DUE PROCESS JUNIOR: COMPETENT (ENOUGH) FOR THE COURT: The Need to Amend Ohio's Juvenile Competency Statute to Ensure that Juvenile Due Process Rights are Protected and Better Inform Judicial Discretion in Determining Juvenile Competency.

AuthorWoolson, Tigan

TABLE OF CONTENTS I. Introduction 89 II. Background 91 A. Due Process of Law: Competent to Stand Trial 91 i. Ohio 93 B. Juvenile Courts 95 i. Terminology 98 C. Juvenile Courts and Due Process 99 III. O.R.C. 2152.51-59: Juvenile Competency Statute 101 A. Competency 101 i. Evaluator Requirements and Evaluation Procedure 101 ii. Attainment 104 IV. Protecting Against Faulty Competency Findings 105 A. Statute: Strength and Gaps 105 i. Guarantees The Right, The Evaluation, And Attainment Services Without Prohibitive Expense to Juvenile or Family 105 ii. Developmental Immaturity as a Predicate for Juvenile Incompetence 105 iii. Evaluation Report Criteria Undercut the Dusky Standard 107 iv. Attainment 108 v. In Matters of Discretion, Appeal is Not Enough Protection 109 B. Attainment: Provider Qualifications and Second Opinions 110 V. Conclusion 111 I. INTRODUCTION

Few questions are as uncomfortable for a society as how it will treat children that have acted in a way that transgresses its laws. This question tests our most basic values. What happens when a twelve-year-old is accused of assault or a fourteen-year-old is implicated in a robbery? Should they face a criminal trial and detention or be provided resources and guidance to reduce their potential for future transgressions? If they are to face a trial, do they have the same rights as adults? Can rights like competency to stand trial even function in the same way for a child?

Until the dawn of the twentieth century, these children might have gone to the same jail as an adult convicted of the same crime, or they might have been sent to a workhouse. About a hundred and twenty years ago, social reformers began to shift the approach to this question in part as a reaction to the conditions children faced in adult jails and in part based on two key social ideals. (1) Social reformers created new separate juvenile courts. First, these courts were meant to recognize that children make mistakes in the process of learning right from wrong and are generally less blameworthy than an adult might be for committing the same act. (2) Second, juvenile courts were meant to recognize that children who have so erred are far more malleable than their adult counterparts. (3) These courts operated on the premise that providing rehabilitation and guidance rather than punishment could give these youth an opportunity to shift course before reaching adulthood. (4)

Cuyahoga County, Ohio was one of the very first jurisdictions in the United States to take systemic action. In 1902, Cuyahoga County created a separate juvenile court system, only the second such court in the nation. (5) This new court was part of a movement which began in 1899 in Cook County, Illinois and spread across the nation, as states developed separate courts, laws, and corrections programs for juveniles. (6)

Here, at their very root, juvenile courts were built on the assumption that children are developmentally less aware of the consequences their actions may incur and less prepared to make decisions that will stick with them for life. However, as societal attitudes about the culpability of youth shifted and the similarities between these new juvenile courts and the adult criminal courts grew, these ideals became more historical than foundational. (7) This shift in the courts' approach eventually forced the question of due process rights to the Supreme Court. (8)

The original courts, because they were thought to be more rehabilitative than punitive, had not been bound by the due process constraints of the adult criminal courts. (9) The growing similarities to the ideology of the criminal courts, increasingly severe punishments, and abuses of the expansive judicial discretion in the juvenile court led to a shift in the mid-1960's, with the Supreme Court finding that juveniles were owed many of the same due process protections as adults. (10) The Supreme Court did not extend every protection to juveniles though, and they never addressed whether competence to stand trial reaches into the juvenile court.

This competency right--that a person cannot be made to stand trial if that person cannot understand the proceedings against them and contribute to their own defense--is crucial to the right to a fair hearing. (11) It is so basic, in fact, that every state eventually adopted it, either by statute or case law in their juvenile courts. (12) Unfortunately, those historical ideals of juvenile rehabilitation and redirection have faded from the purpose of the courts and are not often reflected in juvenile competency statutes and case law today.

For example, lacking specific legislative guidance in Ohio, the courts evaluated juveniles under the adult competency statute, tempered only by the application of loosely defined "juvenile norms." (13) Even when Ohio became one of about twenty states to legislate on juvenile competency in 2011, the legislation did not include adequate safeguards, especially at the attainment phase of a competency proceeding. (14) Further, the case law trial courts may rely on when exercising their broad discretion under the statute diverges from the understandings of juvenile competence that are supported by developmental psychology professionals. Since appeals courts are highly deferential to the trial courts on this matter, it is necessary to amend the legislation to provide more robust protection of the due process right to a fair trial for alleged juvenile delinquents.

Section II of this paper will address the due process origins of competency to stand trial, the development of juvenile court system, and due process rights in juvenile court system. Section III will outline the structure and process contained in the Ohio juvenile competency statute. Section IV of this paper will address the urgent need to protect juvenile due process by analyzing the disconnect between the statute, existing case law, and the developmental psychology of youth. Next, it will identify the gaps in the statute's protections and address the need for more detailed and informed statutory standards for competency and attainment to adequately protect the competency right for juveniles. Part V of this paper concludes this discussion.


    1. Due Process of Law: Competent to Stand Trial

      The Constitution and the Bill of Rights exist to protect all citizens from arbitrary government actions and protect the precious liberties founders sought to carve out in this nation. The criminal justice system required special attention because it needed to balance the physical liberty interest of the accused with the order and safety offered by a system of laws and consequences. This balancing act implicates many of the basic rights included in the Bill of Rights. Some of the basic elements of criminal justice in the United States are found in the Fifth Amendment to the United States Constitution, which lays out the foundational limitations on the federal government's ability to deprive people of their life, liberty, or property, including a fair hearing and due process of law. (15) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury [...] nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (16)

      The Fourteenth Amendment to the United States Constitution provides the guarantee that no state shall "deprive any person of life, liberty, or property, without due process of law". (17) The Supreme Court has refrained from incorporating every right protected in the Bill of Rights or every aspect of federal criminal due process into the due process clause of the Fourteenth Amendment, despite its linguistic similarity to the Fifth Amendment. (18)

      However, the right not to be convicted while incompetent to stand trial has been incorporated in the due process clause of the Fourteenth Amendment. (19) As such, it applies to states just as it applies to the federal criminal courts, and no accused person can be made to stand trial if he is not competent at the time of trial. A fair trial is only possible when the accused is competent, when the accused can understand the proceedings against them, and when the accused can contribute to their own defense. (20)

      This competency right does not require that the state prove that every defendant is competent to stand trial before proceeding with a prosecution. (21) In Medina v. California, the Supreme Court observed that there remained no settled view as to who should bear the burden of proving that a defendant is not competent to stand trial. (22) In Medina, the court found that it did not violate due process to place the burden of proving incompetence to stand trial on the defendant. (23) A defendant must, however, be presented with an opportunity to prove that they are not competent. (24) Medina created a generalized presumption that all criminal defendants are competent to stand trial, placing the burden on the defendant to prove that they are not competent to stand trial unless state law provides otherwise. (25)

      It has long been established that the adversarial criminal justice system often requires the assistance of experts to navigate, and the financial situation of the accused should not impact their ability to exercise due process rights. (26) In Gideon v. Wainwright, the Supreme Court held that the right to the assistance of counsel applied to the states, in part because it was necessary to ensure a fair trial. (27) In that opinion, Justice Black wrote "[f]rom the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial...

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