Clinicians? Transfer Evaluations: How Well Can They Assist Judicial Discretion?

Author:Thomas Grisso
Position:Professor of Psychiatry (Clinical Psychology), Director of the Law and Psychiatry Program, and Director of Psychology at the University of Massachusetts Medical School, Worcester, MA.
Pages:157-189
SUMMARY

I. Standards and guidelines for transfer evaluations - A. Standards for Forensic Evaluations - B. Guidelines Specific to Transfer Evaluations - C. The Objectives of Transfer Evaluations - II. Assessing risk of danger to others - A. Overview of Principles for Risk of Harm Assessments - B. Youth Violence in a Developmental Context - C. The State of Juvenile Risk Assessment - D. Application of Risk... (see full summary)

 
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Clinicians’ Transfer Evaluations: How Well Can
They Assist Judicial Discretion?
Thomas Grisso
From its earliest years, the juvenile court exercised options for
trying some cases involving youth in criminal court. The primary
legal basis for transferring
1
youth from juvenile to criminal court
was by the discretion of juvenile court judges.
2
Kent v. U.S.
outlined due-process requirements for discretionary (judicial)
transfer as well as certain criteria to guide courts‘ judgments in
deciding whether to transfer on a case-by-case basis.
3
Beginning in the late 1980s, a majority of states created laws
that increased the use of statutory exclusion of juveniles from
―automatic‖ filings of charges in criminal court by employing
certain restrictions regarding age of the juvenile and nature of the
charge.
4
Many states, however, retained the option of judicial
transfer for cases that did not meet the criteria for statutory
exclusion.
5
In addition, in many states, cases involving youth that
were filed in criminal court could be remanded to juvenile court by
discretion of the criminal court judge, a process sometimes called
―reverse transfer.‖
6
Whether in juvenile court transfer proceedings or criminal
court ―reverse transfer‖ proceedings, courts‘ judgments about
whether individual youth ought to be transferred are often
informed by forensic clinical evaluations performed by mental
health professionals. The legal criteria applied in a transfer case
refer in part to characteristics of youth that the court must consider
when determining whether the youth is a proper subject for
Copyright 2010, by THOMAS GRISSO.
Thomas Grisso, Ph.D., is Professor of Psychiatry (Clinical P sychology),
Director of the Law and Psychiatry Pro gram, and Director of Psychology at the
University of Massachusetts Medical School, Worcester, MA.
1
. The term for transferring youth from juvenile to criminal or criminal to
juvenile jurisdiction varies fro m state to state. Common variations are
certification, waiver, bindover,‖ and, as emplo yed in this Article,
transfer.
2
. David S. Tanenhaus, The Evolution of Transfer Out of the Juvenile
Court, in THE CHANGING BORDERS OF JUVENILE JUSTICE 13 (Jeffrey Fagan &
Franklin E. Zimring eds., 2000).
3
. 383 U.S. 541 (1966).
4
. Robert O. Dawson, Judicia l Waiver in Theory a nd Practice, in THE
CHANGING BORDERS OF JUVENILE JUSTICE, supra note 2, at 45.
5
. Id. at 64.
6
. Barry C. Feld, Legislative Exclusion of Offenses from Juvenile Court
Jurisdiction: A History and Critique, in THE CHANGING BORDERS OF JUVENILE
JUSTICE, supra note 2, at 83 , 11924.
158 LOUISIANA LAW REVIEW [Vol. 71
juvenile court jurisdiction. A century of practice has presumed that
these characteristics, focusing on youths potential for future
criminal behavior and the ability of rehabilitation to reduce that
potential, can be assessed by mental health examiners who can
offer guidance for courts‘ deliberations about transfer.
7
This Article informs courts and attorneys regarding the degree
to which they can depend on mental health professionals to
contribute reliable expert evidence to the legal process of transfer
in juvenile and criminal courts. Part I outlines the limited guidance
that clinicians receive from their professions and the law for
performance of transfer evaluations. Parts II, III, and IV offer
background that suggests mixed outcomes for the prospect of
clinicians‘ transfer evaluations being able to offer reliable
information relevant to the legal questions in transfer. There is
good evidence of the ability of transfer evaluations to provide
relevant descriptions with which courts can apply the legal
standards in weighing the implications of transfer. There is less
research evidence, however, supporting the application of that
information in ways that endeavor to answer the questions raised
by transfer criteria. Part V summarizes these considerations,
offering reasons to believe that protection of youth from improper
assessment methods and potentially inappropriate decisions about
transfer can be better accomplished when transfer evaluations (and
transfer decisions) are made in juvenile court rather than in
reverse-transfer hearings in criminal court.
I. STANDARDS AND GUIDELINES FOR TRANSFER EVALUATIONS
Transfer evaluations are intended to inform courts about the
impact of legal decisions. Thus they are ―forensic evaluations.‖
Forensic psychology and forensic psychiatry offer standards for
forensic evaluations as work products; transfer evaluations are
obligated to meet these standards.
8
In addition, professional
consensus should guide courts regarding the conduct of transfer
evaluations specifically. Clinicians‘ professions provide clear
standards for forensic evaluations generally but only rudimentary
guidance regarding practice standards for transfer evaluations
specifically.
9
Finally, clinicians must have a clear view of the
7
. THOMAS GRISSO, FORENSIC EVALUATION OF JUVENILES 196 (1998);
Thomas Grisso, For ensic Clinical Eva luations Related to Waiver of
Jurisdiction , in THE CHANGING BORDERS OF JUVENILE JUSTICE, supr a note 2, at
321, 322.
8
. See discussion infra Part I.A.
9
. See discussion infra Part I.B.
2010] TRANSFER EVALUATIONS 159
appropriate objectives of transfer hearings and evaluations, and a
consensus has arisen about the nature of those objectives.
10
A. Standards for Forensic Evaluations
Both forensic psychology and forensic psychiatry have
developed standards and a professional consensus for the conduct
of forensic evaluations in general. The American Psychological
Association and the American Psychiatric Association both
recognize forensic practice as a specialty. A recent text on forensic
mental health evaluations listed 15 specific kinds of forensic
evaluations arising in criminal, civil, and juvenile law.
11
Over the
past 40 years, both the professions of psychology and psychiatry
have reached a high degree of consensus regarding principles,
methods, and skills that are required for the performance of any
type of evaluation for the courts.
12
For example, Heilbrun‘s 29 ―principles‖ of forensic mental
health assessment are sufficiently generic that they can be applied
across various types of forensic evaluation.
13
They refer to basic
requirements when preparing for the evaluation, collecting data,
interpreting the data, and communicating the results. The
principles need not be reviewed here, but important examples
within two of these categoriespreparation for the evaluation and
data collectionare illustrative and useful for later discussion of
transfer evaluations.
Preparation for the forensic evaluation includes being clear
about the definition of the legal question. The clinician must know
how the law defines the legal decisionin this case, what criteria
the law instructs courts to consider when making the transfer
decision. This is necessary in order for the clinician to identify the
psychological data that will be relevant for the clinician to collect,
as well as the nature of the conclusions the clinician is expected to
form based on those data.
14
10
. See discussion infra Part I.C.
11
. KIRK HEILBRUN, THOMAS GRISSO & ALAN GOLDSTEIN, FOUNDATIONS
OF FORENSIC MENTAL HEALTH ASSESSMENT 78 (2009).
12
. PAUL APPELBAUM & THOMAS GUTHEIL, CLINICAL HANDBOOK OF
PSYCHIATRY AND THE LAW (2006); KIRK HEILBRUN, PRINCIPLES OF FORENSIC
MENTAL HEALTH ASSESSMENT (2001); HEILBRUN, GRISSO & GOLDSTEIN, supra
note 11; GARY MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE
COURTS (3d ed. 2007).
13
. HEILBRUN, supra note 12. The remainder of this Section draws
substantially from this source.
14
. See gener ally THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC
ASSESSMENTS AND INSTRUMENTS 4249 (2d ed. 2003).

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