Juvenile Indigent Defense Delivery System
Kansas provides counsel to indigent youth at the county level. The Kansas State Board of Indigent Defense Services handles adult felony representation through several regional defender offices, but does not administer juvenile indigent defense unless the youth is charged as an adult with a felony or is appealing from a decision to transfer the youth into adult court. Kan. Admin. Regs. 105-1-1.
In 2016, under SB 367, the Kansas Juvenile Justice Oversight Committee was established to oversee juvenile reform and all state and local juvenile programs must abide by the rules of the oversight committee. The bill also requires that the Office of Juvenile Administration and the oversight committee develop training protocols for juvenile judges, attorneys, and community-based organizations to better serve children. The committee members will be appointed September 1, 2016. SB 367 will become fully effective January 1, 2017.
Kansas youth have a right to a trial by jury in felony or misdemeanor cases if a request is made in writing within 30 days from the date of the juvenile’s entry of a plea of not guilty (unless the time requirement is waived by the court). Kan. Stat. Ann. § 38-2357.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Kansas does not have specific juvenile court rules at the statewide level, but Kansas Supreme Court rules for other proceedings (such as the Rules Relating to District Courts) 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 Kansas, youth in juvenile court have the right to counsel at every stage of the proceedings, including detention hearings and appeals. Kan. Stat. Ann. §§ 38-2343(d), 38-2306(a)-(b). If no retained attorney is present at the detention hearing, the court will appoint counsel for the youth and may recess the hearing for 24 hours so the attorney can attend the hearing. Kan. Stat. Ann. § 38-2343(d).
“If a juvenile appears without an attorney, the court shall inform the juvenile and the juvenile’s parents of the right to employ an attorney. Upon failure to retain an attorney, the court shall appoint an attorney to represent the juvenile. The expense of the appointed attorney may be assessed to the juvenile, the parent, or both, as part of the expenses of the case.” Kan. Stat. Ann. § 38-2306(a). The attorney shall continue to represent the youth at all hearings, including appeals, “unless relieved by the court upon a showing of good cause or upon transfer of venue.” Kan. Stat. Ann. § 38-2306(b).
“The court shall afford the juvenile an opportunity to confer with the attorney before requiring the juvenile to plead to the allegations of the complaint.” Kan. Stat. Ann. § 38-2344(a)(4).
Determination of Indigence
Kansas has no presumption of indigence in juvenile court proceedings. However, whenever a juvenile fails to retain an attorney, the court must appoint one. Kan. Stat. Ann. § 38-2306(a). “The expense of the appointed attorney may be assessed to the juvenile, the parent, or both, as part of the expenses of the case.” Kan. Stat. Ann. § 38-2306(a).
Waiver of Counsel
Kansas does not have a specific juvenile statute, rule, or case law addressing a juvenile’s waiver of counsel. However, an Attorney General opinion states that a juvenile may waive the right to counsel provided that it is a knowing and intelligent waiver based upon the totality of the circumstances. Op. Kan. Att’y Gen. No. 94-53 (1994) (citing to repealed statute Kan. Stat. Ann. § 38–1606 that has same wording on appointment of counsel as current Kan. Stat. Ann. § 38-2333(a)). “After an attorney has been appointed for the juvenile in the case, the parent may not waive the juvenile’s rights.” Kan. Stat. Ann. § 38-2333(c). However, “When the juvenile is less than 14 years of age, no admission or confession resulting from interrogation while in custody or under arrest may be admitted into evidence unless the confession or admission was made following a consultation between the juvenile’s parent or attorney as to whether the juvenile will waive the right to an attorney and the right against self-incrimination,” thus implying that a juvenile may waive the right to counsel when under the age of 14 provided he or she has consulted with a parent or attorney. Kan. Stat. Ann. § 38-2333(a).
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 Kansas, a detention hearing must be held within 48 hours of the child being detained, excluding weekends and holidays. Kan. Stat. Ann. § 38-2343(a).
Provisions for the detention of juveniles are found in Kan. Stat. Ann. §§ 38-2331, 38-2332, 38-2343, 38-2260.
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 Kansas, the right to counsel extends to “every stage of the proceedings,” and “an attorney appointed for a juvenile shall continue to represent the juvenile at all subsequent court hearings in the proceeding.” Kan. Stat. Ann. § 38-2306. Presumably, juveniles thus have a right to counsel in hearings on violations of probation or conditions of placement, and in hearings to modify a sentence. Kan. Stat. Ann. §§ 38-2368 and 38-2367. In addition to these hearings, youth have a right to counsel in appellate proceedings, unless a waiver is granted by the court for good cause. Kan. Stat. Ann. § 38-2306(b).
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 Kansas:
- The youngest age at which a juvenile can be adjudicated delinquent is 10, Kan. Stat. Ann. § 38-2302(i);
- 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, Kan. Stat. Ann. § 38-2302(i);
- Juvenile court can retain jurisdiction over youth in certain circumstances until age 23, provided that the offense alleged to have been committed occurred before the youth turned 18, Kan. Stat. Ann. § 38-2304(e).
The maximum duration of commitments (including conditional release periods) extends to age 22 for certain sentencing matrix classifications. The District Court may retain jurisdiction of the case until the offender turns age 23, if he or she was committed to a secure juvenile correctional facility, unless an adult sentence is imposed pursuant to extended jurisdiction juvenile prosecution. Kan. Stat. Ann. § 38-2304(e).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Kansas has two ways that juveniles can be prosecuted as adults:
- Discretionary Waiver: District attorney may always motion prior to evidentiary hearing to have case transferred to adult court if the juvenile is 14 years or older.
- Presumptive Transfer: There exists a presumption that must be rebutted by the defense by a preponderance of evidence of transfer to adult court for certain offenses. Kan. Stat. Ann. § 38-2347(a)(1).
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 Kansas. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.