355 Innovation Brief Mental Health Needs And Due Process Rights Finding The Balance
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An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 1
Mental Health Needs and Due
Process Rights: Finding the Balance
The Issue
Empirical studies suggest that 65 to 75 percent of youths
involved with the juvenile justice system have one or
more diagnosable psychiatric problems, including major
depression, anxiety, mood disorders, and substance abuse.
Without identication and treatment, these youths may
pose a safety risk to themselves and others in juvenile justice
facilities. Moreover, untreated youths face serious obstacles
to leaving the system and are at risk of sinking even deeper
into it as they “fail to adjust” to probation conditions and
the demands of institutional placements. Juvenile courts
have launched important initiatives to address the needs of
this population, including screening and assessment at one
or more stages of the juvenile court process. And in keeping
with the juvenile court’s rehabilitation and treatment goals,
judges regularly order youths into treatment, including
therapy and counseling.
Models for Change sites have launched a variety of initiatives to identify and treat justice-
involved 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 benets 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.
But there is a very real potential for youths to incriminate
themselves in these situations, leaving them open to
prosecution for new offenses. Many screening and
assessment instruments designed for use in the juvenile
justice system ask questions about illegal activities such as
current and past drug use, violent or assaultive behaviors,
sexual deviancy and offenses, victimization, abuse, and
weapons possession (see sidebar on next page). Similar
information may be elicited during clinical interviews
conducted as part of a more comprehensive evaluation,
and during individual and group therapy.
Youths charged with offenses have a constitutional right
not to give evidence against themselves. This critical right
against self-incrimination is threatened, however, when
a youth answers questions and provides information
during screening, assessment, or treatment. Without
explicit protections, youths are at great risk of prosecution
for statements procured for the purpose of identifying
Innovation Brief
An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 2
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.
Innovations
The challenge facing Models for Change sites was how
to launch and implement creative initiatives to identify
and treat youths with behavioral health disorders while
upholding their due process rights. As the Pennsylvania
and Illinois experiences show, balancing these sometimes
competing interests presents challenges as juvenile justice
stakeholders with different mandates strive to collaborate on
reform efforts.
Pennsylvania. As part of the state’s participation in
Models for Change, Pennsylvania issued a policy statement
in 2006 setting out a vision of a comprehensive system that:
(1) prevents the unnecessary involvement of youths with
behavioral health disorders in the juvenile court; (2) allows
for their early identication; and (3) provides for timely
access to evidence-based treatment in the least restrictive
setting consistent with public safety. Professionals from the
juvenile justice and mental health systems formed a joint
work group to begin to bring this vision to life.
The work group was in the process of launching a
behavioral health screening and assessment initiative as
part of probation intake when members identied a gap in
Pennsylvania laws: youths were not protected from potential
self-incrimination in these processes. The group embraced
the fundamental principal that information gathered during
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
ofcers—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.
Screening questions hold potential for self-incrimination
Massachusetts Youth Screening Instrument–Second
Version (MAYSI-2)
• Have you hurt or broken something on purpose, just because you
were mad?
• Have you thought a lot about getting back at someone you have
been angry at?
• Have you done anything you wish you hadn’t, when you were
drunk or high?
• Have you gotten in trouble when you’ve been high or have been
drinking? If yes, has the trouble been ghting?
• Have you ever seen someone severely injured or killed (in
person—not in movies or on TV)?
GAIN-Short Screener (GAINS-SS)
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?
• sold, distributed or helped to make illegal drugs?
• drove a vehicle while under the inuence of alcohol or illegal
drugs?
• purposely damaged or destroyed property that did not belong
to you?
Child Behavior Checklist (CBCL), Youth Self-Report Form
Yes or no…
• I destroy things belonging to others.
• I physically attack people.
• I set res.
• I steal from places other than home.
• I threaten to hurt people.
An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 3
By the time the work group approached a key state senator
for sponsorship, the proposal had been endorsed by all key
stakeholders. Passed in 2008, Pennsylvania’s law provides
that no statements, admissions, confessions, or incriminating
information obtained from a child in the course of a
screening or assessment undertaken in juvenile court
proceedings may be admitted into evidence against the child
on the issue of guilt.
Illinois. Civitas ChildLaw Center, at Loyola University
of Chicago School of Law, is the Models for Change lead
entity in Illinois. Civitas kick-started the process in that
state by consulting with the juvenile justice committee of
the Illinois Children’s Mental Health Partnership. Civitas
reviewed statutes in other states and drafted a model statute
to begin educating members of the General Assembly and
the larger community about the need for self-incrimination
protection. The Partnership then targeted legislators
with a demonstrated interest in mental health issues. The
Juvenile Justice Initiative, a co-chair of the Partnership’s
juvenile justice committee, took the lead in educating these
legislators about the need for protections to promote early
identication and treatment. The Initiative’s staff developed
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.
Illinois amended its Juvenile Act in 2010 to provide that
a “statement, admission, confession, or incriminating
information made by or obtained from a minor related
to the instant offense, as part of any behavioral health
screening, assessment, evaluation, or treatment, whether
or not court-ordered, shall not be admissible as evidence
against the minor on the issue of guilt only in the instant
juvenile court proceeding.”
Results and Lessons
The Pennsylvania and Illinois groups that led the charge
both had to accept compromises to their initial draft
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
attorneys in Pennsylvania supported the provision with
respect to screening and assessment, they were unwilling
to endorse a bill that would explicitly limit the use of
statements made in treatment. Understanding how critical it
was to obtain support from the prosecutors, the work group
ultimately decided to revise the draft language.
In Illinois, state’s attorneys opposed draft language that
would have prohibited statements being admitted into
evidence on the issue of guilt at any hearing or trial,
including those for yet-uncharged offenses. To gain
prosecutorial support, the bill’s sponsor limited the reach of
the bill to admissions about the current charges. Thus, while
the Illinois statute goes further than Pennsylvania’s law in
one respect—extending the protection to statements made
in treatment—it is more limited in not protecting statements
regarding uncharged offenses.
The enacted legislation in both states does create signicant
new protections for youths. But defense attorneys still need
to counsel their clients closely and clinicians need to explain
to them the limits of condentiality.
Self-incrimination provisions in other Models for Change states
New Jersey
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.
Texas
Any statement or information obtained in a mental health
screening by probation is inadmissible against the child at any
hearing.
Connecticut
Information obtained during any mental health screening or
assessment can only be used for planning and treatment purposes
and is condential.
Maryland
Any statements or information obtained during a mental health
evaluation may not be admitted into evidence on the issue of guilt.
An initiative supported by the John D. and Catherine T. MacArthur Foundation Innovation Brief December 2012 4
Looking Forward
The potential for self-incrimination arises in other juvenile
justice reform initiatives and is not limited to projects
focused on mental health screening and assessment. For
example, there is a growing interest in using validated
instruments to assess a youth’s risks and needs to aid
juvenile justice professionals in making key decisions. And
juveniles must frequently receive court-ordered assessments
to determine whether they are competent to stand trial.
Both processes—risk/needs assessment and competence
evaluation—can elicit incriminatory statements about
offending behavior in the same ways as mental health
screenings and assessments. Jurisdictions must examine their
statutes and court rules to determine if sufcient protections
are in place to protect youths’ due process rights in these
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.
Resources
L. Rosado (2012). “Outside the Police Station: Dealing
With the Potential for Self-Incrimination in Juvenile Court,”
Washington University Journal of Law & Policy, Vol.38:177
(2012). http://law.wustl.edu/journal/38/Rosado.pdf
Child Welfare League of America and Juvenile Law Center
(2008). Models for Change Information Sharing Tool Kit.
http://www.modelsforchange.net/publications/282
L. Rosado & R. Shah (2007). Protecting Youth from Self-
Incrimination when Undergoing Screening, Assessment and
Treatment within the Juvenile Justice System.
http://www.jlc.org/sites/default/les/publication_pdfs/
protectingyouth.pdf
