Adolescent transfer, developmental maturity, and adjudicative competence: an ethical and justice policy inquiry.

• Author: Sellers, Brian G.

1. INTRODUCTION

   Various theoretical approaches underscore the education, training, and research methods of the interdisciplinary law and psychology field. One key method of inquiry is the law, psychology, and justice perspective. (1) This method promotes social change and action through theory-sensitive psychological jurisprudence. (2) Psychological jurisprudence refers to "theories that describe, explain, and predict law by reference to human behavior." (3) Thus, as a function of translating theory into public policy, psychological jurisprudence tells judges and legislators how they should make decisions, guided by sensible values and relevant data that draws attention not merely to what law is, but to what law ought to be. (4)

   Within the domain of psychological jurisprudence, several dominant principles and practices have emerged that attempt to grow the law-psychology-justice agenda, especially in an effort to secure what is best for offenders, victims, and the public more generally. Chief among these principles and practices are (1) commonsense justice, (2) therapeutic jurisprudence, and (3) restorative justice. Each of these notions is summarily discussed below.

   The notion of commonsense justice, as developed by Professor Finkel, evolves from an understanding that while the law has specified an objective path for society to follow in deciding guilt or innocence, this path does not always take into account the ordinary citizen's notion of what is just and fair. (5) Thus, commonsense justice attempts to include community sentiment (the judgment of the people at large) so that the law's more subjective character can be honored. (6) Incorporating the legal, moral, and psychological reasoning adopted by everyday people enables the displacement of the (misguided) direction that the law sets forth so that more equitable decision-making can be pursued. This decision-making endeavors to "perfect and complete the law." (7)

   Therapeutic jurisprudence is "the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects." (8) In other words, therapeutic jurisprudence seeks to understand where and how the law can act as a healing agent. (9) The aim of this practice is to address both civil disputes (10) and criminal concerns (11) in mental health law, wherein salubrious outcomes are based on psychological values and insights. (12)

   Restorative justice is a form of mediated reconciliation. (13) Its goal is to repair the harm and suffering that follows in the wake of interpersonal, organizational, or even global violence. This type of injury affects the victim, the offender, and the community to which all opposing parties belong. (14) Candid disclosures and humanistic dialogue guide the healing process in which genuine, meaningful, and, ideally, transformative resolutions are sought. (15)

   Interestingly, although not identified as such, these collective principles and practices are consistent with virtue-based ethics. Articulated most explicitly and systematically in Aristotle's Nichomachean Ethics, (16) this version of moral philosophy seeks to promote a type of human excellence that is rooted in reason whereby one's character is not determined by what one does (for example, weighing competing interests; endorsing rights, duties, and obligations) but, instead, is an expression of living virtuously. (17) The highest purpose of this existence is to embody eudaimonia (a flourishing or excellence in being), happiness, or a fulfilled life. Aristotle's inquiry led him to explore those virtues that most profoundly facilitate such human flourishing. These are habits of character learned through practice; these are qualities that become a part of the person through regularly exercising their use. (18) Indeed, as Aristotle noted: "Anything that we have to learn to do we learn by the actual doing of it: people become builders by building and instrumentalists by playing instruments. Similarly, we become just by performing just acts, temperate by performing temperate ones, brave by performing brave ones." (19)

   At the core of commonsense justice, therapeutic jurisprudence, and restorative justice is the goal of growing the character of all parties concerned, while simultaneously repairing the harm and reducing the non-therapeutic effects that negatively affect those involved in a civil or criminal dispute. Indeed, rather than emphasizing the infliction of punishment for retributive ends, these three law and psychology notions endorse, mostly unknowingly, though certainly implicitly, Aristotelian moral philosophy. In short, they help to seed and encourage the development of personal character and moral virtue among offenders, victims, and the community to which both are intimately connected. Commonsense justice accomplishes this by promoting the public's reasoned participation in, and felt regard for, legal decision-making; therapeutic jurisprudence does this by assessing where and how the rule of law can be beneficial or harmful to citizens; and restorative justice achieves this by fostering a culture of forgiveness and compassion among warring individuals or groups. The collective effect of these three practices, then, is the cultivation of an integrity-based society. This is a society in which the moral fiber of individuals is more fully embraced and the flourishing prospects for human justice are more completely realized.

   One particular law and psychology topic where the logic of psychological jurisprudence and the philosophy of virtue ethics are most germane is the competency-to-stand-trial doctrine. According to some investigators, the issue of trial fitness is "the most significant mental health inquiry pursued in the system of criminal law." (20) More specifically, on the issue of juvenile competency to stand trial, the matter is even more complicated given the presence of developmental maturity factors. Indeed, "[d]espite the fact that attorneys and judges need guidance to recognize and address these issues in dealing with young defendants, the relationship between immaturity and competence to stand trial has been largely ignored in research and policy circles." (21) The historical understanding of juvenile fitness for trial neglects to take into account the psychological limitations that such youthfulness naturally entails. (22) Indeed, many juveniles possess similar deficits as those who experience mental illness or mental retardation. However, those deficits affecting adolescent competency are not because of mental illness or mental retardation; rather, they are because of cognitive or emotional immaturity. (23)

   In recent years, given the increase in violent juvenile crime, a more punitive response by the criminal justice system has followed. (24) For example, in terms of court adjudication, automatic forms of juvenile transfer to adult court have steadily increased given the current "get tough" policy rationale used to address serious adolescent offending. (25) Not surprisingly, however, the decision to rely on automatic waiver strategies has led to a number of processing, confinement, and recidivism concerns. Along these lines, investigators have empirically shown how developmental immaturity negatively affects a waived juvenile's ability to be fit for trial in the adult system. (26) Notwithstanding these findings, both the courts and state legislatures have mostly elected to ignore the adverse impact that current transfer policies have on juvenile offenders and on society more generally. While researchers have outlined the need to properly assess transferred youths for trial fitness purposes--with special consideration given to developmental factors--the legal community regrettably has not endorsed these recommendations. Interestingly, no study has yet undertaken an exploration of the ethical reasoning that informs legal decision-making with respect to automatic juvenile transfer practices where issues of developmental maturity and adjudicative competence figure prominently into the analysis. Stated differently, the logic of psychological jurisprudence and the philosophy of ethics communicated through the relevant court cases on the law and psychology subject of adolescent automatic waiver have not been systematically examined. A thoughtful inquiry into both may very well be the basis for translating (assumed) theory into worthwhile public policy.

   Accordingly, the present inquiry focuses on these prescient matters. The moral philosophy embedded within those court cases that reflect the prevailing judicial perspective on automatic juvenile transfer, developmental maturity, and trial fitness will be made explicit. After so doing, it will then be possible to assess whether, and to what extent, current retributive policies toward serious juvenile offenders promote--or fail to promote--excellence in character for all stakeholders in which the value of living virtuously guides the jurisprudential reasoning.

   In Part II, the relevant literature on adolescent waiver, the social and behavioral science community's assessment of it, and the established approaches to ethics are presented. The juvenile transfer commentary explains current practices in court processing and the corresponding problems. The empirical research examines adolescent waiver, especially when complicated by developmental maturity and competency to stand trial issues. The moral philosophy exposition outlines the key principles that inform each school of ethical thought. In Part III, the qualitative methodology utilized for this study is described. This includes a discussion of how the specific court cases that constitute the data set were selected, as well as an accounting of the two levels of textual exegeses that were applied to these legal decisions. In Part IV, the results are delineated. Of particular interest are the types of ethical reasoning conveyed...