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Advances in Juvenile Justice Reform: Juvenile Defense and Court Process

 20152013 | 2012 | 2011 | 2010 | 2009 


  • California Passes Juvenile Defender Training Bill: New legislation clarifies the duties of juvenile defenders, specifically requiring that they provide effective, competent, diligent, and conscientious advocacy; make rational and informed decisions based on adequate investigation and preparation; represent the expressed interests of clients who are minors and maintain a confidential relationship with them; confer with their client prior to each court hearing; and, when appropriate, juvenile defenders must consult with and seek to have appointed requisite experts as needed, such as social workers, mental health professionals, and educators. The legislation also requires that by July 1, 2016, the California Judicial Council develop and adopt rules of the court establishing minimum standards of training or experience that juvenile defenders must meet. A.B. 703 was authored by Assembly Member Bloom and co-sponsored by Youth Law Center and East Bay Children’s Office. A.B. 703 was signed into law September 20, 2015.


  • Arizona Supreme Court Upholds Fifth Amendment Protections for Youth: The Arizona Supreme Court upheld the Fifth Amendment rights of a 16-year-old who was arrested, handcuffed, questioned, and had blood drawn at school after being held for two hours without access to his parents. The decision referenced the U.S. Supreme Court’s ruling in J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), and held that a youth’s age is relevant when assessing whether he or she voluntarily consented to a blood draw. The court noted that youth “possess less maturity” and stated that “courts should not blind themselves to this reality.” State of Arizona v. Hon. Jane A. Butler and Tyler B., CV-12-0402-PR (Arizona 2013).
  • Colorado — Interim Committee Issues Recommendations on Juvenile Defense Reform: Recognizing the collateral consequences associated with a juvenile adjudication, the important role defense counsel plays in juvenile court, the specialized skills and training needed to adequately represent youth, and the barriers in accessing counsel, the Colorado General Assembly created a legislative committee to study legal defense in juvenile justice proceedings. The committee was charged with studying current laws, policies, and practices; the impacts on minority, immigrant, and special needs children; and methods for improvement. A report submitted in December 2013 recommended passage of a bill that would require youth to be represented by counsel at detention hearings and have appointed counsel at the first court appearance. This bill would also specify when the court may accept a waiver of the right to counsel. The committee also recommended a resolution requesting the Chief Judge of the Colorado Supreme Court to issue a directive to allow judges to remain in a juvenile rotation to gain expertise in the area, convene a task force with the Judicial Branch to formulate best practices, and establish a committee to improve the juvenile justice system. H.J.R. 1019, enacted May 20, 2013.
  • Idaho Youth Receive Broad Right to Counsel and Protections in Court Proceedings: Thanks to a new Idaho law adding new protections for youth in court, statements made by youth in diversion proceedings are now inadmissible as evidence of guilt in adjudication proceedings. The law also grants youth the same right to counsel as adults; youth now have the right to representation at all stages of a case, including revocation of probation, appeal, and other post-disposition matters or review proceedings. Any waiver of the right to counsel must be made in writing, on the record, and upon a finding of the court that takes into consideration age, maturity, the presence of a parent/guardian, the seriousness of the offense, collateral consequences, and whether there is a conflict between the interests of the youth and his or her parent or guardian. The law prohibits waiver of counsel in certain circumstances, including if a youth is under 14 years of age, is being adjudicated for a felony, at sentencing hearings where the state is recommending commitment, and at competency hearings. H.B. 149/Act No. 222, signed into law April 2, 2013; effective July 1, 2013.
  • Kansas Supreme Court Rebukes Prosecutor for Negative Comments about a Youth: At a sentencing hearing after reaching a plea agreement with a youth, a prosecutor made several negative personal comments about the youth, stating that he was dangerous, had no remorse or compassion, and was a menace to the community. The parties had agreed to a sentence of 102 months, but the sentencing judge rejected the deal and sentenced the youth to 204 months in prison instead. On appeal, the Kansas Supreme Court held that the prosecutor violated the plea deal by making negative comments that did not pertain to the facts of the case and were outside the scope of a summary of the victims’ statements. The court found that such comments were unprovoked and unnecessary, undermining the prosecution’s own sentencing recommendation and implicitly conveying that the youth deserved a greater punishment. The court vacated the youth’s sentence and granted him a new sentencing hearing. State v. Urista, 296 Kan. 576, 293 P.3d 738 (2013).
  • Michigan Establishes Indigent Defense Commission: The Michigan Legislature created an independent and permanent Michigan Indigent Defense Commission to identify and encourage best practices for defending indigent individuals and to establish, enforce, and oversee statewide public defense standards. In establishing and overseeing the standards, the commission is to emphasize the importance of indigent defense for youth under age 17 who are tried and sentenced in adult criminal court (in Michigan, all youth 17 and older are automatically tried as adults). The legislation notes the importance of lowering caseloads, proper training, continuous representation by the same attorney throughout an individual’s case, and oversight of representation. The law does not apply to youth tried in juvenile court. H.B. 4529/Act No. 93, signed into law and effective July 1, 2013.
  • Pennsylvania — Youth Receive Settlement from Contractor in Luzerne County Scandal: A second set of youth and families involved in the “kids for cash” scandal in Luzerne County reached a partial settlement with the companies who ran the detention centers where the youth were sent. In 2011, former Luzerne County Judge Mark Ciavarella was convicted of receiving bribes from the companies in exchange for sending youth to their facilities. According to the settlement, the families will receive a total of $2.5 million. H.T. et al. v. Mark A. Ciavarella, Jr., et al., Civil Action No. 3:09-cv-0357, settlement reached October 17, 2013; order entered July 7, 2014.
  • Virginia Allows Youth to Have their Cases Reviewed Based on New Scientific Evidence: Virginia now allows youth who have been adjudicated in the juvenile justice system to submit a motion for the evaluation of new or previously untested scientific evidence. Previously, only individuals in the adult system could file such a motion. The law also gives the Virginia Supreme Court and Courts of Appeals the power to review such petitions and issue writs of innocence for youth who are exonerated based on such evidence. H.B. 1308/Act No. 170, signed into law March 12, 2013; effective July 1, 2013.

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  • Kentucky Judge Finds Mandatory Strip Search of Youth Unconstitutional: A federal judge in Kentucky found mandatory strip searches of youth during intake at a Perry County, Kentucky juvenile facility to be unconstitutional. Facility policy required youth to strip in front of non-medical staff who then visually observed the youth’s nude body for signs of abuse, illness, tattoos, or other markings. The court held that the facility conducted the strip searches without any reasonable suspicion of illness, injury, or possession of contraband, and therefore violated the youth’s constitutional right to privacy. In its opinion, the court noted that strip searches of youth raise unique concerns due to youth’s vulnerability. Additionally, the court dismissed the facility employees’ claim of qualified immunity—citing clear legal precedent prohibiting strip searches without individualized reasonable suspicion of possession of contraband—thereby allowing the youth to pursue civil damages. State officials have since changed the policy and youth are now screened at intake while partially clothed. T.S. v. Gabbard, 860 F. Supp. 2d 384 (E.D. Ky. 2012).
  • Louisiana Legislation Makes Filing of a Complaint a Last Resort: Louisiana now requires any agency wishing to file a complaint in juvenile court to utilize “all appropriate and available” resources prior to filing the complaint. If the agency does file a complaint, it must provide documentation of all steps it has taken prior to the filing. If a school files a complaint, it must document meetings held with the youth, meetings with the youth’s caretaker, and referral of the youth to school behavior support personnel. S.B. 467/Act No.660, signed into law June 7, 2012; effective August 1, 2012.
  • Pennsylvania Guarantees Right to Counsel for Youth: Spurred by the 2007 “kids-for-cash” scandal in Luzerne County, Pennsylvania now requires all youth to be represented by counsel in delinquency cases. All children are presumed indigent, and the court must appoint counsel for youth who are not represented. Youth over age 14 may waive their right to counsel only at certain hearings and only following a judicial colloquy that determines the waiver is made knowingly, intelligently, and voluntarily. However, youth must be represented by counsel at detention hearings; transfer hearings; adjudicatory hearings; evidentiary hearings related to the need for treatment, supervision, rehabilitation; disposition hearings; and hearings to modify or revoke probation or an existing disposition. The Pennsylvania Supreme Court also amended the Rules of Juvenile Court Procedure, requiring legal representation for youth in juvenile court proceedings. Most notably, the rule permits waiver of legal representation by children who are at least 14 years of age only in specific situations and even then, the waiver must meet the court’s scrutiny. S.B. 815/Act No. 23, signed into law April 9, 2012; effective June 8, 2012 and Rule 152, amended January 11, 2012; effective March 1, 2012.
  • Pennsylvania Bans Indiscriminate Shackling of Youth in Court: A new law in Pennsylvania requires that restraints be removed from youth prior to court proceedings. The law provides for exceptions if the court makes a determination—on the record and with the input of the youth—that restraints are necessary to prevent physical harm to the youth or another person; to prevent disruptive courtroom behavior, given evidence of prior potentially harmful behavior; or to prevent the youth from fleeing, provided there is evidence of risk of escape. S.B. 817/Act No. 56, signed into law May 29, 2012; effective July 28, 2012.
  • Pennsylvania — Legislature Requires Greater Accountability for Juvenile Court System: The Pennsylvania General Assembly increased the responsibilities of the Juvenile Court Judge’s Commission to ensure accountability for effective and efficient administration of the juvenile court system. The commission must collect and analyze data to identify trends and to determine the effectiveness of programs and practices, make recommendations concerning evidence-based programs and practices to judges, and post related information on the commission’s public website. H.B. 1546/Act No. 42, signed into law May 17, 2012; effective July 16, 2012.

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  • Louisiana — State Public Defender Board Sets Performance Standards for Legal Representation in Delinquency Proceedings: In December 2011, the Louisiana Public Defender Board issued the state’s first trial court performance standards for juvenile delinquency proceedings. The standards are intended to alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby assist attorneys in deciding upon the particular actions that must be taken in each case to ensure that the client receives the best representation possible. The standards are also intended to provide a measure by which the performance of individual attorneys and district public defender offices may be evaluated, and to assist in training and supervising attorneys.
  • Massachusetts — State Expands and Improves Indigent Juvenile Defense System: The Massachusetts Youth Advocacy Department (YAD)—the state’s juvenile public defender entity—began its first full year of operation as a state agency in 2011, expanding from a project to a statewide department. YAD will provide leadership, training, support, and oversight to the juvenile indigent defense bar of Massachusetts and work to build a well-trained and supported community of juvenile defenders employing a youth development approach to zealous legal advocacy. YAD has a staff presence in every county in Massachusetts and is developing a model for trauma-informed representation, implementing a web-based case management system to promote better communication, and developing more detailed data for program evaluation. YAD’s Private Counsel Unit (PCU) provides supportive leadership—while assuring adherence to performance standards—to the private attorneys who make up the delinquency, revocation, and Youthful Offender trial panels. In 2011, the PCU developed a policy and procedure for new certification standards and created procedures to maintain and enforce them; established a revocation panel to provide statewide representation to post-disposition youth who are facing revocation of their grants of conditional liberty (the equivalent of a parole revocation hearing); provided litigation support, including support for an emergency appellate action; and created the Juvenile Certification Advisory Board to enlist the help of regional leaders across the state.
  • Michigan — State Launches Juvenile Defense Network and Indigent Advisory Commission: The Michigan Juvenile Defense Network launched in August 2011 to help connect attorneys across Michigan who provide court-appointed legal representation to youth facing delinquency proceedings. The network provides an interactive listserv, hosts trainings, and disseminates information relevant to the practice of family law. Two months after the network was launched, Michigan’s governor issued an executive order to establish the Michigan Indigent Defense Advisory Commission. The commission is charged with investigating how to improve legal representation for defendants who cannot afford an attorney, as well as developing recommendations on how to ensure public defense is consistent across the state. Executive Order 2011-12, signed October 13, 2011.
  • Oregon — Court Limits Shackling and Strip Searching of Youth: A circuit court judge in Yamhill County, Oregon issued a ruling on February 7, 2011 limiting the shackling of youth in custody. The judge held that youth may be shackled in the courtroom and during video appearances only when it is necessary to prevent escape, injury, or destruction. The shackling may last only as long as such danger exists. The presiding judge in the case must make the decision on shackling, based on specific indications of danger. The court additionally held that youth may be reasonably restrained when transported to and from court, but such restraint may not include full-scale shackling without prior judicial approval. The court also addressed strip searching in the case, ruling that strip searches may not be routinely conducted after visits and court appearances; searches must be restricted to those situations in which there is a reasonable suspicion that the youth might have acquired contraband.
  • Pennsylvania — Supreme Court Declares All Juveniles Indigent for Purposes of Appointment of Counsel: The Pennsylvania Supreme Court adopted a new juvenile court procedural rule that declares all juveniles to be presumed indigent, thereby giving all youth the right to an attorney appointed by the court. The court rule forbids the consideration of a parent or guardian’s income, stating that “there is an inherent risk that the legal protections afforded juveniles could be eroded by making legal representation dependent upon the limited financial resources of their guardians, particularly where guardians have an income just above the poverty guidelines.” Rule 151, adopted May 16, 2011; effective July 1, 2011.
  • Pennsylvania — Supreme Court Sharply Limits Shackling of Youth in Court: A new Pennsylvania Supreme Court rule prohibits using restraints on youth in court with limited exceptions. Restraints may only be used if the court determines on the record—after giving the youth an opportunity to be heard—that restraints are necessary to prevent: 1) physical harm to the youth or another person; 2) disruptive courtroom behavior, which must be backed by evidence of dangerous behavior in the past; or 3) the youth’s escape, evidenced by an escape history or other relevant factors. The rule “highly discourages” the use of any restraints, and states that the routine use of restraints on youth is contrary to the philosophy of balanced and restorative justice and undermines the goal of rehabilitation. Rule 139, adopted April 26, 2011; effective June 1, 2011.
  • Tennessee — State Law Clarifies Placement Procedures: A new Tennessee law clarifies several issues related to the placement of youth in the custody of the Department of Children’s Services (DCS). First, the law clarifies the juvenile court’s authority regarding placement of a youth pending potential transfer to adult court; the placement must be consistent with the best interest of the youth. Typically, the juvenile court is in the best position to determine what is in the best interest of the youth, given its overall focus on rehabilitation and often substantial history with the youth. The law additionally clarifies the procedure for placing a youth at home through a trial home pass and addresses procedural issues related to early release of a youth with a determinate sentence, discharge of a youth on probation or a home placement, and a youth’s violation of the terms of his or her placement. This increased clarity is intended to help improve the efficiency of court procedures, thereby helping to move youth through the system more quickly, avoid unnecessary delays, and ensure due process. H.B. 713/Ch. 486, signed into law June 16, 2011; effective July 1, 2011.

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  • Louisiana — State Law Provides for Counsel for Children: Louisiana law now states that all children are presumed indigent for the purpose of appointment of counsel at the state’s expense. The law permits appointment of counsel for all youth immediately upon arrest and detention. Prior to the law, youth had to wait as long as 72 hours to be appointed counsel at the continued custody hearing. The law is intended to expedite appointment of counsel for youth and avoid detention in certain cases, due to earlier access to information and increased advocacy. H.B. 663/Act 593, signed into law June 25, 2010; effective August 15, 2010.
  • Massachusetts — State Reduces Use of Restraints on Youth in the Courtroom: The newly amended Trial Court of the Commonwealth Court Officer Policy and Procedures Manual implements a new procedure to reduce the use of restraints on youth in Massachusetts courtrooms. The policy and procedure creates a presumption that restraints will be removed from youth while appearing in a courtroom before a justice of the juvenile court unless there is an order and specific finding that restraints are necessary. A justice may order the use of restraints if he or she finds that there is reason to believe that the youth may try to escape, or that the youth may pose a threat to his or her own safety or to the safety of other people in the courtroom, or if it is reasonably necessary to maintain order in the courtroom. The policy sets forth several factors that a justice must consider prior to issuing such a finding. Trial Court of the Commonwealth Court Officer Policy and Procedures Manual, Chapter 4, Courtroom Procedures, Section VI, Juvenile Court Sessions; effective March 1, 2010.
  • Pennsylvania — State Establishes Models to Reform Indigent Defense: Because Pennsylvania’s indigent defense system differs by county, there is no statewide solution to improving representation of youth. However, due in part to Pennsylvania’s participation in the MacArthur Foundation’s Models for Change initiative, the Juvenile Justice and Delinquency Prevention Committee, working with the Juvenile Defenders Association of Pennsylvania, provided funding for model juvenile defense units. Through this competitive grant process, the initiative allows participating counties to develop their own strategies to meet the requirements for effective representation of youth. These model counties then become examples for other jurisdictions of similar size or with similar needs. In the first year of the program, Luzerne County and Dauphin County received funding under the program. The goal is for additional counties—of different sizes and with different structures—to join the program in the second year of funding.

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  • Maine — State to Ensure Provision of Qualified Counsel and Adequate Funding for Indigent Legal Services: The Maine Commission on Indigent Legal Services is a new independent and permanent statutory commission whose purpose is to provide efficient high-quality representation to indigent criminal defendants, juvenile defendants, and children and parents in child protective cases. The commission must work to ensure the delivery of indigent legal services by qualified and competent counsel in a manner that is fair and consistent throughout the state, and to ensure adequate funding of a statewide system of indigent legal services free from conflicts of interest and undue political interference. The commission must also develop the statistics necessary to evaluate the quality and the cost-effectiveness of services provided. The commission has already promulgated rules for the selection of counsel to represent youth; the rules are designed to ensure a minimum of training for such counsel. Additionally, the commission has been active in providing education programs for counsel and drafting and supporting progressive juvenile justice legislation. S.P. 423/L.D. 1132/Public Law 419; signed into law and effective June 17, 2009.
  • Mississippi — Law Strengthens Representation of Youth at Critical Stages: The Mississippi State Legislature specified the critical stages at which juveniles must be represented by counsel, including, but not limited to, detention, adjudicatory and disposition hearings, parole or probation revocation proceedings, and post-disposition matters. The law also specifies that the youth’s attorney “shall owe the same duties of undivided loyalty, confidentiality and competent representation…as is due an adult client.” S.B. 2939/Ch. 536, signed into law April 15, 2009; effective July 1, 2009.
  • Montana — Attorneys Must Meet with Youth Prior to Detention Hearings and Prior to Youth’s Waiver of Counsel: The Montana Legislature revised the Youth Court Act to require a youth to be represented by an attorney at a detention hearing, unless the youth waives his or her right to an attorney after consulting with an attorney prior to the hearing. If the youth is under 16, the youth and parent/guardian can waive counsel only after consulting with an attorney prior to the hearing. S.B. 91/Ch. 37, signed into law March 20, 2009; effective October 1, 2009.
  • New Jersey — State Establishes Post-Disposition Representation Project: As part of their work with the MacArthur Foundation’s Models for Change Juvenile Indigent Defense Action Network, the clinical programs at Rutgers School of Law-Camden and the Rutgers School of Law-Newark, and the New Jersey Office of the Public Defender collaborated to provide post-disposition representation to youth. The goal of the collaboration is to enhance legal representation for indigent youth and expand the capacity of the Office of the Public Defender. For the first time, juvenile defenders are able to provide youth in facilities with attorneys by referring post-disposition cases to the law school clinical programs, through which student attorneys take on post-disposition representation and visit the youth while they are in placement. The program originally began with two pilot counties in September 2009; the two law school clinical programs now receive referrals from six counties and have provided post-disposition representation to over 100 youth.
  • New Jersey — Supreme Court Holds Right to Counsel for a Juvenile Attaches Early: The New Jersey Supreme Court ruled that the right to counsel attaches at the time of the filing of a delinquency complaint and obtainment of a judicially approved arrest warrant because they are “critical stages” of delinquency proceedings. The court further held that youth cannot waive their right to counsel except in the presence of and after consultation with an attorney. In re P.M.P., 200 N.J. 166 (2009).
  • Nevada — State Implements Indigent Defense Standards of Performance: The Nevada State Supreme Court adopted performance standards for indigent defense in April of 2009. The standards include a detailed section on delinquency cases, which covers the role of defense counsel, provision of adequate time and resources, client interviewing, detention hearings, plea negotiations, adjudication hearings, transfer proceedings, and many other topics.
  • Texas —  Legislature Clarifies Motions Procedure for New Juvenile Court Trials: The Texas Legislature amended the state family code to follow the criminal court rules for a motion for a new trial seeking to vacate a juvenile court adjudication. In following these rules, juvenile court attorneys will have greater clarity on how to file a motion and the process will be more efficient. Rule 21 of the Texas Rules of Appellate Procedure, relating to new trials in criminal cases, will now be applied to the civil juvenile court. Rule 21 governs which issues to raise in the motions and timelines for making motions. The civil court rules were not a good fit for motions for new juvenile trials and there was confusion among attorneys about which rules to use. The new procedures are more appropriate, due to the similarities to criminal trials. H.B. 1688, signed into law June 19, 2009; effective September 1, 2009.

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Photo: Joe Gratz, under Creative Commons License