Juvenile Indigent Defense Delivery System
Arkansas provides counsel to indigent youth through a statewide Public Defender Commission that oversees indigent defense. Public defenders, who may serve part-time or full-time, are allocated to each county or judicial district. Ark. Code Ann. § 16-87-304(a)-(c). Each public defender is responsible for juvenile cases in his or her judicial district. Ark. Code Ann. § 16-87-306. Private attorneys may be appointed when the public defender has a conflict of interest. Ark. Code Ann. § 16-87-307.
While the Commission has set detailed standards for indigent defense, Arkansas has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
Arkansas youth have a right to a trial by jury if the court finds that a juvenile will be treated as an extended juvenile jurisdiction offender. Ark. Code Ann. § 9-27-503(d).
Juvenile Court Rules
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Arkansas does not have specific juvenile court rules at the state level, but Arkansas Supreme Court rules for other proceedings (such as the Rules of Criminal Procedure) may apply in juvenile court proceedings. In addition, local courts may have rules that apply to juvenile courts in that county or judicial district.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In Arkansas, youth in juvenile court have the right to counsel:
- At all stages of the proceedings, Ark. Code Ann. § 9-27-316(a)(1);
- At all reviews for an extended juvenile jurisdiction offender, Ark. Code Ann. § 9-27-316(a)(2); and
- On appeal, Gilliam v. State, 305 Ark. 438, 808 S.W.2d 738 (1991).
A child must be informed of his or her right to be represented by counsel at several points in the process:
- By a law enforcement official taking a juvenile into custody;
- By the intake officer at the initial intake interview; and
- By the court at the juvenile’s first court appearance before the circuit court. Ark. Code Ann. § 9-27-316.
“In a proceeding in which the judge determines that there is a reasonable likelihood that the proceeding may result in the juvenile’s commitment to an institution in which the freedom of the juvenile would be curtailed and counsel has not been retained for the juvenile, the court shall appoint counsel for the juvenile.” Ark. Code Ann. § 9-27-316(d). The court is required to appoint counsel far enough in advance of the court appearance that the attorney has time to adequately consult with the client and to adequately prepare the case. Ark. Code Ann. § 9-27-316(e).
Determination of Indigence
Arkansas does not have a presumption of indigence in juvenile court proceedings. The Arkansas Public Defender Commission is responsible for setting standards to determine indigence. Ark. Code Ann. § 16-87-203(a)(1). To receive appointed counsel, a family must file an affidavit of financial means and the court must determine whether the family can afford to hire an attorney. The determination “shall include a consideration of the juvenile’s financial resources and the financial resources of his or her family.” Ark. Code Ann. § 9-27-316(b)(1)(A).
However, despite these requirements, “the failure of the juvenile’s family to retain counsel for the juvenile shall not deprive the juvenile of the right to appointed counsel.” Ark. Code Ann. § 9-27-316(b)(1)(B). Furthermore, if “counsel is not retained for the juvenile or it does not appear that counsel will be retained, counsel shall be appointed to represent the juvenile at all appearances before the court unless the right to counsel is waived in writing,” or the proceeding is one in which waiver of counsel is not permitted. Ark. Code Ann. § 9-27-316(c).
Waiver of Counsel
In Arkansas, a juvenile can waive his or her right to counsel “only upon a finding by the court from clear and convincing evidence after questioning the juvenile that:
- The juvenile understands the full implications of the right to counsel;
- The juvenile freely, voluntarily, and intelligently wishes to waive the right to counsel; and
- The parent, guardian, custodian, or counsel for the juvenile has agreed with the juvenile’s decision to waive the right to counsel.”
Ark. Code Ann. § 9-27-317(a).
Ark. Code Ann. § 9-27-317 outlines the factors the court must consider before accepting any waiver by the child and his or her parent.
If the waiver is not made in the presence of the court, it must “be in writing and signed by the juvenile.” Ark. Code Ann. § 9-27-317(h).
Waiver of counsel will not be accepted by the court:
- “in any case in which the parent, guardian, or custodian has filed a petition against the juvenile, initiated the filing of a petition against the juvenile, or requested the removal of the juvenile from the home” – Ark. Code Ann. § 9-27-317(d);
- “in any case in which counsel was appointed due to the likelihood of the juvenile’s commitment to an institution” – Ark. Code Ann. § 9-27-317(e);
- ”when a juvenile has been designated an extended juvenile jurisdiction offender” – Ark. Code Ann. §§ 9-27-317(f) and 9-27-504; or
- ”when a juvenile is in the custody of the Department of Human Services, including the Division of Youth Services” – Ark. Code Ann. § 9-27-317(g).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Arkansas, a detention hearing must occur within 72 hours after the juvenile is taken into custody. If the time period ends on a weekend or holiday, then the hearing will be held on the next business day. Ark. Code Ann. § 9-27-313(d). Provisions for the detention of juveniles are found in Arkansas Code §§ 9-27-313, 9-27-326, and 9-27-336.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Youth in Arkansas seem to have a right to counsel at a hearing on a petition seeking revocation of probation. Arkansas Code § 9-27-339(c) requires the juvenile’s attorney to be served with the petition, which implies that the juvenile has a right to counsel at the probation revocation hearing.
While the statute addressing appeals from juvenile cases, Ark. Code Ann. § 9-27-343, does not mention whether a juvenile has a right to counsel in appellate proceedings, Arkansas case law guarantees juveniles counsel on appeal. Gilliam v. State, 305 Ark. 438, 808 S.W.2d 738 (1991).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Arkansas:
- The youngest age at which a juvenile can be adjudicated delinquent is 10 – Ark. Code Ann. §§ 9-27-303(15) and 9-27-306(a)(1)(A)(i);
- Juvenile court has jurisdiction matters in which a juvenile (ages 10 to 18 years-old) is alleged to have committed a delinquent act – Ark. Code Ann. §§ 9-27-303(32), 9-27-306(a)(1)(A)(i), and 9-27-318(a);
- Juvenile court can retain jurisdiction over a youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18 – Ark. Code Ann. §§ 9-27-306(a)(1)(A)(ii), 9-27-331, and 9-28-206.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Arkansas has two ways in which a youth can be prosecuted in adult court.
- The state has discretion to file a motion in juvenile court requesting that a case be transferred to adult court or designate the youth as an extended juvenile jurisdiction offender if the juvenile is 14 or 15 years old at the time he or she is alleged to have committed a serious offense (listed in the statute). Ark. Code Ann. § 9-27-318(b).
- The state also has discretion whether to charge a youth with an offense in juvenile or adult court if the youth is (1) at least 16 and alleged to have committed an offense that would be considered a felony if committed by an adult or (2) 14 or 15 years old at the time he or she is alleged to have committed a most serious offense (listed in the statute). Ark. Code Ann. § 9-27-318(c).
In addition to youth being transferred from juvenile court to criminal court, a youth charged in criminal court can be transferred to juvenile court. Ark. Code Ann. § 9-27-318(e). At a transfer hearing, whether in juvenile or criminal court, the judge must consider statutorily listed factors to determine whether to transfer the child to a different court. Ark. Code Ann. § 9-27-318(g). In some circumstances, a criminal court judge may enter a juvenile delinquency disposition. Ark. Code Ann. § 9-27-318(j). “Any party may appeal from a transfer order.” Ark. Code Ann. § 9-27-318(l).
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in Arkansas. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.