendants' autonomy.

B. Trial Competence of Juveniles

1. The Incorporation of the Competence Requirement in Delinquency Proceedings

Most state courts have held that due process demands competence in juvenile delinquency proceedings due to the potential loss of liberty that can result from adjudication. The focus, however, has been on incapacities arising from mental illness or retardation, with limited attention given to developmental immaturity.

2. The Criminal Adjudication of Youths

Juveniles occasionally face transfer to criminal court, but there is minimal evidence suggesting that these courts have considered immaturity as a basis for competence evaluations.

C. The Punitive Juvenile Justice Reforms

Punitive reforms in juvenile justice, aimed at treating juvenile offenders like adults, have increased the punishment stakes facing young offenders and blurred the line between the juvenile and adult systems. These reforms have inadvertently created a challenge for the legal system, as adjudicative competence has transformed from a minor procedural reform into a major institutional challenge.

II. Adolescent Development and Trial Competence

Adolescents are in a process of developing adult-like cognitive, emotional, and psychosocial abilities. This developmental stage influences their ability to make informed decisions and participate in legal proceedings.

A. Psychological Development in Adolescence

1. Neurological Development

Recent research in neuroscience indicates that brain development continues through adolescence, particularly in the prefrontal cortex, which is crucial for executive functions and affect regulation. This suggests that psychological immaturity in adolescents may have a biological basis.

2. Intellectual Development

Adolescents exhibit significant improvements in intellectual capacities as they acquire knowledge and experience, develop information processing skills, and enhance reasoning abilities.

3. Emotional Development

The development of impulse control, which involves delaying responses in emotionally charged situations, is a key aspect of emotional maturity and continues to improve during adolescence.

4. Psychosocial Development

Adolescents are less mature than adults in their psychosocial development, which affects their decision-making, risk perception, future orientation, and responsiveness to adult and peer influence.

5. Age and Development

Although age boundaries between childhood and adulthood are established by lawmakers, there is no single age at which all youths attain adult-like psychological capacities. Research indicates that, on average, youths under the age of fourteen differ significantly from adolescents sixteen to eighteen years of age in their level of psychological development.

B. A Taxonomy of Competence-Related Abilities

The Dusky standard for competence to stand trial encompasses three broad types of abilities: factual understanding, rational understanding, and the ability to assist counsel.

1. Factual Understanding

This component requires defendants to understand the charges against them, the nature of pleas and possible penalties, and the general steps of the legal process. Deficits in factual understanding can be a result of intellectual immaturity, leading to challenges in grasping abstract concepts.

2. Rational Understanding

Rational understanding involves comprehending the implications and significance of the factual information. Immaturity can impede this ability, resulting in distorted or erroneous beliefs that undermine the factual understanding.

3. Assisting Counsel and Decisionmaking

Defendants must have the capacity to receive and communicate information effectively, have a rational perspective on the attorney's role, and make informed decisions about pleading and waiving constitutional rights. Immaturity can affect all three abilities, impacting their capacity to process information, reason, and make sound decisions.

C. The MacArthur Juvenile Adjudicative Competence Study

The MacArthur Juvenile Adjudicative Competence Study examined the relationship between developmental immaturity and the abilities of young defendants to participate in their trials.

1. The Study's Method

The study included a large sample of youths and young adults across four communities, encompassing both individuals involved in the justice system and community participants.

2. The Study's Results

The study confirmed that competence-related abilities improve with age during adolescence. Younger adolescents demonstrated poorer understanding of trial matters and reasoning abilities compared to older adolescents and young adults. Intelligence test scores were also related to performance, with lower IQ youths showing greater impairment. The study also revealed age differences in decision-making, suggesting that adolescents are more susceptible to influence from authority figures and less attentive to long-range consequences.

3. Other Research on Youths' Capacities in the Adjudicative Process

Other studies have corroborated the findings of the MacArthur study, indicating that younger adolescents exhibit inferior comprehension of legal terms and processes, and demonstrate less strategic thinking in plea decisions.

4. Summary and Implications

The MacArthur study provides evidence that adolescents under sixteen years of age are more likely to manifest deficits in abilities essential for competent trial participation. Younger adolescents, particularly those with lower IQ scores, are at a higher risk for these deficits. These findings highlight the need for courts to carefully consider competence claims based on developmental immaturity.

III. TAKING COMPETENCE SERIOUSLY: A FRAMEWORK OF REFORM

The research on adolescent development and adjudicative competence calls for a more nuanced approach to assessing competence among young offenders.

A. The Unique Features of Developmental Incompetence

Developmental incompetence differs from competence impairments caused by mental illness or retardation in two significant ways. First, the incidence of trial incompetence is likely to be much higher among younger teens than among adults. Second, traditional methods for restoring competence may not be effective for youths whose incapacities are rooted in immaturity.

B. The Case for Dual Competence Standards

1. Why Dual Standards Are Necessary

Given the high prevalence of developmental incompetence among younger adolescents, a minimalist approach of simply expanding competence assessments may be insufficient. Dual competence standards, with a more relaxed standard for juvenile delinquency proceedings, are necessary to avoid an institutional crisis where young offenders cannot be adjudicated in either criminal or juvenile courts.

2. Dual Standards Under the Due Process Clause

The constitutionality of dual standards hinges on whether the relaxed juvenile court standard satisfies due process. The Court has recognized that juvenile proceedings are distinct from criminal trials and that a relaxed competence standard in juvenile court may be justified if the proceedings are sufficiently different in purpose and consequence.

C. Dispositions of Incompetent Youths in Delinquency Proceedings

While some youths may attain competence through age-appropriate instruction, others may require different approaches. Mental health and social service dispositions, including inpatient facilities or intervention by social service agencies, may be appropriate for many of these youths.

D. Juvenile Dispositions Under a Constitutionally Adequate Regime

To justify a relaxed competence standard in delinquency proceedings, dispositions must be less punitive than criminal sentences and have broader purposes that include promoting the welfare of young offenders.

E. Reevaluating the Boundary of Juvenile Justice

The salience of developmental competence in criminal proceedings may influence the legislative judgment about the age boundary between juvenile and criminal courts. Some legislatures may conclude that excluding younger juveniles from criminal court is an efficient way to mitigate the costs associated with competence evaluations.

Conclusion

The criminalization of juvenile behavior has created a constitutional challenge. The adoption of dual competence standards, along with a reevaluation of the juvenile justice system and its goals, is essential to ensure fair and just treatment for young offenders.

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Summary

The case of Lionel Tate, a 12-year-old sentenced to life in prison for murder, highlights a growing issue in the juvenile justice system: the competency of young defendants. This case suggests that many youths facing serious legal charges may lack the maturity to understand the proceedings against them and participate effectively in their defense. This article explores the implications of this issue for legal policy and argues for the adoption of dual competence standards in criminal and juvenile courts.

I. Applying the Trial Competence Requirement to Juveniles: A Doctrinal History

The requirement that criminal defendants be competent to stand trial has long been established as a mechanism to ensure fairness in criminal proceedings. This requirement initially served a formalistic function, but it has evolved to focus on defendants' ability to understand the charges and proceedings and to assist their lawyers in their defense. This requirement has been extended to juvenile defendants, but the focus has been on mental illness or retardation. The recent trend toward more punitive juvenile justice reforms has brought the issue of developmental competence into the spotlight, as many young defendants facing serious legal jeopardy may be incompetent due to immaturity.

A. The Legal and Constitutional Requirements of Competence To Stand Trial

The requirement of trial competence serves three main functions: preserving the integrity of criminal trials, reducing errors and promoting accuracy, and safeguarding defendants' autonomy. The Supreme Court has held that the Due Process Clause requires that criminal defendants must be competent to stand trial.

B. Trial Competence of Juveniles

The requirement of trial competence was not originally applicable in juvenile delinquency proceedings, but after the Supreme Court's ruling in In re Gault, courts began to incorporate it. Most courts have held that due process requires that juvenile defendants be competent to stand trial, but they have mainly focused on mental illness and disability, with little attention paid to immaturity.

1. The Incorporation of the Competence Requirement in Delinquency Proceedings

While courts have recognized the need for trial competence in delinquency proceedings, the focus has largely remained on mental illness and disability.

2. The Criminal Adjudication of Youths

Until the 1990s, the issue of trial competence in juveniles was largely confined to cases involving mentally ill or disabled youths. The focus shifted as reforms led to increased prosecution of younger adolescents in criminal courts.

C. The Punitive Juvenile Justice Reforms

The punitive reforms of juvenile justice policy, driven by a rise in violent juvenile crime and dissatisfaction with leniency, have led to a blurring of the lines between adult and juvenile systems. This trend has resulted in a dramatic increase in the number of young offenders facing adult sanctions, raising the issue of developmental competence to the forefront.

II. Adolescent Development and Trial Competence

Scientific research reveals that adolescence is a period of significant psychological development, with youths in early and mid-adolescence still maturing in several key areas. These include neurological development, intellectual development, emotional development, and psychosocial development.

A. Psychological Development in Adolescence

Adolescents undergo significant neurological, intellectual, emotional, and psychosocial changes that affect their ability to understand information and make decisions. While their capacities increase, they don't fully mature until adulthood.

1. Neurological Development

Neuroscience research has shown that brain development continues throughout adolescence, with significant changes occurring in early adolescence. The prefrontal cortex, responsible for executive cognitive functions and affect regulation, is one of the last brain areas to develop.

2. Intellectual Development

Cognitive development continues throughout adolescence, with improvements in information processing skills, deductive reasoning, and abstract thinking. While some evidence suggests that teens' reasoning abilities may approximate those of adults in the abstract, little research has examined adolescent decision-making in stressful and unstructured contexts.

3. Emotional Development

Adolescents differ from adults in their capacity for impulse control, the ability to delay responses in emotionally charged situations. This ability improves during adolescence, but for some, it continues well into adulthood.

4. Psychosocial Development

Adolescents are generally less mature than adults in psychosocial development, which influences their decision-making, particularly in social contexts. Several dimensions of psychosocial development, such as risk perception and preference, future orientation, and response to adult and peer influence, may contribute to immature judgment.

5. Age and Development

While policymakers define immaturity based on age, it is not possible to pinpoint a specific age at which youths attain adult-like psychological capacities. Research indicates that youths under the age of fourteen differ significantly from those sixteen to eighteen years of age in their level of psychological development.

B. A Taxonomy of Competence-Related Abilities

Three broad types of abilities are implicated under the Dusky standard for competence to stand trial: factual understanding, rational understanding, and the ability to assist counsel.

1. Factual Understanding

The factual understanding component of the Dusky standard requires that defendants understand the charges, possible penalties, available pleas, and the general steps in the adjudication process.

2. Rational Understanding

The rational understanding requirement emphasizes the defendant's comprehension of the implications and significance of their factual understanding.

3. Assisting Counsel and Decisionmaking

Defendants must be able to communicate effectively with their lawyers, understand the attorney's role, and make decisions about pleading and other constitutional rights.

C. The MacArthur Juvenile Adjudicative Competence Study

The MacArthur Juvenile Adjudicative Competence Study examined the abilities of adolescents and adults in relation to the Dusky standard. The study found that younger adolescents were significantly more likely to have deficits in abilities related to trial participation.

1. The Study's Method

The study included 927 youths and 466 young adults in four communities, with both groups divided into subgroups involved and not involved in the justice system. Participants were assessed on understanding of trial matters, reasoning ability, and decision-making related to trial participation.

2. The Study's Results

The study confirmed that competence-related abilities improve with age. Younger adolescents demonstrated poorer understanding, reasoning, and recognition of the relevance of information for a legal defense compared to older adolescents and young adults. Intelligence was a significant factor, but age remained important independent of intelligence.

3. Other Research on Youths' Capacities in the Adjudicative Process

Other studies have produced results consistent with the MacArthur study, finding age differences in understanding legal terms and processes, and in strategic thinking about pleas.

4. Summary and Implications

The MacArthur Juvenile Adjudicative Competence Study provides strong evidence that many youths facing criminal charges may not have the same abilities as adults to participate effectively in trials.

III. TAKING COMPETENCE SERIOUSLY: A FRAMEWORK OF REFORM

The research on adolescent development and adjudicative competence challenges courts and legislatures to take developmental incompetence seriously.

A. The Unique Features of Developmental Incompetence

The high incidence of trial incompetence among younger adolescents and the limitations of standard "remedy" for incompetence, which may not be effective for youths whose incapacities are due to immaturity, necessitate a more robust response than simply expanding competence evaluations.

B. The Case for Dual Competence Standards

1. Why Dual Standards Are Necessary

To address the challenges posed by developmental incompetence, a dual-standards approach is necessary, allowing youths found incompetent in criminal proceedings to be adjudicated in juvenile court under more relaxed criteria. This avoids the situation where youths who are incompetent under adult standards cannot be adjudicated in either system.

2. Dual Standards Under the Due Process Clause

The adoption of dual standards can be justified under the Due Process Clause, as long as juvenile proceedings differ significantly from criminal trials in terms of severity of punishment and purpose.

C. Dispositions of Incompetent Youths in Delinquency Proceedings

Even under a relaxed standard, some youths may not be competent to be adjudicated in juvenile court. In these cases, mental health and social service dispositions may be appropriate, along with dismissal of charges in rare cases.

D. Juvenile Dispositions Under a Constitutionally Adequate Regime

A relaxed competence standard in juvenile court is constitutionally adequate if juvenile court dispositions are less punitive than criminal sentences and have broader purposes that include promoting the welfare of young offenders. To achieve this, lawmakers can either adopt a limited approach, insulating only incompetent youths from punitive sanctions, or undertake more comprehensive reforms of the juvenile justice system.

E. Reevaluating the Boundary of Juvenile Justice

The issue of developmental competence may also influence the legislative judgment about the age boundary between juvenile and criminal courts. States may decide that excluding younger juveniles from criminal court is an efficient way to limit the costs of competence evaluations and hearings.

Conclusion

The trend toward criminal prosecution and punishment of juveniles has inadvertently created a constitutional challenge. The adoption of dual competence standards, along with changes to juvenile dispositions, is necessary to bring criminal and juvenile proceedings into compliance with due process.

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Summary

This document discusses the issue of whether young people charged with crimes are mature enough to understand the legal process and participate in their own defense. It argues that many young people, especially those under 16, may not be developmentally competent to stand trial, meaning they lack the mental capacity to understand the charges against them or to assist their lawyers. The document explores the scientific evidence supporting this claim and examines the implications for legal policy.

I. Applying the Trial Competence Requirement to Juveniles: A Doctrinal History

This section explains the legal requirement that people must be competent to stand trial and how this has been applied to young people. It explores the history of juvenile justice policy and how the issue of competence has evolved. The document notes that while the issue of developmental competence was not considered relevant in traditional juvenile delinquency proceedings, it has become increasingly salient in recent years due to more punitive juvenile justice reforms.

A. The Legal and Constitutional Requirements of Competence To Stand Trial

This section discusses the legal and constitutional requirements of competence to stand trial. It explains that the requirement serves to protect the fairness and integrity of the legal process, ensuring that defendants understand the charges against them and can participate in their defense.

B. Trial Competence of Juveniles

This section explores the application of the competence requirement to young people in delinquency proceedings. It discusses the shift from the traditional rehabilitative model of juvenile justice to a more punitive approach and how this shift has brought the issue of developmental competence to the forefront.

1. The Incorporation of the Competence Requirement in Delinquency Proceedings

This section explains how the competence requirement has been incorporated into delinquency proceedings. It discusses the landmark In re Gault decision, which extended many of the procedural protections of adult criminal trials to young people in delinquency proceedings. The section notes that while most courts have recognized the need for competence in delinquency proceedings, few have explicitly addressed the issue of developmental immaturity.

2. The Criminal Adjudication of Youths

This section discusses the increasing practice of trying young people as adults in criminal court. It explores the lack of explicit recognition of developmental immaturity in this context, even though it has been argued that immaturity can significantly affect a young person's ability to participate in a criminal trial.

C. The Punitive Juvenile Justice Reforms

This section outlines the recent punitive reforms in juvenile justice policy and their impact on the issue of competence. It explains how these reforms have increased the punishment stakes for young offenders and blurred the line between the juvenile and adult justice systems.

II. Adolescent Development and Trial Competence

This section delves into the scientific evidence supporting the argument that young people may lack the developmental capacity for competent trial participation. It explores the biological and psychological development of adolescents, highlighting the differences between young people and adults in their cognitive, emotional, and social abilities.

A. Psychological Development in Adolescence

This section explores the four spheres of psychological development - neurological, intellectual, emotional, and psychosocial - that are relevant to trial competence. It discusses the ongoing development of the adolescent brain, particularly the prefrontal cortex, which plays a key role in executive functions and impulse control. It also discusses cognitive development, emotional maturation, and psychosocial development, emphasizing the differences between young people and adults in these areas.

B. A Taxonomy of Competence-Related Abilities

This section breaks down the legal criteria for competence to stand trial into specific abilities, including factual understanding, rational understanding, and the ability to assist counsel. It explains how these abilities can be affected by developmental immaturity, making it difficult for young people to effectively participate in legal proceedings.

C. The MacArthur Juvenile Adjudicative Competence Study

This section summarizes a major research study, the MacArthur Juvenile Adjudicative Competence Study, which investigated the relationship between developmental immaturity and trial competence. It explains the study's methods, including the sample size, age groups, and the instruments used to measure competence-related abilities. The section then outlines the study's findings, which showed that young people under the age of 16 were significantly more likely than adults to demonstrate deficits in competence-related abilities.

III. TAKING COMPETENCE SERIOUSLY: A FRAMEWORK OF REFORM

This section explores the implications of the research on developmental competence for criminal justice policy. It argues that recognizing developmental incompetence requires more than simply expanding the category of defendants subject to competence evaluations. Instead, it necessitates a more fundamental shift in how the legal system approaches the adjudication of young people charged with crimes.

A. The Unique Features of Developmental Incompetence

This section examines the unique challenges posed by developmental incompetence, highlighting the higher incidence of trial incompetence among young people and the limitations of traditional remedies for incompetence. It argues that simply recognizing developmental incompetence without making other changes is unlikely to effectively protect young people's rights.

B. The Case for Dual Competence Standards

This section presents the argument for dual competence standards, suggesting that a relaxed competence standard should be applied in juvenile court for young people who are found incompetent to stand trial in criminal court. It argues that this approach would prevent a situation where young people are unable to be adjudicated in either system due to their developmental immaturity.

1. Why Dual Standards Are Necessary

This section explains the practical and legal need for dual competence standards. It argues that applying a uniform standard to both juvenile and criminal courts would likely lead to a significant increase in competence evaluations and a high number of young people deemed incompetent to participate in any court proceedings. It also argues that this could have negative consequences for public safety and the rehabilitation of young offenders.

2. Dual Standards Under the Due Process Clause

This section addresses the constitutional implications of dual competence standards, exploring the relationship between due process and the unique features of juvenile justice proceedings. It argues that a relaxed competence standard in juvenile court is constitutionally permissible if the system emphasizes treatment and welfare, and if the consequences of delinquency proceedings are less severe than those of criminal trials. It also explains how a relaxed standard can still ensure that young people understand the charges against them and can meaningfully participate in their defense.

C. Dispositions of Incompetent Youths in Delinquency Proceedings

This section examines the dispositional options available for young people found incompetent to be adjudicated in delinquency proceedings. It discusses the potential for competence training and outlines other options, such as mental health interventions, social service interventions, and dismissal of charges. It argues that under a dual-standards regime, the number of young people who would be unable to be adjudicated in any court would be very small.

D. Juvenile DispositionsUnder a ConstitutionallyAdequate Regime

This section explores the implications of dual competence standards for juvenile justice dispositions. It argues that a relaxed competence standard is only justified if juvenile court dispositions are less punitive than criminal sentences and are focused on the treatment and welfare of young offenders. The section discusses the need for shorter sentences, individualized treatment programs, and a distinct emphasis on rehabilitation and preparation for adulthood. It argues that such a system can still hold young offenders accountable for their actions while promoting their wellbeing.

E. Reevaluating the Boundary of Juvenile Justice

This section considers the potential impact of recognizing developmental competence on the age boundary between juvenile and criminal courts. It argues that the costs associated with evaluating and determining competence in young people could influence legislative decisions about the age at which juveniles can be tried as adults. The section also acknowledges that other factors, such as the severity of the crime and public safety concerns, are likely to remain important considerations in setting this boundary.

Conclusion

This document concludes by arguing that recognizing developmental incompetence requires a significant shift in how the legal system approaches the adjudication of young people charged with crimes. It emphasizes the need for dual competence standards, distinct juvenile justice dispositions, and a reevaluation of the boundary between juvenile and criminal courts. It underscores the importance of considering the developmental needs of young offenders while also protecting the rights of victims and the safety of the public.

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