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  • June 27, 2018

    What Is Different About Juvenile Competency?

    Juveniles have a fundamental right to be tried only if competent. What happens when juveniles don’t become competent until they become an adult? Devon Lee discusses issues involved in a case taken up by the Wisconsin Supreme Court.

    Devon M. Lee

    On June 11, 2018, the Wisconsin Supreme Court accepted review in In the Interest of A.L. In this case, the court will consider whether a juvenile’s competency can be reevaluated after he or she has been found to be incompetent and unlikely to regain competency.

    To understand this issue, it is helpful to review how competency is evaluated in our juvenile justice system.

    Evaluating Juvenile Competency

    Juveniles and adults have a fundamental right to be tried only if competent, and the legal standard for juveniles and adults is the same. Under Wis. Stat. section 971.13, a person is not competent if he or she “lacks substantial mental capacity to understand the proceedings or assist in his or her own defense.”

    Therefore, a juvenile in the justice system must have “sufficient present ability to consult with his or her lawyer to a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him.”1

    Although the legal standard is the same, the reasons that children and adults may be found incompetent to proceed can be different. For adults, incompetency is often due to developmental delays and mental health issues. Although these issues can lead to incompetency in children, children are often incompetent to proceed solely due to their age.

    Devon M. Lee Devon M. Lee, Univ. of the Pacific McGeorge School of Law 1998, serves as a juvenile practice coordinator and as legal counsel with the State Public Defender’s Office, Madison.

    As a result, juvenile defenders must ask whether a young client is able to assist in his own defense by recognizing and explaining key facts. Will the client be able to listen to testimony and let the lawyer know if there are any mistakes or mistruths? Does the youth understand her options, and can she understand both the short-term and long-term effects of choosing one of the options?

    And it is not only juvenile defenders who are responsible for determining whether a youth in the system is competent to proceed. Under Wis. Stat. section 938.30(5)(a), if probable cause exists that the juvenile committed an alleged offense and there is “reason to doubt” the juvenile’s competency to proceed, the court must order a competency evaluation.

    This means that any person who has reason to doubt a juvenile’s competency should raise that concern. “Reason to doubt” does not require definitive proof that a youth does not understand the proceedings. All that is required is “some evidence raising doubt as to his competence.”2

    There are a number of factors that can prevent a young person from lacking the required capacity to understand the proceedings:

    • young age
    • limited intellectual functioning
    • limited verbal or comprehension skills
    • poor academic record or placement in special education
    • a history of emotional or behavior problems

    Often, a juvenile defender will know from speaking to a client that the client does not understand or cannot communicate important facets of his or her case. Social workers may also raise concerns about a child’s understanding of the situation.

    Raising Competency

    Juvenile defenders may wonder whether they should refrain from raising competency, even if they have reason to doubt that a client is competent. Maybe there is a good offer to resolve the case, or the lawyer believes he or she can just “help” the child get through the proceedings.

    Even when it makes strategic sense to not raise competency, the lawyer should raise it. In State v. Johnson,3 the court held that when defense counsel has a reason to doubt the competence of a client to stand trial, the counsel must raise the issue with the trial court. The failure to raise the issue of competence makes the counsel’s representation

    “[fall] below an objective standard of reasonableness. … We believe that considerations of strategy are inappropriate in mental competence situations. Thus, we hold that strategic considerations do not eliminate defense counsel’s duty to request a competency hearing.”

    Likewise, in State v. Haskins,4  the court explained: “When defense counsel has a reason to doubt the competency of his client and fails to raise the issue with the trial court, his representation is deemed to be deficient.”

    When raising competency, a lawyer may not provide unlimited information to the court. In State v. Meeks,5 the court noted that “an attorney’s opinions, perceptions, and impressions of a client’s competency to proceed are protected by the attorney-client privilege.”

    How does a juvenile defender raise competency without sharing too much information? The same general issues noted above that should lead a lawyer to consider whether a youth is competent might be shared with the court: a youth’s limited intellectual functioning, limited verbal or comprehension skills, poor academic record, or placement in special education.

    Children with these issues may be competent to proceed, but any one of these could be significant enough to provide a reason to doubt. Courts should be sensitive to the importance of only adjudicating children who are competent to proceed.

    Why are Youth Less Likely to be Competent?

    Studies have concluded that youth between 11 and 13 years old are significantly more likely than young adults to lack abilities related to competency. Even children 14 or 15 years old are more significantly impaired than slightly older individuals.

    Some youth may not understand the vocabulary of the legal system, and have difficulty grasping concepts such as a “right,” pleading “not guilty,” and understanding what a “consent decree” or “disposition” might be.

    Many youth do not understand what an attorney-client relationship entails, because most children have never experienced anything like it. As a result, they may have difficulty understanding attorney privilege, their right to disagree with one’s attorney, the capacity to listen to counsel, and any time perspective imagining the future delay versus immediate relief.

    Children may be able to be “taught to competency” if it is just a lack of factual understanding, but young children or children with intellectual disabilities may be unlikely to become competent.

    Once a court orders an evaluation, the examiner must file a report. Under Wis. Stat. section 938.295(2)(b)3, a competency report must include an opinion regarding the juvenile’s present mental capacity to understand the proceedings and assist in his or her defense.

    If the examiner concludes that the juvenile is incompetent, the report must include the examiner’s opinion regarding the likelihood that the juvenile, if provided treatment, may be restored to competency within the relevant statutory time period.

    If the court determines the juvenile is not competent to proceed, the court must suspend the proceedings and order the district attorney to file a juvenile in need of protective services (JIPS) petition or order the county to file a Chapter 51 petition.

    What Happens When the Petition is Suspended?

    The juvenile statute explains what happens when a juvenile is found not competent but likely to become competent, but does not indicate the procedure courts should follow if a juvenile is deemed not competent and not likely to become competent within the required time frame.

    This is the issue the supreme court will consider in In the Interest of A.L. A. L. was 15 when he was charged with second-degree reckless homicide. A. L.’s attorney raised competency, and the trial court ordered a competency evaluation.

    Two evaluators concluded that A. L. was not competent to proceed, and due to A.L.’s intellectual disabilities and mental health issues, concluded that he was unlikely to regain competence within the statutory time limits.

    The court suspended the delinquency proceedings and entered a JIPS order. That order was extended once, and ultimately expired. A. L. was later charged with an additional delinquency and, after he turned 17, several additional crimes.

    In the adult proceedings, A. L. was again evaluated and found likely to regain competency; ultimately he was found competent. The State requested a reevaluation of A. L. for the more recent juvenile delinquency petition, and A. L. was found competent.

    The State then filed a motion to have A. L. reevaluated for competency related to the juvenile homicide case. The trial court concluded that the statute did not provide a procedure for reinstating suspended proceedings. The State appealed, and the Wisconsin Court of Appeals reviewed the case.

    The court of appeals concluded that the statute provides no guidance to follow when a juvenile is found not competent and unlikely to regain competency, and ultimately concluded that a trial court may revisit the issue of competency when circumstances warrant reevaluation. The court of appeals did not provide guidance as to what type of circumstances might warrant reevaluation.

    Questions Raised by the Court of Appeals Decision

    The court of appeals’ decision raises a number of questions:

    • If a youth becomes competent as an adult, should the case return back to the juvenile court?
    • If so, what juvenile disposition could a juvenile court enter?

    In State v. Kleser,6 the supreme court noted that a juvenile could not be “reverse waived” to juvenile court if he or she turns 18 before the reverse waiver hearing can take place, because a juvenile court has no authority to issue a dispositional order after someone turns 18.

    Should a juvenile case be suspended only until a youth becomes an adult, and then dismissed if he or she has not by then become competent? Or, should a delinquency petition be dismissed, rather than suspended, when the youth is placed under a JIPS order?

    Given the special purpose and goals of juvenile court, hopefully the supreme court will reach a decision that protects the community and imposes accountability while recognizing the special challenges of being a child.


    1 Drope v. Missouri, 420 U.S. 171 (1975); Dusky v. U.S., 363 U.S. 388 (1960)

    2 State v. McKnight, 65 Wis.2d 582, 223 N.W.2d 550 (1974)

    3 133 Wis.2d 207, 395 N.W.2d 176 (1986)

    4 139 Wis.2d 257, 407 N.W.2d 309 (Ct. App. 1987)

    5 2003 WI 104

    6 2010 W I88

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