Waiver of counsel
During the early 1960s, the United States Supreme Court established a right to counsel for adult defendants in (Gideon vs. Wainwright, 372 U.S. 335 (1963)). The Court quickly followed by extending a similar right to counsel to youth in delinquency proceedings (In re Gault, 387 U.S. 1 (1967)).
Decades later, the specific circumstances under which a youth may waive their right to counsel in delinquency proceedings differs across the states. Some states place restrictions on granting waivers and others remain silent on the issue. Still others define criteria related to age, the offense a youth is charged with or the type of hearing a youth is involved to restrict the ability to waive counsel.
Ongoing efforts to reduce waiver of counsel are important to ensuring youth have access to due process protections. Several states have recently implemented reforms where youth must have an opportunity to consult with counsel prior to waiving their right to counsel.
- Six Policy Priorities for Juvenile Defense (2013)
- Pennsylvania's Legislative Response to the Luzerne County "Kids for Cash" Scandal (Juvenile Law Center online resource)
- Real Interrogation: What Actually Happens When Cops Question Kids (Barry Feld lecture, 2012)
Timing of counsel 2013
Most states lack specific policy language in their juvenile justice codes to appoint counsel to youth from families who cannot afford private counsel at the earliest possible stages (before a filing has been presented to a court). Some notable exceptions exist both in statute or in case law, with clear guidance on the requirements for early appointment of counsel in delinquency matters and serve as examples for making comparisons to states where the legislature or the courts have not clarified this issue.
Colorado has recently passed model legislation in this regard that will take effect in November, 2014. New Jersey and Texas provide additional examples of explicit language that defines early appointment of counsel.
How states organize agency support for the indigent defense requirement for both adults and juveniles is complex and has been the subject of point-in-time survey exploration for decades.
The most current knowledgebase, specific to juvenile indigent defense, is collected by the National Juvenile Defender Center (NJDC). NJDC surveys each state regarding their organization of juvenile defense and crafts state juvenile defense profiles at NJDC.info. NCJJ used details from these state profiles to create four categories of state juvenile indigent defense, ranging from state organization and administration of juvenile indigent defense to decentralized or local responsibility. The resulting national portrait provides a simplified view of this topic. Users are encouraged to visit the more detailed state profiles to explore nuances and local variations.
State assessment reports library at NJDC (21 state reports).
The states vary in the rules for establishing indigency and qualifying youth for public representation. In many jurisdictions a youth's ability to be appointed counsel hinges on a parent's or relative's income and assets.
States determine indigency in three ways:
- Legislatively: The legislature presumes all youth referred to court indigent initially, thereby speeding up the process of juveniles making contact with their counsel. The most progressive states (Louisiana, Montana, North Carolina, and Virginia) require that counsel undergoes specialized juvenile training.
- Judicially: The judge determines indigency on a case-by-case basis which can slow down the process of juveniles getting access to representation.
- Public defender: The public defender’s office applies indigency screening.
Progressive states deem youth indigent for purposes of appointment of counsel and subsequently qualify families for pubic defense remove an unnecessary barrier to providing representation at the earliest stages of a delinquency matter. State's that expedite appointment of counsel in this manner and additionally require specialized training for juvenile defenders are the most progressive.
The National Juvenile Defender Center (NJDC) advances juvenile justice by promoting excellence in juvenile defense for delinquency proceedings.
The NJDC website is a preeminent resource for additional state details and state-specific publications as well as current best practice publications on a wide range of juvenile defense topics.
- National Juvenile Defense Standards (2012)
- Juvenile Defender Self-Assessment Tool for Best Practices in Detention Advocacy (2014)
- Juvenile Defense Attorneys and Family Engagement: Same Team, Different Roles (2014)
The Juvenile Justice Resource Hub is curated by the National Juvenile Justice Network (NJJN) and hosted by the Juvenile Justice Information Exchange. The Hub is a one-stop resource center for systems reform advocacy, It includes a juvenile defense area that is designed to support youth advocates with a comprehensive literature review, summaries of key issues and terms and connections to experts.
This table groups states by how the responsibility for indigent defense of juveniles is organized at the state or local level (see the Structure topic above for a visual) and displays the branch of government/agency responsible for determining whether youth qualify for public defense. The most progressive states are those where the legislature initially presumes indigency for all youth presented to the juvenile justice system and requires specialized juvenile defense training.
- Determining indigency
- Does not determine indigency
- Most progressive
- * Specialized juvenile defense training available
- † Specialized indigent defense training available
|Number of states||7||40||5|
|Organized at the state level|
|Organized at both state and local level|
|Organized at the local level (county/judicial district) with varying state oversight|
|Organized at the local level (county/judicial district)|
|District of Columbia|
Most states have the statutory ability to routinely shackle children during any delinquency-related juvenile court proceeding, regardless of the juvenile’s age or alleged offense.
For certain criminal proceedings, unless a judge makes individual findings about the need to apply shackles, routine shackling would be considered a violation of the US Constitution for an adult—but not for a child.
- The National Council of Juvenile and Family Court Judges Resolution Regarding Shackling of Children in Juvenile Court, August 10, 2015
- The National Juvenile Defender Center Campaign Against Indiscriminate Juvenile Shackling
- The American Bar Association, House of Delegates Resolution 107A, adopted February 9, 2015
Shackles are defined by the National Council of Juvenile and Family Court Judges to include handcuffs, waist chains, ankle restraints, zip ties, or other restraints that are designed to impede movement or control behavior. As of November, 2015, 10 states have legislation (some also have court requirements) and 12 states have requirements initiated by the judiciary that prevent routine shackling of juveniles. In March, 2016, the Ohio Supreme Court required local rules that restrict shackling of children in Ohio courts by July 1, 2016.
Collateral consequences 2014
The states also vary in requirements for informing youth/parents of the possible consequences (collateral consequences) of a delinquency finding and therefore the seriousness of the matter and need for effective counsel.
All but six states have statewide juvenile competency to stand trial requirements. Competency refers to the person’s current state in the courtroom rather than a defense of insanity at the time of the alleged offense. Age of criminal responsibility and infancy defenses may also be confused with competency. Those age-only defenses are typically found in penal codes and therefore only apply to (adult) crimes but not delinquent acts.
All states have competency statutes that apply to adults, which generally align with a 1960 U.S. Supreme Court Case (Dusky v. U.S., 362 U.S. 402). The Dusky Standard has two tests: does the person have sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding, and does the person have a rational and factual understanding of the proceedings against him.
States set criteria to help judges determine whether a person is competent. Most states (32) have evaluation criteria just for juveniles, and a few of those (3) have broadened the scope from a severe mental illness and/or developmental disability diagnosis to include considerations for developmental immaturity, permitting a more individualized determination. Effective 1-1-16, Oklahoma increased the tally to 33 and 4, respectively.
Very little is known even within states about the provision of counsel to youth. Only a handful of states contribute data to the National Juvenile Court Data Archive with detail on whether counsel was provided, the type of representation and case outcomes.
From these states, a sample of counties that had useful information regarding legal counsel were identified. The final 2013 sample included 123 counties which contributed 53,184 petitioned delinquency cases to the analysis. These jurisdictions represent 16% of the U.S. juvenile population eligible for contact with the juvenile justice system. In these jurisdictions, youth were legally represented in virtually all of the petitioned (formal) cases. In this sense, the jurisdictions may not be representative of jurisdictions nationwide.
- The Pennsylvania Juvenile Delinquency Data Analysis Tool (online tool with the ability to explore appointment of counsel issues by race and ethnicity, disposition, outcomes and more)
Case flow of formal juvenile court cases by type of representation
The availability of publicly reported juvenile defense data is quite limited. Most of the available data, published by state public defender agencies, highlight the number or proportion of cases that are served by indigent defense systems across the country. These data are limited in scope as they only highlight the case load of public defender agencies, and do not capture the number of cases with privately retained counsel or those that waive representation.
A few states (CA, IN, PA, TX) report more comprehensively by collecting defense representation from the juvenile court perspective, which often captures the number of cases represented by private attorneys and those in which representation was waived. Data presented here should be used with caution as they represent different data sources and units of count. Users are encouraged to refer to the source report links when considering state-specific data.
- Indefensible: The Lack of Juvenile Defense Data (JJGPS StateScan, 2015)
Publishing or reporting comprehensive juvenile defense data is rare. As noted above, most data on juvenile defense focuses on aggregate counts of youth represented by some form of indigent defense (public defender, appointed counsel, contract attorney). Only two states in the country annually publish statewide data to describe the number of youth unrepresented or who waive representation, those that retain private attorneys, and those that receive a form of indigent defense.