Juvenile Indigent Defense Delivery System
Indiana provides counsel to indigent youth through a county-based system that is mostly locally funded. Larger counties are required to have an oversight public defender board and an appointed chief defender. Ind. Code Ann. §§ 33-40-7-1, 33-40-7-6. Counties may also provide indigent defense services through panels of assigned counsel or through contract arrangements entered into by the county public defender or by a criminal court. Ind. Code Ann. §§ 33-40-7-8, 33-40-7-9, 33-40-8-1.
Indiana has a statewide Public Defender Commission that sets standards for indigent defense, including delinquency representation, and is authorized to reimburse counties that meet the standards for up to 40% of the defense costs of non-capital cases except misdemeanors. Ind. Code. Ann. § 33-40-6-5. The Commission is required to “adopt guidelines and standards for indigent defense services” for counties reimbursed by the Commission. Ind. Code Ann. § 33-40-5-4(2). Currently, 66 out of 92 counties are eligible for reimbursement in non-capital cases. The Standards for Indigent Defense in Non-Capital Cases mention some aspects of juvenile representation, such as a practice requirement; however, these standards only apply to counties that are reimbursed by the Indiana Public Defender Commission. Indiana does not require attorneys to have any training specific to juvenile defense.
The Public Defender of Indiana is a state-funded judicial agency that provides post-conviction representation (equivalent to state habeas petitions) in adult and juvenile cases. The office also represents youth in parole revocation hearings.
The Indiana Public Defender Council is a state-established resource center for attorneys to improve the quality of indigent defense representation through research, training, and practice materials. Ind. Code Ann. §§ 33-40-4-2, 33-40-4-5.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Indiana does not have specific juvenile court rules at the statewide level, but Indiana Supreme Court Rules proceedings (such as the Rules of Trial Procedure) may apply in juvenile court proceedings. Some rules are specifically applicable only to juvenile 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 Indiana, a child charged with a delinquent act is “entitled to be represented by counsel.” Ind. Code Ann. §§ 31-32-4-1, 31-32-2-2. At intake, the intake officer “shall” inform the child that he or she “has a right to consult with an attorney before the child talks with the intake officer,” “[t]hat the child has a right to stop at any time and consult with an attorney,” and “[t]hat the child has a right to stop talking with the intake officer at any time.” Ind. Code Ann. § 31-37-8-4(6)-(8). At the detention hearing or the initial hearing, or at any earlier time, the court “shall” appoint counsel for a child if the child is not yet represented and has not waived his or her right to counsel. Ind. Code Ann. § 31-32-4-2. At the detention hearing, the court “shall” notify the child and the child’s parent, guardian, or custodian of the child’s right to counsel. Ind. Code Ann. § 31-37-6-5. Similarly, at the initial hearing the court “shall” inform the child (and child’s custodian, if present) of his or her right to counsel. Ind. Code Ann. § 31-37-12-5(2)(A).
Determination of Indigence
Indigence determination is not required because appointment of counsel is automatic for unrepresented children in delinquency proceedings, provided the child has not waived counsel. Ind. Code Ann. § 31-32-4-2(a).
If the court, at any time during the proceedings, determines that a child’s parent is able to pay for the child’s attorney, the cost of counsel “shall” be assessed against the parent. Ind. Code Ann. § 33-40-3-6.
Waiver of Counsel
For youth in Indiana, the right to counsel “may be waived only:
- (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver;
- (2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if:
- (A) that person knowingly and voluntarily waives the right;
- (B) that person has no interest adverse to the child;
- (C) meaningful consultation has occurred between that person and the child; and
- (D) the child knowingly and voluntarily joins with the waiver; or
- (3) by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if:
- (A) the child knowingly and voluntarily consents to the waiver; and
- (B) the child is emancipated . . . by virtue of having married . . . .” Ind. Code Ann. § 31-32-5-1.
Where counsel has been appointed for the child because placement or detention is a possibility, any waiver of the right to counsel “shall be made in open court, on the record and confirmed in writing, and in the presence of the child’s attorney.” Ind. R. Crim. Pro. 25(C). The child may withdraw the waiver at any stage of the proceeding, at which point the court must appoint counsel. Ind. R. Crim. Pro. 25(D).
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 Indiana, a detention hearing “shall” be held no later than 48 hours after being taken into custody, excluding weekends and court holidays. Ind. Code Ann. § 31-37-6-2.
Provisions for the detention of youth are found in Ind. Code Ann. §§ 31-37-5-2 to 31-37-5–6, 31-37-6, 31-37-7, 31-37-10-6, 31-37-11-1 to 31-37-11-1-3, and 31-37-11-7.
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. Indiana statutes list no post-disposition proceedings at which youth have a right to counsel.
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 Indiana:
- No statute specifies the youngest age at which a child 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. Ind. Code Ann. §§ 31-37-1-1, 31-9-2-13(d)(1);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. Ind. Code Ann. §§ 31-9-2-13(d)(2), 31-30-2-1(a).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Indiana has four ways that youth can be prosecuted as adults:
- Statutory Exclusion: The juvenile court does not have jurisdiction over certain serious felonies when committed by a child 16 or older. Ind. Code Ann. § 31-30-1-4.
- Presumptive Waiver: For youth of certain ages and/or that have committed certain offenses, delineated in statute, the juvenile court “shall” transfer the case to criminal court “unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.” Ind. Code Ann. §§ 31-30-3-4, 31-30-3-5.
- Discretionary Waiver: For certain offenses and youth of certain ages that have committed certain offenses, upon prosecutorial motion and after a hearing, the juvenile court may transfer certain cases to criminal court. Ind. Code Ann. §§ 31-30-3-2, 31-30-3-3.
- Once An Adult, Always an Adult: “Upon motion by the prosecuting attorney, the juvenile court shall waive jurisdiction if it finds that: (1) the child is charged with an act which would be a felony if committed by an adult; and (2) the child has previously been convicted of a felony or a nontraffic misdemeanor.” Ind. Code Ann. § 31-30-3-6.
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 Indiana Assessment was completed in 2006.
Current through June 2017.