INTRODUCTION
Part 3 of the Restatement of Children and the Law,1 “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice.2 The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases.3 The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our understanding of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults.4 This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process rights when in custody of the juvenile justice system. Analyzing established law and progressive trends, the Restatement offers guidance for the legal system and process, highlighting the need for continued changes in courts and legislatures not yet in step with prevailing trends in juvenile law.
This commentary examines two topics in Part 3 of the Restatement: Chapter 15, § 15.30 on “Adjudicative Competence in Delinquency Proceedings,” and Chapter 14, § 14-2 on “Interrogations and the Admissibility of Statements.” For both areas, the commentary examines the present state of law, policy, and practice trends identified by the Restatement, with special attention to needs for further reform. What evidence do we have that states are adopting, or are slow to adopt, important trends in juvenile law identified in the Restatement’s approach to juvenile adjudicative competence and pretrial custodial interrogations? Where is there still work to be done to promote changes in law highlighted by the Restatement, and what factors challenge that work?
Part I of the commentary examines recent reviews and social science reports of state laws, legal systems, and practice related to adjudicative competence in juvenile court. Part II offers cautionary comments on the potential of various procedural protections for juveniles in pretrial interrogations and their judicial review. Finally, Part III reflects generally on why it has been, and will continue to be, so challenging to create developmentally informed due process protections in these two areas of juvenile law.
I. ADJUDICATIVE COMPETENCE IN JUVENILE COURT
A defendant’s adjudicative competence5 in criminal proceedings has long been established as a constitutional due process protection,6 recognizing its importance for accuracy of evidence, integrity of the legal system, and individual autonomy. The modern standard defining adjudicative competence was provided in Dusky v. United States7: “whether he 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.”8
Laws and practices regarding competence in juvenile proceedings can best be described as emerging, largely because the requirement in juvenile court has been applied only relatively recently.9 Due process protections in delinquency proceedings were considered of little importance in the parens patriae juvenile court during the first half of the twentieth century.10 In 1967, In re Gault11 extended to delinquency defendants many of the same due process protections afforded adults in criminal court. Gault did not specifically address juveniles’ competence, yet within twenty years after the decision, one-third of the states had formally recognized that competence applied in delinquency proceedings, although it was rarely invoked.12 All but one of those states used the definition of competence that had been established for criminal court in Dusky, and juvenile courts often presumed that mental illness or intellectual disability were the only legal predicates for incompetence in juveniles, as was the case in criminal court precedent.13
Not until the 1990s did juvenile defense attorneys and advocates begin raising the question of competence more frequently, largely in response to a punitive reform in delinquency laws during that decade.14 By 2000, youths’ capacities as defendants had become a focus of legal scholarship and empirical research,15 and by 2010 all but one of the states recognized that competence applied in juvenile proceedings.16 During that time, substantial behavioral and neuroscience research demonstrated the importance of youths’ developmental immaturity, not only their mental disorders and disabilities, when considering their abilities related to their decision-making as defendants.17 The ensuing developmental reform in juvenile justice stimulated state legislatures to begin fashioning statutes specific to competence in juvenile court. By 2020, thirty-six states and the District of Columbia had juvenile-specific competence statutes.18
The Restatement’s approach to competence in delinquency proceedings focuses on the legal definition of competence, the relevance of developmental immaturity when applying the definition, and youths’ remediation if found incompetent. The Restatement’s definition of competence is consistent with (though not identical to) the definition in Dusky.19 It further identifies not only mental illness or intellectual disability but also developmental immaturity as potential reasons for a juvenile’s lack of legal competence.20 The Restatement then identifies the need for remediation of incompetence before adjudication can resume, requiring that this be accomplished in “a reasonable period of time” and within the “least restrictive means consistent with the juvenile’s welfare and public safety.”21
What do we know about the degree to which current competence statutes and practices in juvenile court reflect or fall short of the trends in law described in the Restatement? The following comments examine this question in four areas discussed in the Restatement’s comments explaining its approach: (a) adjudicative competence standards; (b) systemic and quality issues regarding forensic mental health evaluations of juveniles’ competence; (c) laws and procedures for the remediation of incompetence in juvenile cases; and (d) consequences for attorneys representing juveniles in delinquency cases.
Parts of the following analysis use a 2011 publication (the Guide) that offered state legislatures a set of developmentally informed issues to guide drafting of statutes for juveniles’ competence.22 The Guide’s discussions of developmental immaturity, cited frequently in the Restatement, generally align with the due process protections discussed in the Restatement. The following analysis also uses the results of a study that examined the thirtyseven state statutes in effect by 2020 regulating competence in juvenile court, identifying whether and how their provisions attended to the developmental issues raised in the Guide.23
A. Developmental Immaturity in Juvenile Competence Standards
The fact that juveniles have less mature cognitive and decisionmaking capacities on average than adults has required fundamental differences in the application of legal competence in juvenile court compared to criminal court. Studies find that age and degree of maturity are generally accepted by judges and attorneys as important factors when considering a youth’s adjudicative competence.24 Yet the application of developmental immaturity to fashion formal age-related legal standards for competence in juvenile court is still evolving in three areas: (1) developmental immaturity as a sole basis for incompetence; (2) age-related presumptions of incompetence; and (3) whether the degree of competence required in juvenile court should meet the same rather than a relaxed standard compared to criminal court.
1. Incompetence due to developmental immaturity alone.
Based on developmental research, the Restatement identifies developmental immaturity, as well as mental illness and intellectual disability, as potential causes of incompetence in juvenile cases.25 There has been little controversy regarding a youth’s incompetence when deficits in Dusky-related abilities are shown to be due to mental illness or intellectual disability.26 The presumption that developmental immaturity could be recognized in law as a potential cause of legal incompetence without mental illness or intellectual disability was not widely accepted earlier in the evolution of juvenile competence laws. For example, in a 2007 nationwide survey of judges, only about one-quarter agreed that adolescents adjudicated in juvenile court should be able to be found incompetent based on Dusky-related deficits due solely to developmental immaturity.27
Today, developmental immaturity appears to be widely accepted as a potential predicate for incompetence in juvenile court. As of 2011, the Guide recommends formal adoption of this policy.28 Currently, fifteen states (40.5% of those with juvenile competency statutes) include this provision,29 and as noted in the Restatement, it has been accepted in many other states by state court decisions.30 Adolescents found incompetent due to deficits attributable to immaturity alone constitute a minority of juvenile incompetence cases. In Virginia, for example, among all youths found incompetent during nearly two decades, about one-quarter had no mental disorder or intellectual disability.31 Although current evidence does not account for every state, incompetence related to developmental immaturity alone seems to have taken root in existing juvenile law and practice nationwide.
2. Age-related presumptions of incompetence.
Should the law consider children below a certain age as presumptively incompetent? The Restatement’s approach does not formally suggest that it should.32 The Guide offers for consideration, based on research findings, a nonrebuttable presumption of incompetence for youth 10 and younger, and a rebuttable presumption for ages 11–13.33 More sweeping suggestions have been offered, such as creating a presumption of incompetence for youth below 1434 or requiring competency evaluations for all youth below 16.35 Nevertheless, only seven states’ statutes have created age-related incompetence presumptions.36 Examples of such rules in various statutes include presumptive (nonrebuttable) incompetence (for example, below 10), presumptive but rebuttable incompetence below a certain age, and automatically requiring a competence evaluation for youth committing serious offenses below 14.
The infrequency of age-presumptive incompetence laws suggests that lawmakers have not had an appetite for such age-based limits on prosecutorial and judicial discretion. Lawmakers’ reluctance and the Restatement’s avoidance of extensive rules about presumptive incompetence reflect wise caution. As discussed later,37 age presumption laws may increase the number of otherwise unnecessary evaluations. This could have collateral negative consequences for some youths when considered in the broader context of defense strategy, trial delays, and duration of pre-adjudication detention.
3. Level of ability required for competence.
A third age-related standard pertains to the level or degree of ability required for competence in juvenile court compared to criminal court. As the Restatement documents, appellate courts in many states have affirmed that the competence of defendants in juvenile court should be judged by “juvenile norms.”38 Thus, although the same types of abilities defined in Dusky apply in both juvenile and criminal courts, the degree to which the youth in a delinquency proceeding manifests the abilities in Dusky need not be as great as that of an adult. Perhaps because this question has been addressed in many states by court decisions, only a few states’ statutes provide specific guidance on the matter.39
Commentators, however, have identified two issues in the application of juvenile norms in competence proceedings in juvenile court.40 First, it is unclear whether a juvenile defendant’s abilities should be judged against all other children seen in juvenile court, or only those of the defendant’s specific age. Youths ages 10–13 would be far more likely to be found incompetent by the former standard than the latter. Case law and social science research provide little to clarify this issue.
Second, a lower standard in juvenile court is based substantially on the premise that adjudication in juvenile court leads to lesser penalties than for adults, as well as a rehabilitative objective that may benefit the youth.41 Yet for youth adjudicated on serious charges, juvenile court dispositions can lead to lengthy sentences, especially for a youth adjudicated at 16 or 17 in a state allowing extension of custody to 21 for certain offenses.42 Alternatively, they may be transferred to criminal court for trial and adult sanctions.43 The logic for a relaxed standard for competence in juvenile court fails in these circumstances on constitutional grounds.44 Yet juvenile competence statutes and court decisions endorsing juvenile norms rarely make this distinction. Only Arkansas’s juvenile competence statute specifically requires a greater level of ability in cases involving more serious charges, similar to an “adult standard” in criminal court.45 Some research suggests that judges might often use their discretion to raise the bar for competence in delinquency cases involving more serious offenses.46 Nevertheless, the question of how to apply juvenile norms when deciding competence in juvenile court has not been resolved and needs clarification to provide adequate due process protection in juvenile competence cases.47
B. Forensic Mental Health Assessments of Juveniles’ Competence
Aside from the formal statements of law in the Restatement, it is worthwhile to consider matters that affect the quality of forensic evaluations of juveniles’ competence, the importance of which is recognized in the Restatement’s comments.48 Courts typically order a forensic mental health evaluation when the question of competence is raised to provide information to the court about the youth’s abilities related to the Dusky standard.49 The quality of these evaluations is important for accuracy and fairness; juvenile court judges place great weight on the results of competence evaluations and examiners’ recommendations.
The need for efficiency and quality of juvenile competence evaluations has increased in the past two decades as the volume of referrals for competence evaluations has increased. Though there have been estimates of the total numbers of competency evaluations,50 no one has tried to estimate the annual number of juvenile competency evaluations nationwide. Some states’ forensic mental health systems (for example, Tennessee, Maryland) have reported about two hundred to three hundred juvenile competence evaluations annually,51 others around one hundred (for example, Utah, Colorado),52 and some appear to have a far greater number annually (for example, Florida).53 It would not be surprising if there were ten thousand to fifteen thousand juvenile competence evaluations annually nationwide.54
What is needed to ensure the availability and quality of those evaluations? Two matters are relevant: (1) examiners’ qualifications and their evaluation methods, and (2) systemic and state administrative agencies that influence the provision of juvenile forensic evaluations.
1. Examiner qualifications and assessment methods.
The Restatement, as well as consensus within the forensic mental health professions,55 provides ample reason to limit performance of juveniles’ competence evaluations to professionals with experience and training in both of two areas of specialization: forensic expertise and clinical expertise in adolescent development. Currently, all states with juvenile competence statutes require that the examiner be “qualified;” but only one-third of them define “qualified” as requiring both types of expertise, approximately one-quarter require one or the other, and the remainder do not define “qualified.”56 Some states without juvenile competence statutes (for example, Massachusetts) require both types of expertise for juvenile court mental health examiners.57 Nevertheless, a requirement for both adolescent clinical and forensic expertise seems not yet to be codified nationwide, presenting the need for continued improvement.
Forensic psychology and psychiatry have developed authoritative guidelines for juvenile competence assessments, consistent with applicable law.58 The field, however, is still in the process of developing evaluation methods to fulfill the ideal. Two examples can be provided.
First, a developmentally sensitive, standardized competence interview tool has been developed specifically to assess what a juvenile can and cannot do regarding Dusky-related abilities.59 While the tool is considered to represent best practice for assessing juveniles’ competence,60 it does not have the sophisticated psychometric properties, norms, and validation of competence assessment tools that have been designed for adults.61
Second, when forensic examiners identify serious deficits in a juvenile’s Dusky-related abilities, they must determine the reasons for those deficits, one possibility being developmental immaturity.62 The field has created a widely accepted structure for conceptualizing youths’ relatively immature reasoning and judgment when making decisions in legal contexts, including three features: their tendency to take greater risks (impulsiveness), their temporal perspective (more often focused on immediate rather than future consequences), and the greater influence on their decisions by peers and adults (lesser autonomy).63 Psychometric tools have been developed for research on these concepts.64 But they have not been adapted, normed, or validated to make them amenable for assessing an individual youth’s degree of immaturity in forensic evaluation contexts. Thus, the forensic evaluation field needs to develop validated tools for evidence-based assessment of a youth’s mature or immature judgment and reasoning relative to other youths.
2. Systemic support for forensic evaluations.
Statutes typically describe the required objective, but how the objective is achieved depends on effective systemic strategies for implementation. How will the statute’s requirement for qualified examiners be ensured and how will an adequate workforce be developed? How and who will pay them, and how will quality be enhanced and sustained across time? Whether statewide or local, jurisdictions must develop service delivery systems for assuring adequate juvenile competence evaluations.65
Before competence began to be applied to juvenile courts, most juvenile jurisdictions already had court clinic services that provided forensic assessments to assist juvenile courts (for example: disposition evaluations; risk assessments).66 These juvenile court clinics began to provide juvenile competence evaluations as requests increased in the late 1990s.67 A survey of clinicians working in juvenile court clinical services in eighty-seven of the one hundred largest jurisdictions across the United States, conducted from September 2002 to December 2003, indicated that these jurisdictions employed three different systemic models for delivering forensic evaluations for juvenile courts.68 About 40% of the surveyed jurisdictions rely on clinicians employed by clinical divisions (court clinics) within juvenile courts, while 36% of the surveyed jurisdictions refer to private practitioners registered with the juvenile court; the remainder use clinicians in local public mental health clinics.69
Both within and between these models, one finds significant differences in their cost, operations, and capacity to control and monitor the quality of competence evaluations.70 For example, some states’ forensic evaluation systems have created certification programs required of all clinicians performing juvenile forensic evaluations for the courts, including juvenile competence evaluations.71 Typically, they provide periodic seminar-type training offered by experienced examiners, as well as a brief examination, sometimes requiring annual renewal of certification.72 This is encouraging for quality assurance, but only a minority of states have been willing to invest in examiner quality control in this way.
C. Incompetence and Remediation
Studies have found that, among youth evaluated for competence in juvenile court, about 25% to 40% are found incompetent, although a few have reported numbers over 50% and others as low as 14%.73 When a juvenile is found incompetent, all states (by statute or case law) provide for a period of time (discussed later) for remediation services aimed at developing the youth’s abilities sufficiently to be competent to proceed to adjudication of the charges.74 The court first must determine whether remediation of the youth’s Dusky-related deficits is likely to be possible within that statutory time limit. If it is considered not possible, typically charges must be dismissed.75 If remediation is considered possible, remediation within the allowable time period results in resumption of the trial process, but typically charges must be dismissed if remediation has not been accomplished within that time.76 Estimates of the proportion of incompetent juveniles who are eventually found competent after remediation services vary from 57% to 91%, reflecting differences across states and different causes of youths’ incompetence requiring remediation.77
As the Restatement explains,78 and as forensic clinical authorities support,79 competence remediation focuses on two types of intervention. Psychoeducational services are needed to teach youths what they must know (trial-related knowledge) and be able to do (working with counsel; making decisions) associated with the Dusky standard. In addition, clinical services are needed to reduce the effects of mental disorder if it is impairing a youth’s decisional capacities. Clinical services, however, are not always necessary. For example, in a study in Virginia, about one-fourth of juveniles found incompetent had no significant mental disorder or intellectual disability; their incompetence was due to their young age and therefore immature psychosocial development.80
Section 15.30(b) of the Restatement focuses on two key due process concerns during the remediation process: that it should require using “the least restrictive means consistent with the juvenile’s welfare and public safety,” and the time allowed for remediation (beyond which charges must be dismissed) should be no longer than “a reasonable period of time following the finding of incompetence.”81 What is the current status of juvenile incompetence remediation in law and practice with regard to these two due process requirements?
1. Least restrictive means.
This requirement raises two questions. First, what is known about the degree to which states are using community-based (least restrictive) alternatives for remediation of adjudicative incompetence? Second, what is known more generally about the states’ systems for providing remediation services when a youth is found incompetent?
Regarding the first question, most states with juvenile competence statutes require that community-based or outpatient remediation services be used whenever possible.82 According to a recent survey, at least one quarter of the states are known to rely largely on community-based services for juveniles’ incompetence remediation, very rarely using forensic inpatient hospitalization.83 Accurate information is not available for most of the remaining states. But some are using inpatient remediation services frequently or exclusively,84 despite evidence from the aforementioned survey that many states find such restrictions of liberty unnecessary in most juvenile incompetence cases.
Second, some administrative process is needed to carry out the functions associated with remediation of juveniles’ incompetence.85 A few states offer model juvenile incompetence remediation programs.86 The nationwide survey noted earlier, however, was able to find identifiable, organized, community-based, administrative systems for juveniles’ incompetence remediation in only a minority of U.S. jurisdictions.87 The remainder apparently employ more restrictive hospitalization or have no systematic program that offers clinical resources, competence-related curricula, and monitoring of the remediation process.88
That many states have no remediation program at all is alarming because of the potential consequences for youth found incompetent. Without services aimed at remediation, periodic reevaluation, and case-by-case monitoring of the process, jurisdictions risk placing youth found incompetent in limbo. They expose these youth to trial delays, unnecessarily prolonged pretrial custody, and other procedural uncertainties. The risk is especially great for juveniles held in pretrial detention centers during the remediation period.89
2. Reasonable period of time
In Jackson v. Indiana,90 the U.S. Supreme Court held that when defendants were being treated for adjudicative incompetence, their progress must be reviewed periodically and, if they were not able to be adjudicated competent within a “reasonable period of time,” their charges must be dismissed.91 The decision arose in the context of adult incompetent defendants who were committed to forensic psychiatric facilities for treatment to restore competence but too often remained there for years without any resolution of their incompetence.92 Jackson, however, did not articulate a specific time that was “reasonable,” and the states subsequently developed their own definitions, which varied considerably in length and in their special provisions for seriousness of charges.
Juvenile competence statutes typically have drawn those “reasonable time” requirements from states’ criminal laws. The most common period between reevaluations during remediation is ninety days (but ranging from thirty to 180 days), and their time limits for accomplishing remediation (which, if not accomplished, require dismissal of charges)93 range from two months to a few years, with the most common length being one year.94 Research in some states, however, has found that the average time between a finding of a juvenile’s incompetence and conclusion of remediation was twelve to eighteen months.95
When considered from a developmental and clinical perspective, are those states’ time limits appropriate for juveniles? One can argue that longer time periods could be allowed for youths who are undergoing remediation in community-based settings, because Jackson’s primary concern was loss of liberty associated with indefinite commitment to secure facilities during treatment for incompetence. In addition, remediating juveniles’ incompetence may require longer periods of time than for adults, given the need to overcome juveniles’ immature cognitive and decisional abilities.96
Alternatively, one can argue that a shorter time limit is consistent with the benefit of moving juveniles’ cases through the justice system expediently. From a developmental perspective, twelve to eighteen months for remediation is a long time for youth to be in limbo during the crucial formative years of adolescence.97 Moreover, two reliable studies in states with model remediation programs provide evidence that juveniles found incompetent whose remediation was not successful within six months were much less likely to ever be found competent later.98 Unfortunately, we have inadequate empirical information about youths undergoing incompetence remediation to assist in weighing the application of “reasonable period of time” in juvenile cases.
In summary, incompetence remediation may be the murkiest area of law and practice pertaining to juveniles’ adjudicative competence. Except within a few states, we have little information on who administers remediation services, those services’ nature and quality, and implications for youth development and due process protections. Promising models for remediation programs exist in some states, but only recently have other states developed systematic remediation programs, and most seem not yet to have taken on the challenge. This might represent one of the most important areas for furthering due process in the application of adjudicative incompetence laws to juveniles.
D. Implications for Attorneys
Previous discussions have noted that standards and remediation consequences for juveniles’ competence are still evolving in this relatively new area of law. One of the consequences of this, as documented in social science literature, is uncertainty for defense attorneys about whether to raise the question of competence in individual cases. For example, one study found that although juvenile defense attorneys had concerns about their juvenile clients’ competence in about 10% of their cases, they raised the question in only about one-half of those cases.99 Various studies have identified reasons for attorneys’ hesitance to raise the competence question because of strategic concerns:100 for example, the potential consequences of trial delays during competence evaluations, beliefs that the standard threshold for competency is so low in juvenile court that the effort would outweigh the cost, and uncertainties about the consequences of lengthy remediation both in community-based and detention-based circumstances.101 Until standards, procedures, and remediation services mature, it seems likely that defense attorneys will continue to be in conflict about whether to raise the question of incompetence, despite their concerns about their juvenile clients’ capacities.
II. JUVENILES’ WAIVER OF RIGHTS IN PRETRIAL INTERROGATION
The Restatement’s approach to law regarding custodial interrogations of juveniles focuses on the rights and standards to be applied when determining the admissibility of confessions as trial evidence. The Restatement in § 14.20 recognizes juveniles’ right to silence and legal counsel when questioned in custody, defined as whether “a reasonable juvenile of the suspect’s age would feel that his or her freedom of movement was substantially restricted.”102 It applies the requirement from Miranda v. Arizona103 that the waiver be “knowing, intelligent, and voluntary” to be admissible as evidence,104 to be decided by considering “the totality of the circumstances surrounding the interrogation, in light of the juvenile’s age, education, experience in the justice system, and intelligence. Circumstances surrounding the interrogation include police conduct and conditions of the questioning.”105
The Restatement further asserts two mandatory procedural protections in the absence of which a juvenile’s statement is per se excluded as evidence at trial. Section 14.22 requires that waiver of rights by juveniles ages 14 or younger are valid only after meaningful consultation with and in the presence of counsel.106 Section 14.23 requires that all custodial interrogations of juveniles “shall be video recorded, unless it is not feasible to do so.”107
The following commentary on juveniles’ interrogation focuses selectively on two aspects of the Restatement for which behavioral research and recent statute reviews offer perspective on the Restatement’s approach. It examines (a) social science contributions to application of the totality of circumstances test for knowing, intelligent, and voluntary waiver of rights by juveniles, and (b) the rationale for the Restatement’s approach requiring the presence of legal counsel for children 14 and younger.
A. The Totality of Circumstances Test
The Restatement’s application of the “knowing, intelligent, and voluntary” standard in juveniles’ interrogations has been in place since In re Gault.108 Further, the totality of circumstances test to determine the validity of a juvenile’s waiver of rights to silence and counsel, is employed as a constitutional floor in all states,109 consistent with the U.S. Supreme Court’s Fare v. Michael C. decision.110 The totality of circumstances approach requires weighing the capacities of the youth and the manner in which law enforcement officers conducted the interrogation. This approach was intended to be sufficiently flexible to allow judges to consider the many characteristics of youths that might be relevant, when combined with the many conditions surrounding the interrogation event and investigators’ behaviors.
Perhaps recognizing that such broad judicial discretion could lead to great differences in how judicial decisions are made, the Court in Fare outlined certain (nonexclusive) characteristics of youths that courts should take into account: “[an] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warning given him, the nature of the Fifth Amendment rights, and the consequences of waiving those rights.”111
Forty years of research on the relation of Fare’s factors to juveniles’ capacities to understand and consider the consequences of Miranda waiver112 offers considerable guidance for the use of “age” and “intelligence” in courts’ objective totality-of-circumstances analyses.113 However, most studies of Fare’s “experience” factor have found no systematic relation between Miranda understanding and amount of prior experience with the juvenile justice system and prior exposure to the Miranda warnings.114
Fare called for not only an application of its objective factors, but also a subjective analysis concerning whether the juvenile “has the capacity to understand the warnings given him . . . and the consequences of waiving those rights.”115 Forensic psychological evaluations of juveniles’ capacities related to waiver of Miranda rights provide courts evidence for this subjective, individualized, functional analysis.116 The field has developed well-validated tools to assess a youth’s degree of understanding of Miranda warnings and the implications of waiving them,117 as well as assessing a youth’s degree of immature susceptibility to acquiescence and suggestibility in police interrogations.118
Regarding the circumstances of the interrogation, social science researchers have studied law enforcement strategies for inducing confessions when interrogating youth.119 Their findings demonstrate that these strategies often are the same as those used with adults but have more stressful effects due to youths’ greater susceptibility to subtle coercive pressures, increasing the likelihood of waiver of rights and false confessions.120 Their findings help identify relevant factors to weigh when examining the totality of circumstances of the interrogation, a process that is facilitated by the Restatement’s requirement of videotaping all interrogations.121
B. Required Presence of Legal Counsel
The Restatement includes a remarkable procedural protection for juveniles, ages 14 and under, in interrogations: the provision of mandatory legal counsel prior to waiver of rights and interrogation.122 Mandatory counsel might be considered the ultimate assurance that children would be adequately educated and advised prior to waiver of their rights. In choosing this approach, however, the Restatement follows a trend in law that is barely evident, such laws having been adopted in only three states.123 Moreover, the Restatement omits other procedural protections that are far more prevalent in states’ laws applied to juveniles’ interrogations. It is worthwhile, therefore, to examine the Restatement’s rationale for adopting this specific approach rather than others.
1. Simplified Miranda warnings
Among the factors to be considered in the totality of circumstances analysis is how the youth was informed of the rights to silence and counsel,124 which has led many jurisdictions nationwide to consider the most effective way of informing youth about their Miranda rights.125 For example, the International Association of Chiefs of Police recommends a juvenile Miranda warning statement that translates the language as “you do not have to say anything,” “anything you say can be used against you in court,” and “you have the right to get help from a lawyer right now.”126 While these warnings are more juvenile-friendly, there are two reasons to question their protective value. First, warnings like those just quoted explain what the youth may choose to do but offer no information about the consequences of one’s choices.127 Moreover, even if consequences were explained, this would not compensate for adolescents’ decision-making tendencies to favor choices involving short-term positive consequences (for example, “If I confess, they might let me go home”) despite much more serious long-term negative consequences.128 Second, there is no good evidence that simplified warnings improve youth’s understanding. Some evidence suggests that explaining the warnings and their consequences in greater detail would make them more difficult, requiring more lengthy warnings that might challenge youths with shorter attention spans.129 For these reasons, while the use of simplified Miranda warnings should be encouraged, they do not provide strong procedural protections that would warrant inclusion in the Restatement.
2. Presence of an “interested adult.”
One common mandatory procedural protection included in states’ statutes or case law has been a requirement for the presence of an “interested adult” or attorney prior to in-custody questioning by law enforcement.130 According to a recent comprehensive review, twenty states employ this type of requirement for interrogation of juveniles, often specifying certain ages (for example, any age, others under 16, 14 and younger, 13 and younger, or under 12).131 An “interested adult” in most of these states includes a parent or guardian and, in some states, an attorney.132
The Restatement, however, does not adopt parental presence as a mandatory procedural protection,133 and several states have considered and explicitly rejected that a confession must be excluded in the absence of parents.134 And for good reason. Substantial research has shown that parents’ presence offers no strong protection by way of advice to their children on legal matters.135 Some parents may have little interest in their child’s welfare, some may be angry at them, and some may have conflicts of interest regarding their child’s welfare, all of which might contribute more to pressure than protection in the interrogation room.
3. Prospects for mandatory legal counsel.
The Restatement’s approach, requiring legal counsel prior to interrogation, provides more certain protection than the aforementioned trends in law. The Restatement’s choice of age 14 and younger is consistent with the developmental research, well reviewed in the Restatement, on children’s and younger adolescents’ greater vulnerability regarding their poorer understanding of Miranda rights, their poor judgment, and their greater susceptibility to interrogation pressures.136
Nevertheless, one could argue for a higher age—for example, 16 and younger. Many midadolescents investigated for suspected delinquencies have other vulnerabilities, such as mental disorders and intellectual disabilities, that delay their psychosocial and cognitive development, and these sources of vulnerability are more prevalent among delinquent youth than among youth in general.137
Although mandatory legal counsel offers the best protection for children, its adoption beyond the three states that now employ it may be difficult. In some states, legislative bills proposing mandatory counsel for juveniles in interrogation have either been rejected or have not progressed.138 Resistance to policy that would require counsel prior to interrogation understandably includes concerns about inhibiting law enforcement (for example, in cases in which questioning may pertain to ongoing crimes),139 feasibility (for example, availability of attorneys at all hours for all juveniles to be questioned),140 and a presumption that attorneys automatically will advise and convince their juvenile clients simply to “remain silent.”141
Currently there is little research to inform policymakers regarding these concerns. For example, how will youths’ defense attorneys approach the interrogation? Will they simply close it down? One recent exploratory study suggests they may practice a more nuanced approach.142 Most of the attorney-participants in the study, all of whom had experience providing counsel to juveniles at the time of their interrogation, said they would initially advise their juvenile client not to talk to police until the client had a chance to consult with their attorney.143 But a majority said that there are situations in which they advise their young clients to cooperate with law enforcement investigators, after the attorney learned the circumstances of the case, had time to explain them to the youth and ascertained the youth’s wishes, and were able to monitor the questioning.144
Mandatory presence of counsel also raises questions for defense attorneys about how best to conduct their preinterrogation consultations with youths. When Gault required attorneys for delinquency proceedings, at first their role was without precedent, often misinterpreted, and required new skills in communicating with young clients.145 Here, too, is new territory. Under stressful circumstances, how can attorneys best inform their young clients of their rights? How can an attorney best assess whether the youth’s choice, especially when it is not in the youth’s best legal interest, was not a consequence of the short-sighted perspective typical of adolescents’ stage of development? Much of this will require legal and ethical analysis, but developmental researchers eventually may be able to provide guidance to attorneys in fulfilling this new role.
Attorney assistance will certainly improve protections for youth, but even this requirement is not a panacea. For the youth in interrogation (or the youth considering how to plead to a serious charge), the attorney may teach, may explain, and may describe the options and their consequences. But due process in such circumstances presumes the choice of a person equipped with autonomy, foresight, and judgment when considering the attorney’s explanation and advice. Attorneys will not always be able to compensate for youths’ immature judgment.146
III. REFLECTIONS ON GAULT’S CHALLENGE, PAST AND FUTURE
This commentary has discussed two topics in “Children in the Justice System” in the Restatement of Children and the Law: juveniles’ adjudicative competence and juveniles’ rights in interrogations. It has examined those aspects of the Restatement’s approach that are grounded in the developmental characteristics of youth, whether and how the Restatement’s guidance is currently implemented in state laws and practices, and prospects for continued refinement.
This author has observed and contributed to the law’s progress in protecting juveniles’ rights for nearly a half-century. Preparing this commentary has provided an occasion to reflect on the nature and pace of the evolution of laws protecting children’s rights in these two legal contexts. In broad terms, what can be said about the law’s progress in these topics on children in the justice system?
Compared to fifty years ago, the current state of law in these areas is remarkably improved. Throughout that time, legal advocacy for due process in juvenile court has been strong and sustained, advised by basic and applied research on children’s immature decisional capacities.147 The status of due process protections in these areas is far advanced from when we started. In Gault’s wake, children had no special protections regarding their waiver of Miranda rights, and now some states recognize the need for mandatory provision of legal counsel before such decisions are made. Adjudicative competence was not recognized at all until many years after Gault, whereas now the great majority of states have charted detailed standards and protections to avoid children’s adjudication when they cannot participate meaningfully in it.148
Yet, reflecting on that half-century, one can reasonably ask, why did it take so long? And why do we still have issues to resolve to provide adequate protection for children in their interrogations and adjudication? There are at least two reasons.
First, the progress of legal reform in these areas has not proceeded at a uniform pace during those five decades. For both areas, little progress was made during the first two to three decades after Gault.149 During that time, the state’s interest in securing confessions far outweighed any arguments regarding the need for greater protections for juveniles in interrogation, and the question of adjudicative competence was simply ignored until the 1990s.150 True progress began only about twenty-five years ago when developmental science and advocacy ushered in a developmentally informed perspective on juvenile justice.151 Therefore, most of what we see in the Restatement’s approach to protection for children in these legal contexts is the product of only a little more than two decades of active legislation and litigation. Considered in that light, progress has been remarkable.
Second, finding solutions to some of the issues in these two areas of juvenile law has been, and is, doctrinally and practically complex because kids are different. The Restatement and this commentary have described many conundrums encountered along the way as we have struggled to fit the “square peg” of youthful immaturity into the “round hole” of rights and protections originally intended in criminal court only for adults who on average have better decisional capacities. Lawmakers have succeeded in many ways in making some of the most important adaptations. Yet the careful and creative analyses required to do so sometimes inhibited more rapid reform.
Concerning the future, this commentary has identified several unsettled legal questions that require attention, as well as inconsistencies that must be untangled.152 Resolving those questions will require a sustained application of a developmental approach to shaping juvenile law. The Restatement’s reporters’ notes provide strong evidence that the developmental reform in juvenile justice has taken root and continues to drive law, policy, and practice for children in the juvenile justice system.153 Applied scientific studies of juveniles’ capacities related to their decisions in legal contexts continue to be published, offering a prospect for further guidance for law and policy in these areas.154
The Restatement’s part “Children in the Justice System” offers a valuable history of the law’s development of protections for children and adolescents in interrogations and during their adjudication. It defines where we are at present and what more must be done. As we continue to narrow the gap between our current laws and the ideal, the Restatement stands as a benchmark with which we can measure our progress in the future.