The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Juveniles in Pennsylvania must now have legal representation in juvenile delinquency proceedings. On January 11, 2012, the Pennsylvania Supreme Court amended Pennsylvania’s Rules of Juvenile Court Procedure to put the requirement in place.
"This action propels Pennsylvania to the top tier of states that protect children's rights to legal counsel in juvenile court," said Robert Schwartz, the Juvenile Law Center's Executive Director. "Few states in the country prohibit waiver of counsel by juveniles to this degree."
Effective March 1 under the new Rules, which were adopted in the wake of the Luzerne County "kids-for-cash" judicial corruption scandal, youth under the age of 14 are required to have counsel at all delinquency proceedings. Youth 14 years of age or older can only waive their right to an attorney in very limited circumstances, and then, only if the court is satisfied that the waiver is knowingly, intelligently, and voluntarily made.
The new rules require that all youth have legal representation at the following delinquency proceedings:
• detention hearing (a hearing to determine if a child needs to be confined in a detention facility until the adjudicatory hearing);
• transfer hearing (a hearing to determine if a youth's case should be transferred to adult court);
• adjudicatory hearing, including the acceptance of an admission (a hearing to determine whether or not a youth is to be found delinquent/guilty);
• dispositional hearing (a hearing to determine the best course of treatment and supervision for a youth);
• and a hearing to modify or revoke probation.
On the heels of the Luzerne County scandal where thousands of children’s civil rights were violated, Juvenile Law Center made recommendations to the Interbranch Commission on Juvenile Justice and to the Supreme Court’s Rules Committee, suggesting that waiver of counsel be prohibited in all cases. The high rate of waiver in Luzerne County kept the scandal from public view, allowing it to keep going for several years. More than half of the Luzerne County children who appeared in court without counsel were taken from their homes and placed in juvenile correctional facilities.
The Supreme Court's order follows an amendment to the Rules in 2011 that deems all youth indigent for the purposes of qualifying for legal representation. “The new court rules will provide youth with important protections. Unfortunately,” continues Schwartz, “Pennsylvania remains one of only two states in the nation that does not provide any state funding for indigent juvenile defense. While the new rules properly require that all children be represented, the General Assembly must provide funding to address this problem.”
Because the Commonwealth does not provide any funding to support public defenders, existing resources are limited by county budget constraints. These constraints create unmanageable caseloads for public defenders, and increase the likelihood that youth will not have representation at placement review hearings—one of the few remaining proceedings where youth 14 or older will be able to waive counsel. (In Pennsylvania, placement review hearings in juvenile court are required after a youth has been in placement for six months. These hearings result in Pennsylvania youth being retained in an out-of-home placement 68% of the time.)
The Juvenile Law Center will continue to work closely with Pennsylvania stakeholders to ensure implementation of the new rules and to seek the funding that will make the rules more meaningful.