Juvenile Indigent Defense Delivery System
Colorado provides counsel to indigent youth through the Office of the Colorado State Public Defender. Attorneys with this statewide public defender system represent juveniles facing a delinquency petition for which incarceration is a possible penalty or whose liberty has been restrained by the government. Colo. Rev. Stat. § 21-1-103(2). In addition, the state public defender represents youth in post-disposition and appellate proceedings. Colo. Rev. Stat. § 21-1-104. A five-member public defense commission appoints and oversees the state public defender. Colo. Rev. Stat. § 21-1-101. Indigent defense is 100% state-funded.
Colorado also has a statewide office of Alternate Defense Counsel that provides representation by contracting with attorneys and investigators in cases where the public defender has a conflict of interest. Colo. Rev. Stat. §§ 21-2-101, 21-2-103.
The Colorado Juvenile Justice and Delinquency Prevention Advisory Council passed a resolution in 2013 endorsing specialization in juvenile court practice. Under this resolution, the Advisory Council supports the establishment of standards of practice for juvenile defense.
Colorado youth have a right to a trial by jury when the youth is alleged to be an aggravated juvenile defender or has committed an act that would constitute a crime of violence (as defined by Colo. Rev. Stat. § 18-1.3-406). In these circumstances, the youth or the district attorney may demand a jury trial or the court may order a jury trial on its own motion. Colo. Rev. Stat. § 19-2-107 and Colo. R. Juv. P. 3.5.
Juvenile Court Rules
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. Colorado’s juvenile court rules are called the Colorado Rules of Juvenile Procedure.
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 Colorado, “[a]ny juvenile who is detained for committing a delinquent act shall be represented at the detention hearing by counsel.” Colo. R. Juv. P. 3.9(a)(1).
The court shall appoint the Office of the State Public Defender or, in the case of a conflict, the office of alternate defense counsel at a “first appearance” hearing, if the child is indigent, the parent or guardian refuses to retain counsel, if the child is in state custody, or if the court determines it is necessary in the interest of justice. Colo. R. Juv. P. 3.9(a)(2).
The State Public Defender is authorized to represent youth in petitioned juvenile delinquency matters or when they “are in any way restrained by court order, process, or otherwise”, if deemed indigent or otherwise eligible for court-appointed representation. Colo. Rev. Stat. § 21-1-103(2); see also Colo. R. Juv. P. 3. The court must appoint counsel if the youth and his or her parent, guardian, or custodian is found to be indigent; if the parent refuses to retain legal counsel; if the court determines that “counsel is necessary to protect the interests of the juvenile or other parties[;] or the juvenile is in the custody of the state,” unless the youth has expressly waived his or her right to counsel. Colo. Rev. Stat. § 19-2-706.
“At the juvenile’s first appearance before the court, after the detention hearing or at the first appearance if the juvenile appears on a summons, the court shall advise the juvenile and his or her parents, guardian, or other legal custodian of the juvenile’s constitutional rights and legal rights … including, but not limited to, the right to counsel.” Colo. Rev. Stat. § 19-2-706(1).
Determination of Indigence
Colorado has no presumption of indigence in juvenile court proceedings. Rule 3 of the Colorado Rules of Juvenile Procedure states that “if the juvenile, parent, guardian, or other legal custodian is indigent, the juvenile may be assigned counsel, as provided by law.” Indigence is determined by the state public defender, subject to review by the court, in accordance with guidelines established by the Colorado Supreme Court. Colo. Rev. Stat. § 21-1-103. “An indigent person is one whose financial circumstances prevent the person from having equal access to the legal process.” Chief Justice Directive 04-04 (August 2013).
The court shall appoint counsel for a juvenile if the “juvenile or his or her parents, guardian, or other legal custodian is found to be indigent…or the juvenile’s parents, guardian, or other legal custodian refuses to retain counsel for said juvenile.” Colo. Rev. Stat. § 19-2-706(2)(a). “If the court appoints counsel for the juvenile because of the refusal of the parents, guardian, or other legal custodian to retain counsel for the juvenile, the parents, guardian, or legal custodian, other than a county department of social services or the department of human services, shall be advised by the court that if the juvenile’s parent, guardian, or legal custodian is determined not to be indigent…[they may be ordered] to reimburse the court for the cost of the representation unless the court, for good cause, waives the reimbursement requirement.” Colo. Rev. Stat. § 19-2-706(2)(b).
A public defender may be assigned to represent a juvenile in a detention hearing prior to determination of indigency. Colo. Rev. Stat. § 21-1-103(5).
Waiver of Counsel
The court may only accept a juvenile’s waiver of counsel if it finds, on the record, based on a colloquy with the juvenile, that the juvenile:
- is sufficiently mature to make a voluntary, knowing, and intelligent waiver of the right to counsel;
- understands the sentencing options available to the court in the event of an adjudication or conviction;
- has not been coerced by any party, including (but not limited to) the juvenile’s parents, into waiving counsel;
- understands that the court will provide counsel for the juvenile if the juvenile’s parents are unable or unwilling to do so; and
- understands the possible consequences that may result from an adjudication including collateral consequences. Colo. Rev. Stat. § 19-2-706.
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 Colorado, a detention hearing must occur within 48 hours of detention, excluding weekends and legal holidays. Colo. Rev. Stat. § 19-2-508(3)(A)(I). If the youth is held in detention following the detention hearing, “the district attorney shall file a petition alleging the juvenile to be a delinquent within  hours after the detention hearing, excluding Saturdays, Sundays, and legal holidays.” Colo. Rev. Stat. § 19-2-508(3)(A)(V). Provisions for the detention of juveniles are found in Colo. Rev. Stat. §§ 19-2-502, 19-2-507, 19-2-508, 19-2-509, and 19-2-911, and in Colo. R. Juv. P. 3.1, 3.7, and 3.8.
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.
In Colorado, youth have a right to counsel in the following post-disposition proceedings:
- Juveniles who are on parole and who are facing parole revocation or modification, as well as those who are seeking parole, may be represented by an attorney at any parole hearing. Colo. Rev. Stat. § 19-2-1002(8).
- Juveniles who are alleged to have violated their terms of probation have a statutory right to counsel at hearings on the alleged violation. Colo. Rev. Stat. § 19-2-925(4)(b).
Colorado Revised Statute § 19-2-706(2)(d) states the appointment of counsel continues until the juvenile court’s jurisdiction is terminated.
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 Colorado:
- The youngest age at which a juvenile can be adjudicated delinquent is ten years of age – Colo. Rev. Stat. § 19-2-104(1)(a);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court – Colo. Rev. Stat. § 19-2-104(7);
- When a juvenile commits an offense prior to his or her 18th birthday, “the juvenile court may retain jurisdiction over a juvenile until all orders have been fully complied with by such person, or any pending cases have been completed, or the statute of limitations applicable to any offense that may be charged has run, regardless of whether such person has attained the age of eighteen years, and regardless of the age of such person.” – Colo. Rev. Stat. § 19-2-104(6).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Colorado has discretionary judicial waiver in cases where the child is either:
- Twelve or thirteen years old and alleged to have committed a class one or class two felony or crime of violence as defined by statute; or
- Fourteen or older and alleged to have committed any felony. Colo. Rev. Stat. § 19-2-518(1).
The juvenile court may choose not to transfer a child to adult court if, after investigation and a hearing, the court finds that it would be in the best interests of the juvenile and the public to retain juvenile court jurisdiction. Colo. Rev. Stat. § 19-2-518(1)(a).
The state has discretion to charge a juvenile in adult court by the direct filing of an information only if the juvenile is 16 or older and:
- Is alleged to have committed a class 1 or class 2 felony;
- Is alleged to have committed certain sexual assault offenses (as prescribed in the statute);
- Is alleged to have committed a felony enumerated as a crime of violence (as prescribed in the statute) and has had a prior adjudicated felony offense; or
- Has previously had a case transferred or directly filed in adult court – with a couple of exceptions. Colo. Rev. Stat. § 19-2-517.
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.
The Colorado Assessment was completed in 2012.