Empathy, Acceptance of Responsibility, and Compelled Testimony in Juvenile Transfer Hearings: Legal Context and Empirical Evidence

There are a number of legal decisions in which the court must decide whether juveniles can be rehabilitated. Such decisions include juvenile adjudication/placement, waiver, and reverse waiver.1 The criterion used by courts to consider rehabilitation amenability is typically phrased in a way similar to that described under Pennsylvania state law.2 In deciding whether a child may be decertified (reverse waived from criminal to juvenile court), the court can consider. whether the child is amenable to treatment, supervision, or rehabilitation as a juvenile. The court may consider the following in determining treatment, supervision, or rehabilitation amenability: (a) age, (b) mental capacity, (c) maturity, (d) degree of criminal sophistication, (e) previous records, (f) nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate, (g) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction, (h) probation or institutional reports, (i) any other relevant factors, and (j) whether there are reasonable grounds to believe that the child is not committable to an institution for the mentally retarded or mentally ill.3 Empathy for the victims of the defendant’s offenses, and acceptance of responsibility for such offenses, may be considered by mental health and justice professionals working with post-adjudicated youth. But rendering an expert opinion that describes the youth’s capacity for empathy or acceptance of responsibility, when that opinion is based in part on questions concerning the alleged offense, places the evaluating expert in an awkward position.

To what extent can denial of culpability be used to infer limited empathy and acceptance of responsibility? How does the Fifth Amendment right against self-incrimination factor into this consideration?