Improving a child’s access to counsel

Wayne Superior Judge Darrin Dolehanty makes it a priority in every case to appoint an attorney for a juvenile as soon as the court learns a child has been detained.

He doesn’t give the parent or child a chance to waive that right to counsel before the proceedings begin.

“As soon as we get word about a detention or petition, an attorney is appointed,” the judge said. “I don’t know if you can do it more quickly than that, but unfortunately many counties don’t do that every time. That’s a shame, because this is something that has real meaning and we need to make sure children are represented.”
 

Many counties throughout Indiana don’t operate the way Wayne Superior 3 does in appointing counsel or sidestepping waivers. A proposed draft rule from the Indiana State Bar Association is being submitted to the state judiciary’s rulemaking committee to address the right to counsel issue, putting in place a systematic requirement that youth have adequate attorney representation from the start of their experience in Indiana’s juvenile justice system.

Hanger

“This is a very big deal for children in our juvenile system,” said Indianapolis civil rights attorney JauNae Hanger, who chairs the ISBA’s Civil Rights of Children Committee that has studied and created the proposed rule during the past year. “We’re trying to bring consistency so it doesn’t vary so much county by county. We’ve been on the road to getting here for a long time.”

The problem

Nationwide, the discussion has been ongoing since the landmark case In re Gault from the Supreme Court of the United States in 1967 that established the right to counsel for juveniles. The Indiana-specific discussion stretches back more than a decade, but evidence of the state system’s flaws came to light in April 2006. A study commissioned by the Indiana Juvenile Justice Task Force revealed the shocking depth of defects in the juvenile justice system and how many kids don’t have adequate access to an attorney.

Although Indiana Code 31-32-4-2 requires the appointment of counsel at the first detention or initial hearing, many courts forfeit that appointment using IC 31-32-5-1 that allows a parent to waive his or her child’s rights.

The report’s findings show about half of youth routinely waived their right to counsel and therefore didn’t have a sufficient understanding of their rights and the benefits of representation. More than a third of youth proceeded through court without counsel, and the rate was as high as 80 percent in two counties. The study found that when a juvenile consulted with a lawyer, nearly 90 percent never or rarely waived their right to counsel, but when a youth only consulted with a parent, about 75 percent waived the right.

After the report’s release, many responded that they’d heard anecdotal evidence of the problem but they didn’t truly understand the magnitude of the issues. The state vowed change, but systematic efforts to improve that attorney access have not happened in the past five years.

Some courts have strengthened and increased their appointment practices, and statewide training of judges and public defenders has occurred annually. But much remains the same and many say a child’s access to counsel continues to largely depend on what county and court system that child is in.

Landis

Larry Landis, executive director of the Indiana Public Defender Council, said counties that do appoint counsel in every case say it helps expedite dispositions and actually saves taxpayer money in the long run because the kids are less likely to get back into the system. Local counsel know service providers and out-of-state placement options better and help make the best decisions based on a child’s individualized needs, he said.

“Saying children have the right to a lawyer isn’t enough,” he said. “As of now, it’s a paper right in Indiana and we don’t go beyond that in actually making sure they have counsel when they need it. Those who need or want counsel must also have the ability to get an attorney across the board, not based on the location.”

The rule change

With the ISBA’s proposal, the state’s juvenile justice community sees hope that Indiana is finally moving forward on addressing this issue.

In October, the state bar association’s governing board unanimously approved a draft rule requiring adequate counsel in juvenile proceedings. The draft says that an attorney would be appointed prior to the first-occurring detention or initial hearing and that no child or parent could waive his or her right to counsel without first “engaging in meaningful consultation” with an attorney. Specifically, it says any waiver would have to be made “knowingly and voluntarily” in open court.

“This doesn’t create anything new that’s not already in the constitution,” Hanger said. “It just provides safeguards to make sure that children get counsel.”

Karozos

Amy Karozos, a staff attorney with the Youth Law T.E.A.M. of Indiana who chaired the ISBA committee when the 2006 report was released, said she’s pleased to finally see movement on this issue. She recalls her days as a state public defender when she observed so many children in the Department of Correction who hadn’t been represented at any stage of the legal process or had such inadequate representation that they didn’t recall if they’d consulted an attorney.

“This would make a big difference in helping kids understand their rights,” Karozos said about the rule change. “All children would be treated the same, no matter where they’re from. This would be significant, so you don’t have justice by jurisdiction.”

Those who’ve helped nurture the proposal during the past five years anticipate a potential decision could come by 2013 – if the Indiana Supreme Court agrees a rule change is needed and this is the best way to go about improving the system. Once the proposal goes to the Supreme Court’s Committee on Rules of Practice and Procedure there is no set timeline on a decision as to whether the rule revision is warranted or how that public comment and revision process would happen.

Kim Brooks Tandy, a lawyer who leads the Kentucky-based Children’s Law Center and principal author of the Indiana access to counsel assessment in 2006, said about 20 states have had similar assessments done. Some places, such as Illinois, Kentucky and Texas, have court rules or statutes that don’t permit waivers at any stage of the juvenile delinquent process, while other jurisdictions, such as North Carolina, have created state-level offices to ensure more appellate review and public defense for juveniles. Ohio is in the middle of a five-year rule-change process with the public comment period closing on a proposal to restrict waivers, similar to what Indiana is considering.

Although Indiana has moved more slowly than she expected, Tandy is encouraged by the ISBA and overall legal community support here.

“Sometimes, you have to build an infrastructure,” she said. “This has happened slowly, but you can’t rush these things. I’m encouraged that it’s picking up momentum now. The next challenge after this, if it’s passed, would be implementation. This can be a part of the culture of a particular county, and it’s important to make sure that becomes the state’s culture on appointing counsel. We don’t want to wait until the point of a child being committed to the DOC, and someone looks at a file and sees that child has never been represented. That’s a failure for our system.”•