Juvenile Competency and Pretrial Due Process: A Call for Greater Protections in Massachusetts for Juveniles Residing in Procedural Purgatory

• Author: Wendy J. Kaplan,Mark Rapisarda
• Published date: 01 December 2016
• Date: 01 December 2016
• DOI: http://doi.org/10.1111/jfcj.12078

Juvenile Competency and Pretrial Due Process:

A Call for Greater Protections in Massachusetts

for Juveniles Residing in Procedural Purgatory

By Mark Rapisarda and Wendy J. Kaplan

ABSTRACT

While juvenile courts continue to balance and reevaluate the dual goals of com-

munity safety and rehabilitation of youth, juveniles who are not competent to stand

trial have been left without sufficient procedural protections. This paper examines

Massachusetts’ approach to juvenile competency, due process, and pretrial procedure,

within a national context. The inadequacies of the Massachusetts juvenile compe-

tency laws are not unique. Currently there are nineteen states that either entirely lack

juvenile-specific competency legislation or merely incorporate inapposite adult crim-

inal statutes and standards into the juvenile context—making it difficult or impossi-

ble for those juvenile courts to dismiss or divert a delinquency petition following an

incompetency finding. Massachusetts and states similarly situated should adopt

explicit statutory language to delineate the basis for a juvenile incompetency finding

and the grounds for dismissing delinquency complaints pretrial after an incompe-

tency finding has been made. This paper proposes that Massachusetts adopt a time-

line for effecting such dismissals based in part on the amount of time a juvenile

could face if committed to the juvenile correctional authority following an adjudica-

tion of delinquency. The paper also recommends best practices of states that are

pioneering juvenile legislative reforms like dismissal timelines and incompetency

presumptions. Finally, we suggest a more stringent regulatory framework be put in

place governing the pretrial detention of youths who have been found not competent

to stand trial—a framework that recognizes and preserves the juvenile’s substantive

rights to education, mental health and rehabilitative services. Without legislation,

juveniles found not competent to stand trial remain subject to the prospect of

Mark Rapisarda is an Assistant District Attorney in New York. Mark is a graduate of Amherst Col-

lege and Boston University School of Law. At Boston University Mark was a member of the BU Defenders

Clinic providing indigent defense to juveniles and adults in Suffolk County, Massachusetts. Prior to law

school Mark worked at StreetSquash, Inc., an after-school youth enrichment program in Harlem, New York.

Wendy J. Kaplan is a Clinical Associate Professor at Boston University School of Law where she is a

faculty member in the Criminal Trial Practice Clinic. Professor Kaplan oversees clinical students’ defense of

juvenile and adult defendants, as well as teaching Criminal Trial Advocacy. She also teaches a seminar on

juvenile delinquency and is active in the Massachusetts defense bar.

The authors would also like to thank Justin Bonnick for his research assistance.

Juvenile and Family Court Journal 67, No. 4

©2016 National Council of Juvenile and Family Court Judges

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indefinite locked detention, often without access to the necessary services that con-

tribute to future success as well as attainment of competency. This lack of due pro-

cess runs counter to the foundational goals of the juvenile justice system.

Key words: Commonwealth v. Abbott A., competency, Dusky, interest of justice, juvenile

competency law, juvenile competency legislation, juvenile court, juvenile due process, pretrial

detention, remediation.

I. INTRODUCTION

James Doe is a 17-year-old juvenile who emigrated to a Massachusetts urban cen-

ter about three years ago. He lives with his mother, sister, nieces and nephews, all of

whom are Cape Verdean natives, and none of whom are English speakers. James has

been diagnosed with learning disabilities and post-traumatic stress disorder (“PTSD”),

most likely resulting from witnessing family and community violence in both Cape

Verde and Massachusetts. James has eight open cases before two separate Massachusetts

juvenile district courts, spanning a period of almost two years. The charges range from

the less serious, tagging property, to the more serious, assault and battery with a dan-

gerous weapon. All of James’ cases remain in what we refer to as procedural purgatory,

a common holding zone for many juveniles who face delinquency or criminal com-

plaints: Procedural purgatory is reserved for juveniles who are not competent to stand

trial, and James has been found not competent to stand trial on three separate occa-

sions.

1

Because of these incompetency findings, James is trapped: he cannot defend his

cases at trial, and he similarly cannot waive his right to trial and plead delinquent. As

a result, the court cannot sentence James to community based rehabilitative services,

or to a commitment to the Department of Youth Services (“DYS”), the juvenile correc-

tional agency which would be mandated to provide James at least with special educa-

tional and other services.

2

The court is reluctant to release James to the care and custody of his parent,

which is the usual course in juvenile court, due to the serious nature and accumu-

lating number of the charges against him. Given its limited options, the court is

doing all that it can—detaining James pretrial, and detaining him indefinitely.

3

The result is a downward spiral for James. Despite his learning, cognitive, and

psychological diagnoses, as well as several professional recommendations for special

education, therapeutic, and psychiatric services, James receives only remedial

1

James’ competency evaluations occurred approximately six months apart.

2

See M.G.L. 120 §5 (1993). See generally JUST FOR YOUTH:ADVOCATING FOR YOUTHS IN THE MAS-

SACHUSETTS DEPARTMENT OF YOUTH SERVICES,THE MENTAL HEALTH LEGAL ADVISORS COMMITTEE, Chapter 7, at

7.4 (Third ed., 2010) (“DYS must evaluate each committed youth when he enters DYS custody in order to

determine what services the youth needs.” (emphasis added)); ROBIN L. DAHLBERG,LOCKING UP OUR CHIL-

DREN:THE SECURE DETENTION OF MASSACHUSETTS YOUTH AFTER ARRAIGNMENT AND BEFORE ADJUDICATION,

ACLU OF MASSACHUSETTS, at 23-25 (May 2008) (discussing the relative dearth of services available to juve-

niles in pretrial, as opposed to committed detention in Massachusetts).

3

See infra Part II.B.3.i.

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