This Black Letter, presented in Tentative Draft No. 2, was approved by ALI membership during the 2019 Annual Meeting, subject to the discussion at the Meeting and usual editorial prerogative. Actions taken with respect to this Draft may be ascertained by consulting the Annual Proceedings of the Institute, which are published following each Annual Meeting.

Restatement of the Law, Children and the Law

The following entry is excerpted from the Black Letter and Comments of Tentative Draft No. 2, Part III–Children in the Justice System; Section 17.20 Adjudicative Competence in Criminal Proceedings.

The full draft contains additional Reporters’ Notes. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such.

§17.20. Adjudicative Competence in Criminal Proceedings

          (a) A juvenile charged with a criminal offense is not competent to participate in a proceeding to adjudicate guilt or to plead guilty unless the juvenile has both a rational and factual understanding of the proceedings, and is able to consult with and assist counsel in preparing a defense. The juvenile may lack the requisite competence due to mental illness, intellectual disability, or developmental immaturity.

          (b) (1) A juvenile found incompetent to proceed cannot be subject to a criminal proceeding or enter a plea unless and until his or her incompetence is remediated and competence is attained. Remediation must occur in a reasonable period of time following the finding of incompetence.

               (2) Unless otherwise prohibited by law, a juvenile found incompetent to proceed can be transferred to juvenile court to be adjudicated if he or she is competent to proceed in a delinquency proceeding.


          a. History and rationale. Common-law courts for centuries have determined that an individual charged with a criminal offense cannot be tried if he or she is incapable of meaningfully participating in the proceeding to determine guilt. Historically, the requirement that a defendant must have a minimal level of competence was grounded in the formal procedural mandate that a plea by the defendant was necessary before a criminal prosecution could proceed. If the defendant was unable to understand and enter a plea because of diminished mental capacity, the adjudication could not proceed. Even after courts entered a not-guilty plea for defendants who did not plead, the requirement that the defendant be competent to proceed persisted as a condition of criminal prosecution.

          The requirement of adjudicative competence aims to preserve the values of accuracy, legitimacy, and autonomy in criminal proceedings. See § 15.30, Adjudicative competence in delinquency proceedings, Comment a. First, the requirement promotes accuracy because a competent defendant can challenge prosecution evidence and provide exculpatory information to defense counsel, while an incompetent defendant may be unable to fulfill those functions.  Second, the competence requirement promotes legitimacy, which is undermined when an uncomprehending defendant faces the power of the state in a criminal proceeding, the goal of which is punishment and deprivation of liberty. Finally, respect for individual autonomy requires the defendant’s meaningful participation in criminal proceedings. In Drope. v Missouri, the United States Supreme Court held that constitutional due process requires that a criminal defendant be competent to stand trial. 420 U.S. 162 (1975). The Court observed, “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing a defense, may not be subjected to a trial.” Id. at 171.

          The criminal defendant has a right not to be subject to prosecution while incompetent; but, because the requirement of competence also has the purpose of promoting the integrity and legitimacy of the proceeding, the defendant cannot waive this right. Further, the prosecutor can raise the issue and the judge sua sponte can order a competence hearing. The evidence considered in the hearing includes a report on a psychological evaluation of the defendant’s competence by an expert forensic clinician.

          The legal standard that is universally applied by courts in determining adjudicative competence in criminal proceedings was provided by the U.S. Supreme Court in Dusky v. United States. 362 U.S. 402 (1960). Under Dusky, the test for adjudicative competence is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402. See also Pate v. Robinson, 383 U.S. 375 (1966) (defendant was deprived of due process under the Fourteenth Amendment by court’s failure to order competence hearing).  Courts apply this standard for adjudicative competence to a juvenile tried as an adult in criminal court.

          The determination that an adult criminal defendant is incompetent to proceed has usually been limited to cases involving serious mental illness or intellectual disability that renders the individual unable to participate in his or her defense. Only recently have courts addressed claims that a juvenile prosecuted as an adult is incompetent on the basis of immaturity. This issue is addressed in Comment c and the Reporter’s Note thereto.

Read the complete Black Letter and Comments from this Section.

Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Medicine and Law Emeritus at the University of Virginia School of Law, having retired from teaching in 2023. He formerly served as director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

David D. Meyer

Associate Reporter (2016-2020), Children and the Law

David Meyer became the 22nd Dean of Tulane Law School in 2010. His expertise relates to constitutional law and family law, and he has written extensively on topics at the intersection of the two fields. He served as U.S. national reporter on family law at several congresses of the International Academy of Comparative Law, including Washington (2010), Utrecht (2006) and Brisbane (2002), and he has delivered endowed lectures or keynote addresses at BYU, Florida, Hofstra, Michigan State and other venues.

Jennifer Morinigo

The American Law Institute


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