Due Process and Mental Health

When youth find themselves in the justice system, they often face required, often court-ordered, mental health evaluations. Unfortunately, and justifiably so, many youths are being advised to not complete these evaluations due to self-incrimination...


Youth who become involved in the juvenile justice system can find they are wedged between a rock and a hard place. They often need mental health services and would be better served by a less restrictive, community-based treatment setting but the confessions they are required to make during the substance abuse/mental health evaluations could land them in a highly restrictive, punitive corrections facility instead.

The juvenile justice system’s goal is rehabilitation and treatment. Placing a child in an appropriate setting that will treat any underlying causes of misbehavior, such as substance use or mental health problems is ideal. We no longer work under a lock ‘em up and throw away the key philosophy that saw too many children being sent to prison with no hope of evidence-based treatment options. Essentially no hope for the future except four gray cell walls.

Due Process vs. Mental Health

Youth are required, often court-ordered, to submit to mental health and substance abuse evaluations for a variety of reasons, including establishing competency, transfer/waiver processes and pre-trial determinations. These psychological and or psychosocial evaluations are designed to determine diagnoses and appropriate level of care/placement. They are not designed to protect a child from self-incrimination. Evaluations ask specific questions about current charges, as well as, past criminal conduct. Specific questions can include:

  • Have you hurt or broken something on purpose, just because you were mad? (MAYSI-2)
  • Have you done anything you wish you hadn’t, when you were drunk or high? (MAYSI-2)
  • When was the last time you…
    • Used alcohol or drugs weekly?
    • Sold, distributed or helped to make illegal drugs?
    • Purposely damaged or destroyed property that did not belong to you? (GAINS-SS)
  • Yes or no…
    • I destroy things belonging to others.
    • I physically attack people
    • I set fires (CBCL)

Admitting offending behaviors, as well as, drug and alcohol use and risky life-style choices is imperative to a child receiving appropriate treatment and ideally preventing further criminal conduct. The complication arises when defense attorneys and those tasked with protecting a juvenile’s constitutional rights have no choice but to recommend the youth not answer the questions on these evaluation due to their current admissibility in court, both for the trial and sentencing. It seems once again the system’s goals are being thwarted by procedure.

Constitutional Rights

In In re Gault [387 U.S. 1 (1967)], the U.S. Supreme Court held juveniles accused of criminal offenses must be afforded many of the same constitutional protections available to adult criminal defendants, including the right against self-incrimination as specified in the Fifth and Sixth Amendments. Because of their youth and immaturity, it is even more imperative that an educated, attentive juvenile justice professional assist in helping a youth understand these rights so they are not harmed by their naiveté. It is under this responsibility that a youth’s lawyer would advise against their client completing a self-incriminating evaluation regardless of the seeming long-term benefits gained if the child were to access the appropriate level of mental health resources he or she truly needs. Unfortunately, due to current budget restraints receiving quality mental health services while incarcerated is unlikely.

Mental Health

Empirical studies suggest as many as 65-75% of juvenile justice-involved youth have one or more diagnosable psychiatric disorders. One study also found 60.8% of the youth with a mental health diagnosis also had a co-occurring substance disorder. It comes as no surprise to those of us working within the system that many children do not receive the mental health treatment they need.  As more and more programs are cut due to funding, even more children will be left undiagnosed and untreated. Many of these children will end up in our courtrooms under the jurisdiction of the juvenile justice system still crying out for these services. As professionals, we need to be aware of the importance of diagnosing and treating at this point. To do so, we need to incorporate protections into our laws that prevent a child from honestly completing mental health evaluations. Some states are doing just that.

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