Why All Youth Should be “Presumed Indigent” in Courts

Caitlin Johnson
November 13, 2013

On Nov. 12, the Juvenile Justice Information Exchange (JJIE) and SparkAction co-hosted a Google+ Hangout on Air with experts in the juvenile indigent defense movement. The Hangout celebrated the launch of the Juvenile Indigent Defense section of the JJIE Juvenile Justice Resource Hub.

Here’s a quick look at the conversation—the full video is available HERE.

Just what is “juvenile indigent defense”?

In short, all young people are entitled to counsel; those who don’t have the ability to pay for representation themselves are constitutionally guaranteed access to zealous counsel.

Who should have access to indigent defense?

Across the country, some states provide counsel for virtually all children while other states have financial cut-offs, or consider parent’s income in assigning representation. The experts on this Hangout agree that all young people involved in court proceedings should have access to indigent defense. 

“We strongly believe that there should be a presumption of indigence for all kids. Kids themselves don’t make any money, therefore they cannot hire their own lawyers,” says Tim Curry, managing attorney at the National Juvenile Defender Center.

Curry cites several problems with limiting access to some young people: parents may have conflicting agendas. It can also take a significant time to appoint counsel, as the court evaluates a family’s financial situation—and the young person may face lockup in the meantime. 

Marsha Levick, deputy director and chief counsel at the Juvenile Law Center, agrees: “the representation that should be afforded to juveniles should be afforded to them directly, and not through their parents. It is their lawyer and not their parents’ lawyer.”

Why is this an important role?

Indigent defense attorneys may be public defenders or court-appointed private attorneys. Their role is to be the voice of the child in the court process.

Indigent attorneys have additional, complex demands that other defense attorneys may not face: they must not only represent the wishes of their clients but also serve as advisors to the young person about the system and the rules of the court. They must possess specific knowledge about adolescent development, and rehabilitation and treatment options.

Juvenile defenders are also tasked with tracking young people sentencing to understand whether juvenile justice programs are meeting their goals of rehabilitation.  “Some of our best work around the country has been in checking in with kids to find out if they’re getting the services that the court wanted them to get—are they getting mental health services … are there conditions of confinement that need to be addressed?” says Sue Burrell, staff attorney at the Youth  Law Center.

“That’s a critically important part of representation. It’s one that many jurisdictions are struggling with, but we’ve got some good examples of how to do it right,” Burrell says.

Juvenile defenders, several panelists noted, are among the most underfunded attorneys in the justice system. Yet they stand between young people and potentially lifelong consequences.

Despite what many of us may assume, says Melissa Goemann, policy and research specialist at the National Juvenile Justice Network, “there are some very harsh consequences in delinquency cases—everything from very long detentions and commitments to being tried as an adult and given an adult sentence and placed in adult jails, to the collateral consequences and ramifications that having been judged delinquent will have on your life.”

What happens if you don’t have juvenile indigent defense?

Despite a Constitutional right to counsel and due process, not all young people face trial with a good defense counsel—or, indeed, any counsel at all. 

The National Juvenile Defender Center studied juvenile defense systems in 21 states.  It surprises people, says Tim Curry, but in many courtrooms, “it’s not uncommon to see a child who has been detained over night after being arrested and is brought before a judge to determine whether the child should be released … [and] does not have a lawyer.”

A scandal in Luzerne County, Pennsylvania, illustrated the dangers of not having representation: “We had 2,500 kids who went before a juvenile court judge convicted of taking 2.8 million in kickbacks from private, for-profit facilities. He also allowed more than half of the juveniles who appeared before him to appear without lawyers. Roughly two-thirds of those kids were taken from their home and put into juvenile residential and correction facilities,” says Marsha Levick.

“That happens because no one spoke for the child in those proceedings. No one raised their voice and no one challenged the decisions that the judge was making. That’s, frankly, 2500 stories of kids whose lives were altered dramatically,” she says.

There are also powerful stories on the JJIE.org Juvenile Indigent Defense Resource Hub >>

Toward Better Youth Defense

Across the country, states are reforming and strengthening their juvenile indigent defense systems. Some of the areas of progress include:

  • Waivers:States are putting in protections to help young people resist pressure to waive their rights to counsel. Some states require youth to confer with counsel before waiving your rights.
  • When in the profess attorneys are appointment—ideally right away, during the detention hearing or the first interaction with a judge.
  • Setting state standards for juvenile defense practice—including developing standards for juvenile defense as part of state bar systems.

Learn More