Key Issues

+ What Is Indigent Defense?

A person who lacks the financial resources to hire an attorney when arrested or charged is referred to as “indigent.” It is harder to determine whether a youth is indigent because few have substantial resources of their own and are not in control of their parents’ finances. States differ on whether to use the parents’ or the juveniles’ finances alone to determine indigency. Some states, such as Michigan and Pennsylvania, opt to appoint counsel for all youth regardless of their indigent status.[1]

+ Why Is It so Important for Youth in Delinquency Cases to Have Lawyers and Strong Indigent Defense Systems?

Youth need the guiding hand of an attorney to navigate the legal process

    • Common sense dictates that most kids are “ill equipped to understand, manage, or navigate the complexities of the court system on their own.”[2]
    • Research has found that youth are generally more compliant and vulnerable to coercion from adults, and many are unable to understand their legal rights, suggesting a heightened need for legal counsel.[3]
    • Recent research on adolescent development and on the adolescent brain has found that teenagers’ brains are still developing and the region of the brain regulating judgment is not generally fully mature during the teenage years,[4]which impairs a young person’s ability to understand the consequences of their choices. This research shows that teens are more likely to give up rights for presumed short-term gains, not realizing how their decisions will affect their future.

Youth in juvenile court risk severe consequences

The juvenile justice system has over time become quite punitive, and youth today face very serious consequences for delinquency offenses.[5]

Beginning in the mid-1980s, youth arrests for serious offenses began rising quickly and a fear of “super-predator” youth—violent youth beyond help or hope—took hold in the media and public’s imagination.[6]

Though these fears were overstated and the juvenile arrest rate began a steady and deep decline by the early 1990s, we are left with a legacy of extremely punitive policies that include:

    • expedited methods for transferring or waiving youth to the adult court system without judicial oversight or review, which has led to large numbers of youth being tried in adult court;[7]
    • longer delinquency commitments, often in facilities that mirror the harsh conditions of adult prisons and facilities; and
    • unintended collateral consequences — such as school expulsion, difficulty obtaining employment, public housing restrictions, inclusion on sex offender registries, exclusion from the military, and serious immigration consequences—that can have life-long negative repercussions for youth and our communities.[8]

Youth, like adults, face higher rates of secure confinement when access to quality representation is limited

Weak, underfunded indigent defense systems limit a youth’s access to quality legal representation. The lack of legal counsel or representation by poorly trained and under-resourced attorneys can lead to more youth being locked up due to :

    • unnecessary pretrial detention for youth denied access to counsel at their detention hearings;[9]
    • lessened capacity of youth to resist pressure to plead guilty by other system stakeholders;
    • wrongful convictions; and
    • excessive and inappropriate sentences.[10]

+ What Do Juvenile Indigent Defense Systems Look Like?

Indigent defense systems are the systems for providing counsel to represent those who cannot afford an attorney in criminal or juvenile cases. Most juvenile indigent defense programs are a part of the general public defense system. The primary models for these systems are as follows:

    • traditional “public defender” offices run by the state or county, in which salaried attorneys provide representation;
    • contracts in which attorneys agree to provide indigent defense representation (which may be just for particular types of cases) to a jurisdiction for a set period of time; and
    • court assignments to individual attorneys to provide representation to indigent defendants on a case-by-case basis, often when attorneys in either of the prior two systems has a conflict of interest.

Law school clinics and non-profit law centers also provide some representation. Many states will use a mixture of these service delivery systems and they can be organized at the state, regional, county, or judicial district level.
[11]

Since juvenile defense is a specialized area that differs in significant ways from adult criminal defense, advocates recommend establishing separate juvenile indigent defense programs, divisions within the primary system, and/or resource centers.

+ Why Do Youth Need Defense Attorneys Who Specialize in Juvenile Law?

Most youth have limited understanding of the court process and their legal rights. They may be less likely to trust adults, including their defense counsel.[12] This means attorneys need specialized knowledge and understanding of adolescence to communicate effectively with their clients to assist and guide them in legal decision-making.[13] Additionally, to represent youth, attorneys need knowledge of delinquency law and an understanding of the unique hearings involved in the process, such as detention, transfer, and disposition, and the myriad of collateral consequences that exist.

+ What Is the Role of Juvenile Defense Counsel?

Zealous advocacy

The juvenile defense attorney has an ethical duty to zealously advocate for his or her youthful client’s expressed interests and to protect their client’s due process rights. Unlike a guardian-ad-litem, the youth’s attorney cannot substitute his or her view of the client’s “best interests” in litigating the case, but must provide competent counsel and then follow the interests expressed by the client. This ethical obligation reinforces the obligation of lawyers to counsel their clients effectively. Counsel must advise youth about potential outcomes and educate them about their rights and how the juvenile justice system operates, so that clients can make informed decisions. [14]

Addressing system deficiencies 

The National Juvenile Defense Standards call on counsel to advocate for a system “that provides legal representation that is individualized, developmentally and age appropriate, and free of all bias.”[15] Potential deficiencies include: disparate treatment and discrimination; harmful conditions of confinement; inadequate resources; and barriers to access to counsel.[16]

Representing youth in proceedings related to their delinquency charge

Attorneys should represent, advise on or recommend others to address issues in related matters that coincide with the delinquency charge such as educational and immigration hearings.[17]

Creating and streamlining paths for youth to clear their records

As the collateral consequences of having a juvenile record become increasingly severe, helping youth expunge their records has become more important.[18] The NJDC standards require juvenile defense counsel to inform their clients of any processes available for sealing and expunging juvenile records and assist them in doing so.[19] Juvenile defenders should also be involved in improving the policies and practices for expunging juvenile records.

+ At What Points in a Delinquency Case Should Youth Have Counsel?

Early Appointment of Counsel

Best practices require that counsel be appointed at the earliest stage possible after a youth comes in contact with the juvenile justice system. Ideally, that would be at arrest and intake, but at the very least, it should occur prior to the detention or initial hearing.[20] Further, counsel should be appointed early enough to have adequate time to meet with their client and investigate the case so that they are prepared to advocate, in appropriate cases, for diversion or dismissal of charges to keep the youth from being unnecessarily detained pending trial.[21]

All Stages of Proceedings

The American Bar Association' juvenile justice standards state that “the juvenile [in delinquency cases] should have the effective assistance of counsel at all stages of the proceeding.”[22]

As described in the National Juvenile Defense Standards, these stages or phases of the delinquency process include arraignment, pre-trial detention hearings, discovery, trial, pleas, and disposition.[23]

Lawyer’s Responsibility to the Youth Doesn’t End at Disposition

Following disposition, youth continue to need counsel; it is at this stage that the rehabilitative plan for the youth is generally carried out and attorneys can play an important role in ensuring court-ordered services are provided, facility conditions are safe, appeals are filed, early release petitions considered and youth are represented at post-disposition hearings.

[24] For this reason, national standards, such as the National Juvenile Defense Standards, state that attorneys should continue to stay in contact with and represent youthful clients while they are under the supervision of the court or a juvenile justice agency.[25] As an example, Pennsylvania now requires counsel to stay in the case until juvenile court jurisdiction ends, when the youth leaves the system for good.

+ How Many Youth 'Waive' Their Right to Counsel and Appear in Juvenile Court without a Lawyer?

State assessments of access to counsel conducted by the National Juvenile Defender Center have found that large proportions of youth in many states waive their right to a lawyer, often without ever consulting with an attorney.[26] The reasons for this are varied, including a youth’s lack of appreciation of the consequences of “going it alone;” pressure from judges, parents, and prosecutors to resolve cases quickly; and fear of the cost.  (Some may not be aware that they could be eligible for court-appointed representation.)[27] Since youth are unlikely to fully comprehend the immediate and future consequences of being involved in court proceedings without the benefit of counsel, youth should have the opportunity to consult with counsel prior to any waiver and some advocates argue that youth should have an unwaivable right to counsel.[28]

+ What Are the Obligations of the Supervisors of Juvenile Defense Attorneys?

In many public defender offices, juvenile court has served as a training ground for new attorneys, and has been maligned as “kiddie court.” Supervisors should combat this culture and treat juvenile court as a specialty rather than a training ground. They should support zealous legal advocacy for youth and the development of expertise in juvenile law through appropriate education and training. Supervisors also must work to get juvenile defenders access to investigative and other critical resources, must monitor caseloads so that they are not excessive, should provide attorneys with regular feedback and assistance, and should ensure that attorneys adhere to performance standards or guidelines based on best practices.[29]


Notes

[1] National Conference of State Legislatures, “Indigent Defense, Counsel & Other Procedural Issues: Juvenile Justice Guidebook for Legislators” (Nov. 10, 2011), http://bit.ly/19tVJYx; PA R. Juv. Ct. P. 151, http://bit.ly/1b00Y4h

[2] Marsha Levick and Neha Desai, “Still Waiting: The Elusive Quest to Ensure Juveniles a Constitutional Right to Counsel at All Stages of the Juvenile Court Process,” Rutgers Law Review 60:1 (2007):182, http://bit.ly/1aZsChO.

[3] Levick and Desai, 191-193.

[4] National Juvenile Justice Network, “Using Adolescent Brain Research to Inform Policy: A Guide for Juvenile Justice Advocates” (September 2012): 1, http://bit.ly/1btzlPG.

[5] Judith B. Jones, “Access to Counsel” (Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, June 2004): 14, http://1.usa.gov/1aiAdqA; Katayoon Majd and Patricia Puritz, “The Cost of Justice: How Low-Income Youth Continue to Pay the Price of Failing Indigent Defense Systems,” Georgetown Journal on Poverty Law & Policy, Vol. XVI, Symposium Issue (2009): 572, http://bit.ly/16tKMD6.

[6] Jill Wolfson, Childhood on Trial: The Failure of Trying & Sentencing Youth in Adult Criminal Court (Washington, DC: Coalition for Juvenile Justice, 2005): 7-9, http://bit.ly/15msrbT.

[7] Wolfson, 8.

[8] Lauren Girard Adams, Lourdes M. Rosado, and Angela C. Vigil, “What Difference Can a Quality Lawyer Make for a Child?” Litigation, American Bar Association, Vol. 38, No. 1 (2011): 2, http://bit.ly/1WKXqtY; Majd and Puritz, 573

[9] Youth who hire private attorneys are less likely to be held in detention prior to trial, and they have a significantly greater chance of being acquitted or having their cases returned to juvenile court if they were being tried in adult court initially. See Majd and Puritz, 568.

[10] Youth who hire private attorneys are less likely to be held in detention prior to trial, and they have a significantly greater chance of being acquitted or having their cases returned to juvenile court if they were being tried in adult court initially. See Majd and Puritz, 568.

[11] American Bar Association Standing Committee on Legal Aid and Indigent Defendants, “Gideon’s Broken Promise: America's Continuing Quest for Equal Justice” (December 2004): 2, http://bit.ly/19TbzuH.

[12] Graham v. Florida, 130 S.Ct. 2011, 2032 (2010).

[13] Mary Ann Scali and Kim Tandy, Missouri: Justice Rationed, An Assessment of Access to Counsel and Quality of Juvenile Defense Representation in Delinquency Proceedings (National Juvenile Defender Center and Central Juvenile Defender: Spring 2013), at http://bit.ly/1gTgI9S; National Juvenile Defender Center and National Legal Aid and Defender Association, “Ten Core Principles for Providing Quality Delinquency Representation through Public Defense Delivery Systems,” (July 2008): R. 2, at http://bit.ly/19xDSP2.

[14]National Juvenile Defender Center, National Juvenile Defense Standards (2012): R. 1.1 and 1.2, 18-21, http://bit.ly/XYgDqU; National Juvenile Defender Center and National Legal Aid and Defender Association, citing Juvenile Justice Standards Annotated: A Balanced Approach, Standards Relating to Counsel for Private Parties §3.1(a) (Institute for Judicial Administration/American Bar Association, ED., 1980), §3.1(a) (1980), at http://1.usa.gov/1gTj9t4; Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255-57, 270-280 (2005) at http://bit.ly/19xGpc7; American Bar Association, Model Rules of Prof’l Conduct, R. 1.14 cmt. (2010), at http://bit.ly/1b7dF0B; National Juvenile Defender Center and National Legal Aid and Defender Association, “Ten Core Principles,” 1; Adams, et al., 1-8

[15] National Juvenile Defender Center, National Juvenile Defense Standards, R. 10.1.

[16] National Juvenile Defender Center, National Juvenile Defense Standards, 152-162; National Juvenile Defender Center and National Legal Aid and Defender Association, “Ten Core Principles,” R. 10.

[17] National Juvenile Defender Center, National Juvenile Defense Standards, R. 1.4(e); National Juvenile Defender Center and National Legal Aid and Defender Association, “Ten Core Principles.” R. 9.

[18] Models for Change, “Raising the Standards of Juvenile Indigent Defense” (Chicago: The John D. and Catherine T. MacArthur Foundation, December 1, 2011): 3, http://bit.ly/16UycB7.

[19] National Juvenile Defense Standards, R. 7.6.

[20] National Juvenile Defender Center, National Juvenile Defense Standards, R. 1.4; National Council of Juvenile and Family Court Judges, “Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases” (Spring 2005): 30, 78, 90, http://bit.ly/18luSgZ. The standards established by the American Bar Association require counsel to be appointed as soon as the youth is taken into custody, when the petition is filed, or when the youth appears at an intake conference—whichever comes first. See Shepherd, ed., Juvenile Justice Standards Annotated, 254, Part 5, §5.1 (B)

[21] National Juvenile Defender Center, National Juvenile Defense Standards, R. 1.4; National Council of Juvenile and Family Court Judges, “Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases” (Spring 2005): 30, 78, 90, http://bit.ly/18luSgZ.

[22] Shepherd, ed., Justice Standards Annotated, 254, Part 5, §5.1 (A).

[23] National Juvenile Defender Center, National Juvenile Defense Standards, R. 1.4 (a).

[24] Sandra Simkins, “Out of Sight, Out of Mind: How the Lack of Post-dispositional Advocacy in Juvenile Court Increases the Risk of Recidivism and Institutional Abuse,” Rutgers Law Review, Vol. 60:1 (2007): 211-12, http://bit.ly/18lgJCp.

[25] National Juvenile Defender Center, National Juvenile Defense Standards, R. 7.1.

[26] See the assessments of states throughout the country done by the National Juvenile Defender Center. National Juvenile Defender Center, “Assessments,” accessed September 20, 2013, http://www.njdc.info/assessments.php.

[27] National Juvenile Defender Center, National Juvenile Defense Standards, R. 10.4, Commentary; National Conference of State Legislatures, “Indigent Defense, Counsel & Other Procedural Issues: Juvenile Justice Guidebook for Legislators” (Nov. 10, 2011): 4-5, http://bit.ly/19tVJYx; Jones, “Access to Counsel,” 7; Majd and Puritz, 562.

[28] Juvenile Law Center, “Lessons from Luzerne County: Right to Counsel” (undated), accessed Sept. 19, 2013, http://bit.ly/17XrhXA.

[29] National Juvenile Defender Center, National Juvenile Defense Standards, R. 9.1-9.7.