DOJ Statement of Interest on Juvenile Access to Counsel

NJDC applauds the Federal Government’s filing (on March 13, 2015) of a landmark Statement of Interest (SOI) in an ongoing Georgia case that takes a strong stance on the right to effective access to counsel for juveniles and the need for procedural safeguards against an uninformed waiver of that right.

In the SOI filed in N.P. et al., v. Georgia, the Department of Justice articulates with clarity that “due process requires that every child who faces the loss of liberty should be represented from their first appearance through, at least, the disposition of their case by an attorney with the training, resources and time to effectively advocate the child’s interests.  If a child decides to waive the right to an attorney, courts must ensure that the waiver is knowing, intelligent, and voluntary by requiring consultation with counsel before the court accepts the waiver.” (p 1)

As U.S. Attorney General Eric Holder said in a Department press release on the filing, “For too long, the Supreme Court’s promise of fairness for young people accused of delinquency has gone unfulfilled in courts across our country…. Every child has the right to a competent attorney who will provide the highest level of professional guidance and advocacy.  It is time for courts to adequately fund indigent defense systems for children and meet their constitutional responsibilities.”

While the SOI takes no position on the factual merits of the Georgia case, it urges that “should the Court determine that children are indeed regularly waiving counsel without first consulting with an attorney, the Court can and should find that the resulting waivers amount to a system-wide denial of the right to counsel.” (p. 19)

In assessing whether access to counsel has been provided, the DOJ filing acknowledges that the “unique qualities of youth demand special training, experience, and skill for their advocates” and that “developing the necessary trust-based relationship differs when the client is a child.” Citing the National Juvenile Defense Standards, the Department of Justice wrote, “Attorneys representing children must receive the training necessary to communicate effectively with their young client and build a trust-based attorney-client relationship.”   (pp. 11-12)

The Department of Justice maintains that effective juvenile defense divisions “should have the resources to monitor workloads so that attorneys are available to advocate for clients at intake and during detention and probable cause hearings. Outside of court, they need adequate time to meet with clients, investigate the prosecution’s factual allegations, engage  in a robust motions practice, devote time to preparing for trial and the disposition process, and to monitor and advocate for the needs of post-disposition clients who are still within the court’s jurisdiction” (pp. 13-14)

“In justice systems where lawyers regularly fail to advocate for clients in a manner traditionally expected of effective counsel and/or where lawyers lack the structural support necessary to do their jobs, it is tantamount to the system’s failure to appoint counsel.” (p. 15)

Recognizing that the juvenile system is adversarial and that children need advice from someone dedicated to their stated interests, the filing provides that “In order to properly fulfill this ‘serious and weighty’ responsibility [that the waiver is intelligent and competent] without abandoning its own judicial role in juvenile delinquency proceedings where a child faces a loss of liberty, a court should appoint an attorney who will explain the importance of counsel before the court accepts a waiver.” (p. 18)

Juvenile defenders and advocates across this country can now cite to this SOI as they battle deprivation of counsel issues in their jurisdictions, both in individual cases and in systemic reform efforts.

UPDATE: On April 20, 2015, the parties in N.P. et al., v. Georgia signed a consent decree in the case. Some of the provisions of the consent decree include: (1) that representation of children in juvenile court in the Circuit will now by a lawyer who specializes in juvenile law and childhood and adolescent development, where previously, less than 10% of children appearing in the Circuit’s juvenile courts were represented by a lawyer and even then, not by an attorney who was properly trained in juvenile defense; (2) the development of a juvenile division within the Circuit Public Defender office to specialize in the defense of juveniles, staffed by at least one full-time public defender; and (3) a requirement for yearly training on issues specific to juvenile delinquency defense for any defender in the juvenile unit.