In many states, young people struggle to get access to their constitutional right to counsel, thanks to differences in standards of representation across the country. Too often, children’s rights in the juvenile justice system depend on their location, which exacerbates racial disparities already present in the criminal justice system, according to a report from the National Juvenile Defender Center released on Monday.
The report found that most states consider the income and assets of parents when they decide if a child’s right to counsel will be honored, although the right to counsel is only for the child. Only 11 states have a presumption that the children are automatically eligible for an attorney, regardless of what their financial status is. These decisions are made on a case-by-case basis in the majority of states, and in those states where they are considered for financial eligibility, the process of considering financial eligibility can take up to a week.
The report is based on a state-by state analysis of statutes on children’s access to counsel and 70 interviews with lawyers across the country. The report reflects findings from 52 jurisdictions.
According to the report, the Department of Justice’s investigation into the St. Louis County Family Court found that there is a wide range in how much parents are charged to determine financial eligibility for a public defender or assigned counsel. Some parents were charged a $150 fee and others were charged fees as high as $2,000. The investigation found that the lack of uniformity was one reason for a high rate of kids waiving their right to counsel.
There are other fees and costs associated with representation for children. Thirty-six states have some financial cost imposed on families to access free counsel. Nine states have applications, processing or administrative fees ranging from $10 to $50, and some states have partial reimbursements of attorney fees, and public defender fees.
Public defender fees are still quite high for low-income families. In Massachusetts, a child is still charged a public defender fee of $300, no matter what their family’s income is. In New Hampshire, the fee begins at $275 and increases based on the severity of the charge. If a family can’t pay, some jurisdictions allow the court to order a lien against a family’s property or income.
To make matters worse, on top of all of these costs discouraging children from getting counsel, the majority of states let kids waive their right to counsel without speaking to a lawyer first, according to the report. Only eight states require consultation with an attorney before waiving their right. Defenders interviewed for the report said that waiver of counsel appears to occur more often in rural and remote areas.
There is a major time crunch for attorneys serving juveniles, which required attorneys to postpone hearings multiple times to ensure they were able to consult with their clients. New York and Kentucky have systems in place to let attorneys know ahead of time when they are scheduled to meet with a new client, so they have more time to prepare. Defenders from at least five jurisdictions also told the National Juvenile Defender Center they had trouble meeting with clients in private for meetings, which breaches their duty to confidentiality, because they didn’t have the time or space for a private meeting.
In addition to lack of time to consult with attorneys, many children don’t get access to an attorney for the sentencing phase of the process. Research shows that when children have an attorney during this phase, they tend to feel better about the process and have better outcomes. Statutes in the majority of states had limited to no right to counsel during the post-deposition stages.