355 Innovation Brief Mental Health Needs And Due Process Rights Finding The Balance
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Innovation Brief Mental Health Needs and Due Process Rights: Finding the Balance Models for Change sites have launched a variety of initiatives to identify and treat justiceinvolved youths with mental health and substance abuse problems. They include screening and assessment protocols in detention and at court intake, innovative diversion programs, and evidence-based treatment programs. But to reap the benefits of these initiatives, youths often have to answer questions about offending behavior. That puts many of them at risk of incriminating themselves and facing prosecution for new offenses. The challenge facing Models for Change sites was how to implement creative initiatives to identify and treat these youths while upholding their due process rights. Stakeholders in Pennsylvania and Illinois framed and helped to enact legislation balancing these competing interests. The Issue But there is a very real potential for youths to incriminate Empirical studies suggest that 65 to 75 percent of youths themselves in these situations, leaving them open to involved with the juvenile justice system have one or prosecution for new offenses. Many screening and more diagnosable psychiatric problems, including major assessment instruments designed for use in the juvenile depression, anxiety, mood disorders, and substance abuse. justice system ask questions about illegal activities such as Without identification and treatment, these youths may current and past drug use, violent or assaultive behaviors, pose a safety risk to themselves and others in juvenile justice sexual deviancy and offenses, victimization, abuse, and facilities. Moreover, untreated youths face serious obstacles weapons possession (see sidebar on next page). Similar to leaving the system and are at risk of sinking even deeper information may be elicited during clinical interviews into it as they “fail to adjust” to probation conditions and conducted as part of a more comprehensive evaluation, the demands of institutional placements. Juvenile courts and during individual and group therapy. have launched important initiatives to address the needs of this population, including screening and assessment at one Youths charged with offenses have a constitutional right or more stages of the juvenile court process. And in keeping not to give evidence against themselves. This critical right with the juvenile court’s rehabilitation and treatment goals, against self-incrimination is threatened, however, when judges regularly order youths into treatment, including a youth answers questions and provides information therapy and counseling. during screening, assessment, or treatment. Without explicit protections, youths are at great risk of prosecution for statements procured for the purpose of identifying An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 1 Screening questions hold potential for self-incrimination Massachusetts Youth Screening Instrument–Second Version (MAYSI-2) Innovations The challenge facing Models for Change sites was how to launch and implement creative initiatives to identify • Have you hurt or broken something on purpose, just because you were mad? and treat youths with behavioral health disorders while • Have you thought a lot about getting back at someone you have been angry at? and Illinois experiences show, balancing these sometimes • Have you done anything you wish you hadn’t, when you were drunk or high? stakeholders with different mandates strive to collaborate on upholding their due process rights. As the Pennsylvania competing interests presents challenges as juvenile justice • Have you gotten in trouble when you’ve been high or have been drinking? If yes, has the trouble been fighting? reform efforts. • Have you ever seen someone severely injured or killed (in person—not in movies or on TV)? Pennsylvania. As part of the state’s participation in GAIN-Short Screener (GAINS-SS) in 2006 setting out a vision of a comprehensive system that: When was the last time you... • used alcohol or drugs weekly? • had a disagreement in which you pushed, grabbed or shoved someone? • took something from a store without paying for it? Models for Change, Pennsylvania issued a policy statement (1) prevents the unnecessary involvement of youths with behavioral health disorders in the juvenile court; (2) allows for their early identification; and (3) provides for timely access to evidence-based treatment in the least restrictive • sold, distributed or helped to make illegal drugs? setting consistent with public safety. Professionals from the • drove a vehicle while under the influence of alcohol or illegal drugs? work group to begin to bring this vision to life. • purposely damaged or destroyed property that did not belong to you? juvenile justice and mental health systems formed a joint The work group was in the process of launching a Child Behavior Checklist (CBCL), Youth Self-Report Form behavioral health screening and assessment initiative as Yes or no… part of probation intake when members identified a gap in • I destroy things belonging to others. Pennsylvania laws: youths were not protected from potential • I physically attack people. self-incrimination in these processes. The group embraced • I set fires. the fundamental principal that information gathered during • I steal from places other than home. • I threaten to hurt people. and treating their behavioral health problems. Defense counsel, in accordance with their professional and ethical duties, could reasonably advise their young clients not to participate in screens and assessments because of the risk involved. Moreover, clinicians are obligated, under their professional codes of conduct, to tell any youth they assess how information the youth reveals can be used in legal proceedings. Such warnings might well inhibit the youth from fully disclosing information to these mental health professionals, undermining the effectiveness of diagnostic and therapeutic interventions. screenings and assessments should not be shared or used in a way that jeopardized the youths’ legal interests, including their right against self-incrimination. Consequently, the group organized and led a successful effort to enact legislation to protect youths. Juvenile Law Center, the lead entity for Models for Change in Pennsylvania, had already published a monograph that surveyed the laws in other states (see sidebar on next page). Using this resource, the work group drafted legislation and vetted the language with major juvenile justice stakeholders—including juvenile court judges, prosecutors, defense attorneys, and probation officers—and individuals in other child-serving systems. The group obtained feedback from these groups, edited the language, and circulated revised drafts for further comment and discussion. An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 2 By the time the work group approached a key state senator Illinois amended its Juvenile Act in 2010 to provide that for sponsorship, the proposal had been endorsed by all key a “statement, admission, confession, or incriminating stakeholders. Passed in 2008, Pennsylvania’s law provides information made by or obtained from a minor related that no statements, admissions, confessions, or incriminating to the instant offense, as part of any behavioral health information obtained from a child in the course of a screening, assessment, evaluation, or treatment, whether screening or assessment undertaken in juvenile court or not court-ordered, shall not be admissible as evidence proceedings may be admitted into evidence against the child against the minor on the issue of guilt only in the instant on the issue of guilt. juvenile court proceeding.” Self-incrimination provisions in other Models for Change states Results and Lessons New Jersey The Pennsylvania and Illinois groups that led the charge Statements made during a suicide or mental health screening cannot be provided to the court, prosecutor, or law enforcement without the juvenile’s consent and may not be used in any investigation or delinquency or criminal proceeding. both had to accept compromises to their initial draft Texas Any statement or information obtained in a mental health screening by probation is inadmissible against the child at any hearing. legislation in order to win support from prosecutors. In Pennsylvania, legislation initially proposed by the Models for Change state work group would have extended the evidentiary prohibition to statements made in treatment, a provision that was supported by many stakeholders including the state’s juvenile court judges. While district Connecticut attorneys in Pennsylvania supported the provision with Information obtained during any mental health screening or assessment can only be used for planning and treatment purposes and is confidential. respect to screening and assessment, they were unwilling Maryland was to obtain support from the prosecutors, the work group Any statements or information obtained during a mental health evaluation may not be admitted into evidence on the issue of guilt. ultimately decided to revise the draft language. to endorse a bill that would explicitly limit the use of statements made in treatment. Understanding how critical it In Illinois, state’s attorneys opposed draft language that Illinois. Civitas ChildLaw Center, at Loyola University would have prohibited statements being admitted into of Chicago School of Law, is the Models for Change lead evidence on the issue of guilt at any hearing or trial, entity in Illinois. Civitas kick-started the process in that including those for yet-uncharged offenses. To gain state by consulting with the juvenile justice committee of prosecutorial support, the bill’s sponsor limited the reach of the Illinois Children’s Mental Health Partnership. Civitas the bill to admissions about the current charges. Thus, while reviewed statutes in other states and drafted a model statute the Illinois statute goes further than Pennsylvania’s law in to begin educating members of the General Assembly and one respect—extending the protection to statements made the larger community about the need for self-incrimination in treatment—it is more limited in not protecting statements protection. The Partnership then targeted legislators regarding uncharged offenses. with a demonstrated interest in mental health issues. The Juvenile Justice Initiative, a co-chair of the Partnership’s The enacted legislation in both states does create significant juvenile justice committee, took the lead in educating these new protections for youths. But defense attorneys still need legislators about the need for protections to promote early to counsel their clients closely and clinicians need to explain identification and treatment. The Initiative’s staff developed to them the limits of confidentiality. fact sheets describing the proposed legislation not simply as a juvenile justice bill but as an essential step to prioritize children’s mental health and well-being. An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 3 Looking Forward Resources The potential for self-incrimination arises in other juvenile L. Rosado (2012). “Outside the Police Station: Dealing justice reform initiatives and is not limited to projects With the Potential for Self-Incrimination in Juvenile Court,” focused on mental health screening and assessment. For Washington University Journal of Law & Policy, Vol.38:177 example, there is a growing interest in using validated (2012). http://law.wustl.edu/journal/38/Rosado.pdf instruments to assess a youth’s risks and needs to aid juvenile justice professionals in making key decisions. And Child Welfare League of America and Juvenile Law Center juveniles must frequently receive court-ordered assessments (2008). Models for Change Information Sharing Tool Kit. to determine whether they are competent to stand trial. http://www.modelsforchange.net/publications/282 Both processes—risk/needs assessment and competence evaluation—can elicit incriminatory statements about L. Rosado & R. Shah (2007). Protecting Youth from Self- offending behavior in the same ways as mental health Incrimination when Undergoing Screening, Assessment and screenings and assessments. Jurisdictions must examine their Treatment within the Juvenile Justice System. statutes and court rules to determine if sufficient protections http://www.jlc.org/sites/default/files/publication_pdfs/ are in place to protect youths’ due process rights in these protectingyouth.pdf contexts. Writer: Lourdes Rosado, Associate Director, Juvenile Law Center. Editor: Giudi Weiss. For more information, contact Autumn Dickman, Models for Change-PA Project Manager, Juvenile Law Center. adickman@jlc.org. This brief is one in a series describing new knowledge and innovations emerging from Models for Change, a multi-state juvenile justice reform initiative. Models for Change is accelerating movement toward a more effective, fair, and developmentally sound juvenile justice system by creating replicable models that protect community safety, use resources wisely, and improve outcomes for youths. The briefs are intended to inform professionals in juvenile justice and related fields, and to contribute to a new national wave of juvenile justice reform. An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 4
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