Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 3
Robert E. Shepherd, Jr.
Pleading Guilty in Delinquency Cases
Although the pre- Gault juvenile justice system encouraged the youths before the judge to admit their wrongdoing, show their contrition and remorse for their misbehavior, and submit to the beneficence of the court through its treatment and rehabilitation, there was great antipathy to and distrust about the adult practice of plea bargaining. Since the focus of the court’s authority was on tailoring the disposition to meet the needs of the individual juvenile, the idea that the youth could bargain with someone over what the court might do was foreign to the underlying philosophy of this unique legal institution. Also, since lawyers were rare in juvenile court, there were seldom any prosecutors or defenders there to actually do any real "bargaining."
With the United States Supreme Court’s articulation of a constitutionally-based right to counsel in In re Gault, 387 U.S. 1 (1967), this picture changed drastically and defense lawyers and their prosecutorial counterparts became common in delinquency proceedings. Plea bargaining quickly followed, imported from the criminal justice process. At that point, doubts about the practice began arising among those developing standards for juvenile court practice. The three earliest sets of standards all opposed the use of plea bargaining, as illustrated by the National Advisory Committee on Criminal Justice Standards and Goals’ Standard 13.1:
Plea Negotiations Prohibited
Plea bargaining in all forms should be eliminated from the delinquency adjudication process. Under no circumstances should the parties engage in discussions for the purpose of agreeing to exchange concessions by the prosecutor for the juvenile’s admission to the petition.
(Report of the Task Force on Juvenile Justice and Delinquency Prevention, Juvenile Justice and Delinquency Prevention, Standard 13.1 (1976).)
Two other similar groups concurred in this recommended prohibition against the common practice. (Report of the Advisory Committee to the Administrator on Standards for the Administration of Juvenile Justice, Standard 3.175 (1976); Report of the National Advisory Committee for Juvenile Justice and Delinquency Prevention, Standards for the Administration of Juvenile Justice, Standard 3.175 (1980).)
Although these recommendations stimulated much debate among the members of the Institute of Judicial Administration-American Bar Association Joint Commission on Juvenile Justice Standards, the decision was made to take a totally different tack in Standards 3.3, 3.4, and 3.8 of the Standards Relating to Adjudication approved by the ABA’s House of Delegates in 1979. As the drafters acknowledged in the commentary to Standard 3.3, the standards "1. recognize the existence of plea bargaining in juvenile proceedings, 2. concede its legitimacy, and 3. seek to regulate it." ( Id. at p. 35.) Nonetheless, the volume on adjudication included an appendix with alternative standards 3.3, 3.4, and 3.8 that would allow a jurisdiction to implement a ban on plea bargaining. ( Id. at 81–88.)
Despite the intensity and thoughtfulness of the debate of the late 1970s, plea bargaining has become a daily feature of juvenile delinquency proceedings, and the criminalization of the juvenile process over the past decade has probably accelerated the utilization of plea bargaining to avoid adult handling in some cases, to reduce the use of incarceration in more punitive juvenile facilities, to prune overcharges or multiple charges down to the conduct that actually took place, and, unfortunately, to reduce the caseloads of overburdened juvenile public defenders and prosecutors.
Role of the prosecutor
The prosecutor’s role in plea negotiations has been defined in the National District Attorneys Association Prosecution Standard 19.2 Juvenile Delinquency, paragraph D, as being "governed by both the interests of the state and those of the juvenile, although the primary concern of the prosecutor should be protection of the public interest as determined in the exercise of traditional prosecutorial discretion." (James Shine & Dwight Price, Prosecutors and Juvenile Justice: New Roles and Perspectives, in Ira M. Schwartz, ed., Juvenile Justice and Public Policy: Toward a National Agenda 129–30 (1992).) This tracks Standard 5.1 of the IJA-ABA Juvenile Justice Standards, Standards Relating to Prosecution, although the latter expresses some concern in the commentary about the incentive that plea bargaining may give to a prosecutor to "overcharge." The NDAA standard also states that a plea agreement should only be reached with a lawyer and no negotiations should take place with unrepresented juveniles or even their parents, and that the "prosecutor should always take steps to ensure the resulting record is sufficient to reflect the actual nature of the offense."
Role of the defense lawyer
The recently published Juvenile Defender Delinquency Notebook (Juvenile Justice Center, Criminal Justice Section, American Bar Association 2000), contains excellent guidance in chapter 7 for the juvenile’s defense attorney in determining whether to enter into plea negotiations and in ensuring that the youthful client is fully informed when making a decision whether or not to plead guilty. The notebook observes that "plea bargaining is overused in resolving cases in the juvenile justice system" in part because defenders may be "saddled with enormous caseloads and because the treatment options available to children through the juvenile justice system may seem to be innocuous or even beneficial . . . ." ( Id. at 61.) However, the realities of modern juvenile justice and public policy may result in collateral consequences from a juvenile adjudication that will be almost as serious as from a criminal conviction. ( See Robert E. Shepherd, Jr., Collateral Consequences of Juvenile Proceedings: Part I, 15 (2) Crim. Just. 59 (Summer, 2000); Part II, 15 (3) Crim. Just. 47 (Fall 2000) .) It is important for the child’s lawyer to do a thorough fact investigation, complete any permissible discovery, and begin to prepare for trial of the case by researching any possible defenses and developing a theory for the defense and an assessment of the prosecution case before even considering a plea bargain. Only then should the lawyer conclude whether a negotiated plea might be in the client’s best interest and that the subject should be broached to the youth. (IJA-ABA Juvenile Justice Standards, Standards Relating to Counsel for Private Parties, Standard 7.1.) The same process should take place where the juvenile initially raises the possibility of pleading guilty.
It is important for the lawyer to remember that he or she is both an attorney and counselor at law and must utilize both of these roles in discussing the possibilities of a negotiated plea with the client. It is also important to avoid "parenting" the client and being too controlling, but the child needs the best possible assessment of the realities of the case. The lawyer should remember that the prosecutor’s willingness to make a dispositional recommendation may be less of a "bargain" in juvenile court than in the criminal court because the wider discretion given the juvenile or family court judge may make such a recommendation worthless. Counsel’s judgment and experience as to what this judge may be likely or willing to do for this charge pled to may be far more critical to an informed decision. The lawyer also must be fully aware of the client’s competency to understand what is being said and to make a considered decision about the plea. Competency to participate in a trial may be less than the competency needed to make a judgment to plead guilty and accept the consequences of that decision. Does the youth understand the rights he or she is giving up by pleading guilty and what both the short-term and long-term consequences may be? The attorney needs to be aware that children and adolescents have much greater difficulty than adults in thinking about the long-term consequences of their actions.
The defense lawyer, once given the authority to enter into plea negotiations, needs to prepare for the discussions with the prosecutor. By thoroughly investigating the facts and researching the legal issues, the attorney will be better prepared for the bargaining process. If there is any strength in the challenges to the admissibility of evidence, or if the offense is charged higher than the ability of the prosecutor to prove, the lawyer obviously has far more leverage in conducting the negotiation. A guilty plea may be in the best interest of the prosecution, as well as the juvenile. The attorney should also marshal as much favorable information as possible to humanize the client and justify leniency. Is there a history of child abuse, other family violence, or significant family dysfunction? Is there a learning disability or attention deficit hyperactivity disorder (ADHD) or other problem? What positive evidence does the defense have available to present at the disposition hearing, even after a full trial? Are there teachers, coaches, ministers, rabbis, priests, youth workers, police officers, family members, or other witnesses, lay or expert, who would testify if needed? If so, the lawyer may prepare summaries of what they would say and share them with the prosecutor.
Entering the plea, presenting it to the judge
Any plea agreement should be detailed in writing, and the defense lawyer should confirm the agreement in writing. The plea agreement must be viewed as a contract that may need to be enforced at some future time. If successful in negotiating a plea agreement, the lawyer should prepare the child client for the plea colloquy that will take place at trial. Both prosecution and defense should be completely familiar with the statutes and rules in the jurisdiction for presenting the plea agreement to the judge at trial, and with the colloquy the court will conduct in determining the voluntariness and intelligence of the plea. In many states or jurisdictions there is a standardized plea colloquy available in a judicial benchbook, and that should be consulted while preparing the youth for the hearing in court. The court should engage in a dialogue with the youth and not simply ask leading questions that will elicit "yes" or "no" responses. The colloquy should also be designed to alert the judge to any competency problems on the part of the child.
Enforcing the agreement
If there is any problem with the plea agreement being followed by the prosecutor, the defense lawyer should be prepared to enforce the agreement (which the lawyer has in writing, of course). The lawyer should be familiar with Santobello v. New York, 404 U.S. 257 (1971), and similar state cases that address the enforcement of the agreement. Both the prosecuting attorney and the defense lawyer should be prepared to deal with any breakdown in the plea bargain, such as the unwillingness of the judge to accept the plea. Both counsel should be familiar with the statutes and rules that govern proceedings if the plea process deviates from what is expected.
The fears of those who drafted the standards of the 1970s urging that plea bargaining be prohibited in juvenile court will be blunted if all the participants in the process carry out their roles in accordance with the more recent standards drafted and promulgated by the National District Attorneys Association and the Institute of Judicial Administration–American Bar Association. Good faith and sensitivity to the underlying purposes of the juvenile justice system will ensure that decisions to negotiate a plea will truly accomplish what is best for the juvenile and what will protect the community from future harm.
Robert E. Shepherd, Jr ., is an emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and a former chair of the Section’s Juvenile Justice Committee.