Juvenile Indigent Defense Delivery System
Illinois provides counsel to indigent youth through a county-based system. Counties with a population greater than 35,000 must establish a public defender office. 55 Ill. Comp. Stat. § 5/3-4001. Smaller counties may establish public defender offices, alone or in conjunction with a neighboring county, or may use contract or assigned attorney systems. 55 Ill. Comp. Stat. §§ 5/3-4000, 5/3-4002, 5/3-4003.
Public defenders represent juveniles in their jurisdictions who are charged with delinquent acts. 55 Ill. Comp. Stat. 55 § 5/3-4006, referencing 705 Ill. Comp. Stat. § 405/1-5. Illinois has a state-funded appellate defender office with an active juvenile practice. 724 Ill. Comp. Stat. Ann. 105/10. While Illinois has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings, the State Appellate Defender may establish the Juvenile Defender Resource Center to “develop and provide training to public defenders on juvenile justice issues, utilizing resources including the State and local bar associations, the Illinois Public Defender Association, law schools, the Midwest Juvenile Defender Center, and pro bono efforts by law firms.” 725 Ill. Comp. Stat. Ann. 105/10(c)(6)
Illinois youth have a right to a trial by jury if they are deemed by statute to be “violent” or “habitual” juvenile offenders, or the prosecution is an extended jurisdiction juvenile prosecution. 705 Ill. Comp. Stat. § 405/5-820; 705 Ill. Comp. Stat. § 405/5-815; 705 Ill. Comp. Stat. § 405/5-810.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Illinois does not have specific juvenile court rules at the statewide level, but Illinois Supreme Court rules for other proceedings (such as the Rules on Criminal Proceedings in the Trial Court) 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 Illinois, youth subject to court proceedings have the right to counsel. 705 Ill. Comp. Stat. § 405/1-5(1).
At the request of any party financially unable to employ counsel, the court shall appoint the Public Defender or such other counsel as the case may require. 705 Ill. Comp. Stat. § 405/1-5(1).
Any child younger than 13 who is accused of enumerated serious offenses must be represented by counsel during the entire custodial interrogation. 705 Ill. Comp. Stat. § 405/5-170.
A child is specifically entitled to counsel at the following stages:
- Detention hearings. No detention hearing may be held unless the minor is represented by counsel and the minor has had adequate opportunity to confer with counsel. 705 Ill. Comp. Stat. § 405/5-501.
- Probation Revocation hearings. 705 Ill. Comp. Stat. § 405/5-720(3).
- Transfer hearings. A minor must be represented by counsel before the transfer hearing may commence. 705 Ill. Comp. Stat. § 405/5-805(4).
Determination of Indigence
Illinois has no presumption of indigence in juvenile court proceedings. The court determines whether an individual is unable to employ counsel. 725 Ill. Comp. Stat. § 5/113-3. However, a minor may not waive his or her right to counsel, therefore rendering indigence determinations irrelevant. 705 Ill. Comp. Stat. § 405/5-170(b).
Waiver of Counsel
For all minors in any judicial proceeding, a minor may not waive the right to the assistance of counsel. 705 Ill. Comp. Stat. § 405/5-170(b).
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 Illinois, a detention hearing must be held within 40 hours of detention, excluding weekends and holidays. 705 Ill. Comp. Stat. § 405/5-415(1).
Provisions for the detention of juveniles are found in the Illinois Code, Title 705, Sections 405/1-2(3)(a), 405/5-401, 405/5-410, 405/5-415, and 405/5-501.
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. Illinois statutes list one post-disposition proceeding at which youth have a right to counsel.
In Illinois, youth have a right to counsel in the following post-disposition proceeding:
- Probation Revocation hearings. 705 Ill. Comp. Stat. § 405/5-720(3)
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 Illinois:
- No statute specifies the youngest age at which a juvenile can be adjudicated delinquent;
- 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, 705 Ill. Comp. Stat. § § 405/ 5-105(3), 405/5-120;
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 17. 705 Ill. Comp. Stat. § 405/5-755(1).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Illinois has four ways that juveniles can be prosecuted as adults:
- Discretionary Transfer: can be used for youth age 13 and older, on motion of the State’s Attorney, with no criminal offense is specified, after hearing. 705 Ill. Comp. Stat. § 405/5-805(3).
- Mandatory Transfer: Where the minor is 15 or older and meets other statutorily-mandated criteria, when requested by the State’s Attorney, upon a finding of probable cause, juvenile court shall order the juvenile be prosecuted as an adult. 705 Ill. Comp. Stat. § 405/5-805(1).
- Statutory Exclusion: Minors 15 years of age and older charged with: (i) first degree murder, (ii) aggravated criminal sexual assault, (iii) aggravated battery with a firearm…(iv) armed robbery [ with a firearm], or (v) aggravated vehicular hijacking [with a firearm] are prosecuted automatically as adults. 705 Ill. Comp. Stat. § 405/5-130(1)(a).
- Once an adult/always an adult. 705 Ill. Comp. Stat. § 405/5-130(6).
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 Illinois Assessment was completed in 2007.
Current through July 2015.