I would like to thank my research assistants for their help and guidance on this project: Carl D. “Todd” Campbell, J.D. candidate, 2007; Keene Tso, J.D.; and Amanda Crowley, J.D.

1 See generally Va. Code. Ann. § 16.1-269.1(A)(3) (2005) (“The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence … .”). Arkansas, however, presumes incompetency for a juvenile under the age of thirteen who is charged with capital or first degree murder. Ark. Code Ann. § 9-27-502(b)(1)(A) (2005).

2 See, e.g., 18 U.S.C. § 4241 (2006) (competency hearing held only “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense”).

3 See Dusky v. United States, 362 U.S. 402 (1960).

4 Grisso, Thomas, Steinberg, Lawrence, Woolard, Jennifer, Cuffman, Elizabeth, Scott, Elizabeth, Graham, Sandra, Lexcen, Fran, Repucci, N. Dickon & Schwartz, Robert, Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333 (2003)CrossRefGoogle ScholarPubMed [hereinafter MacArthur Study].

5 See W. Vaughan Stapleton & Lee E. Teitelbaum, In Defense of Youth: A Study of the Role of Counsel in American Juvenile Courts (1972).

6 See Salekin, Randall T. et al., Juvenile Transfer to Adult Courts: A Look at the Prototypes for Dangerousness, Sophistication-Maturity, and Amenability to Treatment Through a Legal Lens, 8 Psychol. Pub. Pol’y & L. 373 (2002)Google Scholar.

7 Gilbert, Janet et al., Applying Therapeutic Principles to a Family-Focused Juvenile Justice Model (Delinquency), 52 Ala. L. Rev. 1153, 1166 (2001)Google Scholar.

8 See Giedd, Jay N. et al., Brain Development During Childhood and Adolescence: A Longitudinal MRI Study, 2 Nature Neurosci. 861 (1999)CrossRefGoogle ScholarPubMed; Scott, Elizabeth S. & Grisso, Thomas, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & Criminology 137 (1997)CrossRefGoogle Scholar; Scott, Elizabeth S., Judgment and Reasoning in Adolescent Decisionmaking, 37 Vill. L. Rev. 1607 (1992)Google Scholar; Shepherd, Robert E. Jr., The Relevance of Brain Research to Juvenile Defense, 19 Crim. Just. 51 (Winter 2005)Google Scholar; Spear, Patricia, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 Neuroscience & Biobehavioral Rev. 417 (2000)CrossRefGoogle ScholarPubMed.

9 See Gogtay, Nitin et al., Dynamic Mapping of Human Cortical Development During Childhood Through Early Adulthood, 101 Proc. Nat’l Acad. Sci. U.S. 8174 (2004)CrossRefGoogle ScholarPubMed.

10 Veysey, Bonita M. et al., Using the Referral Decision Scale to Screen Mentally Ill Jail Detainees: Validity and Implementation Issues, 22 Law & Hum. Behav. 205, 205 (1998)CrossRefGoogle ScholarPubMed (explaining that “[t]he U.S. jail population has substantially higher percentages of men and women with serious mental illnesses when compared to the general population … . Based on admissions to the Cook County Jail (Chicago, IL), researchers found that 6.1% of men and 15.0% of women had serious mental illnesses and were in need of treatment services. An estimated 686,000 persons with serious mental illnesses are booked into U.S. jails every year – almost 35,500 on any given day.” (citation omitted)).

11 Hubbard, Karen L. et al., Competency Restoration: An Examination of the Differences Between Defendants Predicted Restorable and Not Restorable to Competency, 27 Law & Hum. Behav. 127, 127 (2003)CrossRefGoogle Scholar.

12 See Potter, Cathryn C. & Jenson, Jeffrey M., Cluster Profiles of Multiple Problem Youth: Mental Health Problem Symptoms, Substance Use, and Delinquent Conduct, 30 Crim. Just. & Behav. 230 (2003)CrossRefGoogle Scholar.

13 See Grisso, Thomas, Society's Retributive Response to Juvenile Violence: A Developmental Perspective, 20 Law & Hum. Behav. 229 (1996)CrossRefGoogle Scholar.

14 See Salekin et al., supra note 6, at 373; Witt, Philip H., Transfer of Juveniles to Adult Court, The Case of H.H., 9 Psychol. Pub. Pol’y & L. 361 (2003)Google Scholar.

15 See Thomas Grisso, Double Jeopardy: Adolescent Offenders with Mental Disorders (2004) [hereinafter Grisso, Double Jeopardy]; Thomas Grisso, Juveniles Waiver of Rights: Legal and Psychological Competence (1981) [hereinafter Grisso, Juveniles Waiver]; Atkins, D. Lanette et al., Mental Health and Incarcerated Youth: Prevalence and Nature of Psychopathology, 8 J. Child & Fam. Studies 193 (1999)CrossRefGoogle Scholar; Baerger, Dana Royce et al., Competency to Stand Trial in Preadjudicated and Petitioned Juvenile Defendants, 31 J. Am. Acad. Psychiatry & L. 314 (2003)Google Scholar; Burnett, Darla M.R. et al., Adjudicative Competency in a Juvenile Population, 31 Crim. Just. & Behav. 438 (2004)CrossRefGoogle Scholar; Casimir, Kenneth C., & Billick, Stephen B., Competency in Adolescent Inpatients, 22 Bull. Am. Acad. Psychiatry & L. 19 (1994)Google ScholarPubMed; Cooper, Deborah K., Juveniles Understanding of Trial Related Information: Are They Competent Defendants?, 15 Behav. Sci. & L. 167 (1997)3.0.CO;2-E>CrossRefGoogle ScholarPubMed; Cowden, Vance L. & McKee, Geoffrey R., Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity and the Attorney-Client Relationship, 33 J. Fam. L. 629 (1994-95)Google Scholar; Grisso, Thomas, The Competence of Adolescents as Trial Defendants, 3 Psychol. Pub. Pol’y & L. 3 (1997)Google Scholar; Grisso, Thomas et al., Competency to Stand Trial in Juvenile Court, 10 Int’l J.L. & Psychiatry 10 (1987)Google ScholarPubMed; Heilbrun, Kirk et al., Juvenile Competence to Stand Trial: Research Issues In Practice, 20 Law & Hum. Behav. 573 (1996)CrossRefGoogle Scholar; Hoge, Robert D., An Expanded Role for Psychological Assessments in Juvenile Justice Systems, 26 Crim. Just. & Behav. 251 (1999)CrossRefGoogle Scholar; McKee, Geoffrey R., Competency to Stand Trial in Preadjudicatory Juveniles and Adults, 26 J. Am. Acad. Psychiatry & L. 89 (1998)Google ScholarPubMed; McKee, Geoffrey R. & Shea, Steven J., Competency to Stand Trial in Family Court: Characteristics of Competent and Incompetent Juveniles, 27 J. Am. Acad. Of Psychiatry & L. 65 (1999)Google ScholarPubMed; Peterson-Badali, Michele & Abramovitch, Rona, Children's Knowledge of the Legal System: Are They Competent to Instruct Legal Counsel?, 34 Can. J. Criminology 139 (1992)Google Scholar; Savitsky, Jeffrey C. & Karras, Deborah, Competency to Stand Trial Among Adolescents, 19 Adolescence 349 (1984)Google ScholarPubMed; Warren, Janet I. et al., Correlates of Adjudicative Competence Among Psychiatrically Impaired Juveniles, 31 J. Am. Acad. Psychiatry & L. 299 (2003)Google ScholarPubMed; Woolard, Jennifer L. et al., Theoretical and Methodological Issues in Studying Children's Capacities in Legal Contexts, 20 Law & Hum. Behav. 219 (1996)CrossRefGoogle Scholar.

16 See MacArthur Study, supra note 4.

17 See Boison, Elizabeth S., Comment, Mental Health Parity for Children and Adolescents: How Private Insurance Discrimination and ERISA Have Kept American Youth From Getting the Treatment They Need, 13 Am. U. J. Gender Soc. Pol’y & L. 187 (2005)Google Scholar; Boucher, Matt, Comment, Turning a Blind (White) Eye in Legislating Mental Health Parity: The Unmet, Overlooked Needs of the Working Poor in Racial and Ethnic Minority Communities, 19 J. Contemp. Health L. & Pol’y 465 (2003)Google ScholarPubMed; Horwitz, Jill R., Why We Need the Independent Sector: The Behavior, Law and Ethics of Not-For-Profit Hospitals, 50 UCLA L. Rev. 1345 (2003)Google ScholarPubMed; Land, April, Dead To Rights: A Father's Struggle to Secure Mental Health Services for His Son, 10 Geo. J. on Poverty L. & Pol’y 279 (2003)Google Scholar.

18 See MacArthur Study, supra note 4.

19 See McKee, Geoffrey R., Competency to Stand Trial in Low-IQ Juveniles, 19 Am. J. Forensic Psychiatry 3 (1998)Google Scholar.

20 See Dusky v. United States, 362 U.S. 402, 402 (1960).

21 See Mental Health Screening and Assessment in Juvenile Justice 25 (Thomas Grisso, Gina Vincent & Daniel Seagrove, eds., 2005) (“[A]bout one-half of youths in the juvenile justice system meet criteria for two or more mental disorders. Clinicians sometimes refer to this phenomenon as “comorbidity.” Comorbidity … is particularly evident during childhood and adolescence.”) (emphasis in original) (citation omitted).

22 Laurence Steinberg & Robert G. Schwartz, Developmental Psychology Goes to Court, in Youth On Trial: A Developmental Perspective on Juvenile Justice 9 (Thomas Grisso & Robert G. Schwartz eds., 2000); MacArthur Study, supra note 4, at 334 (“[B]asic research on cognitive and psychosocial development suggests that some youths will manifest deficits in legally relevant abilities similar to deficits seen in adults with mental disabilities, but for reasons of immaturity rather than mental disorder.” (citation omitted)).

23 See generally MacArthur Study, supra note 4.

24 See Sowell, Elizabeth R. et al., Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationship During Postadolescent Brain Maturation, 21 J. Neurosci. 8819 (2001)CrossRefGoogle ScholarPubMed; Sowell, Elizabeth R. et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 Nature Neurosci. 859 (1999)CrossRefGoogle ScholarPubMed.

25 See Dripps, Donald A., Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame, 56 Vand. L. Rev. 1383 (2003)Google Scholar.

26 Bertman, Lisa Jo et al., Effect of an Individualized Treatment Protocol on Restoration of Competency in Pretrial Forensic Inpatients, 31 J. Am. Acad. Psychiatry L. 27, 27 (2003)Google ScholarPubMed (“The most common reasons for deficits in pretrial competency abilities are psychotic symptoms and mental retardation, with the former being the most frequent. Mental illness or retardation per se do not, however, predict legal incompetency.”).

27 See Bell, Steven, Tate v. State: Highlighting the Need for a Mandatory Competency Hearing, 28 Nova L. Rev. 575, 602 (2004)Google Scholar (“[A] mandatory competency hearing would be a drain on judicial and other resources.”); Henning, Kristin, It Takes a Lawyer to Raise a Child?: Allocating Responsibilities Among Parents, Children, and Lawyers in Delinquency Cases, 6 Nev. L.J. 836, 843 (2006)Google Scholar (“[F]amilies are in the best position to rehabilitate children but often lack the skills or resources they need to do so … .”); Soler, Mark, Juvenile Justice in the Next Century: Programs or Politics?, 10 WTR Crim. Just. 27, 27 (1996)Google Scholar (“[J]uvenile courts, probation departments, and juvenile defenders struggle to meet crushing caseloads with sharply reduced resources.”).

28 See Redding, Richard E. & Frost, Lynda E., Adjudicative Competence in the Modern Juvenile Court, 9 Va. J. Soc. Pol’y & L. 353, 368 (2001)Google Scholar (“Twenty-six states address juvenile competency by statute, with statutes varying considerably in the amount of detail provided.”).

29 Dusky v. United States, 362 U.S. 402, 402-03 (1960) (requiring a defendant to have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him in order to be deemed competent to stand trial).

30 See Colo. Rev. Stat. § 19-2-1301(2) (2005) (“A juvenile shall not be tried or sentenced if the juvenile is incompetent to proceed, as defined in section 16-8-02(3), C.R.S., at that stage of the proceedings against him or her.”); Colo. Rev. Stat. § 16-8-102(3) (2005) (referring to Colorado's adult competency standard that defines incompetency to be “[when] the defendant is suffering from a mental disease or defect which renders him incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel”); D.C. Code Ann. § 16-2301(38) (2005) (“The term ‘incompetent to proceed’ means that a child alleged to be delinquent is not competent to participate … because he or she does not have the sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding or does not have a rational, as well as a factual, understanding or the proceedings against him or her.”); Fla. Stat. Ann. § 985.223(1)(f) (2005) (“A child is competent to proceed if the child has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and the child has a rational and a factual understanding of the present proceedings.”); S.C. Code Ann. § 44-23-410 (2004) (a juvenile “is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity … .”).

31 See Grisso, Thomas, Dealing With Juveniles’ Competence to Stand Trial: What We Need to Know, 18 Quinnipiac L. Rev. 371, 374-75 (1999)Google Scholar (“[Y]ouths must be capable of participating meaningfully in their defense …” and should exhibit a “minimum level of necessary comprehension”).

32 See generally Chin, Gabriel J. & Holmes, Richard W. Jr., Effective Assistance of Counsel & the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002)Google Scholar.

33 MacArthur Study, supra note 4 at 334 (“[B]asic research on cognitive and psychosocial development suggests that some youths will manifest deficits in legally-relevant abilities similar to deficits seen in adults with mental disabilities, but for reasons of immaturity rather than mental disorder. If there were empirical evidence for this, it would suggest that the criminal law should take immaturity into consideration when evaluating the adjudicative competence of youths in criminal court.” (citation omitted)).

34 Researchers report that:

Nordness, Philip D. et al., Screening the Mental Health Needs of Youths in Juvenile Detention, 53 Juv. & Fam. Ct. J. 43, 43-44 (2002)CrossRefGoogle Scholar.

35 Mitchell, David B., Building a Multidisciplinary, Collaborative Child Protection System, The Challenge to Law Schools, 41 Fam. Ct. Rev. 425, 432 (2003)Google Scholar.

36 The term used in most juvenile delinquency proceedings for “trials” is “adjudication hearings.” One author notes that the essentials are much the same between criminal court and juvenile court, but for the nomenclature:

Marrus, Ellen, Best Interests Equals Zealous Advocacy: A Not So Radical View of Holistic Representation for Children Accused of Crime, 62 Md. L. Rev. 288, 292-93 (2003)Google Scholar.

37 Coalition for Juvenile Justice, Handle With Care: Serving the Mental Health Needs of Young Offenders, 2000 Annual report 7-8 (2000).

38 See, e.g., Boothroyd, Roger A. & Armstrong, Mary I., Comorbidity and Unmet Service Needs Among Medicaid-Enrolled Children with Identified Disabilities, 13 J. Emotional & Behav. Disorders 43 (2005)CrossRefGoogle Scholar.

39 Bertman et al., supra note 27, at 27.

40 See, e.g., Wall, Barry W. et al., Restoration of Competency to Stand Trial: A Training Program for Persons With Mental Retardation, 31 J. Am. Acad. Psychiatry & L. 189 (2003)Google ScholarPubMed.

41 See Feld, Barry C., Competence, Culpability, and Punishment: Implications of Atkins for Executing and Sentencing Adolescents, 32 Hofstra L. Rev. 463, 523 (2003)Google Scholar (“The influx of more young juveniles into criminal courts raises questions about their ability to understand the trial process and to make critical legal decisions.”); Grisso, Thomas, Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reform, 12 Fall Crim. Just. 4, 5 (1997)Google Scholar (“Forensic mental health examiners across the country report a sudden increase in the demand for competency evaluations of youths, both in juvenile and criminal court proceedings.”); Johnson, Kellie M., Juvenile Competency Statutes: A Model for State Legislation, 81 Ind. L. J. 1067, 1079 (2006)Google Scholar (“Unfortunately, few state statutes actually recognize age or developmental immaturity as a valid basis for a juvenile incompetency finding.”).

42 See Burnett, Darla M.R. et al., Adjudicative Competency in a Juvenile Population, 31 Crim. Just. & Behav. 438 (2004)CrossRefGoogle Scholar.

43 See Shute, Nancy et al., The Perils of Pills: The Psychiatric Medication of Children is Dangerously Haphazard, U.S. News & World Rep., Mar. 6, 2000, at 44Google ScholarPubMed.

44 See Barbara Whitman, Psychological and Psychiatric Issues, in Recognition of Child Abuse For the Mandated Reporter 137 (Angelo P. Giardino & Eileen R. Giardino eds., 3d ed. 2002). See also Dong, Maxia et al., The Relationship of Exposure to Childhood Sexual Abuse to Other Forms of Abuse, Neglect, and Household Dysfunction During Childhood, 27 Child Abuse & Neglect 625 (2003)CrossRefGoogle ScholarPubMed. But see Widom, Cathy Spatz & Maxfield, Michael G., A Prospective Examination of Risk for Violence Among Abused and Neglected Children, 794 Annals N.Y. Acad. Sci. 224, 234 (1996)CrossRefGoogle ScholarPubMed (stating that the majority of abused and neglected children continue not to have arrests, and the relationship between early childhood victimization and later violent offending is not universal or deterministic).

45 See Katims, David S. et al., A Longitudinal Analysis of the Link Between Learning Disabilities and Juvenile Delinquency in Mexican American School-Age Youth, 48 Juv. & Fam. Ct. J. 23 (1997)CrossRefGoogle Scholar.

46 See Mitchell, supra note 36, at 10 (“It is not unusual for courts to encounter children who manifest their mental disorder in the form of suicidal ideation. Data on the correlation of suicide and mental health disorders within the juvenile population in court are just emerging, but the suggestion is evident that certain behaviors of children place them at greater risk of self-immolation.”).

47 See Page, Kathryn, The Invisible Havoc of Prenatal Alcohol Damage, 4 J. Center for Fam. Child., & Cts. 67, 67 (2003)Google Scholar (“According to a study of 1992 birth data, approximately 10[%] of live births in most California counties were ‘tox positive;’ the babies had alcohol and/or illegal drugs in their blood at the time of birth.”). See also Loue, Sana, The Criminalization of Addictions: Toward a Unified Approach, 24 J. Legal Med. 281 (2003)CrossRefGoogle Scholar; Plambeck, Cheryl M., Divided Loyalties: Legal and Bioethical Considerations of Physician-Pregnant Patient Confidentiality and Prenatal Drug Abuse, 23 J. Legal Med. 1 (2002)CrossRefGoogle ScholarPubMed.

48 See Cloud, Morgan et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495 (2002)CrossRefGoogle Scholar.

49 A 1995 study by Jaudes, Ekwo, and Van Voorhis, evaluated 513 children who were born between 1985 and 1990 and exposed to drugs in utero. They found that the rate of maltreatment reports was almost three times higher for these children than for children in a corresponding neighborhood. Jill Duerr Berrick et al., The Tender Years: Toward Developmentally-Sensitive Child Welfare Services for Very Young Children 35 (Duncan Lindsey ed., 1998) (citing Jaudes, Paula Kleinberger et al., Association of Drug Abuse and Child Abuse, 19 Child Abuse & Neglect 1065, 1065-75 (1995)CrossRefGoogle ScholarPubMed). See Hohman, Melinda M. et al., A Comparison of Pregnant Women Presenting for Alcohol and Other Drug Treatment by CPS Status, 27 Child Abuse & Neglect 303, 304 (2003)CrossRefGoogle ScholarPubMed (citing national estimates that 5.5% of women use an illicit drug and 18.8% of women drink alcohol during pregnancy, but other estimates in California and Florida report prenatal drug use at approximately 11-14% of all pregnant women). See also Cocaine, Effects on the Developing Brain (John A. Harvey & Barry E. Kosofsky eds., 1998); Davig, Sonja C., Crack-Cocaine Babies: Protecting Society's Innocent Victims, 15 Hamline J. Pub. L. & Pol’y 281 (1994)Google Scholar.

50 See generally, Bryan E. Robinson & J. Lyn Rhoden, Working With Children of Alcoholics (2d ed. 1998). See also Ira J. Chasnoff & Lee Ann Lowder, Prenatal Alcohol and Drug Use and Risk for Child Maltreatment, in Neglected Children: Research, Practice, and Policy 132 (Howard Dubowitz ed., 1999); Dube, Shanta R. et al., Growing Up with Parental Alcohol Abuse: Exposure to Childhood Abuse, Neglect, and Household Dysfunction, 25 Child Abuse & Neglect 1627, 1628 (2001)CrossRefGoogle ScholarPubMed (“Children of alcoholics are at increased risk for various childhood stressors such as abuse, neglect, witnessing domestic violence, or growing up with other forms of household dysfunction.”).

51 See generally Smith, Pamela J., Looking Beyond Traditional Educational Paradigms: When Old Victims Become New Victimizers, 23 Hamline L. Rev. 101 (1999)Google Scholar; Truly, Walteen Grady & Davis, Martha F., Public Education Programs for African-American Males: A Gender Equity Perspective, 21 N.Y.U. Rev. L. & Soc. Change 725 (1995)Google Scholar.

52 See Mounier, Carrie & Andujo, Estela, Defensive Functioning of Homeless Youth in Relation to Experiences of Child Maltreatment and Cumulative Victimization, 27 Child Abuse & Neglect 1187 (2003)CrossRefGoogle ScholarPubMed; Stein, Judith A. et al., Relative Contributions of Parent Substance Use and Childhood Maltreatment to Chronic Homelessness, Depression, and Substance Abuse Problems Among Homeless Women: Mediating Roles of Self-Esteem and Abuse in Adulthood, 26 Child Abuse & Neglect 1011 (2002)CrossRefGoogle ScholarPubMed; Tyler, Kimberly A. & Cauce, Ana Mari, Perpetrators of Early Physical and Sexual Abuse Among Homeless and Runaway Adolescents, 26 Child Abuse & Neglect 1261 (2002)CrossRefGoogle ScholarPubMed.

53 See generally Posttraumatic Stress Disorders in Children and Adolescents: Handbook (Raul R. Silva ed., 2004).

54 See Taussig, Heather N., Risk Behaviors in Maltreated Youth Placed in Foster Care: A Longitudinal Study of Protective and Vulnerability Factors, 26 Child Abuse & Neglect 1179, 1180 (2002)CrossRefGoogle ScholarPubMed (“The number of children in out-of-home care increased by 95.3% (280,000-547,000) from 1986 to 1999 … . In addition to suffering the consequences of child maltreatment, children placed in foster care are likely to experience additional trauma by being removed and often isolated from their homes, schools, friends, and family. Furthermore, these stressors may be exacerbated by frequent placement changes, not uncommon for older foster children.” (citations omitted)).

55 See generally Cohen, Judith A. et al., Treating Child Abuse-Related Posttraumatic Stress and Comorbid Substance Abuse in Adolescents, 27 Child Abuse & Neglect 1345 (2003)CrossRefGoogle ScholarPubMed.

56 One group of authors notes that:

Nordness et al., supra note 34, at 43.

57 Redding, Richard E., Why It Is Essential to Teach About Mental Health Issues in Criminal Law (And a Primer on How To Do It), 14 Wash. U. J.L. & Pol’y 407, 408-09 (2004)Google Scholar.

58 Enhancing the Mental Health and Well-Being of Infants, Children, and Youth in the Juvenile and Family Courts: A Judicial Challenge, 51 Juv. & Fam. Ct. J. 47 (Binard, Joey ed., 2000)CrossRefGoogle Scholar.

59 Id. at 48.

60 The Council identified a particularly compelling seven-year study in Orange County, California which tracked 6,000 first-time juvenile offenders for three years. Of these firsttime offenders, 8% went on to become 55% of the repeat offenders in the county. Mental health professionals working with these youth confirmed that more than half of them had mental health problems, including adjustment disorders, conduct, oppositional defiant and disruptive behavior disorders, attention deficit disorder, attention deficit hyperactivity disorder, anxiety disorders, and clinical depression. Assessments revealed that nearly half of the 8% of juveniles who went on to constitute 55% of repeat offenders lived in homes involving family violence. More than 60% involved marital discord. Id. at 47-48.

61 Atkins v. Virginia, 536 U.S. 304 (2002).

62 Id. at 318. See Kessler, Daniel B., Atkins v. Virginia: Suggestions for the Accurate Diagnosis of Mental Retardation, 43 Jurimetrics J. 415 (2003)Google Scholar; Mossman, Douglas, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M. L. Rev. 255 (2003)Google Scholar; Tobolowsky, Peggy M., Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them From Execution, 30 J. Legis. 77 (2003)Google Scholar.

63 Atkins, 536 U.S. at 319-20.

64 Id. at 318 (“Because of their impairments, [the mentally retarded] have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others … .Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”).

65 Anderson, Shawn D. & Hewitt, Jay, The Effect of Competency Restoration Training on Defendants With Mental Retardation Found Not Competent to Proceed, 26 Law & Hum. Behav. 343, 343-44 (2002)CrossRefGoogle Scholar.

66 Some may assert that even defendants with mental retardation may be capable of having their competency restored. In a report on the program used in a Rhode Island hospital – called the “Slater Method,” named after the hospital – involving fifteen defendants with MR, since 1997, five defendants were eventually adjudicated competent to stand trial; one was not adjudicated competent to stand trial by the court; four were declared not restorable to competency; and five others are undergoing “competency restoration training” but have not yet been restored to competency. See Wall et al., supra note 40, at 199. However, the “Slater Method” is not without critics. In the same issue of the American Academy of Psychiatry and the Law, Schouten wrote:

Schouten, Ronald, Commentary: Training for Competence–Form or Substance?, 31 J. Am. Acad. Psychiatry & L. 202, 202 (2003)Google ScholarPubMed.

67 One forensic evaluator explains the diagnostic criteria for mental retardation as follows:

Schlesinger, Louis B., A Case Study Involving Competency to Stand Trial: Incompetent Defendant, Incompetent Examiner, or “Malingering by Proxy”?, 9 Psychol. Pub. Pol’y & L. 381, 383 (2003)Google Scholar.

68 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 40-42 (4th ed. 1994).

69 Cloud et al., supra note 48, at 510-11.

70 See Anthony Biglan et al., Helping Adolescents At Risk: Prevention of Multiple Problem Behaviors (2004).

71 See Lee, Pauline et al., Early-Onset Schizophrenia in Children With Mental Retardation: Diagnostic Reliability and Stability of Clinical Features, 42 J. Am. Acad. Child & Adolescent Psychiatry 162 (2003)CrossRefGoogle ScholarPubMed.

72 Luckasson, Ruth et al., Am. Ass’n On Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 22 (9th ed. 1992)Google Scholar.

73 Anne S. Walters & Karyn Kaufman Blane, Mental Retardation, in Handbook of Infant Mental Health 271, 271 (Charles H. Zeanah, Jr. ed., 2d ed. 2000).

75 Id. at 272-73.

76 Id. at 273.

77 Id. at 275.

78 Id. at 279.

79 Id.

80 Anderson & Hewitt, supra note 65, at 346 (“[R]esearch has indicated that defendants with MR who are initially found not competent to proceed, are not likely to gain competency following treatment.” (citation omitted)).

81 Frost, Lynda E. & Volenik, Adrienne E., The Ethical Perils of Representing the Juvenile Defendant Who May Be Incompetent, 14 Wash. U. J.L. & Pol’y 327, 335 (2004)Google Scholar.

82 Id. at 344.

83 See Bertman et al., supra note 26.

84 See Ronald Schouten, supra note 66 (“I am concerned that competency training for individuals with mental retardation, even with attention to specific elements of competency … may lead to apparent attainment of the technical standard for competency to stand trial (CST) without developing the level of understanding necessary to be an informed participant in the trial process. As a result, there is a risk that the competency attained may be more form than substance, and the goal of ensuring that criminal defendants can meaningfully participate in their own defense will not be attained.”). See also Anderson & Hewitt, supra note 65.

85 MacArthur Study, supra note 4, at 335.

86 Steinberg, Laurence, Juveniles on Trial: MacArthur Foundation Study Calls Competency into Question, 18 Crim. Just. 20, 23 (2003)Google Scholar.

87 Id. at 20.

88 MacArthur Study, supra note 4, at 358.

89 Most states’ provisions refer to incompetency “by reason of mental illness or mental retardation.” See Wyo. Stat. Ann. § 14-6-219(c) (2004). See also Tenn. R. Juv. P. 29(a)(2) (2005) (requiring incompetency to be due to mental illness or mental retardation). Some states, however, have moved to a more inclusive incompetency statute, repealing former language requiring mental illness or mental retardation and replacing it with the more generic language, presumably allowing for additional grounds upon which to challenge a juvenile's competency. The District of Columbia, for example, has amended its juvenile incompetency provision, eliminating reference to mental illness and mental retardation. The statute now reads: “If as a result of mental examination the Division determines that a child alleged to be delinquent is incompetent to proceed … .” D.C. Code Ann. § 16-2315(c)(1) (2004). Colorado also eliminated a mental illness/mental retardation requirement, amending the juvenile competency statute with a provision referencing the adult competency standard, which provides: “‘Incompetent to proceed’ means the defendant is suffering from a mental disease or defect which renders him incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel.” Colo. Rev. Stat. § 16-8-102(3) (2005) (repealing Colo. Rev. Stat. § 19-2-702(1) (requiring developmental disabilities and/or mental illness)).

90 See Gogtay et al., supra note 9.

91 Scott, Elizabeth S. & Grisso, Thomas, Developmental Incompetence, Due Process, and Juvenile Justice Policy, 83 N.C. L. Rev. 793, 795 (2005)Google Scholar.

92 MacArthur Study, supra note 4, at 335.

93 Id.

94 Id.

95 Johnson v. Texas, 509 U.S. 350, 367-68 (1993). See also Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) (“Even the normal 16-year-old customarily lacks the maturity of an adult.”).

96 Arnett, Jeffrey, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339, 339 (1992)CrossRefGoogle Scholar.

97 Roper v. Simmons, 543 U.S. 551, 569 (2005) (holding application of the death penalty to juvenile offenders unconstitutional and violative of the Eighth and Fourteenth Amendments). In this landmark decision, the Court cited in the text of the opinion several studies published by various members and co-authors of the original MacArthur Study. E.g., Steinberg, Laurence & Scott, Elizabeth, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009 (2003)CrossRefGoogle ScholarPubMed; Scott & Grisso, supra note 8, at 137.

98 See MacArthur Study, supra note 4.

99 Fla. Stat. Ann. § 985.223(2) (2006).

100 Id.

101 The consequences for these juveniles may extend beyond their immediate incarceration. If these individuals engage in recidivist criminal misconduct, their delinquency records may be introduced for purposes of enhancing subsequent criminal sentences. See Feld, Barry C., The Constitutional Tension Between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts, 38 Wake Forest L. Rev. 1111, 1188 (2003)Google Scholar.

102 Steinberg, supra note 86, at 22.

103 Florida's juvenile competency statute is one exception. See Fla. Stat. Ann. § 985.223(2) (2006).

104 Steinberg, supra note 86, at 24.

105 Id. at 24-25.

106 MacArthur Study, supra note 4, at 335.

107 See Steinberg, supra note 86.

108 Id. at 23.

109 Id.

110 See, e.g., Viljoen, Jodi L. et al., Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions, Pleas, Communication with Attorneys, and Appeals, 29 Law & Hum. Behav. 253 (2005)CrossRefGoogle ScholarPubMed.

111 Jackson v. Indiana, 406 U.S. 715 (1972) (defendant was mentally retarded, unable to hear, speak, read, or write, and was found incompetent to stand trial for two robberies and unlikely to regain competency, nevertheless, the Court found it unconstitutional to institutionalize the defendant for the remainder of his life).

112 Id. at 717-19, 738.

113 Id. at 738.

114 See generally Kingree, J.B. et al., Child Maltreatment and Recidivism Among Adolescent Detainees, 30 Crim. Just. & Behav. 623 (2003)CrossRefGoogle Scholar.

115 See generally Handbook of Mental Health Interventions in Children and Adolescents: An Integrated Developmental Approach (Hans Steiner ed., 2004).

116 Jon Bauer concludes that:

Bauer, Jon, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans With Disability Act, 49 UCLA L. Rev. 93, 161 (2001)Google Scholar.

117 See id. at 165-66.

118 See Monica Ramirez Basco & A. John Rush, Cognitive-Behavioral Therapy for Bipolar Disorder 30-33 (2d ed. 2005).

119 Id. at 66.

120 Basco and Rush indicated that:

Id. at 54.

121 Depression and Bipolar Support Alliance, Depression and Bipolar Support Alliance Surveys, http://www.dbsalliance.org/survey/index.asp?survey_ID=1 (last visited Oct. 31, 2006). See Basco & Rush, supra note 118, at 21.

122 Basco & Rush, supra note 118, at 22.

123 Id. at 275.

124 There are a number of possible symptoms of conduct disorders, including: … bullying others, truancy or work absences, staying out at night despite parental prohibition before age 13, using alcohol or other substances before age 13, breaking into other's houses or cars, setting fire with the intent of causing serious damage, physical cruelty to people or animals, stealing or using more than once a weapon that could cause harm to others.

Am. Psychiatric ass’n, American Psychiatric Glossary 46 (Shahrokh, Narriman C. & Hales, Robert E. eds., 8th ed. 2003)Google Scholar.

125 According to one author:

Livingston, Margit, Desecrating the Ark: Animal Abuse and the Law's Role in Prevention, 87 Iowa L. Rev. 1, 66 (2001) (footnotes omitted)Google Scholar.

126 See Barbara J. Burns & Kimberly Hoagwood, Community Treatment for Youth: Evidence Based Interventions for Severe Emotional and Behavioral Disorders (2002).

127 See John E. Richters, Disordered Views of Aggressive Children: A Late Twentieth Century Perspective, in Understanding Aggressive Behavior in Children 208 (Craig F. Ferris & Thomas Grisso eds., 1996).

128 Grisso, Double Jeopardy, supra note 15, at 54.

129 Id. at 55.

130 These community based programs also pose dangers which must be avoided. For a discussion of the limitations of juvenile justice systems to “wayward” and “noncompliant” children, see Winick, Bruce J. et al., “Wayward and Noncompliant” People with Mental Disabilities: What Advocates of Involuntary Outpatient Commitment Can Learn From the Juvenile Court Experience with Status Offense Jurisdiction, 9 Psychol. Pub. Pol’y & L. 233 (2003)Google Scholar.

131 See Borduin, Charles M. et al., Multisystemic Treatment of Serious Juvenile Offenders: Long-term Prevention of Criminality and Violence, 63 J. Consulting & Clinical Psychol. 569 (1995)CrossRefGoogle ScholarPubMed.

132 Id. at 569-70.

133 See Henggeler, Scott W. et al., Multisystemic Therapy: An Effective Violence Prevention Approach for Serious Juvenile Offenders, 19 J. Adolescence 47 (1996)CrossRefGoogle ScholarPubMed (discussing the theoretical framework and findings of two studies on juvenile delinquents).

134 Biglan et al., supra note 70, at 177.

135 See Murphy, Eileen C., Multisystemic Therapy in the Juvenile Justice System: Changing Punishment into Treatment, 25 Child. Legal Rts. J. 29, 30 (2005)Google Scholar.

136 Biglan et al., supra note 73, at 178-79.

137 Byron P. Rourke & Jerel E. Del Dotto, Learning Disabilities: A Neuropsychological Perspective 90 (1994).

138 In the largest published study of psychiatric disorders among incarcerated youth, researchers found that 43% of males and 36% of females abused alcohol and that 27% of both males and females had substance abuse problems. See Domalanta, Dina et al., Prevalence of Depression and Other Psychiatric Disorders Among Incarcerated Youths, 42 J. Am. Acad. Child & Adolescent Psychiatry 477, 480 tbl.4 (2003)CrossRefGoogle ScholarPubMed.

139 See John S. Baer, Etiology and Secondary Prevention of Alcohol Problems with Young Adults, in Addictive Behaviors Across The Life Span 111, 112 (John S. Baer et al. eds., 1993).

140 Id. at 118.

141 See Philip P. Muisener, Understanding and Treating Adolescent Substance Abuse (1994).

142 Id. at 198-200 (this group is difficult to engage in substance abuse treatment; the conditions concurrent with their substance abuse tend to be difficult to assess and treat; and they are at high risk for relapsing).

143 “Withdrawal” is the cessation or significant reduction of use of a chemical substance in a person with a pattern of heavy or prolonged use of that substance, often accompanied by withdrawal symptoms. The withdrawal symptoms develop within a short period (usually hours) after cessation or significant reduction of use of a substance, and they tend to be specific for each substance. For instance, for alcohol, within hours of cessation of, or significant reduction in, the subject develops hand tremor and a variety of associated symptoms that may include nausea and vomiting; anxiety; perceptual disturbances such as transient visual, tactile, or auditory hallucinations or illusions with intact reality testing; sweating or increased pulse rate; psychomotor agitation; insomnia; and grand mal seizures. The most severe form is delirium tremens, which can be life-threatening. Withdrawal symptoms from amphetamines include a dysphoric mood and physiological changes such as fatigue, vivid and unpleasant dreams, insomnia or hypersomnia, and increased appetite. Withdrawal symptoms from cocaine addiction are the same as in amphetamine withdrawal. Am. Psychiatric Ass’n, supra note 124, at 199.

144 However, disagreement exists about the overall effectiveness of substance abuse treatment programs. See, e.g., Gittler, Josephine, The American Drug War, Maternal Substance Abuse and Child Protection: A Commentary, 7 J. Gender Race & Just. 237 (2003)Google Scholar.

145 See Relapse Prevention, Maintenance Strategies in the Treatment of Addictive Behaviors (G. Alan Marlatt & Dennis M. Donovan eds., 2d ed. 2005).

146 See, e.g., Mackin, Juliette R. et al., Breaking New Ground in Juvenile Justice Settings: Assessing for Competencies in Juvenile Offenders, 56 Juv. & Fam. Ct. J. 25 (2005)CrossRefGoogle Scholar.

147 See Rosenblum, Lisa, Note, Mandating Effective Treatment for Drug Offenders, 53 Hastings L.J. 1217 (2002)Google Scholar.

148 See Lisa Camino, Treating Sexually Abused Boys: A Practical Guide for Therapists and Counselors (2000).

149 See William C. Greer, Aftercare: Community Integration Following Institutional Treatment, in Juvenile Sexual Offending: Causes, Consequences, And Correction 417 (Gail Ryan & Sandy Lane eds., 1997).

150 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV] (posttraumatic stress disorder (PTSD) is indicated by exposure to a traumatic incident and characterized by re-experiencing, avoidance, numbing, and arousal symptoms. Although exposure is a prerequisite for the disorder, the majority of individuals who experience traumatic events do not develop PTSD); Philip A. Saigh, Assessment of PTSD in Children and Adolescents, in Posttraumatic Stress Disorders in children & Adolescents: Handbook 202, 202 (Raul R. Silva ed., 2004) (“In assessing PTSD in children and adolescents, clinical and structured interviews (called “multisource multimethod assessment paradigms”) are recommended.”).

151 Muisener notes that:

Muisener, supra note 141, at 207.

152 See generally Kingree et al., supra note 114 (meta-analysis of predictors of recidivism indicated that child maltreatment is closely associated with recidivism).

153 For a discussion of sex abuse treatment programs for boys, see Juvenile Sexual Offending, Causes, Consequences, and Correction (Gail Ryan & Sandy Lane eds., 1997); Camino, supra note 148; Bentovim, Arnon, Preventing Sexually Abused Young People From Becoming Abusers, and Treating the Victimization Experiences of Young People Who Offend Sexually, 26 Child Abuse & Neglect 661 (2002)CrossRefGoogle ScholarPubMed.

154 See Kim Mueser et al., Integrated Treatment for Dual Disorders, A Guide to Effective Practice (David H. Barlow ed., 2003).

155 Id. at 44.

156 Id. at 44-45.

157 See Domalanta et al., supra note 138 (because of the relatively brief lengths of stay and poor compliance with treatment following release, good mental health care may not result in significant improvement in long term mental health care without effective follow-up programs).

158 See Muisener, supra note 141, at 173 (“Teenagers, like all recovering people, are vulnerable to relapses throughout the four stages of recovery. Adolescent relapsing during the course of recovery is quite common.”).

159 The American Psychiatric Association recognizes that:

Am. Psychiatric Ass’n, Practice Guidelines for the Treatment of Psychiatric Disorders, Compendium 2002 265 (2002).

160 Sandra A. Brown, Recovery Patterns in Adolescent Substance Abuse, in Addictive Behaviors Across The Life Span: Prevention, Treatment, and Policy Issues 161, 168 (John S. Baer et al. eds., 1993) (citing 1989 study reporting that “adolescent addiction relapse rates in the first six months following treatment are relatively comparable to rates observed among adult addicts … . While adolescent relapse rates are relatively high at the one-year point (up to 85% by some estimates), the greater risk for relapse is in the initial months following treatment”).

161 See Castle, Caroline, Note, You Call That a Strike? A Post-Rucker Examination of Eviction From Public Housing Due to Drug-Related Criminal Activity of a Third Party, 37 Ga. L. Rev. 1435 (2003)Google Scholar; DiFonzo, James Herbie, Parental Responsibility for Juvenile Crime, 80 Or. L. Rev. 1 (2001)Google Scholar; Henning, Kristin, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public Housing Authorities Be Notified?, 79 N.Y.U. L. Rev. 520 (2004)Google Scholar.

162 Biglan et al., supra note 70, at 128-30 (the Iowa Strengthening Families Program (ISFP) is a seven session intervention focusing primarily on improving parental use of consequences and building better relationship skills in both parents and their children).

163 See Shepherd, supra note 8.

164 Faretta v. California, 422 U.S. 806 (1975).

165 See Godinez v. Moran, 509 U.S. 389 (1993) (the competence necessary to represent oneself is the competence to waive the right to counsel, not the competence to represent oneself). See generally, Self-Representation: Competency to Stand Trial Doesn't Always Establish Competency to Represent Self, 75 Crim. L. Rep. (BNA) 556 (2004)Google Scholar (discussing Brooks v. McCaughtry, 380 F.3d 1009 (7th Cir. 2004)).

166 Patricia Puritz et al., A Call for Justice: An Assessment of Access to Counsel And Quality of Representation In Delinquency Proceedings, 1995 A.B.A. Juv. Just. Center 7-8 [hereinafter A Call for Justice] (noting that “[w]aivers of counsel by young people are sometimes induced by suggestions that lawyers are not needed because no serious dispositional consequences are anticipated – or by parental concerns that they will have to pay for any counsel that is appointed. These circumstances raise the possibility –perhaps the likelihood—that a substantial number of juvenile waivers are not “knowing and intelligent.”).

167 Id.

168 Bookser, Susanne M., Comment, Making Gault Meaningful: Access to Counsel and Quality of Representation in Delinquency Proceedings for Indigent Youth, 3 Whittier J. Child & Fam. Advoc. 297, 304 (2004)Google Scholar (“Even more disturbing is the consistency of reports that waiver is usually an uninformed decision made without consulting with an attorney and based on limited and inadequate colloquy. Assessment observers report some judges not advising youth of their rights. However, more typically, sufficient time is not allowed for youth to absorb the information or to ask questions.”).

169 Id. at 304.

170 See Mlyniec, Wallace J., A Judge's Ethical Dilemma: Assessing A Child's Capacity to Choose, 64 Fordham L. Rev. 1873, 1874 (1996)Google Scholar.

171 See Nat’l Ass’n of Counsel for Children, NACC Recommendations for Representation of Children in Abuse and Neglect Cases 4 (2001).

172 See Katner, David R., Coming to Praise, Not to Bury, the New ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 14 Geo. J. Legal Ethics 103, 110 (2000)Google Scholar.

173 See generally Elrod, Linda D., An Analysis of the Proposed Standards of Practice for Lawyers Representing Children in Abuse and Neglect Cases, 64 Fordham L. Rev. 1999 (1996)Google Scholar.

174 See generally Katner, supra note 172 (advocating the adoption of ABA standards to provide attorneys with guidance and direction in representing juvenile clients).

175 Nat’l Ass’n of Counsel for Children, supra note 171.

176 U.S. Const. amend. V. See Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. United States, 530 U.S. 428 (2000) (holding that because Miranda was a “constitutional decision” it may not be overruled by Congress and it governs admissibility of statements made during custodial interrogation in both state and federal courts). See also Clymer, Steven D., Are Police Free to Disgard Miranda, 112 Yale L. J. 447 (2002)CrossRefGoogle Scholar (arguing that the Miranda doctrine is best understood as a constitutional rule of admissibility and police action is only restrained by due process requirements); Strauss, Marcy, Silence, 35 Loy. L.A. L. Rev. 101 (2001)Google Scholar (arguing for a broader reading of the Fifth Amendment privilege to bar evidence of pretrial silence for both impeachment purposes and in the government's case-in-chief); Van Kessel, Gordon, Quieting the Guilty and Acquitting the Innocent: A Close Look at a New Twist on the Right to Silence, 35 Ind. L. Rev. 925 (2002)Google Scholar (discussing rationales supporting the right to silence).

177 “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” U.S. Const. amend. VI. See generally Metzger, Pamela R., Beyond the Bright Line: A Contemporary Right to Counsel Doctrine, 97 Nw. U. L. Rev. 1635 (2003)Google Scholar (advocating an evolving and more expansive right to counsel in modern criminal law).

Model Rules of Prof’l Conduct R. 4.2 (2002).

A similar provision exists in the ABA Model Code of Professional Responsibility. Model Code of Prof’l Responsibility dr 7-104(A)(1) (2002). See also Rules of Prof’l Conduct of the State Bar of Cal. R. 2-100(A) (“While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”). Additionally, Comment 5 to ABA Model Rule 4.2 states in part:

Model Rules of Prof’L Conduct R. 4.2 cmt. 5 (2002).

179 See DeVaney, Brenna K., The “No-Contact Rule: Helping or Hurting Criminal Defendants in Plea Negotiations?, 14 Geo. J. Legal Ethics 933, 933-34 (2001)Google Scholar; Pierce, Carl A., Variations on a Basic Theme: Revisiting the ABA's Revision of Model Rule 4.2 (Part II), 70 Tenn. L. Rev. 321 (2003)Google Scholar.

180 The concept of waiving rights becomes especially problematic when the defendants are mentally impaired. See Cloud et al., supra note 48, at 495.

181 See Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics 231 (3d ed. 2004) (“An impartial judge is an essential component of an adversary system, providing a necessary counterpoise to partisan advocates. We may tolerate judges who lack wisdom or even good judgment, but if a trial judge is not impartial, there is a ‘structural defect’ in the trial, and reversal is required without consideration of the harmless error doctrine.”).

182 See generally Green, Bruce, Why Should Prosecutors Seek Justice?, 26 Fordham Urb. L.J. 607 (1999)Google Scholar (arguing that prosecutors represent the government and must act in accordance with government objectives); Freedman & Smith, supra note 184, at 305; Smith, Abbe, Can a Good Person Be A Good Prosecutor?, 14 Geo. J. Legal Ethics 355 (2001)Google Scholar (arguing that it is the role of the prosecutor to carry out social policy even if injustice results).

183 See Berkheiser, Mary, The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile Courts, 54 Fla. L. Rev. 577, 580 (2002)Google Scholar (because of the numerous cases where youths waive their right to counsel, studies show that one-half of juveniles accused of criminal acts appear in juvenile court without counsel “and enter pleas to crimes they may or may not have committed”).

184 This assumes that the child is not representing himself pro se.

185 Gideon v. Wainwright, 372 U.S. 335 (1963).

186 See Kamisar, Yale et al., Gideon at 40: Facing the Crisis, Fulfilling the Promise, 41 Am. Crim. L. Rev. 135, 140-41 (2004)Google Scholar; Reed, Stacey L., A Look Back at Gideon v. Wainwright After Forty Years: An Examination of the Illusory Sixth Amendment Right to Assistance of Counsel, 52 Drake L. Rev. 47, 51 (2003)Google Scholar.

187 See generally Taylor-Thompson, Kim, Tuning Up Gideon's Trumpet, 71 Fordham L. Rev. 1461 (2003)Google Scholar (discussing the right to counsel as a fundamental principle of the criminal justice system).

188 See Chin & Holmes, supra note 32, at 698.

189 See generally Stevens, John M., Waiver of Counsel in Pennsylvania: Constitutional Issues Facing Criminal Defendants, Counsel, and Courts, 12 Widener L. J. 29 (2003)Google Scholar (explaining the standard for determining a defendant's competency to waive the right to counsel).

190 For a scrutinizing review of the ability of mentally retarded defendants to intelligently, knowingly or voluntarily waive their Miranda rights following the Supreme Court's decision in Dickerson v. United States, see Cloud et al., supra note 48, at 495.

191 See Buss, Emily, “You’re My What?” The Problem of Children's Misperceptions of Their Lawyers’ Roles, 64 Fordham L. Rev. 1699 (1996)Google Scholar.

192 Frost & Volenik, supra note 81, at 329.

193 But see Chaplan, Janet A., Youth Perspectives on Lawyers’ Ethics: A Report on Seven Interviews, 64 Fordham L. Rev. 1763 (1996)Google Scholar.

194 See Rodney J. Uphoff, The Decision to Challenge the Competency of a Marginally Competent Client: Defense Counsel's Unavoidably Difficult Position, in Ethical Problems Facing the Criminal Defense Lawyer: Practical Answers to Tough Questions 30 (Rodney J. Uphoff ed., 1995).

195 See generally Ogletree, Charles J. Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239 (1993)CrossRefGoogle Scholar.

196 A Call for Justice, supra note 169, at 7.

197 See Green, Bruce A., Criminal Neglect: Indigent Defense from a Legal Ethics Perspective, 52 Emory L. J. 1169 (2003)Google Scholar.

198 See Marcus, Rebecca, Note, Racism in Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact Upon Racial Minorities, 22 Hastings Const. L.Q. 219, 223 (1994)Google Scholar.

199 See Bookser, supra note 171, at 304 (“[I]nsufficient funding hampers access to adequate counsel. Virginia represents one of the more extreme examples with juvenile cases ‘capped by statute at $120 per charge.’ (citation omitted). The lack of training, specialization, or experience in the area of juvenile defense by many attorneys further inhibits effective representation of indigent youth.”).

200 Id. at 305.

201 A Call for Justice, supra note 169, at 8.

202 Id.

203 See De Sario, Nicole J., The Quality of Indigent Defense on the 40th Anniversary of Gideon: The Hamilton County Experience, 32 Cap. U. L. Rev. 43, 43-44 (2003)Google Scholar.

204 See Lindsey, Michael L., Ethical Issues in Interviewing, Counseling, and the Use of Psychological Data with Child and Adolescent Clients, 64 Fordham L. Rev. 2035, 2050 (1996)Google Scholar.

205 Coalition for Juvenile Justice, supra note 38, at 7 (highlighting that the difficulty of correctly identifying mental health problems in children is not limited to attorneys, but that “children's and adolescents’ mental health problems are not recognized for what they are … even among people who work with and care for them”).

206 See De Sario, supra note 203, at 44; Ogletree, Charles J. Jr. & Sapir, Yoav, Keeping Gideon's Promise: A Comparison of the American and Israeli Public Defender Experiences, 29 N.Y.U. Rev. L. & Soc. Change 203, 214-15 (2004)Google Scholar; Wright, Ronald F., Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 Iowa L. Rev. 219 (2004)Google Scholar.

207 See generally Anne Graffam Walker, Handbook on Questioning Children: A Linguistic Perspective (2d ed. 1999).

208 For a preferred approach to questioning children involved in litigation, see id.; Wendy Bourg et al., A Child Interviewer's Guidebook (1999); Debra A. Poole & Michael E. Lamb, Investigative Interviews of Children (1998).

209 When the investigation team conducted site visits to determine how children were being represented in delinquency proceedings it found that at several sites,

A Call for Justice, supra note 166, at 8.

210 See generally David A. Binder & Paul Bergman, Fact Investigation, From Hypothesis to Proof (1984) (systematically considering process by which litigators gather, analyze, and use evidence to prove facts); Paul J. Zwier & Anthony J. Bocchino, Fact Investigation, A Practical Guide to Interviewing, Counseling, and Case Theory Development (2000) (providing guidance on effective pretrial procedures).

211 See Frost & Volenik, supra note 81, at 341.

212 Many of the children represented by the Tulane Juvenile Law Clinic are able only to indicate that they have “bad nerves” when questioned about their mental health history. Physicians’ names are forgotten because the children have been shuffled back and forth by a number of psychiatrists completing their post residency programs in local mental health clinics, and often each clinic visit is occasioned by a new physician seeing the patient. Juveniles seldom are familiar with the names of the medications these physicians have prescribed, unless they happen to have been taking the same medications for some period of time.

213 29 U.S.C. §§ 1181-1182 (2000); 42 U.S.C. § 300gg-41 (2000).

214 See Ruebner, Ralph & Reis, Leslie Ann, Hippocrates to HIPAA: A Foundation for a Federal Physician-Patient Privilege, 77 Temp. L. Rev. 505, 516-17 (2004)Google ScholarPubMed (defining “covered entity”).

215 See generally Ofer Zur, The HIPAA Compliance Kit: Understanding and Applying the Regulations in Psychotherapeutic Practice 9-10 (3d ed. 2005) (discussing “whether a therapist is a covered entity (CE), as defined by HIPAA”).

216 See Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (“[W]e hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.”). See also Ruschioni, Sherry L., Confidentiality of Mental Health Records in Federal Courts: The Path Blazed by Sabree v. United Brotherhood of Carpenters & Joinders of America, Local No. 33, 38 New Eng. L. Rev. 923, 930-34 (2004)Google ScholarPubMed (discussing the analysis in Jaffee v. Redmond, where the Supreme Court recognized a psychotherapist-patient privilege).

217 See Buroker, Daniel, Note, The Psychotherapist-Patient Privilege and Post-Jaffee Confusion, 89 Iowa L. Rev. 1373, 1381-88 (2004)Google Scholar (discussing the circuit split in the interpretation of Jaffee v. Redmond).

218 See generally Katner, David R., Confidentiality and Juvenile Mental Health Records in Dependency Proceedings, 12 Wm. & Mary Bill Rts. J. 511 (2004)Google Scholar (discussing the interests involved in the decision to allow juvenile mental health records in dependency proceedings).

219 See Redding & Frost, supra note 28, at 369-70 (“In all states, competence is presumed and the defense bears the burden of proving incompetence.”).

220 Id. Note, however, that Frost and Volenik argue that thirty-five states and the District of Columbia have case law or statutory provisions pertaining to adjudicative competence in juvenile proceedings; one state has rejected the competency requirement altogether, and the remaining states are silent on the issue. They indicate that “[b]ecause there is no clear constitutional requirement for a competence doctrine in juvenile court, procedures for raising and determining the issue vary from state to state. With some variations, they generally will track the procedures for adults … .” Frost & Volenik, supra note 81, at 334.

221 See Smithburn, J. Eric, The Trial Court's Gatekeeper Role Under Frye, Daubert, and Kumho: A Special Look at Children's Cases, 4 Whittier J. Child & Fam. Advoc. 3, 9-34 (2004)Google Scholar (examining the various standards that have been developed to determine the admissibility of expert testimony).

222 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585-98 (1993) (holding that the Frye “general acceptance” standard is superseded by the Federal Rules of Evidence, that scientific testimony or evidence needs to be relevant and reliable, and reliability is based on scientific validity).

223 Counsel for a juvenile client seeking to use mental healthcare experts must be aware of some of the disturbing problems recently identified since the Daubert ruling:

Dahir, Veronica B. et al., Judicial Application of Daubert to Psychological Syndrome and Profile Evidence, A Research Note, 11 Psychol. Pub. Pol’y & L. 62, 75 (2005)Google Scholar.

224 See Montoya, Jean, On Truth and Shielding in Child Abuse Trials, 43 Hastings L.J. 1259, 1277 (1992)Google Scholar; See also Barnes, David W., General Acceptance Versus Scientific Soundness: Mad Scientists in the Courtroom, 31 Fla. St. U. L. Rev. 303 (2004)Google Scholar.

225 See Capowski, John J., An Interdisciplinary Analysis of Statements to Mental Health Professionals Under the Diagnosis or Treatment Hearsay Exception, 33 Ga. L. Rev. 353, 365-69 (1999)Google Scholar (discussing limitations of expert testimony and introduction of hearsay when statements are made strictly for diagnosis).

226 Frost and Volenik suggest that:

Frost & Volenik, supra note 81, at 350-51.

227 See Norton, Martin L., The Physician Expert Witness and the U.S. Supreme Court – An Epidemiologic Approach, 21 Med. & L. 435, 442 (2002)Google ScholarPubMed (“[T]he phenomenon of the ‘professional’ expert witness … whose primary motivation is financial gain, creating an environment in which adversarial attorneys can pursue and win malpractice lawsuits that have little or no merit. The pathway leading to this group is found among attorneys anxious to ‘prove’ their case at any cost. These attorneys shop around for experts who are pliable to their judgmental attitudes.”).

228 See Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions 136 (1997) (discussing importance of relationship between attorney and expert consultant, analogizing to that between attorney and social worker).

229 See generally Stanley L. Brodsky, Testifying in Court, Guidelines and Maxims for the expert Witness (1991) (explaining what expert witnesses should expect, be prepared for, and do during their testimony to be successful witnesses); Expert Witnesses in Child Abuse Cases (Stephen J. Ceci & Helene Hembrooke eds., 1998) (discussing role of expert witness); Paul Stern, Preparing and Presenting Expert Testimony in Child Abuse Litigation, A Guide for Expert Witnesses and Attorneys 42-43 (1997) (discussing different role of consulting expert versus an expert witness).

230 Michael Perlin suggests that the representation of clients with mental disabilities involves more than “[m]erely educating lawyers about psychiatric techniques and psychological nomenclature” and he asserts that:

Perlin, Michael L., “You Have Discussed Lepers and Crooks”: Sanism in Clinical Teaching, 9 Clinical L. Rev. 683, 690 (2003)Google Scholar.

231 See Lopez, Gerald P., An Aversion to Clients: Loving Humanity and Hating Human Beings, 31 Harv. C.R.-C.L. L. Rev. 315, 315-21 (1996)Google Scholar (arguing the importance of understanding clients’ backgrounds and including clients in decisionmaking).

232 For a general discussion about training lawyers to communicate better in a variety of attorney-client relationships, see Rosenberg, Joshua D., Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, or Human Relationships in the Practice of Law, 58 U. Miami L. Rev. 1225 (2004)Google Scholar.

233 See Patton, William Wesley, Law Schools’ Duty to Train Children's Advocates: Blueprint for an Inexpensive Experientially Based Juvenile Justice Course, 45 Juv. & Fam. Ct. J. 3, 3 (1994)CrossRefGoogle Scholar (“[J]uvenile law is not taught as part of the core curriculum in most law schools.”).

234 Among those with fairly extensive programs in this discipline are University of Michigan's Child's Advocacy Law Clinic, see University of Michigan Law School: Centers and Programs, http://www.law.umich.edu/CentersandPrograms/clinical/calc/index.htm (last visited Oct. 31, 2006), Loyola of Chicago's CIVITAS program, see Loyola University Chicago School of Law: Child and Family Law Center, http://www.luc.edu/academics/special/center/child_family.shtml (last visited Oct. 31, 2006), and Whittier Law School's Center for Children's Rights, see Whittier Law School: Center for Children's Rights, http://www.law.whittier.edu/centers_clinics/childcenter.asp (last visited Oct. 31, 2006).

235 See Karen J. Saywitz, Developmental Underpinnings of Children's Testimony, in Children's Testimony, A Handbook of Psychological Research and Forensic Practice 3 (Helen L. Westcott et al. eds., 2002) (discussing “the importance of developmental trends in cognitive, communicative, social, and emotional development for illiciting and interpreting childrens’ testimony, and formulating policies for child-witness management”).

236 See generally James Morrison & Thomas F. Anders, Interviewing Children and Adolescents: Skills and Strategies for Effective DSM-IV Diagnosis (2001) (discussing “some of the methods commonly used to obtain information from patients and informants to make a diagnosis,” and the usual mental diagnoses “made during childhood or adolescence”).

237 See Jean Koh Peters, supra note 228 at 329-66.

238 See Guggenheim, Martin, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399, 1406-07 (1996)Google Scholar (arguing for a code to help counsel determine when a child is mature enough to make autonomous decisions). Physicians must confront similar issues when treating minors. See Jessica W. Berg et al., Informed Consent, Legal Theory and Clinical Practice 97-98 (2d ed. 2001).

239 See Gail A. Wasserman et al., Assessing the Mental Health Status of Youth in Juvenile Justice Settings, OJJDP Juv. Just. Bull., Aug. 2004, at 5 (recognizing the value of parental input in diagnosing ADHD while acknowledging its limitations), available at http://www.ncjrs.gov/pdffiles1/ojjdp/202713.pdf#search.

240 See Geraghty, Diane C., The Role of Legal Education in the Emerging Legal Specialty of Pediatric Law, 26 Loy. U. Chi. L.J. 131, 131 (1995)Google Scholar (explaining that law students’ exposure to the study of children and the law is generally limited to courses in family law or estates, where children's issues are secondary to the core subject matter of the course).

241 See Gavin, Jennifer R., Child Welfare Law Curricula in Legal Education: Massachusetts’ Untried Opportunity, 7 B.U. Pub. Int. L. J. 9, 9 (1998)Google Scholar (calling upon Bostonarea law schools to expand and enhance their participation in the child welfare community).

242 Courses involving clients with mental disabilities need not be limited to juvenile law. See, e.g., Redding, supra note 57, at 407. Judge David Mitchell, the executive director of the National Council of Juvenile and Family Court Judges, has commented that:

Mitchell, supra note 35, at 435.

243 Redding, supra note 57, at 407.

244 See Minow, Martha, Children's Studies: A Proposal, 57 Ohio St. L.J. 511, 512 (1996)Google Scholar (discussing how policies adopted by adults effect children).

245 See Connolly, Kim Diana, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 12-13 (2003)Google Scholar (emphasizing need for interdisciplinary legal training in light of today's complex world).

246 See Marrus, supra note 36 at 350-52 (discussing the many training programs that can help independent lawyers who accept juvenile cases).

247 See generally Haynsworth, Harry J., Post-Graduate Legal Education in the United States, 43 S. Tex. L. Rev. 403, 403 (2002)Google Scholar (thirty-nine states currently have mandatory continuing legal education requirements).

248 The NACC is based in Denver, Colorado, and is the oldest and largest national organization of attorneys (and other professionals) who represent children in the legal system. The ABA offers a conference every other year, and in 2004, the conference was a joint effort of the ABA in association with the American Psychological Association, indicating the increased awareness of the significance of interdisciplinary training for attorneys representing child clients.

249 See National Association of Counsel for Children Juvenile Attorney (Child Welfare) Certification Project: Program: Program Summary, Representing Children, Families, and Agencies in Child Welfare, Juvenile Justice, Custody, and Adoption Proceedings 379 (Children's Law Manual Series, 2004 ed.)Google Scholar; Ventrell, Marvin & Duquette, Don, National Association of Counsel for Children: Draft Brochure for Board Certification for Juvenile Law Child Welfare Attorneys, Access to Justice for Children 425 (Children's Law Manual Series, 2003 ed.)Google Scholar.

250 See Katner, David R., The Nexus of Dependency and Delinquency: Requesting Dependency Lawyers to Handle Delinquency Cases, 3 Mich. Child Welfare L. J. 2, 3 (1999)Google Scholar (suggesting it would be beneficial for dependency lawyers to take on some delinquency cases because they posses expertise in the legal needs of children).

251 See Engler, Russell, From 10 to 20: A Guide to Utilizing the MacCrate Report Over the Next Decade, 23 Pace L. Rev. 519, 527 (2003)Google Scholar (looking at the MacCrate Report's influence on development of professional skills and values).

252 See Costonis, John J., The MacCrate Report: Of Loaves, Fishes, and the Future of American Legal Education, 43 J. Legal Educ. 157 (1993)Google Scholar (discussing MacCrate Report's advocacy for practitioner-oriented concept of legal education).

253 See Connolly, supra note 249.

254 See Barry, Margaret Martin et al., Clinical Education for this Millennium: The Third Wave, 7 Clinical L. Rev. 1, 68 (2000)Google Scholar (discussing, in part, the future of multidisciplinary practice, “MDP,” and clinical education).

255 See Voyvodic, Rose & Medcalf, Mary, Advancing Social Justice Through an Interdisciplinary Approach to Clinical Legal Education: The Case of Legal Assistance of Windsor, 14 Wash. U. J.L. & Pol’y 101 (2004)Google Scholar (claiming benefits of placing law students at a downtown community legal clinic staffed by lawyers and social workers).

256 See Clarke, Cait, Problem-Solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing Counsel to the Poor, 14 Geo. J. Legal Ethics 401, 423 (2001)Google Scholar (most defenders are trained or equipped to adequately address social service issues).

257 According to a recent publication released by the Commonwealth Fund, children are receiving suboptimal healthcare, and “three fourths of children with severe mental health problems are not evaluated or treated.” Mitka, Mike, Report Cites Shortcomings in Quality of Pediatric Health Care, 291 J. Am. Med. Ass’n 2688, 2688 (2004)Google ScholarPubMed.

258 American Bar Association Model Rule of Professional Conduct 1.1 requires that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Model Rules of Prof’l Conduct R. 1.1 (1983) (emphasis added). Under the old ABA Model Code of Professional Responsibility, Disciplinary Rule 6-101 defined failure to act competently, “A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.” Model Rules of Prof’l Responsibility DR 6-101 (1980) (emphasis added).

259 See Angold, Adrian et al., Impaired But Undiagnosed, 38 J. Am. Acad. Child & Adolescent Psychiatry 129, 129 (1999)CrossRefGoogle ScholarPubMed (asserting that standardized diagnostic interviews with children often do not meet criteria for any diagnosis).

260 See Tulman, Joseph B. & Hynes, Mary C., Enforcing Special Education Law on Behalf of Incarcerated Children: A Blueprint for Deconstruction, 18 Child. Legal Rts. J. 72, 72 (1998)Google Scholar (disabilities suffered by children in delinquency systems are often undiagnosed or untreated).

261 See Land, supra note 17, at 280.

262 See Boucher, supra note 17, at 467.

263 Whitfield, Wenona, Caring for Our Children: Delivery of Mental Health Services to Children and Adolescents, 25 J. Legal Med. 1 (2004)CrossRefGoogle ScholarPubMed.

264 Davoli, Joanmarie Ilaria, No Room at the Inn: How the Federal Medicaid Program Created Inequities in Psychiatric Hospital Access for the Indigent Mentally Ill, 29 Am. J.L. & Med. 159, 162 (2003)CrossRefGoogle ScholarPubMed.

265 For an interesting discussion about the high rates of mental disorders among prison inmates in rural settings, see Powell, Thomas A. et al., The Prevalence of Mental Illness Among Inmates in a Rural State, 21 Law & Hum. Behav. 427 (1997)CrossRefGoogle Scholar.

266 The suitability of existing forensic assessment instruments for competency restoration evaluations has yet to be established. See Ustad, Karen et al., Restoration of Competency to Stand Trial: Assessment With the Georgia Court Competency Test and the Competency Screening Test, 20 Law & Hum. Behav. 131, 132 (1996)CrossRefGoogle Scholar.

267 See Hughes, Theresa A., Juvenile Delinquent Rehabilitation: Placement of Juveniles Beyond Their Communities As A Detriment to Inner-City Youths, 36 New Eng. L. Rev. 153 (2001)Google Scholar.

268 This measure used data provided by the U.S. Office of Management and Budget. The official poverty measure consists of a series of income thresholds based on family size and composition. The 2003 poverty line was $14.824 for a family of one adult and two children. The child poverty rate in the U.S. is among the highest in the developed world. Kids Count Data Book 50 (Annie E. Casey Foundation ed., 2005).

269 As the director of the Tulane Juvenile Law Clinic in New Orleans, the author has represented many juveniles in delinquency cases who received treatment at local mental health centers staffed by different physicians at each office visit. Two local medical schools (LSU and Tulane) staff the mental health clinics on a rotational calendar basis, so not only are the physicians different at each of the juveniles’ office visits, but the physicians are associated with different teaching institutions as well. This arrangement might allow the medical schools to train their psychiatric residents, but it severely compromises the continuity in treatment provided to adolescent patients.

270 The impact of the lack of continuity in services is especially acute in the area of public institutions providing treatment for juveniles:

Altschuler, David M. & Armstrong, Troy L., Juvenile Corrections and Continuity of Care in a Community Context – The Evidence and Promising Directions, 66 Fed. Probation 72, 72-73 (2002)Google Scholar (citation omitted).

271 Students in their third year of law school are allowed to practice law under the supervision of a licensed member of the bar or the school's faculty pursuant to the Louisiana Supreme Court Rule XX, the student practice rule. La. Sup. Ct. R. XX (1999). Tulane has offered free legal services to indigents in the greater New Orleans area through in-house clinical programs since 1980.

272 For example, one authority notes that for treatment of bipolar disorder in children, mood stabilizers – i.e. lithium, and the anticonvulsants Tegretol and Depakote – or atypical antipsychotics – i.e. Neurontin (gabapentin), Lamictal (lamotrogine), Topamax (topiramate), Gabitril (tiagabine), and Trileptal (oxcarbazepine) – should be prescribed, and because these may require high doses, the child's blood levels should be checked and side effects must be closely monitored. However, the drug's full effect on the child's mood instability and associated problems may not be noticed until 3 months have passed since the start of the medication. Timothy E. Wilens, Straight Talk About Psychiatric Medications for Kids 166-67 (rev. ed. 2004).

273 One study documented thirteen to fourteen million Americans experiencing major depression each year (or 6.6% of the population), yet only one in five people suffering from mental illness received adequate treatment according to a national study by Harvard Medical School researchers. Less than half the patients suffering from depression received “proper care.” The slowness of antidepressants and mood stabilizers, which require two to three weeks to work, resulted in many people dropping out of treatment. The study also documented erroneous dosing of antidepressants by physicians as a barrier to proper treatment. See Christopher Windham, More People Treated for Depression: Stigma Recedes, But Study Finds That Most Sufferers Don't Get Adequate Care, Wall St. J., June 18, 2003, at D3.

274 Some psychiatric experts caution physicians prescribing medication to children and adolescents:

Shashank V. Joshi et al., Psychological Aspects of Pediatric Medication Management, in Handbook of Mental Health Interventions in Children and Adolescents, An Integrated Developmental Approach 465, 469 (Hans Steiner ed., 2004).

275 See Wilens, supra note 272, at 167.

276 See Cohen, I. Glen, Therapeutic Orphans, Pediatric Victims? The Best Pharmaceuticals for Children Act and Existing Pediatric Human Subject Protection, 58 Food & Drug L.J. 661, 662 (2003)Google ScholarPubMed; Labson, Michael S., Pediatric Priorities: Legislative and Regulatory Initiatives to Expand Research on the Use of Medicines in Pediatric Patients, 6 J. Health Care L. & Pol’y 34, 35 (2002)Google ScholarPubMed.

277 Robert M. Nelson, Children As Research Subjects, in Beyond Consent: Seeking Justice in Research 47 (Jeffrey P. Kahn et al. eds., 1998). See generally Breslow, Lauren Hammer, Note, The Best Pharmaceuticals for Children Act of 2002: The Rise of the Voluntary Incentive Structure and Congressional Refusal to Require Pediatric Testing, 40 Harv. J. on Legis. 133 (2003)Google ScholarPubMed (looking at history of pediatric research and Act's unique incentive and public funding structure); Karst, Kurt R., Pediatric Testing of Prescription Drugs: The Food and Drug Administration's Carrot and Stick for the Pharmaceutical Industry, 49 Am. U. L. Rev. 739 (2000)Google ScholarPubMed (discussing the interplay between providing new drugs in exchange for patent exclusivity while allowing the FDA to require all drugs be tested in pediatric populations regardless of their market potential); Rachel Zimmerman, Child Play: Pharmaceutical Firms Win Big on Plan to Test Adult Drugs on Kids, Wall St. J., Feb. 5, 2001, at A1.

278 See, e.g., Jerrold S. Maxmen & Nicholas G. Ward, Psychotropic Drugs Fast Facts (3d ed. 2002).

279 See Morrison, Maria A., Changing Perceptions of Mental Illness and the Emergence of Expansive Mental Health Parity Legislation, 45 S.D. L. Rev. 8, 8-9 (2000)Google Scholar (the stigma and misinformation associated with the use of mental health care have discouraged many people from seeking mental health services because of the perception that the mentally ill are responsible for their condition).

280 See Murrie, Daniel C. et al., Psychopathy, Conduct Disorder, and Stigma: Does Diagnostic Labeling Influence Juvenile Probation Officer Recommendations?, 29 Law & Hum. Behav. 323, 337 (2005)CrossRefGoogle ScholarPubMed (the study involved 260 juvenile probation officers, and “found no results specific to the psychopathy diagnosis” but recognized the “need to know whether legal decision makers respond to the finding that a juvenile has a diagnosable mental disorder …”).

281 An article in the N.Y. Times reported that:

Robert Pear, Mental Disorders Common, U.S. Says; Many Not Treated, N.Y. Times, Dec. 13, 1999, at A1.

282 See Karyn-Siobhan Robinson, Stigma Prevents Depressed Workers from Seeking Treatment, Study Shows, Hum. Resource Mag., June 1, 2004, at 50.

283 See Sirey, Jo Anne et al., Perceived Stigma As A Predictor of Treatment Discontinuation in Young and Older Outpatients With Depression, 158 Am. J. Psychiatry 479, 479 (2001)CrossRefGoogle Scholar.

284 See generally Dunlap, Justine A., Mental Health Advance Directives: Having One's Say?, 89 Ky. L.J. 327, 382 (Winter 2000-01)Google ScholarPubMed (exploring the extension of advance directives to psychiatric treatment); Gostin, Lawrence O. & Gable, Lance, The Human Rights of Persons With Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health, 63 Md. L. Rev. 20 (2004)Google ScholarPubMed (explaining how international human rights law can be used to “advance the rights and freedoms” of the mentally diasabled); Morrison, supra note 283, at 8.

285 Naffine, Ngaire, The Legal Presumption of Reason: Noble Truth, Useful Fiction, Ignoble Lie, 53 Clev. St. L. Rev. 1, 7 (2005)Google Scholar.

286 Skeem, Jennifer L. et al., Venirepersons's Attitudes Toward the Insanity Defense: Developing, Refining, and Validating a Scale, 28 Law & Hum. Behav. 623, 624 (2004)CrossRefGoogle ScholarPubMed.

287 See Kelley, Patrick, Infancy, Insanity, and Infirmity in the Law of Torts, 48 Am. J. Juris. 179 (2003)CrossRefGoogle Scholar (discussing tort liability rules related to children, the physically disabled, mentally ill, and mentally deficient).

288 Goldstein notes that:

Abraham S. Goldstein, The Insanity Defense 19 (1967).

289 In discussing the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD), evaluators assert that:

Hoge, Steven K. et al., The MacArthur Adjudicative Competence Study: Development and Validation of a Research Instrument, 21 Law & Hum. Behav. 141 (1997) (citation omitted).CrossRefGoogle ScholarPubMed

290 See generally Mossman, Douglas, Unbuckling the “Chemical Straitjacket”: The Legal Significance of Recent Advances in the Pharmacological Treatment of Psychosis, 39 San Diego L. Rev. 1033 (2002)Google ScholarPubMed (discussing pharmacological treatments that may allow patients with various forms of psychosis to regain competency).

291 See generally Fentiman, Linda C., Whose Right Is It Anyway? Rethinking Competency to Stand Trial in Light of the Synthetically Sane Insanity Defendant, 40 U. Miami L. Rev. 1109 (1986)Google Scholar (arguing an incompetent defendant's right to present and conduct his defense supersedes state's interest in assuring his competency via psychotropic medicine); Propst, Joanne R., Restoring Competency: Does the State Have the Right to Force Anti-Psychotic Medications on the Mentally Ill Pretrial Detainee?, 49 Drake L. Rev. 147 (2000)Google Scholar (suggesting a strict scrutiny standard for reviewing efforts to forcibly medicate criminal defendants).

292 If defense counsel believes that a legal or factual defense strategy is weak or nonexistent, counsel's strategy might be to advise the client to refrain from taking prescribed medications in order to prolong the time period during which the client remains incompetent to go to trial. Although this strategy might result in delaying the legal proceedings and create some advantage for the defense (i.e. witnesses lose interest in returning to court after a long delay, or perhaps witnesses move away), it might also raise legal ethics concerns if the sole purpose is to delay the legal proceedings. ABA Model Rule 4.4 cautions that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person … .” Model Rules of Prof’l Conduct R. 4.4 (1983) (emphasis added).

293 See Dunlap, supra note 284, at 327; Feinberg, Aimee, Note, Forcible Medication of Mentally Ill Criminal Defendants: The Case of Russell Eugene Weston, Jr., 54 Stan. L. Rev. 769 (2002)CrossRefGoogle Scholar; Freeman, Vickie L., Reassessing Forced Medication of Criminal Defendants in Light of Riggins v. Nevada, 35 B.C. L. Rev. 681 (1994)Google Scholar; Winnick, Bruce J., Psychotropic Medication in the Criminal Trial Process: The Constitutional and Therapeutic Implications of Riggins v. Nevada, 10 N.Y.L. Sch. J. Hum. Rts. 637 (1993)Google Scholar.

294 Riggins v. Nevada, 504 U.S. 127, 138 (1992).

295 Sell v. United States, 539 U.S. 166, 186 (2003).

296 Id. at 179.

297 Id. at 185.

298 This seems especially compelling in the case of juveniles with suicidal ideation. The 2000 Annual Report on the Mental Health Needs of Young Offenders indicated that youth suicide in juvenile detention and correctional facilities occurs four times more often than youth suicide in the general public. Coalition for Juvenile Justice, supra note 37, at 14 (“Up to 19[%] of youth involved in the juvenile justice system may be suicidal.”).

299 For some years the author mostly represented adults challenging their competency in the second largest criminal justice system in Louisiana. The author routinely subpoenaed the prison logs to determine how much time the mental health evaluators actually spent with the defendants challenging competency. It was not unusual for psychiatrists and psychologists appointed by courts to spend less than ten minutes with the accused when making their competency evaluations. When questioned about the brevity of their patient interviews and assessments, evaluators explained that they were only compensated $250 per patient by the state. Thus, speaking with family members, reviewing past medical records, or conducting psychological tests was rarely included in a defendant's competency evaluation. Such practices reduce the reliability of competency evaluations and fail to comply with recommended protocols in forensic psychiatry and psychology. However, given the limited amount of fees paid for forensic evaluations in the criminal justice system and in delinquency systems, these inadequate evaluations continue to be accepted in court proceedings today.

300 One author notes that:

E. Fuller Torrey, Stop the Madness, Wall St. J., July 18, 1997 at A14.

301 See Martin, Graham et al., Sexual Abuse and Suicidality: Gender Differences in a Large Community Sample of Adolescents, 28 Child Abuse & Neglect 491 (2004)CrossRefGoogle Scholar; Oates, R. Kim, Sexual Abuse and Suicidal Behavior, 28 Child Abuse & Neglect 487 (2004)CrossRefGoogle ScholarPubMed.

302 Sonja K. Schoenwald & Melisa D. Rowland, Multisystemic Therapy, in Community Treatment for Youth: Evidence-Based Interventions for Severe Emotional and Behavioral Disorders 93 (Barbara J. Burns & Kimberly Hoagwood eds., 2002).

303 See generally Odgers, Candice L. et al., Examining the Science and Practice of Violence Risk Assessment with Female Adolescents, 29 Law & hum. Behav. 7 (2005)CrossRefGoogle ScholarPubMed (discussing recent developments in risk-assessment instruments for males).

304 In many instances, juveniles simply need instruction or education about the juvenile justice system in order to be declared “competent.” However, other juveniles require treatment and or medication. Some assert that “[m]ost defendants’ competence can be restored in a relatively short period of time.” See, e.g., Frost & Volenik, supra note 81, at 331.

305 This intervention should begin with a psychopharmacological evaluation of the child and, in most cases, the family as well. It requires an assessment by a physician, possible additional psychological testing, and in some instances neuropsychological testing, or neurological tests such as an electroencephalogram (EEG), a computed tomography (CT) scan, or magnetic resonance imaging (MRI). See Wilens, supra note 234, at 55.

306 See Scott W. Henggeler et al., Serious Emotional Disturbance in Children and Adolescents: Multisystemic Therapy 3-10 (2002) (discussing MST, a family and community-based treatment model originally developed in the late 1970s to address the mental health needs of juvenile offenders, best known for its success in reducing long-term rates of re-arrest and out-of-home placement for violent and chronic juvenile offenders).

307 One author notes that “[t]he process of competency restoration is hardly easy: the drugs most often at issue in the forced medication cases – antipsychotic drugs – have substantial and debilitating side effects.” Swedlow, Kathy, Forced Medication of Legally Incompetent Prisoners: A Primer, 30 Hum. Rts. 3, 4 (2003)Google Scholar.

308 It may be somewhat misleading to use expressions such as “regaining competence” when discussing minors with serious mental health problems. The expression presupposes the minors were legally competent to stand trial at some point in time when they might never have been competent. Nevertheless, “regaining” or “restoring” competence is one of the current stated objectives in mental health services provided to minors found to be lacking in competence in delinquency adjudication hearings.

309 Frost & Volenik, supra note 81, at 331 (“[I]f a defendant cannot be restored in a relatively reasonable time frame, he must be released. Jackson v. Indiana, 406 U.S. 715, 738 (1972). Some states provide by law that civil commitment proceedings can be initiated at the time, or permit the court to commit the defendant.”).

310 The “regaining” or “restoring” of competency – terms which appear to be in vogue with forensic experts – remains something of a misnomer. In the case of some juveniles suffering mental disorders which may be treated, “regaining” or “restoring” competency works on a conceptual level. For other juveniles, those suffering severe mental retardation for example, the notion that services might somehow allow them to “regain” their competency or have competency “restored” is misleading at best. Some of these juveniles were not competent to begin with, so the notion that they can “regain” competence or have “competence restored” is something of a non sequitur. Additionally, for juveniles whose developmental immaturity is the cause of their lack of competence, the notion that services will allow them to “regain” competence or have their “competence restored” simply does not make sense.

311 Henggeler et al., supra note 306, at 163.

312 See Campbell, Mary Ann & Schmidt, Fred, Comparison of Mental Health and Legal Factors in the Disposition Outcome of Young Offenders, 27 Crim. Just. & Behav. 688 (2000)CrossRefGoogle Scholar.

313 See Nat’l Mental Health Association, Privatization and Managed Care in the Juvenile Justice System (2005), available at http://nmha.org/children/justjuv/juvenilejustice-privatization.pdf.

314 See generally Bookser, supra note 168.

315 See Skeem, Jennifer L. at al., Logic and Reliability of Evaluations of Competence to Stand Trial, 22 Law & Hum. Behav. 519, 520 (1998)CrossRefGoogle ScholarPubMed (“[S]tudies have uniformly concluded that judges often defer to the opinions of examiners, with rates of judge-examiner agreement typically exceeding 90% … .”).

316 Jean Koh Peters, in noting the tremendous amount of time and energy necessary for a court-appointed evaluator to investigate and prepare a thoughtful, comprehensive evaluation (including obtaining and reviewing all relevant records, interviewing all relevant parties and service providers, preparing written reports detailing their findings, and then testifying in courts) laments that:

Jean Koh Peters, supra note 228 at 139.

317 Criminal accountability is a fundamental tenet of criminal justice founded on the needs of the victims, community, and the accused.

318 Absent competent screenings and actual treatment, some of these juveniles resort to violence while being locked up in juvenile detention centers awaiting adjudication. The system itself perpetuates the circle of violence. In Los Angeles, it was found that “[i]nadequate screening for mental health issues as juveniles entered the system and insufficient care for those juveniles actually diagnosed with a mental illness led to an increase in violence among juveniles in placement facilities and in juvenile halls who suffered from an untreated mental illness.” DiGiovanni, Agata, The Los Angeles County Juvenile Mental Health Court: An Innovative Approach to Crime, Violence, and Delinquency Among Our Youth, 23 J. Juv. L. 1, 3 (2003)Google Scholar.

319 This is not to suggest that all children in delinquency systems should be administered antipsychotic drugs. This should only occur on a patient by patient review, and it requires a treating physician's decision and approval where appropriate. Concerns have been raised about the increase in the prescription of psychotropic drugs in children and adolescents in the U.S. over the last decade. In Florida, for instance, the Agency for Health Care Administration (AHCA) revealed that more than 9,500 children on Medicaid had been treated with psychotropic drugs in 2000. The use of psychotropic drugs by preschoolers was especially disturbing because most of the drugs had not been approved for use in young children by the Federal Food and Drug Administration (FDA). See Fla. Statewide Advoc. Council, Red Item Report, Psychotropic Drug Use in Foster Care 2003, available at http://www.floridasac.org/sacweb/documents/red_psychotropic.doc.

320 See generally Steven R. Pliszka et al., ADHD With Comorbid Disorders (1999) (discussing comorbidity of ADHD and suggesting assessment and treatment models).

321 See Maxmen & Ward, supra note 278.

322 One study that included comprehensive psychological assessments of fifty juvenile offenders in Virginia concluded:

Wolber, Greg J. & Banze, Barbara A., The Psychological Assessment and Management of Problem Areas Contributing to Adolescent Criminal Behavior, 49 Juv. & Fam. Ct. J. 1, 6 (1998)CrossRefGoogle Scholar.

323 See Henggeler et al., supra note 306.

324 For instance, the New York Attorney General filed civil suit against GlaxoSmithKline, a British-based pharmaceutical company, for fraudulently failing to inform physicians that some studies of the antidepressant medication Paxil did not work on adolescents, possibly leading to suicidal ideation in some adolescent patients. Gardiner Harris, Spitzer Sues a Drug Maker, Saying it Hid Negative Data, N.Y. Times, June 3, 2004, at A1.

325 “There are few empirical studies that measure the effectiveness of mental health treatment and the outcomes for juveniles with mental illness in the juvenile justice population. National studies estimate that [50 to 75%] of juveniles in the justice system are in need of mental health services, yet, only a small percentage receive treatment.” DiGiovanni, supra note 318, at 2.

326 For a criticism of the application of therapeutic jurisprudence as a “renewed fiction that complex human behaviors can be dealt with as if they are simple diseases,” see Hoffman, Morris B., Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous, 29 Fordham Urb. L.J. 2063 (2002)Google Scholar.

327 See, e.g., Winick, Bruce J. et al., Exposing the Myths Surrounding Preventive Outpatient Commitment for Individuals with Chronic Mental Illness, 9 Psychol. Pub. Pol’y & L. 209 (2003)Google Scholar (suggesting alternatives to incarceration might include preventive outpatient commitment).

328 See, e.g., Paul Stephen Lundrigan, Treating Youth Who Sexually Abuse: An Integrated Multi-Component Approach 122 (2001).

329 See Scott, Michelle A. et al., Effects of Capitated Mental Health Services on Youth Contact With The Juvenile Justice System, 41 J. Am. Acad. Child & Adolescent Psychiatry 1462 (2002)CrossRefGoogle ScholarPubMed.

330 See Mitchell, supra note 35, at 10 (“Children involved with the juvenile justice system have substantially higher rates of mental disorders than children in the general population, and they may have rates of disorder comparable (or even exceeding) those among youth being treated in the mental health system.”).

331 See generally Shepherd, Robert E. Jr., Still Seeking the Promise of Gault: Juveniles and the Right to Counsel, 18 Crim. Just. 23 (2003)Google Scholar.

332 See Cook, Julian A. III, Federal Guilty Pleas Under Rule 11: The Unfulfilled Promise of the Post-Boykin Era, 77 Notre Dame L. Rev. 597 (2002)Google Scholar.

333 See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (“[I]t was error, plain on the face of the record, for [a] trial judge to accept [a defendant’s] guilty plea without an affirmative showing that it was intelligent and voluntary.”).

334 See generally Berg, Jessica Wilen, Understanding Waiver, 40 Hous. L. Rev. 281 (2003)Google Scholar (exploring concepts of autonomy, legal rights, and waiver); Mazzone, Jason, The Waiver Paradox, 97 Nw. U. L. Rev. 801 (2003)Google Scholar (explaining that in exchange for some governmental benefit, such as a reduced sentence, individuals often give up some constitutional rights); Yeary, Kevin, Appeals From Pleas of Guilty and Nolo Contendere: History and Procedural Considerations, 33 St. Mary's L. J. 405 (2002)Google Scholar (reviewing the changing landscape of laws governing the appeal process following guilty pleas).

335 A Call for Justice, supra note 166, at 10.

336 Marrus, supra note 36, at 290.

337 See generally Wright v. West, 505 U.S. 277, 285-90 (1992) (discussing and reviewing the historical evolution of the writ of habeas corpus).

338 See Chin & Holmes, supra note 32, at 712.

339 See id.

340 Strickland v. Washington, 466 U.S. 668 (1984) (holding that a defendant could make out a claim of ineffective assistance of counsel by showing that counsel's conduct fell below a minimum standard of competence, and that the accused was prejudiced by that conduct).

341 See Hoffstadt, Brian M., Common-Law Writs and Federal Common Lawmaking on Collateral Review, 96 Nw. U. L. Rev. 1413, 1474 (2002)Google Scholar.

342 Berkheiser, supra note 183, at 581.

343 See Chin & Holmes, supra note 32.

344 See generally Hoffstadt, supra note 341, at 1413 (analyzing how recent case law and legislation have limited the legal and practical availability of traditional avenues of collateral review).

345 See Domalanta et al., supra note 138, at 482.

346 See Beyer, Margaret, Mental Health Care for Children in Corrections, 18 Child. Legal Rts. J. 18, 18 (1998)Google Scholar (“[O]verburdened staff focus on simply keeping vulnerable residents from killing themselves, hurting others, or being victimized. Institutions limp along without cohesive treatment philosophies, and mental health staff typically exhaust themselves treating the few ‘mad’ residents while the other staff members are left to control the rest of the ‘bad’ residents.”).

347 See Kondo, LeRoy L., Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 28 Am. J. Crim. L. 255 (2001)Google Scholar.

348 As two researchers noted:

Potter & Jenson, supra note 12, at 231.

349 It has been observed that:

Hafemeister, Thomas L., Parameters and Implementation of a Right to Mental Health Treatment for Juvenile Offenders, 12 Va. J. Soc. Pol’y & L. 61, 69-71 (2004)Google Scholar.

350 In reviewing the poor quality of representation in delinquency systems, one author noted that:

Bookser, supra note 168, at 305.

351 See Hafemeister, supra note 349.

352 See Armstrong, Gaylene Styve & MacKenzie, Doris Layton, Private Versus Public Juvenile Correctional Facilities: Do Differences in Environmental Quality Exist?, 49 Crime & Delinq. 542, 558 (2003)CrossRefGoogle Scholar.

353 See generally Dale, Michael J., Lawsuits and Public Policy: The Role of Litigation In Correcting Conditions in Juvenile Detention Centers, 32 U.S.F. L. Rev. 675, 579 (1998)Google Scholar (suggesting that past cases demonstrate it is possible to have short term impact by changing institutional operations).

354 See, e.g., A.M. ex rel. J.M.K. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572 (3rd Cir. 2004) (holding that juvenile detention centers must respond to those mental health problems of detained children).

355 See generally Altschuler & Armstrong, supra note 270, at 72.

356 See generally Conward, Cynthia M., Where Have All the Children Gone? A Look at Incarcerated Youth in America, 27 Wm. Mitchell L. Rev. 2435 (2001)Google Scholar (discussing the current conditions of juveniles in confinement).

357 See Domalanta et al., supra note 138, at 483 (“It is clear from this and other research (for example, Chiles et al., 1980; Kashani et al., 1980; McManus et al., 1984; Otto et al., 1992; Pliszka et al., 2000; Rhode et al., 1997; Ulzen and Hamilton, 1998) that addressing the mental health care needs of incarcerated youths requires financial resources that are not available to many detention facilities, which are publicly funded and have a limited budget.”).

358 See id.

359 See Biglan et al., supra note 70, at 173 (discussing Lipsey and Wilson's 1998 metaanalysis based on 200 studies examining the effect of a variety of juvenile justice system treatments and recidivism) (citation omitted).

360 See Baerger et al., supra note 15, at 320.

361 See Tsesis, Alexander V., Protecting Children Against Unnecessary Institutionalization, 39 S. Tex. L. Rev. 995, 997 (1998)Google ScholarPubMed (discussing the Supreme Court's decision in Parham v. J.R, 442 U.S. 584 (1979), which provided minimal due process protections to children facing confinement in mental health institutions). According to the Michigan Center for the Study of Youth Policy, in 1985, 275,000 juveniles under the age of eighteen were hospitalized in mental facilities. See Barrett, Katherine & Greene, Richard, Mom, Please Get Me Out!, 107 Ladies Home J. 98, 103 (1990)Google Scholar.

362 See Mueser et al., supra note 154, at 18.

363 See Jenson, Jeffrey M. & Potter, Cathryn C., The Effects of Cross-System Collaboration on Mental Health and Substance Abuse Problems of Detained Youth, 13 Res. on Soc. Work Prac. 588, 590 (2003)CrossRefGoogle Scholar.

364 Staff of H. Comm. on Govt. Reform, 108th Cong., Incarceration of Youth Who Are Waiting for Community Mental Health Services in the United States 4-5 (Comm. Print 2004).

365 See generally Brummer, Chauncey E., Extended Juvenile Jurisdiction: The Best of Both Worlds?, 54 Ark. L. Rev. 777, 792 (2002)Google Scholar (analyzing continued viability of system that is seemingly ineffective at dealing with serious crimes committed by children); Gilbert et al., supra note 7, at 1153 (offering systems approach integrating accountability and rehabilitation).

366 See Burns & Hoagwood, supra note 126, at 3-5.

367 See Sabel, Charles F. & Simon, William H., Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1015, 1029-34 (2004)CrossRefGoogle Scholar.

368 See Parks, Shawna L., Innocence Lost: Mental Health Care and the California Youth Authority, 30 Hum. Rts. 14, 14 (2003)Google Scholar.

369 Estelle v. Gamble, 429 U.S. 97 (1976).

370 See Mayer, Connie, Survey of Case Law Establishing Constitutional Minima for the Provision of Mental Health Services to Psychiatrically Involved Inmates, 15 New Eng. J. on Crim. & Civ. Confinement 243, 245 n.7 (1989)Google Scholar (citing Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir. 1986) (holding the city had a duty not to be deliberately indifferent to the need for psychological or psychiatric treatment of pretrial detainee when officials were aware of the mental problems); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (inmates with serious mental or emotional illnesses are constitutionally required to be provided access to medical personnel qualified to diagnose and treat such illnesses); Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir. 1984) (constitutional duty to diagnose and treat medical needs includes treatment of mental as well as physical disorders); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (“[N]o underlying distinction between the right to medical care for physical ills and its psychological … counterpart.”); Rogers v. Evans, 792 F.2d 1052 (8th Cir. 1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (“[F]ailure to provide basic psychiatric and mental health care states a claim of deliberate indifference to the serious medical needs of prisoners.”); Robert E. v. Lane, 530 F. Supp. 930, 939 (N.D. Ill. 1981) (“[A]n inmate suffers eighth amendment ‘pain’ when that inmate must endure the untreated effects of a serious mental [disorder].”); Grubbs v. Bradley, 552 F.Supp. 1052, 1123 (M.D. Tenn. 1982) (“[I]nmates must be provided with medically necessary mental health treatment.”)).

371 A.J. v. Kierst, 56 F.3d 849 (8th Cir. 1995).

372 Youngberg v. Romeo, 457 U.S. 307, 323 (1982).

373 See e.g., Rennie v. Klein, 720 F.2d 266, 268 (3d Cir. 1983) (adopting the standard pronounced in Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).

374 Bell v. Wolfish, 441 U.S. 520, 537 (1979).

375 See generally Weber, Mark C., Home and Community-Based Services, Olmstead, and Positive Rights: A Preliminary Discussion, 39 Wake Forest L. Rev. 269, 284-87 (2004)Google Scholar (discussing the affirmative rights that the ADA and section 504 of the Rehabilitation Act of 1973 guarantee to individuals with developmental disabilities).

376 For a general discussion of the limited rights of mental patients to community-based services under the Supreme Court's 1999 decision in Olmstead v. Zimring, see John Stark, Casenote, A New Mandate for the Expansion of the Rights of the Mentally Ill: Olmstead v. Zimring and Its Further Exposition of the Americans With Disabilities Act, 4 T.M. Cooley J. Prac. & Clinical L. 83 (2000)Google Scholar.

377 Lee v. Los Angeles, 250 F.3d 668 (9th Cir. 2001).

378 Parks, supra note 368, at 15.

379 See Woodhouse, Barbara Bennett, The Constitutionalization of Children's Rights: Incorporating Emerging Human Rights Into Constitutional Doctrine, 2 U. Pa. J. Const. L. 1, 9 (1999)Google Scholar.

380 See Land, supra note 17, at 279. See also McClendon, Luretha R., The Representation of Children With Disabilities in Connecticut Under the Individuals with Disabilities Education Act, 5 Quinnipiac Health L.J. 85 (2001)Google Scholar.

381 See generally Perlin, Michael L., “What's Good is Bad, What's Bad is Good, You’ll Find Out When You Reach the Top, You’re on the Bottom”: Are the Americans With Disabilities Act (And Olmstead v. L.C.) Anything More than “Idiot Wind?”, 35 U. Mich. J.L. Reform 235 (2002)Google Scholar (questioning whether Olmstead has “revolutionized” mental disability law, and whether it has the capacity to do that).

382 In addition to these legal arguments serving as the basis for appropriate mental health services for incarcerated youth found to lack competence, it is possible that such litigants might seek to argue that they are being involuntarily committed without redress or recognition of their civil liberties. See, e.g., Karasch, Meredith, Note, Where Involuntary Commitment, Civil Liberties, and the Right to Mental Health Care Collide: An Overview of California's Mental Illness System, 54 Hastings L.J. 493 (2003)Google ScholarPubMed.

383 The concept of “mental health treatment” is a rather broad term, as is “mental illness” which includes more than 300 diagnoses found within the Diagnostic and Statistical Manual of Mental Disorders. One author suggests that treatment could be narrowly defined to include the needs of juveniles with diagnosed mental illness, and that “mental illness” could be narrowly defined to include only severe or serious mental illness, thus focusing attention on those juveniles in the greatest distress with the most immediate need for services. See Hafemeister, Thomas L., Parameters and Implementation of a Right to Mental Health Treatment for Juvenile Offenders, 12 Va. J. Soc. Pol’y & L. s, 63-65 (2004)Google Scholar.

384 See, e.g., Grisso, Thomas et al., Massachusetts Youth Screening Instrument for Mental Health Needs of Juvenile Justice Youths, 40 J. Am. Acad. Child Adolescent Psychiatry 541 (2001)CrossRefGoogle ScholarPubMed.

385 For a discussion of the Diagnostic Interview Schedule for Children (DISC) which incorporates the diagnostic criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders fourth edition (DSM-IV) and third edition revised (DSM-III-R), and of the World Health Organization's International Statistical Classification of Diseases and Related Health Problems, tenth revision (ICD-10), see Wasserman et al., supra note 239.

386 See Katner, David R., Raising Mental Health Issues–Other Than Insanity–In Juvenile Delinquency Defense, 28 Am. J. Crim. L. 73 (2000)Google Scholar.

387 See Davoli, Joanmarie Ilaria, Still Stuck in the Cuckoo's Nest: Why Do Courts Continue to Rely on Antiquated Mental Illness Research?, 69 Tenn. L. Rev. 987, 993 (2002)Google ScholarPubMed.

388 One author has noted:

Stefan, Susan, “Discredited” and “Discreditable”: The Search for Political Identity By People With Psychiatric Diagnoses, 44 Wm. & Mary L. Rev. 1341, 1345 (2003)Google Scholar.

389 Double Jeopardy, supra note 15, at 57.

390 Frost and Volenik raise another issue regarding the competency evaluation. They cite the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice which reviewed adolescents’ cognitive and psychosocial capacities and how they relate to an adolescent's competence and compare to adult capacities. The MacArthur study:

Frost & Volenik, supra note 81, at 353.

391 For an interesting case study wherein a juvenile was found to be mentally retarded and not competent to stand trial by one competency evaluator yet found not to be mentally retarded and declared competent by another forensic evaluator, see Schlesinger, supra note 67, at 381.

392 Wasserman et al., supra note 239, at 1-2.

393 These diagnostic interview tools include the Diagnostic Interview for Children and Adolescents (Herjanic & Reich eds., 1983), the Schedule for Affective Disorders and Schizophrenia for School-Aged Children (Puig-Antich & Chambers eds., 1978), and the most comprehensive of these diagnostic interview tools, the Diagnostic Interview Schedule for Children (Shaffer et al. eds., 4th ed. 2000). Double Jeopardy, supra note 15, at 58.

394 Wasserman, supra note 239, at 1-2.

395 Double Jeopardy, supra note 15, at 59-60.

396 Id. at 60-62.

397 Id. at 62.

398 The author assumes that the mental health experts work in the same field. For instance, a psychiatrist would not be expected to conduct the barrage of psychological tests normally used by psychologists. However, if two psychiatrists are testing for competency, then they should employ the same protocol. If two psychologists are testing for competency, then they should also employ a similar protocol. However, if a psychologist and a psychiatrist are engaged to test for competency, then the protocols will vary because of their different professional backgrounds and education.

399 Several researchers have concluded that:

Hubbard et al., supra note 11, at 128.

400 Richard G. Wiebush et al., Risk Assessment and Classification for Serious, Violent, and Chronic Juvenile Offenders, in A Sourcebook: Serious, Violent, & Chronic Juvenile Offenders 171, at 207 (James C. Howell et al. eds., 1995) (quoting study concluding “[w]ell-designed assessment procedures improve our ability to accurately and consistently identify those who are, or may become, serious, violent, and chronic juvenile offenders. Carefully crafted classification systems ensure that the system's response is equitable and graduated. They also provide for a direct linking of the offender's need for control and services with the most appropriate intervention.”).

401 Dennis, Lisa M. & Hafemeister, Thomas L., Detained Juvenile Offenders With Substance Abuse Treatment Needs: An Examination of Associated Legal Issues, 1 J. Health & Biomedical L. 49, 63-64 (2004)Google Scholar.

402 For example, Louisiana enacted the following:

• A. If the court determines that the child has the mental capacity to proceed, the delinquency proceedings shall be resumed.

• B. If the court determines that the child lacks mental capacity to proceed, the proceedings shall be suspended and the court may order any of the following:

  • (1) Dismiss the petition for good cause … .

  • (2) Adjudicate the child's family to be in need of services and proceed to a disposition … .

  • (3) Commit the child to the Department of Health and Hospitals, a private mental institution, or an institution for the mentally ill … if the court finds the child is dangerous to himself or others. The court may order competency restoration services for the child.

  • (4) Place the child in the custody of his parents or other suitable person or private institution or agency under such terms and conditions as deemed in the best interests of the child and the public … .

La. Child. Code Ann. art.

403 Seto, Michael C. et al., The Criminogenic, Clinical, and Social Problems of Forensic and Civil Psychiatric Patients, 28 L. & Hum. Behav. 577 (2004)CrossRefGoogle ScholarPubMed.

404 See Campbell & Schmidt, supra note 312, at 689.

405 See Biglan et al., supra note 70, at 185-86 (citing various studies and evaluations by Aos et al. conducted in 2001).

406 E.g., DiGiovanni, supra note 318, at 2; Arredondo, David et al., Juvenile Mental Health Court: Rationale and Protocols, 52 Juv. & Fam. Ct. J. (Mental Health Issue) 1 (2001)CrossRefGoogle Scholar.

407 See generally Kondo, supra note 347, at 255.

408 See Lang, Amanda R., Note, A New Approach to Tort Reform: An Argument for the Establishment of Specialized Medical Courts, 39 Ga. L. Rev. 293, 294 (2004)Google Scholar.

409 Id. at 294.

410 See Bamberger, Phylis Skloot, Specialized Courts: Not a Cure-All, 30 Fordham Urb. L.J. 1091 (2003)Google Scholar.

411 See Bach, Mitchell L. & Applebaum, Lee, A History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Bus. L. 147, 147 (2004)Google Scholar; Kondo, LeRoy L., Untangling the Tangled Web: Federal Court Reform Through Specialization For Internet Law And Other High Technology Cases, 2002 UCLA J.L. & Tech. 1, 1 (2002)Google Scholar; Sommer, Jacob A., Note, Business Litigation and Cyberspace: Will Cyber Courts Prove an Effective Tool for Luring High-Tech Business Into Forum States?, 56 Vand. L. Rev. 561, 564 (2003)Google Scholar.

412 See Foster, E. Michael et al., Can Better Mental Health Services Reduce the Risk of Juvenile Justice Involvement?, 94 Am. J. Pub. Health 859, 859 (2004)CrossRefGoogle Scholar.

413 See The Federal Magistrate's Act, 28 U.S.C. § 636 (2000) (federal magistrates preside over discovery, administer oaths, and may preside over trials); Lantka, Peter, The Use of Alternative Dispute Resolution in the Federal Magistrate Judge's Office: A Glimmering Light Amidst the Haze of Federal Litigation, 36 UWLA L. Rev. 71, 72 (2005)Google Scholar; Puro, Steven et al., The Evolving Role of U.S. Magistrates in District Courts, 64 Judicature 436, 437 (1981)Google Scholar.

414 For examples of innovative advocacy advancing the rights of children, see generally Sheryl Dicker et al., Stepping Stones: Successful Advocacy for Children (1990).

415 MacArthur Study, supra note 4.

416 One study concluded:

Coalition for Juvenile Justice, supra note 37, at 12.

417 See Armstrong, Todd A., The Effect of Moral Reconation Therapy on the Recidivism of Youthful Offenders, A Randomized Experiment, 30 Crim. Just. & Behav. 668, 668 (2003)CrossRefGoogle Scholar; Cottle, Cindy C. et al., The Prediction of Criminal Recidivism in Juveniles, A Meta-Analysis, 28 Crim. Just. & Behav. 367, 369 (2001)CrossRefGoogle Scholar; Marczyk, Geoffrey R. et al., Predicting Juvenile Recidivism with the PCL:YV, MAYSI, and YSL/CMI, 2 Int’l J. Forensic Mental Health 7, 16 (2003)Google Scholar.

418 See Josi, Don A. & Sechrest, Dale K., A Pragmatic Approach to Parole Aftercare: Evaluation of a Community Reintegration Program for High-Risk Youthful Offenders, 16 Just. Q. 51, 54 (1999)CrossRefGoogle Scholar (discussing the success of a parole reentry program, “Lifeskills ‘95” for individuals released from secure facilities).

419 Hafemeister, supra note 349, at 71.

420 See Kakar, Suman, Delinquency Prevention Through Family and Neighborhood Empowerment, 7 Stud. Crime and Crime Prevention 107, 109 (1998)Google Scholar (examining alternative sanctions to incarceration for juveniles).

421 See Foster et al., supra note 412, at 864 (“[C]ommunity-based care coordinated across child-serving agencies can reduce or delay entry into the juvenile justice system as well as recidivism among those who have been involved in the system.”).

422 See Angold, Adrian et al., Comorbidity, 40 J. Child Psychol. & Psychiatry 57, 57 (1999)CrossRefGoogle ScholarPubMed.

423 See Double Jeopardy, supra note 15, at 34 (“In policy or clinical discussions, one sometimes hears the claim that young offenders do not have ‘real’ mental disorders, but are ‘mostly just conduct disordered’ and therefore in need of offender rehabilitative services other than mental health interventions … . Current data suggest that this view is usually wrong.”).

424 See generally Relapse Prevention, Maintenance Strategies in the Treatment of Addictive Behaviors, supra note 145.

425 See Lourie, Ira S. & Hernandez, Mario, A Historical Perspective on National Child Mental Health Policy, 11 J. Emotional & Behav. Disorders 5, 8 (2003)CrossRefGoogle Scholar (calling for the need for a unified national child mental health policy).

426 See Boothroyd & Armstrong, supra note 38, at 43.

427 See Pattison, Brent, Minority Youth in Juvenile Correctional Facilities: Cultural Differences and the Right to Treatment, 16 L. & Inequality: J. Theory & Prac. 573, 576 (1998)Google Scholar.

428 One author recently lamented that:

Breda, Carolyn, Offender Ethnicity and Mental Health Service Referrals from Juvenile Court, 30 Crim. Just. & Behav. 644, 645-46 (2003)CrossRefGoogle Scholar.

429 See generally Viljoen et al., supra note 110.