Mental Health Mental Health and Juvenile Justiceand Juvenile Justice

Class 19Class 19

Mental HealthMental Health Historical AntecedentsHistorical Antecedents

Hijacking of juvenile court by psychologists and Hijacking of juvenile court by psychologists and psychiatrists in its “second phase”, starting in the psychiatrists in its “second phase”, starting in the 1920s (shift from social work interventionist model)1920s (shift from social work interventionist model)

Sharp rise in admissions of minors to mental hospitals Sharp rise in admissions of minors to mental hospitals in this erain this era

Commensurate with expansion of institutional and Commensurate with expansion of institutional and other residential mental health servicesother residential mental health services

Deinstitutionalization movements in the 1970s (linked Deinstitutionalization movements in the 1970s (linked to federal funding under 1974 JJDPA)to federal funding under 1974 JJDPA)

Private sector growth: increase in use of private MH Private sector growth: increase in use of private MH facilities from 37% to 61% in one decade (Weithorn) – facilities from 37% to 61% in one decade (Weithorn) – political economypolitical economy??

•There appears to be an increasing number of youth with mental disorders entering the juvenile justice system. The Texas Youth Commission reported a 27% increase in the number of youth with mental disorders entering the state's juvenile justice system between 1995 and 2001 (TYC, 2002).

•Many of these youth are incarcerated for minor, non-violent offenses. A review in Louisiana found that 73% of youth in Louisiana were incarcerated for non-violent offenses. A similar review in Texas found 67% (Schwank et al., 2003).

•There is concern that the juvenile justice system is becoming the system of "last resort" for many youth. A 1999 survey by the National Alliance for the Mentally Ill (NAMI)found that 36% of their respondents reported having to place their children in the juvenile justice system in order to access mental health services that were otherwise unavailable to them (NAMI, 1999). A more recent study conducted by the U.S. General Accounting Office (GAO) found that in 2001, parents placed over 12,700 children into the child welfare or juvenile justice systems in order to access mental health services (GAO, July 2003).

Source: National Center for Mental Health and Juvenile Justice, 2005

Recent TrendsRecent Trends

Mental Health as PredictionMental Health as Prediction IQ and personality scoresIQ and personality scores

Psychopathy - stable and enduring trait, Psychopathy - stable and enduring trait, explanation for lack of tractability of explanation for lack of tractability of delinquents to treatmentdelinquents to treatment

MeasurementMeasurement• The PCL Y-RThe PCL Y-R

Utility in Prediction?Utility in Prediction? Deviance or development?Deviance or development?

Factor 1 - Interpersonal/Affective Factor 1 - Interpersonal/Affective p0pcl01p0pcl01 - Impression Management. - Impression Management. p0pcl02p0pcl02 - Grandiose Sense of Self Worth. - Grandiose Sense of Self Worth. p0pcl04p0pcl04 - Pathological Lying. - Pathological Lying. p0pcl05p0pcl05 - Manipulation for Personal Gain. - Manipulation for Personal Gain. p0pcl06p0pcl06 - Lack of Remorse. - Lack of Remorse. p0pcl07p0pcl07 - Shallow Affect. - Shallow Affect. p0pcl08p0pcl08 - Callous/Lack Empathy. - Callous/Lack Empathy. p0pcl16p0pcl16 - Failure to Accept Responsibility - Failure to Accept Responsibility

Factor 2 - Socially Deviant Lifestyle Factor 2 - Socially Deviant Lifestyle p0pcl03p0pcl03 - Stimulation Seeking. - Stimulation Seeking. p0pcl09p0pcl09 - Parasitic Orientation. - Parasitic Orientation. p0pcl10p0pcl10 - Poor Anger Control. - Poor Anger Control. p0pcl12p0pcl12 - Early Problem Behaviors. - Early Problem Behaviors. p0pcl13p0pcl13 - Lacks Goals. - Lacks Goals. p0pcl14p0pcl14 - Impulsivity. - Impulsivity. p0pcl15p0pcl15 - Irresponsibility. - Irresponsibility. p0pcl18p0pcl18 - Serious Criminal Behavior. - Serious Criminal Behavior. p0pcl19p0pcl19 - Serious Violations of Conditional Release. - Serious Violations of Conditional Release.

PracticesPractices Standards for court-initiated placement to Standards for court-initiated placement to

a MH institution or facility?a MH institution or facility? Behavioral criteriaBehavioral criteria Diagnostic ClassificationDiagnostic Classification ““Severe problems” attributable to a Severe problems” attributable to a

“psychiatric disease”“psychiatric disease” Akin to diagnosis of “dangerousness” Akin to diagnosis of “dangerousness”

(Weithorn, at 787)(Weithorn, at 787) MH Diagnosis as marker of dangerousnessMH Diagnosis as marker of dangerousness

Legal RegulationLegal Regulation Case LawCase Law

Parham v J.R.Parham v J.R. 442 U.S. 584 (1979) 442 U.S. 584 (1979) What are minor’s due process rights when parents What are minor’s due process rights when parents

seek to institutionalize child in mental health facilityseek to institutionalize child in mental health facility Should this be an adversarial proceeding?Should this be an adversarial proceeding? Federal district court ruled in favor of child, enjoined Federal district court ruled in favor of child, enjoined

commitments without full due processcommitments without full due process Also ordered expenditure of funds to create non-Also ordered expenditure of funds to create non-

institutional alternativesinstitutional alternatives SCOTUS Reversed. Court recognized stigmatizing SCOTUS Reversed. Court recognized stigmatizing

consequences of mental health placement but consequences of mental health placement but distinguished it from stigma of “delinquent”distinguished it from stigma of “delinquent”

• Therefore, not in conflict with Therefore, not in conflict with Gault, Gault, 6th or 146th or 14thth amendment amendment concernsconcerns

SCOTUS declined to require states to regulate use of SCOTUS declined to require states to regulate use of private mental health placements sought by parents. private mental health placements sought by parents. Court refused to limit discretion of either parents or Court refused to limit discretion of either parents or state guardians in use of these facilitiesstate guardians in use of these facilities

• ““Parents generally have the right, coupled with the high Parents generally have the right, coupled with the high duty….to recognize symptoms of illness and to seek and duty….to recognize symptoms of illness and to seek and follow medical advice” follow medical advice”

But Court does recognize risk of error in mental health But Court does recognize risk of error in mental health placement by parents, calls for review in “independent placement by parents, calls for review in “independent procedure”…just not by a legal professional….”Thus, a procedure”…just not by a legal professional….”Thus, a staff psychiatrist will suffice” (see Addington v staff psychiatrist will suffice” (see Addington v Texas”…. “Judges certainly can’t do a better job than a Texas”…. “Judges certainly can’t do a better job than a trained mental health professional”trained mental health professional”

• Risk of error does not translate into constitutional protectionRisk of error does not translate into constitutional protection• “…“…Not necessary for deciding physician to conduct a formal or Not necessary for deciding physician to conduct a formal or

quasi-formal hearing…”quasi-formal hearing…” State interest only begins when the institution State interest only begins when the institution

endangers child, then parental rights are circumscribed endangers child, then parental rights are circumscribed and state becomes protector of childand state becomes protector of child

Brennan DissentBrennan Dissent Cannot assume that parents act in child’s best Cannot assume that parents act in child’s best

interest when commitment to mental interest when commitment to mental institution is at stakeinstitution is at stake

Other CritiquesOther Critiques What are the obligations of a court to What are the obligations of a court to

determine whether family functioning meets determine whether family functioning meets “best interest” standard?“best interest” standard?• When is this “dumping” the kid?When is this “dumping” the kid?

Should states provide an adult standard for Should states provide an adult standard for mental health commitments? Aren’t all mental health commitments? Aren’t all commitments of minors “involuntary”?commitments of minors “involuntary”?

Professional RegulationProfessional Regulation

Standards Projects? Very little, mostly “training Standards Projects? Very little, mostly “training and technical assistance” to improve services– and technical assistance” to improve services– see: National Center for Mental Health and see: National Center for Mental Health and Juvenile Justice, Juvenile Justice, http://www.ncmhjj.com/http://www.ncmhjj.com/

Financial oversight through state insurance Financial oversight through state insurance regulators – effective?regulators – effective?

Mandated review of admissions – substitution of Mandated review of admissions – substitution of procedural oversight instead of substantive procedural oversight instead of substantive review of decision makingreview of decision making

Juvenile Justice PlacementsJuvenile Justice Placements

““Transinstitutionalization” beginning in the Transinstitutionalization” beginning in the 1970s when JJDPA limited juvenile court 1970s when JJDPA limited juvenile court jurisdiction for non-delinquentsjurisdiction for non-delinquents

Sharp expansion by courts following Sharp expansion by courts following JJDPA (Herz, at 173)JJDPA (Herz, at 173)

For delinquents, MH options expanded in For delinquents, MH options expanded in 1970s within juvenile corrections agencies 1970s within juvenile corrections agencies for “dangerous” offenders with diagnosed for “dangerous” offenders with diagnosed mental health problems – secure TXmental health problems – secure TX

Prevalence estimatesPrevalence estimates Detention:Detention:

See: Linda A. Teplin, et al., See: Linda A. Teplin, et al., Psychiatric Disorders in Youth in Psychiatric Disorders in Youth in Juvenile Detention, Juvenile Detention, 5959Arch Gen Psychiatry Arch Gen Psychiatry 1133-1143 (2002).1133-1143 (2002).

DISC measurement (interviewer-guided self-report of symptoms)DISC measurement (interviewer-guided self-report of symptoms) 1172 males, 657 females, ages 10-18 years in secure detention in 1172 males, 657 females, ages 10-18 years in secure detention in

Cook CountyCook County 2/3 of males and 3/4 of females met diagnostic criteria for one or 2/3 of males and 3/4 of females met diagnostic criteria for one or

more psychiatric disorders. more psychiatric disorders. About one in five had “serious” disorderAbout one in five had “serious” disorder Half of males and almost half of females had a substance use Half of males and almost half of females had a substance use

disorder, and more than 40% of males and females met criteria for disorder, and more than 40% of males and females met criteria for disruptive behavior disorders. disruptive behavior disorders.

Affective disorders were also prevalent, especially among females; Affective disorders were also prevalent, especially among females; more than 20% of females met criteria for a major depressive more than 20% of females met criteria for a major depressive episode. episode.

Rates of many disorders were higher among females, non-Hispanic Rates of many disorders were higher among females, non-Hispanic whites, and older adolescents. whites, and older adolescents.

Source: California Youth Authority, Substance Abuse and Mental Health Needs Assessment, 2000; Thomas Grisso, Massachusetts Youth Screening Instrument for mental health needs of juvenile justice youths. 40 Journal of the American

Academy of Child & Adolescent Psychiatry, 541-548 (2001).

• Corrections

Correctional InstitutionsCorrectional Institutions Capacity of correctional institutions to protect Capacity of correctional institutions to protect

kids with MH problems? To treat them?kids with MH problems? To treat them? How are classifications and decisions made?How are classifications and decisions made? Validity of testing and classification measures?Validity of testing and classification measures?

• Steven Erickson, “Psychological Testimony on Trial: Steven Erickson, “Psychological Testimony on Trial: Questions Arise About the Validity of Popular Questions Arise About the Validity of Popular Testing Methods,” XIX Testing Methods,” XIX Law Guardian ReporterLaw Guardian Reporter, , December 2003December 2003

DaubertDaubert tests challenge validity of MMPI, tests challenge validity of MMPI, Rorschach, others (see also NYT, 3/9/04, Rorschach, others (see also NYT, 3/9/04, Science 1).Science 1).

Decision Making and DisparityDecision Making and Disparity

Which offenders receive mental health Which offenders receive mental health placements and which are sent to placements and which are sent to correctional institutions? correctional institutions?

Disparities by race and gender? Disparities by race and gender? Balance of ‘penal proportionality’ with Balance of ‘penal proportionality’ with

treatment needs?treatment needs?

Herz StudyHerz Study N=4,758 casesN=4,758 cases Females, Whites, Age (younger) more likely to Females, Whites, Age (younger) more likely to

receive MH placement over other correctional receive MH placement over other correctional placementsplacements

Prior record and offense seriousness were not Prior record and offense seriousness were not significant predictorssignificant predictors

Geographic and court jurisdiction variations Geographic and court jurisdiction variations reflect availability of services and different reflect availability of services and different preferences of judges (PPG articles)preferences of judges (PPG articles)

Current ClimateCurrent Climate PPG ArticlesPPG Articles Deinstitutionalization has depleted MH Deinstitutionalization has depleted MH

resources, created dependence on JJ system for resources, created dependence on JJ system for kids with mental health or emotional problemskids with mental health or emotional problems

$$ Low threshold for detention and incarceration Low threshold for detention and incarceration

creates little room for risk in placement decisionscreates little room for risk in placement decisions PA HB 1448 – relaxes standards for involuntary PA HB 1448 – relaxes standards for involuntary

commitments of youths for mental health and commitments of youths for mental health and substance abuse treatment based on physician substance abuse treatment based on physician recommendationrecommendation Unchallenged as a result of Unchallenged as a result of ParhamParham Example of how this area of juvenile justice is driven Example of how this area of juvenile justice is driven

far more by statute than by case lawfar more by statute than by case law

The MAYSIThe MAYSIQuestionnaire and Coding SchemeQuestionnaire and Coding Scheme

Thomas Grisso et al., Massachusetts Youth Screening Thomas Grisso et al., Massachusetts Youth Screening Instrument for Mental Health Needs of Juvenile Justice Instrument for Mental Health Needs of Juvenile Justice Youths, 40 Youths, 40 J. Am. Acad. Child Adolesc. PsychiatryJ. Am. Acad. Child Adolesc. Psychiatry 541 541 (2001)(2001)

““The MAYSI-2 was intended primarily for use at the The MAYSI-2 was intended primarily for use at the front door of juvenile justice programs to identify front door of juvenile justice programs to identify youths who may be in need of immediate clinical youths who may be in need of immediate clinical intervention” … “as a triage instrument rather than for intervention” … “as a triage instrument rather than for formal diagnoses or to identify long-term treatment formal diagnoses or to identify long-term treatment needs.”needs.”

Some Residual IssuesSome Residual Issues Disparity by race and genderDisparity by race and gender Methods of legal or social regulation of Methods of legal or social regulation of

placement decisions and conditionsplacement decisions and conditions Can you make an argument that mental health Can you make an argument that mental health

placement is punitive? placement is punitive? Wouldn’t that require that Wouldn’t that require that Parham Parham be overturned?be overturned?

Sexual abuse and institutional violence – re-Sexual abuse and institutional violence – re-victimizationvictimization

What happens if we import What happens if we import HendricksHendricks logic? logic? Correctional placement as pathway to mental health Correctional placement as pathway to mental health

placement when offender is violent?placement when offender is violent? Either non-responsive to institutional care or history of Either non-responsive to institutional care or history of

violence triggers Hendricks/Crane evaluation?violence triggers Hendricks/Crane evaluation?