Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Juvenile Indigent Defense: Crisis and SOLUTIONS


Despite "get tough" talk about transferring juveniles to adult court, eliminating juvenile court confidentiality, and sentencing youths to longer confinement, one topic remains conspicuously absent from the discussion: the right of juveniles to access meaningful and effective assistance of counsel. Although children face higher stakes in today's juvenile courts, many of the lawyers representing them are poorly compensated and lack access to specialized training, resources, and other supports needed to respond to the specific requirements of children.

In the deeply politicized debates over juvenile crime, those concerned with due process for children have the additional burden of arguing that an indigent defense crisis does exist and that it has dramatic and adverse outcomes for young people. For some, the idea that juvenile court is an informally run "kiddie court" with no need for vigorous legal advocacy seems to rest comfortably beside the notion that juveniles should receive harsher and more punitive sentencing-even the death penalty. These two conceits should not coexist. The long-term consequences that children now face are simply too severe to ignore the important role of defense counsel in juvenile court. The ABA, through the IJA-ABA Juvenile Justice Standards, does not permit juveniles to waive the right to counsel, stating that juveniles should have the effective assistance of counsel at all stages, from arrest to sentencing and confinement.

Dimensions of the crisis

In the fall of 1993, the American Bar Association Juvenile Justice Center, in partnership with the Youth Law Center and Juvenile Law Center, received a grant from the Office of Juvenile Justice and Delinquency Prevention to conduct the Due Process Advocacy Project. It included the first national assessment of access to counsel and quality of representation for juveniles. The results were published in 1996 in A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings. It found that although some attorneys are able to vigorously represent their clients, many continue to work under tremendous systemic burdens, such as high caseloads, lack of office and investigative support, and lack of training. In many cases, children proceeded through the juvenile courts without a lawyer. Obviously, the promise of In re Gault, the Supreme Court case that guaranteed a juvenile's right to counsel, has yet to be fulfilled. Children often waive counsel under the suggestion that a lawyer is unnecessary because no serious dispositional consequences are anticipated, or because parents are concerned about paying legal fees. A third of the public defender offices surveyed reported that a certain percentage of juveniles waive their right to counsel at the detention hearing. Almost half of the public defenders surveyed said the waiver colloquy-the formal inquiry by a judge into whether the juvenile is entering the plea voluntarily and a recitation of the consequences of such a pleading-is only "sometimes" or "rarely" as thorough as that given to adult defendants.

High caseloads were identified by defense attorneys as the single most important barrier to effective representation: often the average caseload exceeded 500 cases per year with 300 of those being juvenile cases. (In rural areas, where caseloads tend to be lower, the problem is long distances that require lawyers to drive for hours to represent a juvenile at a brief hearing.) This is contrary to the caseload standard set by the National Advisory Commission (NAC) on Criminal Justice Standards and Goals that calls for attorneys to handle not more than 200 juvenile cases per year. (Standard 13.12 (1973).) The IJA-ABA Juvenile Justice Standards (1980) do not give specific numbers for juvenile defender caseloads; however, the Commentary to Juvenile Justice Standards Relating to Counsel for Private Parties, Standard 2.2(b), identifies a number of factors to be considered, including the rate of case turnover; percentage of cases tried; extent of support services available to staff attorneys; court delays; complex and special litigation, and experience of counsel.

High caseloads have a ripple effect on the quality of representation. Seventy percent of the public defenders and private attorneys said they file pretrial motions "sometimes," "rarely" or "never" for lack of time, resources, and early plea bargains. At disposition hearings-the equivalent of sentencing hearings in adult court-lawyers frequently did not have the time to conduct adequate and individualized dispositional planning. Nor did they have time to provide alternatives to the recommendations of the probation officers.

Policies and caseloads also prevented attorneys from conducting postdispositional representation, such as appeals, dispositional reviews, or other collateral proceedings-with disastrous results for children. One-third of the public defenders and one-quarter of the appointed counsel surveyed stated that they were not authorized to handle appeals. Of those who could handle appeals, 46 percent of public defenders and 79 percent of appointed lawyers said they took no appeals in the last year. Four out of five public defenders and two-thirds of appointed counsel "never" or "rarely" represented their clients in related nondelinquency proceedings, such as school discipline or special education hearings.

Attorneys representing children were also hampered by a lack of available training and resources that are considered standard in other settings. Of the public defender offices surveyed, 78 percent did not have a budget for lawyers to attend training programs; 50 percent did not have a training program for new attorneys; 48 percent did not have an ongoing training program; 46 percent did not have a section in the office training manual for juvenile court lawyers; 35 percent did not include juvenile delinquency work in the general training program; 32 percent did not have any training manual; and 32 percent did not have a training unit. Although most public defender offices had access to investigators, 56 percent did not have paralegals. Among appointed counsel, 22 percent did not have access to investigators and 47 percent did not have paralegals. Moreover, site visits revealed that the procedures necessary to request investigators and paralegals were often so complex and burdensome that lawyers simply opted for managing without them.

This situation means children often first meet their lawyers as they sit down for a detention hearing. Probation officers reported that juveniles cannot identify their lawyers or understand the charges lodged against them. As a result, children resent the proceedings, become passive and distrustful of their lawyers, and sometimes withhold important information.

On average, according to the report, public defenders spent only 24 months in juvenile court, in part because it has such a low status. Juvenile court is viewed as a training ground for beginners, and few attorneys stay on to advise and mentor other attorneys and improve the level of practice. The survey found that starting salaries run as low as $15,000, and lawyers must often transfer to other divisions in order to be promoted. Other lawyers burn out under stress and disenchantment with a system that seems constantly at odds with their goals.

Responding to the crisis

In the face of these serious problems, the study identified several innovative programs across the country that deliver first-rate legal services to children. In general, such programs share the following characteristics:

  • the ability to limit/control caseloads;
  • support for entering the case early, and the flexibility to represent, or refer, the client in related collateral matters;
  • comprehensive initial and on-going training and available source materials;
  • adequate nonlawyer support and resources;
  • hands-on supervision by lawyers; and
  • a work environment that values and nurtures juvenile court practice.

Responding to the overload of cases, defender offices have employed a variety of managerial and organizational strategies, depending on their particular needs and resources. Some defenders address this problem internally, by allowing attorneys to ask for temporary relief from new case assignments. Some offices have developed units to handle special cases, such as those that involve postcommitment issues, transfer to adult court, or serious offenders. This allows lawyers to develop expertise. One jurisdiction models its appointment system after the one employed by the federal district courts. Under this system, a public defender is automatically appointed to all eligible cases unless there is a conflict of interest, a history of court involvement where continuity of representation by a previous attorney is desirable, the public defender's office has an excessive caseload, or there are pending charges with previously appointed counsel. In these situations, a member of an approved panel of attorneys is selected according to a uniform rotation system. The appointed counsel is required to attend specific CLE programs and abide by minimum standards of representation. The system gives the public defender some control over caseloads, as well as the level of training and skill possessed by appointed counsel.

Entering the case as early as possible and having adequate time to meet with the clients, their families, and others enables counsel to provide much more effective representation at the detention hearing and throughout the case. Some public defenders achieve early entry by locating their offices in the communities that they serve, and engaging in outreach and public education activities that encourage residents to obtain the assistance of counsel as soon as they are aware of any police intervention. One program, located in a jurisdiction that does not permit public defenders to represent clients until an initial appearance before the court to determine indigence, focuses solely on the arrest and detention phase. It uses a toll-free number and a corps of volunteer lawyers to provide fast and free representation at the police station.

Recognizing the critical importance of training, some offices have stretched their budgets to establish in-house units that deliver comprehensive, multidisciplinary training to juvenile defenders. These programs can be extensive, sometimes five to eight weeks in duration, and incorporate a variety of teaching techniques, including moot court, role playing, interactive videos, along with traditional formats such as lectures, seminars, and homework. In other jurisdictions, training is offered throughout the year at low or no cost through brown-bag seminars or collaborations with bar associations and law schools. One of the most important factors in providing training is a commitment to provide it on a regular and ongoing basis.

The availability and adequacy of nonlawyer resources is also necessary for effective representation of youth. In addition to support staff, other non-lawyer resources include investigators, paralegals, law clerks, social workers, mental health experts, and interpreters. One way defenders get this support is to mobilize volunteer labor such as college, graduate, and law students. One defender office has developed a nationally recognized intern program that trains college students to act as investigators. Other defender programs use graduate and law students to conduct research and assist with case preparation. Defender offices have also been able to leverage additional funds for specialized types of support; one office, for example, is currently training paralegals to debrief clients who have been interrogated by the police.

Some defender offices go beyond the strictly legal aspects of their clients' cases. Defenders work with social workers, graduate students and fellows, and public interest law fellows to help identify the problems and create plans for treatment or access community resources. In one jurisdiction, a joint project between the public defender and civil legal aid organizations created an advocacy model whereby public defenders refer their clients for assistance with underlying issues such as housing, mental health, special education, and school expulsion, creating a holistic approach to representation. The program also has volunteers to act as mentors to young clients. Studies of this program, which has been replicated across the country, show that children who receive this broad type of representation are less likely to recidivate.

Good supervision is also critical to effective representation, and some public defender offices have developed ways to ensure that new defenders can benefit from the expertise of their more experienced colleagues. In one office, lawyers with less than three years' tenure are matched with senior office attorneys who serve as their mentors and confidants. The mentor is responsible for routinely meeting with the lawyer, discussing pending cases in detail, observing and critiquing hearings and trials, and reviewing case files. Other offices team up small groups of lawyers with differing levels of experience. Each team meets regularly to discuss their cases.

Through such strategies, lawyers are better able to handle complex and cumbersome cases while developing a broad range of expertise. The representation of young clients is enhanced and the level of practice within the courtroom is heightened. Higher expectations on the part of the court system and the client contribute to the sense that work in juvenile courts is valuable. (For more on these programs see the article "Innovative Approaches to Juvenile Indigent Defense" in the 1998 Department of Justice Bulletin.)

National Juvenile Defender Center

From 1994 to 1999, the Due Process Advocacy Project has sponsored or co-sponsored more than 40 training events, and provided technical assistance on dozens of defender-related projects in order to encourage similar high-quality programs and represention practices. The project employed outreach, education, technical assistance, and training that focused on both local and national activities, matching national experts with local on-site teams. This type of collaboration set a process in motion that enhanced the capacity of the local juvenile defense bar, addressed the specific needs of the locality, and allowed the project to leverage additional local resources for juvenile defenders.

At the same time, the project recognized the need to enhance juvenile defense practices on a greater scale. For example, recognizing the dearth of practice-oriented materials for lawyers, the project developed several, including More than Meets the Eye: Rethinking Assessment, Competency and Sentencing for a Harsher Era of Juvenile Justice, and Beyond the Walls: Improving Conditions of Confinement for Youth in Custody. The project also began using the Internet and list-serves to keep juvenile defense lawyers posted on the latest developments in law and policy.

The project also held an annual national Juvenile Defender Leadership Summit for the past three years. The summit was created after evidence showed a compelling need to bring juvenile defenders together from across the nation to collaborate on creating a juvenile defense-based agenda. Defenders have received first-rate training and technical assistance on a broad range of compelling systemic and substantive issues in the juvenile court. This three-day event, held at law schools around the country, has allowed participants to engage in cutting-edge training, conduct regional meetings, network, learn about innovative defender initiatives, hear from experts in the field, and examine complex issues through a facilitated working group process. It is an invitation-only event with representatives from all 50 states and the District of Columbia. Participants are invited based on their experience in juvenile justice and record of leadership in their states. A growing national network of juvenile defense lawyers has been established, providing assistance to one another in difficult cases; locating and exchanging ideas about expert witnesses and case strategies; and identifying specialized resources to assist with practice and policy issues.

All of these strategies laid the groundwork for a more permanent institution for the support of juvenile indigent defense. The Department of Justice Office of Juvenile Justice and Delinquency Prevention recently funded the establishment of a National Juvenile Defender Training, Technical Assistance, and Resource Center (National Juvenile Defender Center) to be housed within the ABA Juvenile Justice Center in Washington, D.C. Building upon the work of the Due Process Advocay Project, it will significantly advance and legitimize the practice of juvenile law while providing a muchneeded structure within which defenders can begin to organize, think strategically, and sharpen their legal, management, and political skills on an ongoing basis.

This year, the National Juvenile Defender Center will seek to enlarge the scale of many of the activities undertaken by the Due Process Advocacy Project, continue the annual Juvenile Defender Leadership Summit, and create new resources for juvenile defenders. The center will continue state, regional, and local training and technical assistance activities, but will expand the scope of this work by more formally advertising the availability of these services, and developing forums such as focus groups and roundtables to address timely and topical issues. The center will produce practice-oriented checklists and fact sheets, and will construct brief banks, expert and consultant registries, and a clearinghouse of due process-related information.

Most significantly, in order to increase the reach of its work to the grassroots defense bar, the center will establish, during its first year of operation, eight regional affiliate sites across the country to build a stronger infrastructure for developing leadership, creating effective strategies for exchanging resources and information, delivering training, and identifying regional needs, resources, and networks. At the same time, the center will cultivate state teams to increase the capacity of the juvenile defense bar.

The road ahead

In addition to developing an infrastructure to encourage the full potential of the juvenile defense bar, the National Juvenile Defender Center will look at the broader, substantive challenge of developing strategies to present juvenile defense concerns affirmatively rather than defensively.

Although some public defender offices in major cities routinely handle juvenile appeals, the practice of taking appeals in juvenile court is lacking in most jurisdictions. Even in areas where lawyers routinely appear in juvenile court, a strong appellate practice has not necessarily followed, as reflected in the results of A Call for Justice and other studies. The failure to take appeals is attributed to several causes. Offices that struggle to provide the most basic day-to-day representation find it difficult to make appeals practice a priority, especially when the time for an appeal would exceed the length of a juvenile's sentence. A high number of juvenile cases are resolved through pleas, which significantly reduces the opportunity to appeal. Also, pursuing appeals is rarely cost-effective for appointed counsel. In addition, there is a strong but undocumented sense in several juvenile courts that taking appeals may harm the rehabilitation process, i.e., children may not fully participate in a treatment program if they are holding out the hope for a reversal. (Donald J. Harris, Due Process v. Helping Kids in Trouble: Implementing the Right to Appeal from Adjudications of Delinquency in Pennsylvania, 98 DICK. L. REV. 209 (1994).)

In spite of these barriers, there are strong arguments for pursuing such appeals. The appellate process enables the courts to correct errors in the application of the law and the finding of facts; ensures that there is uniformity of treatment for like parties; and fills in gaps within legislation. The more punitive measures of juvenile codes often appear in the form of more complex laws, which require the interpretation and gap-filling functions of the appeals process to identify potential problems in the interpretation and application of the law. The informality that is frequently stressed in juvenile courts can be counterbalanced by appellate decisions. Moreover, as juveniles become subject to longer sentences, there will be more time to perfect appeals and more compelling reasons to challenge adjudications and dispositions.

The National Juvenile Defender Center will assist in endeavors to improve appeals by developing a call to action on juvenile appeals and creating an environment for lawyers to share and exchange briefs and ideas for enhancing appellate practices. One suggestion to rectify this situation, made by a seasoned appellate lawyer, is to invert the typical defense office hierarchy and have new lawyers start out in the appeals division. Here, where research and writing skills may still be sharp from law school, new lawyers can learn to identify and elaborate upon issues for appeal. Later when they move to juvenile court, they will be prepared to handle more complex issues that arise in court and preserve issues for appeal more effectively. Partnerships with law school clinics, criminal law societies, or law firms working pro bono may also provide lawyers with the additional manpower needed to enhance the juvenile appeals practice.

Helping children tried as adults

Between 1985 and 1994, the number of children waived to adult court through judicial waiver alone increased 71 percent; this number does not include increased transfers through prosecutorial discretion or automatic waiver. (Melissa Sickmund, Howard N. Snyder, and Eileen Poe-Yamagata, Juvenile offenders and victims: 1997 update on violence. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention (1997).) The rush to try children as adults has required defense lawyers across the country to become familiar with complex new laws and regulations, to develop new strategies to oppose the waiver of children to adult courts, and to protect their clients once they have been waived. This is one of the greatest challenges facing defense lawyers. Waiver to adult court is sometimes characterized as a death sentence for children.

To the extent that judges still decide whether certain juveniles will remain in juvenile court or be waived to adult court, juvenile defenders are tested to think not only in terms of reacting to the statute and the prosecution, but developing "out of the box" strategies of their own, looking to models developed throughout the country. Some lawyers have found ways to convey their client's individuality and strengths through videotapes or letters written by the child. Others have sought to improve their facility with expert witnesses on child development and mental health. As mentioned earlier, some public defender offices have reorganized their offices and created specialized units to deal exclusively with waiver cases.

In instances where children are transferred to adult court without a hearing and/or are represented by counsel with little experience in dealing with children, other strategies must be developed. Criminal defense lawyers who are accustomed to working with adults may need assistance identifying mental health, medical, and educational experts who specialize in addressing the specific needs of adolescents. Defense counsel may also be unprepared for the particular challenges of working with young clients, understanding the subtleties of adolescent development, and those aspects of the case that still involve the juvenile court.

Competency to stand trial, for example, needs to be explored in greater depth by defense lawyers working on waiver hearings or on cases sent to adult court. Thomas Grisso, professor of psychiatry at the University of Massachusetts, has conducted some of the most extensive research to date on this issue, and suggests that there are serious questions as to whether most children meet the general legal standard of competency. The standard includes: (1) the ability to understand the nature and possible consequences of charges, the trial process, the participants' roles and their own rights; (2) the ability to participate with and meaningfully assist counsel in developing and presenting a defense; (3) the ability to make decisions to exercise or waive important rights. In contrast to adults who view rights as absolute entitlements, many adolescents view rights as "conditional," something that can be bestowed and taken away by authorities. Children also make decisions differently than adults-adolescents are more likely to underestimate risks and less able to focus on the long-range consequences of their behavior. To the extent that these deficiencies hamper children's ability to participate meaningfully in their own defense, lawyers must be prepared to raise issues of competence to stand trial and seek out experts who can recognize incompetence to stand trial as a result of developmental immaturity, in addition to causes such as mental illness or retardation. Grisso argues that charges should be dropped when youths do not meet the necessary level of competence in adult court. Their cases should be remanded to juvenile court where their lower competency is matched by less severe consequences.

The National Juvenile Defender Center will help reshape the delivery of defense services to juveniles facing transfer to criminal court by promoting innovative legal service delivery models, developing new resources to tackle this problem, and seeking new partners with whom to collaborate on these complex cases.

Public education and legislative advocacy

Juvenile defense lawyers must also consider becoming more aggressive in public and legislative discourses over juvenile justice and improving the media's reporting on juvenile crime. These interrelated goals are essential to creating a more rational debate on juvenile justice policy-all too often skewed by horrific but atypical crimes. A content study of local television news in California revealed that more than half the stories on youth involved violence, and more than two-thirds of the violence stories concerned youth. (Lori Dorfman, et al., Youth and Violence on Local Television News in California, 87 AM. J. PUB. HEALTH 1311 (1997).) Reports on juvenile crime issues frequently fail to present the insight and commentary that those who work most closely with children can provide. Deeper causes of juvenile crime such as children's access to guns and the link between child abuse/neglect and delinquency go largely unreported. Popular policies, such as trying more children as adults, go unchallenged even though research has shown that such practices can, in fact, be detrimental to public safety. Juvenile defenders should lobby for greater balance in media coverage through such devices as editorials and participation on juvenile justice task forces, commissions, or boards.

Likewise, juvenile defense lawyers need to become more involved in the legislative process. Taking the time to write letters or visit legislators heightens the presence of the juvenile defense bar and any due process concerns that they have with pending legislation. Some defenders have achieved results by inviting legislators to go on site visits of juvenile facilities and programs. To the extent that legislative advocacy is not permissible or practicable, juvenile defense lawyers should push their state or local bar association to become more involved in juvenile justice issues.

Research and data collection

In an era where juvenile policy is more often driven by what sounds tough rather than what is proven to be effective, the juvenile defense bar must begin to marshal some of its resources into research and data collection in order to challenge programs and policies that are ineffective, unfair, or dangerous. Likewise, they must garner support for defender programs that benefit children and promote public safety. One public defender office tracks profiles of children being tried in adult court according to characteristics such as age, offense, and race in order to dispel the myth that they are all violent superpredators. Other offices with innovative juvenile defense initiatives have gathered evidence showing that enhanced legal services for children are actually cost-effective, resulting in lower recidivism rates and decreasing the need for expensive jail and prison beds. Collecting data on the caseloads and workloads of juvenile defenders is also essential to combat the issue of chronic underfunding of juvenile indigent defense.

There are low-cost ways to encourage assessments of juvenile defense services. At the state level, lawyers can call for legislators to fund assessments of juvenile programs and policies to determine their effectiveness. Public defender offices can also develop partnerships with graduate programs of the social sciences to design research proj-ects. Research on the current state of juvenile representation can be analyzed under the auspices of state and local bar associations. Offices that look to foundations for support for special projects should consider using a portion of the budget to develop an assessment component.

Through newsletters, bulletins, alerts, and other forms of communication, the National Juvenile Defender Center will help juvenile defense lawyers stay informed of the latest research in juvenile policies. Developing a knowledge of juvenile justice research can assist with day-to-day practices, allowing lawyers to anticipate possible trends, and help form the basis of state and local defender-initiated research projects.

Improving young people's access to counsel and quality of representation at all stages of the process requires simultaneous action by many different groups and individuals. Those who are concerned with the representation of young people can take the following steps in their own jurisdictions:

  • Encourage the state legislature to conduct oversight hearings that focus on children's access to legal representation and the quality of such representation.
  • Establish a juvenile rights committee within the state or local bar association that annually assesses juvenile defender needs and resources. Such an assessment should examine optimal caseloads, appropriate compensation, availability of training, and other resources. The assessment should also compare the resources available to juvenile defenders to those available to prosecutors and adult criminal defense lawyers.
  • Encourage law firms and members of the private bar to include representation of juveniles in delinquency proceedings as part of their pro bono work, but only when such work is supported by training, access to experts, and other resources.
  • Support and create activities that elevate the status of juvenile court practice, such as an award program.
  • Promote standards of representation in juvenile court that are consistent with the IJA/ABA Juvenile Justice Standards.

The challenges facing the juvenile defense bar are daunting but not insurmountable. Fulfilling the promise of Gault will depend on a broad strategy that enhances day-to-day courtroom practices while addressing large systemic and policy-based issues. The formation of the National Juvenile Defender Center has created a critical vehicle to implement many of these strategies, by developing a network of lawyers; building state and regional leadership; delivering high-quality, low-cost training and technical assistance; and implementing a long-term juvenile defense-based agenda for change. n

Patricia Puritz has been the director of the ABA Juvenile Justice Center (JJC) for 15 years, focusing on access and quality of counsel in delinquency and criminal proceedings, conditions of confinement for youth, and issues surrounding juveniles tried as adults. She also directs the National Juvenile Defender Center, located within the JJC in Washington, D.C. In addition, she is an active advocate for children in the Washington, D.C., area for two decades, implementing programs and services for children in custody. Wendy Shang is the senior staff attorney at the ABA Juvenile Justice Center, where she has worked for five years. Her work has focused on enhancing the capacity of the juvenile defense bar and addressing critical legal issues facing lawyers and their clients.