¹ Nancy L. Ryba, et al., Juvenile Competence to Stand Trial Evaluations: A Survey of Current Practices and Test Usage Among Psychologists, 34 Prof’l. Psych.: Rsch. & Prac. 499, 499 (2003) (footnotes omitted) (“Competence to stand trial (CST) is the most frequently requested type of forensic mental health evaluation, with an estimated 60,000 evaluations requested annually.”).

² See Jerrod Brown et al.,, Fetal Alcohol Spectrum Disorder (FASD) and Competency to Stand Trial (CST): A Call on Forensic Evaluators to become Better Informed, 19 J. Forensic Psych. Rsch. & Prac. 315 (2019).

³ See John Maki, Why Juvenile Justice Advocates Shouldn’t Ignore Retribution, Juvenile Justice Information Exchange, The Ctr. for L., Brain & Behav. (Feb. 12, 2014), https://clbb.mgh.harvard.edu/why-juvenile-justice-advocates-shouldnt-ignore-retribution [https://perma.cc/Q3WP-CZ3M].

⁴ See Mark W. Lipsey, The primary factors that characterized effective interventions with juvenile offenders: A meta-analytic overview, 4 Victims & Offenders: An Int’l J. Evidence-based Rsch. Pol’y & Prac. 124 (2009).

⁵ Nancy Ryba Panza et al., Statutes Governing Juvenile Competency to Stand Trial Proceedings: An Analysis of Consistency with Best Practice Recommendations, 26 Psych. Pub. Pol’y & L. 274, 274 (2020) (discussing the 37 states that currently have juvenile competency to stand trial statutes).

⁶ Keith R. Cruise & Richard Rogers, An Analysis of Competency to Stand Trial: An Integration of Case Law and Clinical Knowledge, 16 Behav. Sci. & L. 35, 35 (1998).

⁷ Ian Freckelton, Rationality and Flexibility in Assessment of Fitness to Stand Trial, 19 Int’l J. L. & Psych. 39, 39 (1996).

⁸ Bruce J. Winick first identified that competency evaluations were inappropriately being used for strategic reasons rather than a legitimate mental health focus. See Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. Rev. 921, 931-33 (1985).

⁹ Dusky v. U.S., 362 U.S. 402, 402 (1960).

¹⁰ Andrew Franz, Dusky v. United States, in The Encyclopedia of Juvenile Delinquency and Justice (Christopher Schreck ed., 2018).

¹¹ Dusky, 362 U.S. at 402.

¹² Robert J. Favole, Mental Disability in the American Criminal Process: A Four Issue Survey, in Mentally Disordered Offenders: Perspectives from Law & Social Science 247, 248 (J. Monahan et al. eds., 1983).

¹³ 362 U.S. 402 (1960).

¹⁴ See Richard Rogers & Jill Johansson-Love, Evaluating Competency to Stand Trial with Evidence-Based Practice, 37 J. Am. Acad. Psychiatry L. 450, 450 (2009) (“Applied mostly to treatment and treatment outcomes, evidence-based practice is an attempt to evaluate treatment efficacies systematically via randomized control trials and meta-analyses. These efforts to revolutionize mental health practices are not without critics, who raise problems with research design (e.g., weak outcome measures, diagnostic validity, comorbidity, and sub-syndromal cases). Established practitioners sometimes are slighted by evidence-based researchers, who now feel “entitled to criticize and rectify clinical authorities” perhaps motivated by “an iconoclastic or even patricidal tendency”. While the phrase “patricidal tendency” is an overreach, it does capture the concerns of seasoned practitioners who see the possibility that their decades of experience will be devalued or even discredited by evidence-based approaches.”).

¹⁵ Although a matter of degree to which pressure is exerted by an attorney, such conduct may be violative of the lawyer’s ethical duties if practicing in a jurisdiction which has adopted the ABA Model Rules of Professional Conduct as such behavior might violated Model Rule 4.4, “Respect for Rights of Third Persons: (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Thomas D. Morgan, Selected Standards, Professional Responsibility 86 (Foundation Press ed., 2022).

¹⁶ See Nola Nouryan & Martha S. Weisel, When Ethics Codes Collide: Psychologists, Attorneys and Disclosure, 36 Cal. W. L. Rev. 125, 125 (1999) (“As the use of psychologists as experts in legal proceedings expands, the potential for conflict between attorneys and psychologists increases. There appears to be a lack of understanding between the two professions as to their respective ethical standards. The disclosure of information in a legal setting is one area in which this ethical conflict between the professions appears.”).

¹⁷ See generally Thomas G. Gutheil & Robert I. Simon, Attorneys’ Pressures on the Expert Witness: Early Warning Signs of Endangered Honesty, Objectivity, and Fair Compensation, 27 J. Am. Acad. Psychiatry L. 546, 546-52 (1999).

¹⁸ See Laurie Ragatz et al., Competency to Proceed to Trial Evaluations and Rational Understanding, 59 Int’l. J. Offender Therapy Comparative Criminology 1505, 1505 (2015) (“In Dusky v. United States, the United States Supreme Court established ‘rational understanding’ as a necessary component of a defendant’s competency to stand trial. Yet, rational understanding has engendered misunderstanding, stemming from inconsistent court rulings and lack of systematic attention given to definitions of rationality.”).

¹⁹ See Brian Brooks et al., Psychometric Foundations for the Interpretation of Neuropsychological Test Results, in The Little Black Book of Neuropsychology, A Syndrome-Based Approach 918-19 (Mike R. Schoenberg & James G. Scott eds., 2011).

²⁰ One group studying the psychological assessment tools used in legal contexts concluded that “[t]he public and the courts might assume that psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests. But not all psychological tests have good technical quality, and the psychometric properties of other tests are unknown. In their systematic review of all 283 psychological assessment test entries in the Sixteenth Mental Measurements Yearbook, Cizek and colleagues found that 59% of the educational and psychological tests were evaluated as either unfavorable, mixed, or neutral by professional reviewers. Likewise. Although noting the data on the issue is limited, Slaney suggested that many tests currently in use have not been sufficiently validated.” Tess M. S. Neal et al., Psychological Assessments in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom?, 20(3) Psych. Sci. Pub. Interest 135, 136 (2020).

²¹ See Gary B. Melton et al., Psychological Evaluations for the Courts, A Handbook for Mental Health Professionals and Lawyers 4-5 (4^th ed. 2018).

²² See Leila M. Foster, Training Lawyers in Behavioral Science and Its Applications, 4 J. Psychiatry & L. 403, 410-12 (1976).

²³ “The vicious method of the Law, which permits and requires each of the opposing parties to summon the witnesses on the party’s own account…naturally make the witness himself a ‘partisan’. More modern surveys continue to identify partisan bias as judges’ main concern about expert testimony, citing experts who appear to ‘abandon objectivity’ and ‘become advocates’ for the retaining party.” See Lucy A. Guarnera et al., Why Do Forensic Experts Disagree? Sources of Unreliability and Bias in Forensic Psychology Evaluations, 3(2) Translational Issues in Psych. Sci. 143, 147 (2017).

²⁴ See W. Neil Gowensmith et al., Field Reliability of Competence to Stand Trial Opinions: How Often Do Evaluators Agree, and What Do Judges Decide When Evaluators Disagree?, 36 L. & Hum. Behav. 130, 130-31 (2012).

²⁵ See generally Nat’l Acads. Scis., Eng’g, & Med., The Limits of Recidivism: Measuring Success After Prison (Richard Rosenfeld & Amanda Grigg eds., 2022).

²⁶ “Sometimes physicians are asked to evaluate individuals for legal purposes when there are no specific clinical questions per se and no clinical relationship with the individuals being examined. In these situations, we are uninvolved in the formulation of the questions being asked and uninvolved in deciding the rules for how the questions are answered. The physician performing the evaluation is offering an opinion—and that is all. As a result of confidentiality regulations or the limit of the inquiry imposed by the specific question to be examined and answered physicians are sometimes unable to offer an opinion in the fashion or with the conclusiveness the court or a requesting attorney may want. In these cases, there can be a temptation to offer more conclusive statements than are actually justified. In such situations, an awareness of the statutory scheme within which the evaluation takes place plays a crucial role.” Seth Feuerstein, Competency Evaluations, Case Study, 3 Psychiatry 10, 10 (2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2957277/ [https://perma.cc/DH9C-X5SL].

²⁷ See generally Mollie Kornreich, Expert Reports and Communications: Pointers on Privilege and Waiver, A.B.A Prac. Points (Dec. 12, 2016), https://www.americanbar.org/groups/litigation/committees/expert-witnesses/practice/2016/expert-reports-communications-pointers-on-privilege-waiver/ [https://perma.cc/T9DQ-ZG42].

²⁸ The recognition of legal rights for children in the U.S. is generally identified as beginning with the Supreme Court’s 1967 decision in In re Gault when the Court declared “[i]t would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the condition of being a boy does not justify a kangaroo court.” 387 U.S. 1, 27-28 (1967).

²⁹ ”Fundamentally, there is an ongoing debate regarding whether or not juvenile competency should even be considered as an issue. Those who believe the juvenile court continues to operate in accordance with the parens patriae doctrine (the government’s interest and duty in protecting youths) would argue that there is no need to consider JCST because the juvenile court is serving the child’s best interest. However, those who believe the changes within the juvenile court system have preempted the parens patriae ideal argue that, as a result of the more adversarial nature of juvenile proceedings, safeguards must be instituted to protect juveniles’ constitutional rights. A second area of contention is whether different competency standards apply for juveniles being tried in the adult court system versus those who remain in the juvenile court system. Although there does not yet appear to be a definitive answer, Grisso has suggested that the level of competence required should be considered relative to the level of protection required. Thus, a higher standard of competence may be warranted for youths being tried in adult court. Overall, the lack of clarity over these issues has left professionals performing JCST evaluations with limited guidance regarding the standards and procedures to follow when performing these services for the courts. Furthermore, little guidance has been offered by case law and state statutes regarding juvenile competency matters, and only recently have researchers begun to explore the issues specifically related to JCST evaluations and the ways in which these evaluations may differ from adult competency evaluations.” Ryba et al., supra note 3, at 500 (citations omitted).

³⁰ See generally Kimberly Larson et al., Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers (2011).

³¹ Nancy E. Walker et al., Children’s Rights in the United States, In Search of a National Policy 195 (C. Terry Hendrix & Sherrise M. Purdum eds., 1999). Gault “became the landmark decision in juvenile law establishing children themselves as worthy of constitutional recognition. The decision marked the distance the U.S. society had traveled from its belief that children were the property of their fathers and, in the father’s or his delegate’s absence, subject without recourse to the will of the state exercising its parens patriae power.”

³² Psychometric tests date back to Sir Frances Galton who defined psychometry in 1879 as the “art of imposing measurement and number upon operations of the mind,” derived from the Greek psyche (soul) and metro (measure). See Frances Galton, Psychometric Experiments, 2 Brain: J. Neurology 149, 149 (1879). By the early 1900s, psychologists applied psychometric assessment tests to quantify people’s intelligence, preferences, and behaviors, and are used in schools, the military, mental health clinics, psychotherapists’ offices, correctional facilities, and by corporations. See generally Leslie A. Miller & Robert L. Lovler, Foundations of Psychological Testing: A Practical Approach (Christine Cardone et al., eds., 5^th Ed., 2015). These tests include the Wechsler Adult Intelligence Scale (WAIS) and Wechsler Intelligence Scale for Children (WISC); Bender Visual-Motor Gestalt Test; Minnesota Multiphasic Personality Inventory (MMPI); California Psychological Inventory (CPI); Rorschach Inkblot Test; Thematic Apperception test (TAT); Sentence Completion Test; Goodenough-Harris Draw-A-Person Test; House-Tree-Person Test; Stanford-Binet Intelligence Scale; Strong Interest Inventory; Career Interest Profiler; Career Values Scale; Myers-Briggs Type Indicator; among others. See What Are Psychometric Tests?, All Psychology Careers, https://www.allpsychologycareers.com/psychology/psychometrics-tests [https://perma.cc/Q9CF-SMU8] (last visited Sept. 1, 2022).

³³ “One core element of psychology since its founding in the 1800s has been the field’s focus on indexing people’s emotional, behavioral, and cognitive functioning. From these roots, modern psychometric theories evolved into a set of scientific rules for establishing and evaluating the usefulness of psychological measurements. Today tens of thousands of psychometric tools exist to measure psychological attributes like psychopathology, personality, intelligence, and risk for violence, among others. These tools vary in structure and standardization and serve different functions depending on the approach adopted by a psychologist. Psychologists conducting forensic evaluations often use these tools to structure their evaluations and gather data.” Tess M.S. Neal et al., The Law Meets Psychological Expertise: Eight Best Practices to Improve Forensic Psychological Assessment, 18 Ann. Rev. L. & Soc. Sci. 169, 170 (2022) (citations omitted), https://doi.org/10.1146/annurev-lawsocsci-050420-010148 [https://perma.cc/7T6F-J3XE].

³⁴ The U.S. Supreme Court has recognized the use of psychometric properties of psychological assessment tools in some settings. See Hall v. Florida, 572 U.S. 701 (2014) (whether a statutory definition of mental retardation that has a bright line cutoff requiring an IQ score of 70 or below adequately captures the constitutional imperative that “mentally retarded” convicted defendants may not be executed); see also Hall v. Florida, 128 Harv. L. Rev. 271 (2014).

³⁵ In the mid-to-late-1960s, it was believed that there was an estimated 90% agreement rate between mental health professionals and court determinations on competency assessments of individuals to stand trial. See Keith R. Cruise & Richard Rogers, An Analysis of Competency to Stand Trial: An Integration of Case Law and Clinical Knowledge, 16 Behav. Sci. & L. 35 (1998). However, Bruce J. Winick, an internationally known scholar and professor of Psychiatry and Behavioral Sciences, expressed serious criticism about this very high rate of agreement among mental health professionals engaged in competency evaluations. See, e.g., Bruce J. Winick, Incompetence to Proceed in the Criminal Process: Past, Present, and Future, in Law, Mental Health, and Mental Disorder 310 (B. Sales & D. Shuman eds., 1996); see also Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and Response to Professor Bonnie, 85 J. Crim. L. & Criminology 571 (1995) [hereinafter “Winick, Reforming Incompetency to Stand Trial”].

³⁶ For a “best practices” approach to constructing statutes on juvenile competency, see generally Kimberly Larson & Thomas Grisso, Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers, Models for Change, System Reform in Juvenile Justice (2011); Nancy Ryba Panza et al., Statutes Governing Juvenile Competency to Stand Trial Proceedings: An Analysis of Consistency With Best Practice Recommendations, Psych. Pub. Pol’y, & L. (Apr. 9, 2020), https://www.researchgate.net/publication/340542969_Statutes_governing_juvenile_competency_to_stand_trial_proceedings_An_analysis_of_consistency_with_best_practice_recommendations [https://perma.cc/M6T7-Z42L].

³⁷ Panza et al., supra note 5, at 1 (citing Richard E. Redding & Lynda E. Frost, Adjudicative Competence in the Modern Juvenile Court, 9 Va. J. Soc. Pol’y & L. 353 (2001).

³⁸ “[A]t least seven sources have published compilations of JCST statutes. Some of these attempts have simply listed the states that have statutes, while others have gathered information from states with a specific focus on developmental issues. A review of these sources reveals a high degree of inconsistency in the number of laws identified, ranging from a low of 17 states to a high of 45. Part of this variation can be attributed to the criteria for inclusion, as some listed only formal statutes, while others included case law, court rule, or other sources of legislative guidance. However, the discrepancies cannot solely be attributed to differing methodologies, nor can they be explained by the passage of time.” Panza, supra note 5, at 1 (citations omitted).

³⁹ See Robert A. Nicholson et al., Instruments for Assessing Competency to Stand Trial: How do They Work?, 19 Prof. Psychol.: Rsch. & Prac. 383 (1988).

⁴⁰ See Ron Roesch et al., Conceptualizing and Assessing Competency to Stand Trial: Implications and Applications of the MacArthur Treatment Competence Model, 2 Psychol. Pub. Pol’y, & L. 96 (1996).

⁴¹ One summary of psychiatrists’ involvement in competency evaluations concluded “psychiatrists who provide mental health expertise concerning adjudicative competence give trial courts information needed to assure that defendants can appropriately protect themselves and that criminal proceedings will be accurate, dignified, and just.” Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. Am. Acad. Psychiatry & L. S3, S58 (2007), http://jaapl.org/content/35/Supplement_4/S3 [https://perma.cc/KQB2-VXEN].

⁴² “Besides the unreliability that may be intrinsic to a complex, ambiguous task such as forensic evaluation, research has identified multiple extrinsic sources of expert disagreement. One such source is imited training and certification for forensic evaluators. While specialized training programs and board certifications have become more commonplace and rigorous since the early days of the field in the 1970s and 1980s, the training and certification of typical clinicians conducting forensic evaluations today remains variable and often poor.” Lucy A. Guarnera et al., Why Do Forensic Experts Disagree? Sources of Unreliability and Bias in Forensic Psychology Evaluations, 3 Translational Issues in Psychological Sci. 143, 145 (2017).

⁴³ See generally Thomas Grisso, Five-year Research Update (1986-1990): Evaluations for Competence to Stand Trial, 10 Behav. Sci. & L. 353 (1992).

⁴⁴ This is not to suggest that psychometric tests used in forensic settings are not susceptible to error or are not subjective: “Psychometric and technical properties are often reported in specific test manuals; in the primary research literature; and in secondary aggregated compendiums and reviews, such as the Mental Measurement Yearbook and the Compendium of Neuropsychological Tests. This means a wealth of knowledge is available about aspects of the foundational validity of many tools psychologists routinely use when conducting forensic evaluations. But, importantly, the performance of many tools is either unknown or inadequate. Indeed, Neal et al. found that only approximately 40% of tools psychologists reported using in legal cases have favorable measurement properties…. All subjective, or judgment-based procedures are susceptible to error.” Neal et al., supra note 20, at 174.

⁴⁵ Again, this assumes that the instruments employed have been validated. See Steven K. Hoge et al., The MacArthur Adjudicative Competence Study: Development and Validation of a Research Instrument, 21 L. & Hum. Behav. 141 (1997).

⁴⁶ The experts must first be accepted by the trial judge and the basis of the testimony is subject to scrutiny by the court to ensure compliance with the legal requirements of expert testimony as put forth by Federal Rule of Evidence 702: “[I]n North America, judges are expected to consider the reliability (i.e., validity) of expert evidence before allowing it into court. In practice, these evidence admissibility evaluations usually occur only when requested by one of the parties. In those evaluations, judges can consider whether the method used by the expert has ever been tested, whether it has been subjected to peer review, its error rate, and whether it is generally accepted by other experts in the field. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Considerations like these can inform assessment of the quality of experts and their methods.” Neal et al., supra note 20, at 173.

⁴⁷ Having made this assertion, it should also be noted that “there is presently no accepted objective ground truth for most forensic psychological assessments, and thus no real way to know whether or how accurate they are. However, assessments of current functioning (e.g., competence to stand trial) are assumed to be more accurate than assessment of past states (e.g., mental state at time of offense) or future states (e.g., violence risk).” Neal et al., supra note 20, at 177.

⁴⁸ See generally Svetlana Popova et al., Fetal Alcohol Spectrum Disorder Prevalence Estimates in Correctional Systems: A Systematic Literature Review, 46 Alcohol & Alcoholism 490, 490-97 (2011), https://academic.oup.com/alcalc/article-pdf/46/4/490/17047278/agr029.pdf [https://perma.cc/KR3U-WCP2].

⁴⁹ See generally Jennifer L. Groscup et al., The Effects of Daubert on the Admissability of Expert Testimony in State and Federal Criminal Cases, 8 Psychol. Pub. Pol’y & L. 339 (2002).

⁵⁰ See generally Kirk Heilbrun et al., Foundations of Forensic Mental Health Assessment (2008).

⁵¹ See Stephen J. Lally, What Tests Are Acceptable for Use in Forensic Evaluations? A Survey of Experts, 34 Pro. Psych.: Rsch & Prac. 491 (2003).

⁵² Guarnera et al., supra note 24, at 144.

⁵³ “[D]espite temptation to give authoritative opinions when testifying or providing opinions in a legal setting, it is better to offer only what is within our skill set and abilities. We are merely playing a part in proceedings in which we do not make the final determination.” Feuerstein, supra note 27, at 14.

⁵⁴ See Guarnera et al., supra note 24, at 148 (“Only a handful of field reliability studies exist for a few types of forensic evaluations (i.e., adjudicative competency, legal sanity, conditional release), and virtually nothing is known about the field reliability of other types of evaluations, particularly civil evaluations.”)).

⁵⁵ See Kirk Heilbrun, The Role of Psychological Testing in Forensic Assessment, 16 L. & Hum. Behav. 257 (1992).

⁵⁶ See Lally, supra note 52.

⁵⁷ See Ames Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 Am. J. Psychiatry 616 (1965).

⁵⁸ See Antoinette Kavanaugh & Thomas Grisso, Evaluations for Sentencing of Juveniles in Criminal Court (Oxford Univ. Press 2021).

⁵⁹ “Even within the category of structured tools, research shows that forensic assessment instruments with explicit scoring rules based on objective criteria yield higher field reliability than instruments involving more holistic or subjective judgments.” Guarnera et al., supra note 24, at 146.

⁶⁰ “[A] clear recommendation for improving evaluator reliability is that states without standards for the training and certification of forensic experts should adopt them, and states with weak standards (e.g., mere workshop attendance) should strengthen them. What is less clear, however, is what kinds and doses of training can improve reliability with the greatest efficiency.” Id. at 148-49.

⁶¹ See Casey LaDuke et al., Toward a Generally Accepted Forensic Assessment Practice Among Clinical Neuropsychologists: A Survey of Professional Practice and Commion Test Use, 32 Clinical Neuropsychologist 145 (2018).

⁶² See generally Randy Borum & Thomas Grisso, Establishing Standards for Criminal Forensic Reports: An Empirical Analysis, 24 Bull. Am. Acad. Psychiatry L. 297 (1996).

⁶³ Bridget M. Kuehn, Lack of Adolescents’ Mental Health Care is a Global Challenge, 326 JAMA 1898 (2021), ttps://jamanetwork.com/journals/jama/fullarticle/2786232 [https://perma.cc/N9DP-9KJN].

⁶⁴ The number of jurisdictions that recognize developmental immaturity as a basis for declaring a juvenile not to be competent varies depending on the source of interpreting the enacted statutes. For further analysis of these discrepancies, see Panza et al., supra note 6, at 274-75.

⁶⁵ This also touches upon a detainee’s right to refuse medical treatment, including psychotropic medication in the event that the individual has been declared incompetent. For some early work focusing on individual’s right to refuse psychotropic drugs in the incompetency-to-stand-trial process, see, e.g., Bruce J. Winick, Psychotropic Medication and Competence to Stand Trial, 2 Am. Bar Found. ResRsch. J. 769, 810-14 (1977). See Robert Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw. U. L. Rev. 461 (1977).-1978). The Supreme Court’s decision in Riggins v. Nevada, 504 U.S. 127 (1992), however held that due process was violated when a defendant was forced to stand trial as he was taking large doses of antipsychotic medications that had a negative effect on his demeanor and ability to participate at trial. Riggins 504 U.S. at 135, 137.

⁶⁶ “If restoration appears impossible, some states allow the judge to dismiss the petition with or without prejudice;” or to reduce charges “to misdemeanors and status offenses. Three states permit the judge to convert some delinquency charges into status offenses, but another four require competency to stand trial in all cases. Some jurisdictions allow the civil commitment of youths who are permanently incompetent to stand trial.” Joseph B. Sanborn, Juveniles’ Competency to Stand Trial: Wading Through the Rhetoric and the Evidence, 99 J. Crim. L. & Criminology146, 146-47 (2009).

⁶⁷ Roxanne Nelson, Mental Health Care is Lacking in Children and Adolescents, 119 Am. J. Nursing 17 (2019)

⁶⁸ See id. at 17 (“According to America’s Health Rankings Annual Report 2018 from the nonprofit United Health Foundation, the southeastern states have some of the lowest health rankings, based on 35 measures including behaviors, community and environment, policy, clinical care, and outcomes data. Alabama, for example, was found to have the lowest concentration of mental health providers (85 for every 100,000 people).”).

⁶⁹ Id. at 18 (quoting Deborah Gross, Stulmann Endowed Professor in Psychiatric and Mental Health Nursing at the Johns Hopkins School of Nursing, Baltimore, Maryland).

⁷⁰ Cat Wise, Lack of Adequate Mental Health Care Places Heavy Burden on Young People, PBS NewsHour (June 29, 2022), https://www.pbs.org/newshour/show/lack-of-adequate-mental-health-care-places-heavy-burden-on-young-people [https://perma.cc/954V-36CC].

⁷¹ Improving Access to Children’s Mental Health Care, CDC 24/7: Saving Lives, Protecting People (April 27, 2022), https://www.cdc.gov/childrensmentalhealth/access.html [https://perma.cc/HAU3-3QK9] (“Nearly 1 in 5 children have a mental, emotional, or behavioral disorder, such as anxiety or depression, attention-deficit/hyperactivity disorder (ADHD), autism spectrum disorder (ASD), disruptive behavior disorder, or Tourette syndrome).

⁷² Am. Psych. Ass’n, Ethical Principles of Psychologists and Code of Conduct3.05 (including 2010 and 2016 Amendments) (2017), , available online at https://www.apa.org/ethics/code?item=6#305c [https://perma.cc/UR8D-HHEE].

⁷³ Am. Psych. Ass’n, The Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry, Sec. 5(2)Principles with Annotations, AMA Principles of Medical Ethics (2010, 2013 ed.).

⁷⁴ Cos Hippocrates, the Father of Medicine (470-380 B.C.E.), is credited with creating the physician’s oath: “I swear by Apollo the Physician, by Asclepius, Hygeia, Panaceia, and all the gods and goddesses, making them my witnesses, that I will fulfill this oath and this covenant according to my ability and judgment: To regard him who teaches medicine as equal to my parents…I will apply therapeutic measures for the benefit of the sick, refraining from all intentional wrongdoing and misconduct, particularly from sexual involvement with persons of either gender….I will not divulge anything of a private nature regarding people’s personal lives that I see or hear….”. The familiar precept, First, to do no harm (often quoted in Latin,“primum non nocere”) is of unknown origin, but it is not part of the Hippocratic oath. Steadman’s Medical Dictionary 890-91 (28^th ed. Lippincott Williams & Wilkins, 2006).

⁷⁵ Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults” Capacities as Trial Defendants, 27 Law & Hum. Behav. 333 (2003) [hereinafter MacArthur Study].

⁷⁶ See Nat’l Rsch. Council, Reforming Juvenile Justice: A Developmental Approach (Richard J. Bonnie et al. eds., 2013).

⁷⁷ Franklin E. Zimring, American Juvenile Justice, 56-57 (Oxford Univ. Press 2005).

⁷⁸ See Samantha Michaels, Kids with Cognitive Problems Can be Locked Up for Years Without a Trial, Mother Jones, (Aug. 29, 2018), https://www.motherjones.com/crime-justice/2018/08/competence-california-trial-mental-cognition-reform/ [https://perma.cc/7QCQ-ZTLZ].

⁷⁹ See generally Linda C. Fentiman, Whose Right Is It Anyway?: Rethinking Competency to Stand Trial in Light of the Synthetically Sane Insanity Defendant, 40 Miami L. Rev. 1109 (1986).

⁸⁰ See Paul S. Appelbaum & Thomas Grisso, Assessing Patients’ Capacities to Consent to Treatment, 319 New Eng. J. Med.1635 (1988); see also Paul S. Appelbaum, Assessment of Patients’ Competence to Consent to Treatment, 357 New Eng. J. Med. 1834 (2007).

⁸¹ See generally Nancy Ryba Panza & Theresa Fraser, Effects of Age, Adaptive Behavior, and Cognitive Abilities on Competence-Related Abilities in Children and Adolescents, 15 J. Forensic Psychol. Pract. 138 (2015).

⁸² See Thomas Grisso, Juveniles’ Waiver of Rights: Legal and Psychological Competence (Springer 1981).

⁸³ See id.

⁸⁴ Appelbaum & Grisso, supra note 27, at 1635 (quoting John Ruark & Thomas Raffin, Initiating and Withdrawing Life Support: Principles and Practices in Adult Medicine, Stanford University Medical Center Committee on Ethics, 318 N. Eng. J. Med. 25 (1988)) (“Ordinarily, the assessment of a patient’s decisionmaking capacity is an implicit part of the doctor–patient interaction, often taking place without either party’s awareness. Unless substantive questions arise about the patient’s competence as a result of considerations other than the content of the patient’s decisions, the physician should accept the patient’s wishes. The law, too, presumes patients’ competence. When a patient’s mental state is called into question, however, particularly in the context of a decision with serious consequences, a more thorough assessment is required. For example, the legitimacy of a patient’s refusal of life-sustaining care may turn on careful judgment of decision-making capacity, as may the acceptability of allowing family members to make medical decisions on the patient’s behalf.”)

⁸⁵ See Eileen Wang et al., Nonmedical Exemptions from School Immunizations, 104 Am. J. Pub. Health 62 (Nov. 1, 2014), https://doi.org/10.2105/AJPH.2014.302190 [https://perma.cc/A7YJ-QPF4].

⁸⁶ See JosephThompson et al., Impact of Addition of Philosophical Exemptions on Childhood Immunization Rates, 32 Am. J. Preventive Med. 194 (2007).

⁸⁷ Rita Swan, Faith-Based Medical Neglect: For Providers and Policymakers, 13 J. Child & Adolescent Trauma 343 (2020), https://link.springer.com/epdf/10.1007/s40653-020-00323-z?sharing_token=OsSgghVhyfkWManuxjOa6_e4RwlQNchNByi7wbcMAY6BQ4JfE19QE_ElYMEppq2D-Rrd4FHh-emWWATkJyzBYK4sxtGGz8omEiQoRPByM-RYz-cFbNDGeVgfoReCzRsuha75rwWZl9xIMmv_wGU-l-Vs9AHR2RWTQ6DRdYiwBeU%3D [https://perma.cc/UF3Q-R3T9] (“A substantial minority of Americans have religious beliefs against one or more medical treatments. Some groups promote exclusive reliance on prayer and ritual for healing nearly all diseases. Jehovah’s Witnesses oppose blood transfusions. Hundreds of thousands of schoolchildren have religious or conscientious exemptions from immunizations. Such exemptions have led to personal medical risk, decreases in herd immunity, and outbreaks of preventable disease. Though First Amendment protections for religious freedom do not include a right to neglect a child, many states have enacted laws allowing religious objectors to withhold preventive, screening, and, in some states, therapeutic medical care from children.”).

⁸⁸ By “religious beliefs,” this generally means parental religious beliefs as minor children may have had no role in determining what religion they have been raised to believe. Legal exemptions in many states continue to provide exemptions for children to be vaccinated against contagious and preventable childhood diseases such as measles. See Varun Phadke et al., Association Between Vaccine Refusal and Vaccine-Preventable Diseases in the United States: A Review of Measels and Pertussis, 315 JAMA 1149 (2016).

⁸⁹ 321 U.S. 158, 166-67 (1944) (“the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death…”).

⁹⁰ See generally Nancy L. Ryba & Virginia G. Cooper, Juvenile Competence to Stand Trial Evaluations: A Survey of Current Practices and Test Usage Among Psychologists, 34 Prof. Psychol.: Rsch. & Prac. 499 (2003).

⁹¹ See generally K.L. Ustad et al., Restoration of Competency to Stand Trial: Assessment with the Georgia Court Competency Test and the Competency Screening Test, 20 L. & Hum. Behav. 131 (1996).

⁹² Am. Psychiatric Ass’n, Diagnostic & Stat. Manual of Mental Disorders 5 ^th Ed. Text Rev. 37 (2022) [hereinafter “DSM-5-TR”]. Diagnostic criteria for intellectual developmental disorder (intellectual disability) is a “disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains,” requiring three criteria: (A) Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized , standardized intelligence testing; (B) deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community. (C) Onset of intellectual and adaptive deficits during the developmental period.” Id. at 37. The DSM continues to explain: “The term intellectual developmental disorder is used to clarify its relationship with the WHO-ICD-11 classification system… . The medical and research literature use both terms, while intellectual disability [emphasis added] is the term in common use by educational and other professions, advocacy groups, and the lay public. In the United States, Public Law 111-256 (Rosa’s Law) changed all references to ‘mental retardation’ in federal laws to ‘intellectual disability.’” Id. at 38.

⁹³ See Popova et al. supra note 49.

⁹⁴ See Sarah N. Mattson et al., Heavy Prenatal Alcohol Exposure With or Without Physical Features of Fetal Alcohol Syndrome Leads to IQ Deficits, 131 J. Pediatrics 718 (1997), (although “intellectual disability” may not be measured solely by low IQ scores, we now know that prenatal alcohol exposure does cause IQ deficits, regardless of whether physical features of fetal alcohol syndrome occurs.).

⁹⁵ DSM-5-TR, supra note 94, at 38. The once used DSM term “mental retardation” is no longer applied, and the measurement for severity is based upon adaptive functioning, not low IQ scores.

⁹⁶ Albert E. Chudley et al., Fetal Alcohol Spectrum Disorder: Canadian Guidelines for Diagnosis, 175 Can. Med. Ass’n. J. 172 (2005) (“The prevalence of FAS in the United States has been reported as 1–3 per 1000 live births and the rate of FASD as 9.1 per 1000 live births. However, diagnosis may often be delayed or missed entirely.”).

⁹⁷ See Diane K. Fast et al., Identifying Fetal Alcohol Syndrome Among Youth in the Criminal Justice System. 20 J. Developmental Behav. Pediatrics 370 (1999).

⁹⁸ See, e.g., Albert E. Chudley et al., supra note 38 (“Since FAS was first described in 1973, it has become apparent that it is complex; affected people exhibit a wide range of expression, from severe growth restriction, intellectual disability, birth defects and characteristic dysmorphic facial features to normal growth, facial features and intellectual abilities, but with lifelong deficits in several domains of brain function. FASD requires a medical diagnosis in the context of a multidisciplinary assessment. FASD itself is not a diagnostic term.”).

⁹⁹ See Brown, et al,, supra note 3.

¹⁰⁰ Id. at 316 (“It is imperative that mental health professionals become informed about the symptoms that would help identify FASD. Through general training on the topic and specifically addressing ND-PAE criteria, evaluators will be better equipped to provide thorough and accurate assessments of the person’s abilities to participate in the criminal justice system, particularly with regard to CST.”).

¹⁰¹ Recent studies published from Canada (see Mela Mansfield et al., Rates and Implications of Fetal Alcohol Spectrum Disorder Among Released Offenders with Mental Disorder in Canada, 40 Behav. Sci. & L. 144-53 (2022),and Australia (see Carl Boweret al., Fetal Alcohol Spectrum Disorder and Youth Justice: a Prevalence Study Among Young People Sentenced to Detention in Western Australia, 8 BMJ Open, 1-7 (2018) document large percentages of adolescents already convicted of delinquency or criminal charges had not been diagnosed until after they were incarcerated and then found to have FASD. It may well be the case that their legal counsel were unaware of the clients’ diagnosed conditions, or perhaps none of the families were aware of the children’s congenital exposure to alcohol. In any event, these two studies strongly suggest that other nations may also have large segments of adoloscents in detention facilities or jails who may be diagnosed with this congenital disorder over which they have no control and for which very little research or literature currently exists as to effective treatment modalities or behavioral therapies demonstrating success in altering the behaviors that may result in life-long involvement with criminal justice systems.

¹⁰² A Canadian study from 2014 found “an estimated number of children in care with FASD ranged from 2,225 to 7,620, with an annual cost of care ranging from $57.9 to $198.3 million Canadian dollars (CND). The highest overall cost ($29.5 to $101.1 million CND) was for 11-15 year-olds.” Svetlana Popova et al., Canadian Children and Youth in Care: The Cost of Fetal Alcohol Spectrum Disorder, 43 Child Youth Care F. 83-84 (2014).

¹⁰³ Chudley et al., supra note 98, at 1.

¹⁰⁴ Id. at 2.

¹⁰⁵ Popovaet al., supra note 95, at 84.

¹⁰⁶ Id.

¹⁰⁷ Sue Burrell et al., Incompetent Youth in California Juvenile Justice, 19 Stanford L. & Pol’y Rev. 198 (2008) (“…while the presence of a mental disorder, developmental disability, and/or immaturity does not automatically render a juvenile incompetent, the presence of these factors triggers the need for further inquiry. At the very least, these youth present serious challenges for the system in case processing and provision of services; at the most, the system must recognize their incompetence and prevent their cases from going forward.”).

¹⁰⁸ See generally David R. Katner, The Mental Health Paradigm and the MacArthur Study: Emerging Issues Challenging the Competence of Juveniles in Delinquency Systems, 32 Am. J.L. & Med. 503 (2006).

¹⁰⁹ “Fetal Alcohol Spectrum Disorder (FASD) is a permanent disorder caused by prenatal exposure to alcohol (PAE).It is often undiagnosed or misdiagnosed so that individuals who have deficits related to PAE are often misunderstood and not provided with early interventions necessary to assist them in developing age-appropriate and expected functional abilities. FASD encompasses a range of symptoms including cognitive (e.g., intelligence, executive control, and memory), social (e.g., communication skills and suggestibility), and adaptive (e.g., decision making ability and capacity to solve problems) deficitsThe impairments can manifest in a range of presentations from more pervasive (e.g., severe intellectual disabilities, facial dysmorphology) to those with complicated but less obvious deficits (e.g., social functioning impairments) and no obvious physical signs of the disorder.”. Brown et al., supra note 3, at 316 (citations omitted).

¹¹⁰ It should be noted that alcohol consumption during pregnancy is not limited to families in the U.S. See Ann-Charlotte Mårdby, Consumption of Alcohol During Pregnancy—A Multinational European Study, 30 Women & Birth 207 (2017) (“Almost 16% of women resident in Europe consumed alcohol during pregnancy with large cross-country variations.”).

Thus, the same issues present in the U.S. criminal and juvenile justice systems related to high rates of FASD adolescent are likely to be seen in European populations as well.

¹¹¹ See Susan J. Astley et al., Fetal Alcohol Syndrome (FAS) Primary Prevention Through FAS Diagnosis: I. Identification of High-Risk Birth Mothers Through the Diagnosis of Their Children, 35 Alcohol & Alcoholism 499 (2000).

¹¹² Chudley et al., supra note 95, at 3.

¹¹³ Brown et al., supra note 3, at 315 (“… it is estimated that 60% of those who have FASD will become involved in the criminal justice system at some point in their life. Given the high percentage of those with FASD who become involved in the criminal justice system and the significant functional deficits that they experience, it is essential that forensic evaluators become familiar with FASD.”).

¹¹⁴ See generally Suzanne Bell et al., A Call for More Science in Forensic Science, 115 Proceedings of Nat’l Acad. of Scis. 4541 (2018).

¹¹⁵ Maki, supra note 4.

¹¹⁶ Brown, et al., supra note 3, at 316.

¹¹⁷ Id. (“Another common myth is that those with PAE will be intellectually impaired. While those with FASD have shown a range of intellectual abilities, an estimated 73% of individuals meeting criteria for FAS and 91% of individuals meeting criteria for FASD have intellectual abilities above that typically considered intellectually disabled. However, research has indicated that even those with PAE without intellectual disabilities have deficits well beyond those of a similar IQ with regard to cognitive, behavioral, emotional and social domains. In other words, those with FASD may demonstrate some abilities that appear average while other abilities are deficient. Additionally, it is not unusual for those with FASD, at least as measured in childhood, to have variable functioning so that sometimes the same functional deficits are more obvious than at other times.”) (citations omitted).

¹¹⁸ See Kathryn Page, The Invisible Havoc of Prenatal Alcohol Damage, 4 J. Ctr. for Families, Child. & Cts. 67, 72 (2003).

¹¹⁹ See generally Mansfield et al., supra note 103.

¹²⁰ See generally Bower et al., supra note 103.

¹²¹ Id.

¹²² Brown et al., supra note 3, at 315 (“it is estimated that 60% of those who have FASD will become involved in the criminal justice system at some point in their life. Given the high percentage of those with FASD who become involved in the criminal justice system and the significant functional deficits that they experience, it is essential that forensic evaluators become familiar with FASD.”).

¹²³ Popova et al., supra note 104, at 84.

¹²⁴ Id., at 84.

¹²⁵ See Jerrod Brown et al., Fetal Alcohol Spectrum Disorder (FASD) and Suggestibility: A Survey of United States Federal Case Law. 80 Int’l J. L. & Psych. 2, 2 (Jan.-Feb. 2022).

¹²⁶ Maki, supra note 4.

¹²⁷ Brown et al., supra note 3, at 316.

¹²⁸ Brown et al., supra note 3, at 316 (“Another common myth is that those with PAE will be intellectually impaired. While those with FASD have shown a range of intellectual abilities, an estimated 73% of individuals meeting criteria for FAS and 91% of individuals meeting criteria for FASD have intellectual abilities above that typically considered intellectually disabled (Sampson, Streissguth, Bookstein, & Barr, 2000). However, research has indicated that even those with PAE without intellectual disabilities have deficits well beyond those of a similar IQ with regard to cognitive, behavioral, emotional and social domains (Quattlebaum & O’Connor, 2013). In other words, those with FASD may demonstrate some abilities that appear average while other abilities are deficient. Additionally, it is not unusual for those with FASD, at least as measured in childhood, to have variable functioning so that sometimes the same functional deficits are more obvious than at other times (Ali, Kerns, Mulligan, Olson, & Astley, 2018; Simmons, Thomas, Levy, & Riley, 2010).”

¹²⁹ For FASD diagnosis protocols, see generally S.J. Astley, Diagnostic Guide for Fetal Alcohol Spectrum Disorders: The 4-Digit Diagnostic Code (3rd ed., Seattle: Univ. of Wash. Pub. Serv. 2004).

¹³⁰ Guarnera et al., supra note 99, at 143-44 (“The forensic evaluator has been tasked with answering a difficult psychological question about you and your case. For example, ‘Were you sane or insane at the time of the offense? How likely is it that you will be violent in the future?’ … The forensic evaluator interviews you, reads records about your history, speaks to some sources close to you, and perhaps administers some psychological tests. The evaluator then forms a forensic opinion about your case—and the opinion is not in your favor. You might wonder whether most forensic clinicians would have reached the same opinion. Would a second (or third or fourth) evaluator have come to a different, perhaps more favorable conclusion?”).

¹³¹ See Elyn Saks, Retributive Constraints on the Concept of Competency: the Required Role of ‘Patently False Beliefs’ in Understanding Competency to be Executed, 27 Behav. Sci. L. 1 (2009).

¹³² Guarnera et al., supra note 84, at 148 (“…[I]ncreased standardization of forensic methods has the potential to ameliorate multiple sources of unreliability and bias [of forensic evaluations].”).

¹³³ “One likely reason why training and certification increase interrater reliability is that they promote standardized evaluation methods among forensic clinicians. While there are now greater resources and consensus concerning appropriate practice than even a decade ago, forensic psychologists still vary widely in what they actually do during any particular forensic evaluation…This diversity of methods—including the variety and at times the total lack of structured tools—is likely a major contributor to disagreement among forensic evaluators.” See Guarnera et al., supra note 84, at 145.

¹³⁴ See generally Jean Piaget, The Child’s Conception of the World (Routledge & Kegan Paul, London 1929); see also Susan Carey et al., Theories of Development: In Dialog with Jean Piaget, 38 Dev. Rev. 36 (2015).