How do the states provide for juvenile defense? Juvenile courts were established to rehabilitate, rather than punish, youth charged with delinquent offenses. A series of United States Supreme Court decisions have extended procedural safeguards for these youth. While the federal policy is in place, state policies and practice differ in terms of how explicitly they address key provisions like the ability to waive the right to counsel and removing obstacles for early appointment of public counsel for youth from families that cannot afford to retain a private attorney. Charting change in the states requires tracking the policy landscape as it is established in state statutes and case law and sorting the states into categories on key issues related to the right to counsel when charged with a delinquent offense.

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.

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    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.

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    Click a state to see a summary of its policies and more information.

    Structure

    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.

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    State assessment reports library at NJDC (21 state reports).

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      Indigency requirements

      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.

      National assistance

      NJDC

      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.

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      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
      State Legislatively Judicially Public defender
      Number of states 7 40 5
      Organized at the state level
      Alaska
      Arkansas*
      Colorado*
      Connecticut*
      Delaware
      Georgia*
      Hawaii
      Iowa
      Kentucky
      Maryland
      Massachusetts*†
      Minnesota†
      Missouri†
      Montana*
      New Hampshire
      New Jersey
      New Mexico*†
      North Dakota†
      Oregon*
      Rhode Island
      Vermont†
      Wisconsin†
      Wyoming
      Organized at both state and local level
      Nevada
      Oklahoma*†
      Organized at the local level (county/judicial district) with varying state oversight
      Indiana
      Louisiana*
      Maine*
      Mississippi*
      Nebraska*†
      North Carolina*
      Ohio*†
      South Carolina*
      Tennessee
      Texas*
      Virginia*
      West Virginia*†
      Organized at the local level (county/judicial district)
      Alabama
      Arizona
      California*
      District of Columbia
      Florida*
      Idaho*†
      Illinois*
      Kansas†
      Michigan*
      New York*
      Pennsylvania
      South Dakota
      Utah
      Washington*

      Download this data

      Courtroom shackling

      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.

      Learn more

      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. On July 1, 2016, a Rule of Superintendence for the Courts of Ohio (Sup.R. 5.01) became effective, requiring local rule development on juvenile restraints. Delaware's legislature passed a law in July 2016 (per HB 211, 10 Del.C. § 1007b), which intends to limit the use of shackles and other restraints during juvenile delinquency proceedings. 

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        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.

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        The following 10 states were identified through a national statute review.

        Click a state to see a summary of its policies and more information.

        Sex offense registry

        When first adopted, federal registration and notification laws neither required nor prohibited inclusion of youth, but by the 1990s many state sex-offense registration laws were drafted to include youth adjudicated for sex offenses.  It was not until 2006, with the passing of the Sex Offender Registration and Notification Act (SORNA), that it became a federal requirement to register adjudicated sex offenses.

        SORNA requires those who commit sex offenses to register their places of residence and employment, while state and local laws prohibit them from traveling within child safety zones. Failure to register any change is a felony offense, punishable by prison and fines. Youth who move across state lines may be required to register at their new address, even though they were not required to register in the state where the offense occurred. SORNA also broadened the categories of registrable offenses, some requiring lifetime registration.

        Despite SORNA's original intentions, research indicates youth who sexually offend have relatively low reoffense rates and that registries stigmatize these youth in their communities and schools, resulting in serious unforeseen life-long consequences. For these and other reasons, in May 2016, the Federal Advisory Committee on Juvenile Justice recommended that youth adjudicated delinquent be exempt from SORNA laws.

        Learn More

        SORNA FAQ on Juvenile Registration (Office of Justice Programs website)

        John Hopkins Moore Center for the Prevention of Child Sexual Abuse 
        (child sexual abuse prevention research center)

        Based on a statute analysis completed by the Center for Youth Registration Reform, 12 states do not require registration for youth adjudicated of sex offenses in juvenile court.

        Registers: Statute permits or requires juveniles adjudicated in juvenile court on sex offender registries. While statute still requires registration in Pennsylvania, the practice has ended after being ruled unconstitutional by the Pennsylvania Supreme Court. Registerable offenses vary by state. Some of these registries are publicly available.

        Does not register: Does not place juveniles adjudicated in juvenile court on sex offender registry.

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          State

          National assistance

          The Center on Youth Registration Reform (CYRR) (a member of IMPACT JUSTICE) is a national youth advocacy organization dedicated to documenting the complexity of state policies on juvenile registries and providing national advocacy for repealing registry laws. CYRR provides news on system reform and tools for lawmakers reconsidering policies.

          Competency

          All but six states have statewide competency to stand trial requirements for juveniles. Competency refers to a person’s current state in the courtroom rather than the defense of insanity at the time of the alleged offense.  A state's age of criminal responsibility or infancy defense provision is sometimes confused with the concept of juvenile competency.  Age-bound defenses are usually described in penal codes, which apply to (adult) crimes but not delinquent acts.

          All states have competency statutes that apply to adults and 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.

          Learn more

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            State

            National data

            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.

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            Case flow of formal juvenile court cases by type of representation

            Reported data

            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.

            Progressive data

            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.

            Click a state to see a summary of its policies and more information.

            About this project

            Juvenile Justice GPS (Geography, Policy, Practice, Statistics) is a project to develop a repository providing state policy makers and system stakeholders with a clear understanding of the juvenile justice landscape in the states.

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