Meeting the Mandates of Gault: Automatic Appointment of Counsel in Juvenile Delinquency Proceedings

Abstract

In 1967, the United States Supreme Court ruled that children facing delinquency charges have a constitutional right to defense counsel. Despite that mandate, state assessments of juvenile defense systems have consistently found high rates of waiver of counsel. Children are facing harsh punishments with potentially lifelong consequences without the benefit of a trained defense attorney at their side. Given the severity of the consequences of juvenile court involvement and society’s understanding of the developmental science behind adolescence, this article argues that to meet constitutional requirements, juvenile courts must automatically appoint defense counsel for all children facing delinquency charges.

Examining the Type of Legal Representation and Its Influence on Disaggregated Dispositions in Juvenile Court

“…Therefore, the results provide insight for proponents of mandatory juvenile counsel (for an example, see Feld, 2019), where all youth, regardless of whether there is a potential for out-of-home placement or not, are represented in the juvenile court by a statewide public defense system. Scali (2019) also makes the recommendation for all juvenile courts to appoint legal representation for youth facing delinquency charges, especially to assist youth in understanding the lifelong impacts and consequences. As an example, Minnesota passed legislation that mandated youth to have legal representation.…”

An evaluation framework for juvenile defense: A theory of change and logic model measurements

“…Although states have codified the right to counsel, systemic challenges persist in access to and provision of quality defense representation. Assessments of juvenile defense across the US since 1995 found several predominate and persistent themes: high prevalence of waiver, role confusion, limited specialized training, and procedurally delayed appointment, along with late specific‐case appointment leading to lack of preparation (Majd and Puritz, 2009; Puritz, et al, 1995; Scali, 2019). Youth (or their parents) waive the right to counsel at high rates without often understanding the legal protections provided by defense counsel (Berkheiser, 2002; Fedders, 2010; Scali, 2019).…”

“…Assessments of juvenile defense across the US since 1995 found several predominate and persistent themes: high prevalence of waiver, role confusion, limited specialized training, and procedurally delayed appointment, along with late specific‐case appointment leading to lack of preparation (Majd and Puritz, 2009; Puritz, et al, 1995; Scali, 2019). Youth (or their parents) waive the right to counsel at high rates without often understanding the legal protections provided by defense counsel (Berkheiser, 2002; Fedders, 2010; Scali, 2019). The rehabilitative and “courtroom workgroup” culture of juvenile court, along with the historic and legal combination of delinquency and dependency matters, can contribute to defense counsel taking on a “best interests” approach to representation (as established for child welfare proceedings) rather than advocate for the “expressed interests” of the youth (Birckhead, 2009a; Feld and Schafer, 2010).…”

“…Defense counsel may not receive notification of a case until the day of, or even immediately before, an adjudication hearing, resulting in a lack of time for case preparation or conversations with the youth (Fedders, 2010; Majd and Puritz, 2009). Assessments often tie these findings to a systemic lack of financial resources for juvenile defense, high caseloads, limited specialized training, inconsistency in who serves as defense counsel throughout case, and high turnover rates of defenders (Majd and Puritz, 2009; National Juvenile Defender Center, et al, 2018; National Juvenile Defender Center, et al, 2017; National Juvenile Defender Center, et al, 2012; Scali, 2019). Assessments generally find a “comprehensive service system but insufficient attention to due process” and a disparate negative impact of lack of access to counsel associated with race/ethnicity and immigration status of the youth (National Juvenile Defender Center, et al, 2012, p. 48; National Juvenile Defender Center, et al, 2013; National Juvenile Defender Center, et al, 2018).…”

“…For juvenile defense, the legal guidelines – established by the US Supreme Court, further case law, court rules, national standards, and ethical regulations – set the parameters for a process evaluation and identifies the goals for an outcome evaluation. Juvenile defense counsel in the United States protect the due process rights of youth in delinquency court by advocating for the expressed interests of the youth and ensuring the state meets its procedural burdens throughout the justice process (Henning, 2010; Puritz and Majd, 2007; Scali, 2019). Prior research findings on the barriers to obtaining quality defense counsel (discussed above) necessitate a process evaluation prior to an outcome evaluation.…”