Below is an article written by Brandon C. Waltrip, Esq. and published in The Virginia Champion, Spring 2018 Issue. The article was titled “Considerations Regarding Juvenile Competency to Stand Trial” and deals with considerations regarding the procedures and law of juvenile competency. If you have a child, charged with a crime, who has serious mental illness’, we hope you will find this article informative. If you have questions about your child’s case, please seek the advice of an attorney licensed in your state.
There are an increasing number of criminal cases that involve Juveniles with serious mental illness. In order to properly defend a child suffering from serious mental illness, the defense attorney should be familiar with the statutes and law governing competency, restoration services, and alternatives available to the court outside of detention.
The Law Regarding Competency
Virginia Code § 16.1-356 permits the evaluation of a juvenile wherein there is probable cause to believe the juvenile may not be competent to stand trial. The factors for determining competency are (1) whether the defendant has a present ability to consult with their lawyer with a reasonable degree of rational understanding, and (2) whether they have a rational as well as factual understanding of the proceedings against them. (see Dusky v. U.S., 362 U.S. 402 (1960)).
A Juvenile’s age or developmental factors are not a sole basis for incompetency, nor are the juveniles claim to be unable to remember the time period surrounding the alleged offense, or the fact that the juvenile is under the influence of medication. (see Virginia Code § 16.1-356(F)).
Important to note is that while there is no juvenile right to the insanity defense (see Comm. v. Chatman, 260 Va. 562), a child competency evaluation is often the first step in making a court aware of mental health considerations in the Juveniles case and may create avenues for alternative dispositions. There is no indication that the services outlined below for incompetent Juveniles are not an appropriate disposition for Juveniles who are competent but yet still suffering from mental illness.
4 Modes of Relief
If the Court finds the Juvenile is incompetent AND unrestorable, the Court may proceed in one of four ways. The Court may release the Juvenile; i.e., dismiss the charges. The Court may also order a Child In Need of Services (“CHINS”) petition be filed (see Virginia Code §§§ 16.1-260(D); 16.1-278.4; and 16.1-278). The Court can also order the Juvenile committed under Virgina Code 16.1-335; the “Psychiatric Treatment of Minors Act.” Commitment procedures will vary depending on the age of the child among other factors. Finally, the Court can also have the Juvenile Certified, which is to have them placed in a training center for individuals with intellectual disabilities. Matters regarding Certification are found in Virginia Code § 37.2-806.
If the Court finds the Juvenile is incompetent but restorable, the Court may order the Juvenile receive restorative services under Virginia Code § 16.1-357. This procedure may take place in a secure, or non-secure setting. The matter will then proceed in three-month periods with the agent providing restorative services updating the Court regarding the Juveniles competency and the status of restorative services. The defense attorney may continue to litigate matters in the case to include objecting to the sufficiency of the evidence or motions with similar objectives. (see Virginia Code § 16.1-359).
Limitations on Restoration
Limitations on the length of restoration are found in Virginia Code § 16.1-358 and include one (1) year from the date the juvenile was arrested on a misdemeanor and three years from the date of arrest on a felony. This appears to be a hard-line date for which it does not appear the Commonwealth receives any tolling period. In fact, this author’s experience is that a delayed request for competency evaluation, does not appear to extend the period of restoration available to the Commonwealth. Competency to stand trial, or rather incompetency, cannot be waived by the attorney at any stage of the trial process and survives a conviction and can be raised in a habeus petition. (see Kibert v Peyton, 383 F.2d 566 (4th Cir. 1967).
If a Juvenile is found competent, a hearing on the issue of competency may be held pursuant to Virginia Code § 16.1-356(f). The burden is on the party alleging incompetency and the standard of proof is a preponderance of evidence standard. The moving party must be able to meet the elements outlined in Dusky, and the Juvenile is permitted to participate in this hearing despite alleging they are incompetent. It is not clear whether the Juvenile’s participation alone may be considered by the Court in its determination of competency; however, the question of competency is a matter of factual determination and participation will undoubtedly make an impression.
As the number of Juveniles in the criminal justice system suffering from mental illness continues to increase, understanding the statutes and case law included in this article is pivotal to any defense. The author hopes it can serve as a launching point for the defense of your Juvenile clients.