Juvenile defense

Defense structure

How states organize agency support for the indigent defense requirement for juveniles is varied and complex and significantly affects the delivery of representation to indigent youth.

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. NJDC described the national landscape of juvenile defense structures in The Fragmented State of Juvenile Indigent Defense. State defense systems are categorized as statewide if indigent defense services are organized centrally at the state-level or localized if indigent defense services are organized locally at the county or district-level. In addition to the type of organization, states are also categorized by the level of oversight available, ranging from full oversight, partial, or no oversight. Thirty (30) states and the District of Columbia organize indigent defense at the local level through county or judicial district offices with partial or no oversight of the services provided.

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.

Learn more

• Six Policy Priorities for Juvenile Defense (2013)
• Pennsylvania's Legislative Response to the Luzerne County "Kids for Cash" Scandal (Juvenile Law Center online resource)
• Miranda warnings during police interrogations of juveniles

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.

Learn more

• Models for Change Innovation Brief: Early Appointment of Counsel (2013)

Indigency requirements

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. 

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.

Learn more

• 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)

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.

Learn more

• Collateral Consequences Resource Center (CCRC), State-Specific Resources
• Judicial Colloquies: Communicating with Kids in Court (2013)
• Using Language in Court That Youth Can Understand: the Washington Judicial Colloquies (2012)
• Pennsylvania Juvenile Collateral Consequences Checklist (2010)

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.

Learn more

• 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)

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.

• Indefensible: The Lack of Juvenile Defense Data (JJGPS StateScan, 2015)

Progressive data

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 (CA and PA) 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.  Nebraska's report is noteworthy as it analyzes access to counsel by age, gender, and race for youth in both juvenile and criminal courts.