By Karol Mason and Lisa Foster
“You have a right to an attorney. If you cannot afford an attorney, one will be provided for you.” This familiar phrase, frequently heard on television and in movies, reminds us of what most Americans know and take for granted – that all people facing the prospect of incarceration have the right to effective legal representation. The Supreme Court has affirmed this right, and the legitimacy and fairness of our justice system depend on it.
Nowhere is the right to counsel more important than when children are charged with committing acts of delinquency or criminal conduct. All children make mistakes, but our juvenile justice system recognizes, indeed it rests fundamentally on, the possibility of redemption. We want children to take responsibility for their actions, but we also want to help them learn from their mistakes and give them the chance to grow into productive citizens.
Fifty years ago this month, a lawyer representing 15-year-old Jerry Gault argued to the Supreme Court that the young man was deprived of his due process rights when he was sentenced to six years of incarceration for making an obscene phone call, an offense that would have earned an adult a maximum sentence of a $50 fine and two months in jail. The court’s landmark In re Gault decision, handed down five months later, unequivocally established that children in juvenile court proceedings have a right to counsel, and it affirmed that right as essential to ensuring that the juvenile justice system remains true to its rehabilitative roots. Access to an attorney is critical to ensuring that youth are held accountable without leaving them vulnerable to inappropriate and counterproductive punishment. As the only court actors who are mandated to operate in the child’s interest, juvenile defenders bring equity, fairness and legitimacy to our court system.
Yet, a half-century after the nation’s highest court guaranteed this most basic of rights, youth still encounter obstacles to quality representation. Throughout the United States, juvenile defenders are overworked and underpaid, and many lack the training and resources critical to their success. Many young people in detention facilities never had a lawyer appointed to represent them, and too often children are encouraged to waive their right to counsel even when doing so can hurt their chances of a fair hearing and a fair result.
For example, due to chronic and persistent underfunding, the public defender’s office in Cordele Circuit, Georgia, did not have an attorney trained to represent children, and often no attorney was even present in juvenile court. Children routinely “waived” their right to counsel because of the time and cost of repeatedly returning to court, because of the uncertainty of knowing when a lawyer would be available, and sometimes just because they wanted to go home. Indeed, in 2012, the juvenile courts handled 681 delinquency cases, but the public defender reported handling just 52, even though many, if not most, of these children came from poor families.
Last year, the Department of Justice filed a Statement of Interest in N.P. et al. v. The State of Georgia, et al., asserting that children are denied their right to counsel not only when an attorney is entirely absent, but also when an attorney is available in name only. It was the first department filing in a state court action to address children’s due process right to counsel established by the Gault decision. The situation in the Cordele Judicial Circuit is no different in many other jurisdictions. In assessments of juvenile defense programs in 21 states, the National Juvenile Defender Center found that children in 13 states routinely waived their right to counsel without first consulting an attorney.
Access to legal counsel is particularly important for young people whose families lack adequate financial resources. Justice-involved youth who have even minimal contact with the justice system can face a barrage of court fees and fines, and they are vulnerable to further justice involvement as failure to pay a court-imposed financial obligations can invite probation violations, detention and even out-of-home residential placement – akin to prison in the adult system.
The Justice Department is working with states to improve access to high-quality juvenile defense. Last year, the department awarded grants to four states – Delaware, Indiana, Kentucky and Washington – to create strategic plans for statewide juvenile defense programs, and this year awarded Delaware and Indiana additional funding to put those plans into action. Also, with funding from the department, the National Juvenile Defender Center is supporting regional juvenile defender resource centers that offer training, data, case services and other assistance.
Jurisdictions that want to ensure that their juvenile justice systems are upholding the Constitution and the ideals of fairness and legitimacy can take several steps to help ease the crisis in juvenile defense. They can presume that all children need court-appointed counsel and provide it unless there is evidence to the contrary; appoint counsel at the earliest possible stage in the proceedings, prior to the juvenile’s initial detention hearing; and, insist that no child waive the right to counsel unless advised by an attorney first. They can also provide youth with counsel during mandatory assessments, such as intake interviews and mental health competency evaluations, and ensure representation at every stage of the court process, including during plea negotiations and while they are in detention, receiving treatment or on probation. Finally, they should provide juvenile defense attorneys with specialized training that includes child and adolescent development, diversion and treatment programs, community placements, education and special education law, and mental health law.
The juvenile justice system was always intended to support young people by holding them accountable for their actions and, equally if not more importantly, helping them rejoin their families and communities prepared to make a new start. By recognizing the critical role that juvenile defenders play in our juvenile justice system and by fully equipping them to fulfill that role, we can truly advance the juvenile justice system’s dual goals of protecting public safety and improving the lives of young people.
Karol Mason is Assistant Attorney General for the Office of Justice Programs in the United States Department of Justice. Lisa Foster is Director of DOJ’s Office for Access to Justice.