Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1
Juvenile Indigent Defense: Crisis and Solutions
By Patricia Puritz and Wendy Shang
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.
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.