The Juvenile Justice System
The Juvenile Justice System
If your child is prone to impulsive or aggressive acts, you should be prepared for the possibility of an encounter with law enforcement. We all hope that it will never happen to our children, but some teens with bipolar disorder at times lose control and break the law. This is especially likely when he or she refuses to take medication, uses street drugs and alcohol, has a co-morbid conduct disorder, or becomes unstable and displays poor judgment.
Some parents find it helpful to meet in advance with the social worker assigned to the local police station to discuss their child's condition and develop an "emergency plan" for taking the child to a hospital rather than a detention center, if need should arise.
Some parents have resorted to filing criminal charges against their children in order to change out-of-control behaviors. The Balanced Mind Foundation does not advocate this approach. Until a child or teen is receiving appropriate medical treatment, punitive approaches have little effect or negative effects on the child's behavior. Once in the juvenile justice system, the child is more likely to receive punishment than treatment.
A few innovative juvenile courts have established juvenile mental health court diversion programs. These programs are still extremely rare. In these programs, a juvenile with a diagnosed, treatable illness and a nonviolent offense may be placed in a mental health treatment program instead. The Balanced Mind Foundation strongly endorses juvenile mental health court diversion programs.
If your child is arrested, you will need immediate access to a competent criminal law attorney in your community. We strongly recommend that you locate such an attorney before you need one. Keep the attorney's phone number in an accessible place. Children who are "different" or who exhibit problem behaviors are often targeted for attention by school officials and law enforcement. Many schools have a police officer on staff to prevent, investigate and help prosecute criminal behavior at school. Police are often called first, not last, for any school-related misconduct. Students and parents must realize that the police officer who works in the school has the same authority as an officer who pulls you over in your car.
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If a school police officer questions a student at school, that student has the same rights as if the questioning occurred in the community. Parents need to inform their children how to most effectively respond to authorities so that their rights are protected and they don't incriminate themselves. Before they ever find themselves dealing with the police, kids should be taught what their constitutional rights are and how to be advocates for themselves.
A child who is approached by a police officer or by the school's administrative staff should:
- Be polite, but insist on calling his or her parents before answering any questions. Minors should politely but firmly decline to answer questions unless a parent or an attorney is present.
- Never run, be aggressive or resist arrest in any physical way.
- Never "talk back" or use verbally abusive language directed at the police. This will be seen as provocative conduct that can escalate the situation.
- NEVER write or sign a statement or give an oral confession to any act or behavior that could result in criminal liability.
- If a police officer is present, Miranda warnings may or may not be given. Frequently, schools will use the dean or another administrator to question a student while the police officer quietly listens. Advise your child to wait until you arrive before answering any questions by any official.
If your child is arrested or charged
If your child is arrested or charged with a crime, hire an attorney who is familiar with juvenile court and understands mental health issues and their impact on conduct. Do not try to manage this serious situation on your own. With your attorney:
- Come up with a plan to address the problem behaviors. Courts are more receptive to working out a solution if they are given assurance that the problem will not reoccur.
- If your child's bipolar illness was a factor in the conduct, be sure to get the treating psychiatrist to write a letter describing the relationship of the illness, or perhaps its treatment, and the undesirable conduct. For example, were there recent medication changes that might have been a factor? If necessary, this may be the time to get a new psychiatric evaluation.
- Decide as a team how to best present these issues. Courts are ambivalent about mental health issues. The court is influenced by the following factors:
- Is this the child's first time in court?
- How serious is the offense?
- Was anyone hurt?
- Is it likely to happen again?
- What supports does the child need to stay out of court and in compliance with the law?
Fitness / competency to stand trial
In some states, a defendant who is found incompetent to stand trial may be diverted out of the criminal system and into mental health care. The issue of fitness or competency with respect to children and adolescents comes into play prior to trial or if a minor confesses to a crime.
Once the issue of fitness or competence has been raised, the Court may order a psychological or psychiatric examination by a qualified expert to assess the fitness/competence of the defendant. It is now the burden of the prosecutors to prove that a defendant is fit to stand trial.
When a child makes a confession, the court wants to know: Did the child confess "knowingly" and "voluntarily" waive his or her Miranda rights? If not, should the confession and any other "tainted" evidence obtained as a result of the child's statements be excluded from the trial proceedings?
In most cases, unless a child is extremely limited cognitively or extremely mentally ill, the child's confessions are not excluded by the Court and can be used as damaging evidence during trial.
Defense against criminal charges
The options available for a defense strategy that is based on the youth's mental illness depend on the state in which the trial is held. A child or teen who commits a criminal act because of lack of treatment or improper treatment for bipolar disorder should be defended in a way that highlights this.
The defense should include a complete evaluation for bipolar disorder and may include expert testimony of a recognized expert in the field of early-onset bipolar disorder, as well as testimony by a treating psychiatrist.
If the attorney representing your child is not well informed about bipolar disorder, you may need to give the attorney specific reference materials and information. For example, an attorney representing a youth charged with shoplifting needs to know that shoplifting may be a manifestation and symptom of mania, which can be controlled with medication.
Court-appointed psychiatric assistance may be available to defendants who qualify for court-appointed counsel.
The "not guilty by reason of insanity" defense is being disallowed by a growing number of states. Even when it is available, its use may not be advantageous to a defendant. Entering such a plea may result in a long incarceration at a state psychiatric facility where state-of-the-art treatment may not be available.
In place of using the "insanity" plea, a defendant might enter a guilty plea and receive a short jail sentence or youth detention, followed by treatment or probation conditioned upon obtaining treatment. An article by William H. Reid, M.D., M.P.H., a forensic psychiatrist, discusses the problems with the insanity plea.
The "guilty but mentally ill" plea may well be the least desirable of the available alternatives, as this is not a defense. It may give a juvenile access to treatment while incarcerated, but does not necessarily provide this right. Adopting this strategy also does not guarantee that the juvenile will be separated from other criminal offenders.
A defendant can enter a plea of guilty but mentally ill when:
- he or she has undergone an examination by a clinical psychologist or psychiatrist and has waived his or her right to trial; and
- the judge has examined the psychiatric or psychological report or reports; and
- the judge has held a hearing on the issue of the defendant's mental health and, at the conclusion of the hearing, is satisfied that the defendant was mentally ill at the time of the offense.
A plea of guilty but mentally ill can result in commitment in a mental health facility, although a hearing on this issue is not automatic as is the case with an insanity plea. Thus, it is advisable to use this strategy only if a prison term is imminent. Otherwise, a person may be subject to involuntary commitment in a mental health facility, whereas a straight guilty plea might result in probation. Counseling and/or other mental health services can always be included as a condition of probation.
Sentencing and right to treatment
Some minors accused of criminal violations may be eligible for court diversion programs. Under such a program, a child may be required to perform community service or participate in a treatment program in lieu of incarceration in a juvenile facility.For a child with bipolar disorder, a diversion program requiring treatment may be especially appropriate and beneficial. When the juvenile successfully completes the requirements of the diversion program, the pending charges may be dismissed.
A few innovative judges have been experimenting with Mental Health Courts as an alternative to the criminal justice system. A Mental Health Court may allow eligible individuals to participate in treatment and supervised community services in lieu of incarceration. However, proceeding under the jurisdiction of a Mental Health Court may involve waiving certain rights or making other concessions that may not be in a child's best interest.
Not all treatment and treatment centers are helpful for these children. "Survival" or military camp methods may not be appropriate for children with behavioral outbursts caused by bipolar disorder, epilepsy, diabetes and other biochemical imbalances. Behavior modification programs that use punishments for undesired behavior have not proven to be effective in treating children with bipolar disorder and may be harmful. Appropriate treatment for children with bipolar disorder should include psychopharmacology combined with cognitive or supportive therapy.
Incarcerated children have a constitutional right to receive necessary treatment. This right, guaranteed in the U.S. Constitution's Eighth Amendment, has been interpreted differently in the many states, but it may help a child with bipolar disorder in detention who is being denied any treatment.
In addition, juvenile detainees may have the right to be screened by the city and police officials for suicidal tendencies. However, children may lose certain rights in cities where a District Attorney can charge a youth as an adult for serious offenses. Be aware if your teenager is being charged as a youth or an adult.
The Center for Public Representation has compiled a comprehensive, annotated list of federal cases relating to Treatment for Persons with Psychiatric Disorders in Jails and Prisons with assistance by the Prisoners' Rights Project, Legal Aid Society, New York. Visit their website to obtain more information. http://www.centerforpublicrep.org/home
Educating judges, social workers, and others involved in the juvenile court process about bipolar disorder is essential. The Balanced Mind Foundation is currently pursuing various efforts to help court personnel become more knowledgeable about bipolar disorder. See Suggestions for Workers in the Juvenile Justice System.
Families with legal problems are urged to hire a capable local attorney licensed to practice in the state in which the family resides. The Balanced Mind Foundation (The Balanced Mind Foundation) is unable to provide you with legal advice and The Balanced Mind Foundation’s attorneys are unable to represent you.
The information on this web page is not a substitute for legal advice. It is intended to be general in nature. The laws of each state are different. The law is always changing. The information here may not reflect the latest legal developments. NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IS GIVEN AS TO THE ACCURACY OF THIS INFORMATION.