Maine’s top court is considering whether the state can incarcerate juveniles who have been found mentally incompetent to stand trial.

The case has attracted attention from state and national leaders in juvenile justice. The boy at the center of the appeal is now 14, but he has been in custody at Maine’s only youth prison on and off since he was 11.

Referred to only as A.I. in court documents, he has never been adjudicated, the juvenile alternative to a conviction. Instead, he has been repeatedly found incompetent to stand trial. Still, he recently spent nearly eight months at Long Creek Youth Development Center in South Portland while he waited for a bed at a residential mental health treatment program. He finally transferred to a facility in New Hampshire in August, and the criminal charges against him have been dismissed.

Details of juvenile cases are often confidential, but this one landed in a public courtroom because the boy’s lawyer has repeatedly challenged his incarceration as unconstitutional. And on Monday, Sarah Branch brought the latest appeal all the way to the full Maine Supreme Judicial Court. Because the boy is no longer incarcerated, the justices must decide whether to dismiss his case as moot or rule on it to set a precedent.

Branch told the court that news reports about A.I. have prompted calls from other defense attorneys who represented similar clients, and she knows of at least one case of a child currently detained at Long Creek.

“The number of children with mental health challenges in the criminal justice system is only increasing,” Branch said. “To dismiss the (case) as moot because A.I. has been placed after the 224 days he spent at Long Creek having never been convicted of a crime, is to set the next child up for a similar fate, and is a dereliction of our collective duty to these children.”

Branch said A.I. never received treatment that could help him regain competency in a court proceeding. While she said she would prefer a child be released from Long Creek and treated in a different setting, she asked the court to at least rule that juveniles like A.I. cannot be detained without receiving those services.

“If the youth is determined by a judge to be incompetent to assist with his own defense or to stand trial, that youth must be provided with restoration services, whether at Long Creek or somewhere else, if I understand your argument,” Chief Justice Leigh Saufley said. “You are not arguing that those services could never be provided at Long Creek.”

“I’m a practical attorney,” Branch said. “I hope I understand the ideal and what this court might – I’m asking for a step moving forward. I’m asking for this court to declare what happened to A.I. wrong. And yes, if that means saying the tiny step of, you must provide competency restoration mandated by the due process laws, then yes, I am asking for that.”

Two attorneys for the state – one for the Department of Corrections and the other for the Department of Health and Human Services – argued that A.I. presented a unique case, not likely to be repeated because his needs were so great.

They also said state officials from both agencies went to extraordinary lengths to find the right placement for A.I., and he did receive general mental health services while incarcerated at Long Creek. They argued that objections by the boy and his mother made that effort more difficult.

“This is a youth who is in jail, and the focus has to be on restoring him to competence so that incarceration does not continue,” Saufley said. “So that aspect of the treatment, was that being engaged in?”

Assistant Attorney General Jason Anton referred to a neuropsychologist’s earlier testimony.

“The only treatment that would actually restore A.I. back to competency, or had a chance to restore him to competency, was this intensive residential treatment,” Anton said. “DOC provided all the services it could together with DHHS at Long Creek while doing everything in its power to get him precisely that.”

The courtroom at the Cumberland County Courthouse was full Monday. The case has attracted attention from groups such as the American Civil Liberties Union of Maine, and staff attorney Emma Bond sat next to Branch during oral arguments. That organization filed an amicus brief in the case, along with the Juvenile Law Center in Philadelphia, the GLBTQ Legal Advocates and Defenders in Boston, the American Civil Liberties Union of Maine, Disability Rights Maine and the Portland-based Kids Legal.

“Freedom from incarceration lies at the heart of the liberty interests protected by the Fourteenth Amendment, and it is well established that substantive due process forbids the prolonged incarceration of an adult defendant who is incompetent to stand trial,” the amicus brief states. “The State’s sole interest in such cases is to restore the defendant to competency – which requires treatment and not incarceration. Decision after decision has held that incarceration of incompetent defendants for periods from eight to twenty-two days violates the Constitution. These constitutional concerns are even greater when we consider the injustice of unnecessarily incarcerating juveniles – who are entitled to even greater state protection than adults.”

A.I. was most recently detained at Long Creek in December. It is not clear what charges he was facing at the time. Misdemeanor juvenile cases are confidential, and the only felony – assault on a police officer, a Class C crime – has been dismissed.

In April, a judge ruled he was not competent but could potentially stand trial in the future. He then ordered the state to treat his mental health and behavioral needs. The two state psychiatric hospitals would typically treat adults who are declared incompetent by the court, but they do not accept minor patients. So A.I. remained at Long Creek while multiple officials struggled to find a bed in an appropriate program. Branch filed a petition in May for a writ of habeas corpus, or a request to determine if his detention was legal.

Supreme Judicial Court Justice Ellen Gorman heard arguments in June and denied the petition. Branch appealed that order, which prompted the oral arguments before the full court Monday.

Because Gorman handled the initial hearing on A.I.’s petition, she did not sit for the appeal arguments Monday. The other six justices heard the case, but the chief justice made an unusual disclosure at the beginning of the hearing. Saufley acknowledged that she has talked publicly about the pitfalls of the juvenile justice system in Maine. She said she has not spoken on the issue or attended task force meetings since she became aware of this case, but she asked the attorneys to inform the court by Friday if they would like her to recuse herself.

“I am confident that I can be fair and impartial with regard to the various matters that are before the court in this case, hence, I am here this afternoon,” Saufley said at the start of the hearing. “Nonetheless, I am conscious that your clients may have a different perspective, and the confidence in our courts is paramount.”

The chief justice has in the past called for reforms in the juvenile justice system in Maine without finding its realities unconstitutional. Last year, the state upheld a Skowhegan teenager’s sentence at Long Creek, but Saufley wrote a side opinion that criticized the lack of options for juveniles.

“The lack of alternatives available to the court, to the youth and to his family, and to the attorneys attempting to carry out the Legislature’s mandate for rehabilitation of a youth who is out of control, is both shortsighted and fraught with potential long-term consequences,” she wrote.

There is no timetable for the justices to issue a ruling on this case.

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