I agree with Justice Blease that age alone -- apart from a "special" mental condition -- can easily make a child incompetent to stand trial; e.g., that a two-year old may be incompetent to stand trial even if she's a normal, healthy two-year old. So I think that Justice Blease is correct to remand both of these cases, where it seems like the lower court has required the showing of a special mental deficiency as a prerequisite to any claim of incompetency. Plus, I think that Justice Blease writes a really, really good opinion in this regard, and one that is extremely sophisticated and persuasive.
Still, I gotta tell you, I'm a little weirded out by the first of these cases (Dante H.'s). He's an 11-year old kid who (alongside some friends) broke some windows at the local elementary school and stole stuff from the gym. He gets A's and B's in school. He's got a three-digit, average I.Q. He answers each of the standard "competency to stand trial" questions exactly how you'd expect: Yeah, I know what the trial is, what not guilty is, yes I'll trust and rely upon my attorney, and parents, etc. Just a normal kid. But experts say that he's still incompetent to stand trial because he's a kid, and kids aren't really independent, defer to their parents, and lack a wide variety of analytical and sophisticated mental skills because (at least in part) their nerves haven't myelineated yet. In other words, because they're kids. Who often -- as any parent well knows -- both do stupid stuff and aren't the most sophisticated people in the universe. E.g., who answer, entirely truthfully, the question "Why'd you do that?" with the answer "I don't know."
Which seems fine. But it leaves me with two fundamental questions. First, is this really what "competence to stand trial" means? I always assumed it meant the ability to understand what's going on and to assist in your defense. Which I fully presume that Dante H. (and other normal 11-year olds) typically have. Sure, they may not be fully myelineated, or whatever, but it seems like we're talking about two different things here. Second, and relatedly, if Dante H. (and other 11-year olds) aren't competent, then I'm quite positive that lots and lots of criminal defendants aren't competent as well -- even though we routinely find otherwise. As anyone with extensive personal exposure in this area is fully aware, many defendants act (and think) precisely like 11-year olds. If that. Maybe they're not fully myelineated either. Or maybe they're just utterly immature and still not capable of performing complex analytical skills (e.g., rationally weighing costs, benefits, and consequences), even though they may well understand (like Dante H. does) what's doing on.
There's just a stark contrast between the type of evidence deemed potentially sufficient here and the type of evidence required for the identical issue in your typical (adult) criminal case. It's not that I disagree with any of the science or anything like that; I'm sure it's all true. And I'm sure that, at some level (e.g., with four-year olds), you'll need to virtually nothing else to prove to me that they're incompetent to stand trial than simply stand up and say "For Christ's sake, he's four!"
But normal 11-year olds seem a lot like many of the typical 18-year olds that we have in prison. So I wonder whether we're doing wrong by either excessively critiquing the competence of the former or, alternately, by not paying particular attention to the similar incompetence of the latter.
