This story was written for The Crime Report.
Fifty years after the Supreme Court ruling that recognized children’s right to due process and legal representation, the National Juvenile Defense Council has issued a report that takes a granular look at the juvenile justice system across the states.
“Defense representation for youth is indispensable. Unfortunately, state laws and practices largely tell a different story,” the NJDC concludes.
“Though every state has a basic structure to provide attorneys for children, few states or territories adequately satisfy access to counsel for young people.”
According to the NJDC, the only barrier to ensuring juvenile due process nationwide is individual states’ lack of interest in making it a priority.
The report found that only 11 states provide all juveniles accused of a crime with a defense attorney; and nowhere in the United States are children guaranteed an attorney during interrogation, despite the 1967 Supreme Court ruling that children must have “the guiding hand of counsel at every step in the proceedings against [them].”
Moreover, 36 states actually charge for a “free” lawyer, the report found, with expenses ranging from “$10 for an application fee to over $1,000 for an attorney’s services—an attorney who is supposed to be appointed at public expense.”
Finally, the NJDC found that children across the U.S. are waiving their rights without even knowing it. In 43 states, children can waive their right to counsel without ever speaking to an attorney; often without the knowledge they are doing so.
Paternalism over due process
In most states, a child’s right to counsel hinges on his or her parents’ income, with no presumption of eligibility for free legal defense. There are a number of ways that this system undermines childrens’ rights, the report finds. Parents can fall outside of the eligibility threshold–on average, around 125% of poverty level– but still not have enough income to hire a private attorney. According to 2017 poverty guidelines, the child of a single parent earning over $20,300 a year could be denied a public defense attorney.
The process of determining eligibility varies widely, according to the report–and in Louisiana, one public defender told the National Juvenile Defender Center that “a child is simply asked if he or she receives free or reduced-price lunch at school, and if so, counsel is appointed.”
Private attorneys also face the continual risk of conflicted loyalties–to their client, the child; and the parents, who foot the bill.
Finally, this system presumes that parents will always act in their child’s best interest. Parents can waive their child’s right to counsel even if they can afford a private attorney.
In all but the 11 states where children automatically have “presumption of eligibility” for free legal defense, NJDC found large discrepancies in the guidelines and procedures used to determine access to counsel. A 2015 DOJ investigation into the St. Louis family court system concluded that the lack of uniform procedures was a “contributing factor to the high rates of children who waived their right to counsel in St. Louis County.”
Furthermore, according to the NJDC, “arbitrary eligibility determinations also contribute to the disparate treatment of children of color, who are more likely than their white peers to be denied their right to an attorney — and thus, denied access to important constitutional protections.”
Arrives too late, ends too early
Statutory language varies across the states, according to the NJDC, and in some jurisdictions, the right to counsel only begins when a child enters the court for the first time. Only in the state of Illinois does the law require appointment of an attorney during interrogation (and only in certain circumstances).
The NJDC calls on states to “recognize interrogation as a critical stage of juvenile proceedings requiring a publicly funded defense lawyer to protect children from potential abuses of authority.”
Earlier appointment of counsel would also give attorneys time to prepare, whereas now, they often meet their juvenile clients for the first time in the courtroom.
The report found that children held in detention are more likely to be appointed counsel before their first hearing, thanks to the dogged work of juvenile justice advocates around the country. But the practice is very uneven, and “some youth meet their lawyer at the detention hearing while others wait in detention for days before ever seeing a lawyer.”
Where attorneys did have adequate time to meet with their clients, the NJDC found, it was due to the discretion of “flexible judges and court staff.”
In at least five jurisdictions, attorneys reported that their meetings are often not private, breaching ethical duties of confidentiality. And interviews that take place over the phone or by video “severely inhibit advocacy and the ability to develop the trust necessary to adequately represent children,” according to the report.
In states where the public defender’s office is responsible for initiating the appointment of counsel for children, and not the courts, the NJDC found that more children have the opportunity to meet with their lawyers and establish a rapport before they appear in court, concluding that “such successes suggest that defender offices are best situated to appoint lawyers for children.”
In the majority of states, youth have limited or no right to counsel during most stages of post-disposition, according to the NJDC– including appeals, probation, disciplinary hearings, and confinement conditions.
Liberty at a price
In the 36 states that charge a fee for a public defender appointment, the NJDC found “huge discrepancies in how often or whether they are enforced.” In some jurisdictions, fees are always waived; in others, they are always enforced.
As a result of these fees, a child with no income of his or her own can be denied due process over a $50 fee.
“Charging fees for a publicly funded attorney — the very advocate through whom such protections become accessible — renders the right to counsel meaningless for children,” concludes the NJDC.
Waiving their rights
43 states allow children to waive their rights to an attorney without consulting one first. According to the NJDC, “the frequency and reasoning behind waiver of counsel is limited and likely under-representative of the crisis” because only three states collect this kind of public data. Based on interviews, however, the report found that waiver of counsel “is occurring at higher rates in rural and remote areas,” and in some places, it is “routine.”
By contrast, in the few states that do have a statutory requirement to consult with an attorney, “young people are waiving their right to counsel infrequently, if at all.”
This story was written for The Crime Report.