Juvenile Indigent Defense Delivery System
Kentucky provides counsel to indigent youth through a statewide Department of Public Advocacy (DPA) that operates indigent defense offices in all counties. Juveniles accused of status offenses and delinquent acts are entitled to be represented by the DPA. Ky. Rev. Stat. § 31.110. The DPA has a Post Trial Division which provides representation for clients facing sentences of confinement arising from a juvenile court order. The Post Trial Division has a specialized Juvenile Post Disposition Branch which “represents children in the state’s residential treatment facilities and detention centers both on appeal and on fact, duration or condition of confinement issues.” (DPA Website).
The DPA must develop and promulgate “standards and regulations, rules, and procedures for administration of the defense of indigent defendants,” Ky. Rev. Stat. § 31.030, but Kentucky has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings. The DPA has published a juvenile advocacy manual.
Kentucky has court rules that apply to status offenders, but not juvenile delinquency. With a few exceptions, the Rules of Criminal Procedure apply to juvenile delinquency proceedings. Ky. Rev. Stat. § 610.080(2).
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 Kentucky, a juvenile’s right to counsel is governed by both juvenile code statutes and Department of Public Advocacy statutes. When read together, the statutes provide youth with a right to counsel in delinquency and status proceedings “…at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation or parole,” Ky. Rev. Stat. § 31.110. Such proceedings specifically include:
- Detention hearings;
- Adjudicatory hearings;
- Disposition hearings;
- Revocation of probation;
- Other post-disposition proceedings (with some exceptions);
Ky. Rev. Stat. §§ 610.060, 31.110.
When the child appears in court, the court shall explain to the child and his parents, guardian, or custodian their respective rights to counsel and, if the child and his parents, guardian, or custodian are unable to obtain counsel, shall appoint counsel for the child and may appoint counsel for the parents, guardian, or custodian as provided by law. Ky. Rev. Stat. § 610.060.
A youth has a right “to be represented in any … post-disposition proceeding that the attorney and the [youth] considers appropriate. However, if the counsel appointed …, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense, there shall be no further right to be represented by counsel under the provisions of this chapter.” Ky. Rev. Stat. § 31.110(3). In addition, a minor, whether indigent or not, who is in the custody of the Department of Juvenile Justice and is residing in a residential treatment center or detention center is entitled to be represented on a legal claim related to his or her confinement involving violations of federal or state statutory rights or constitutional rights.” Ky. Rev. Stat. § 31.110(5).
Waiver of the right to counsel at one stage of the proceedings does not affect the right to counsel at subsequent stages. Ky. Rev. Stat. § 31.110(4).
Determination of Indigence
Kentucky has no presumption of indigence in juvenile court proceedings. A determination of indigence is to be made “no later than [the] first appearance in court” and then at every step in the proceedings. Ky. Rev. Stat. § 31.120. At arraignment and at each stage of the proceedings, “the court shall conduct a nonadversarial hearing to determine whether a person who has requested a public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs.” Ky. Rev. Stat. § 31.211(1).
If an attorney is needed prior to the first court appearance, one will be appointed. If the defendant is later found to not be indigent, he or she must repay the cost of the appointed counsel. When an unemancipated minor requests counsel, the court considers the custodial parent’s or guardian’s ability to pay. Ky. Rev. Stat. §§ 31.120, 31.125. For these purposes, the court applies the same indigency standard as if the parent was a criminal defendant, considers numerous financial factors, and requires a sworn affidavit regarding finances. Ky. Rev. Stat. § 31.120.
The court may order payment of the child’s legal expenses by any custodial parent who is not indigent. Ky. Rev. Stat. §§ 31.125, 405.027, 610.060(4). If a child is in public custody, the parents will not be ordered to pay for the child’s defense. Ky. Rev. Stat. § 31.125(3)(2). Parental ability to pay is disregarded if a parent is the victim of the alleged criminal act or the complaining witness against the child. Ky. Rev. Stat. § 31.125(4). Regardless of parental ability to pay, the child must have a lawyer from the time that the right to counsel attaches until a determination of indigency is made. Ky. Rev. Stat. § 31.125.
Waiver of Counsel
In Kentucky, a juvenile may waive his or her right to counsel if the court “(1) conducts a hearing about the child’s waiver of counsel and (2) makes specific findings of fact that the child knowingly, intelligently and voluntarily waived his right to counsel.” Ky. Rev. Stat. § 610.060(2).
A youth’s rights cannot be waived by the child’s parents, guardian, or person exercising custodial control. Ky. Rev. Stat. § 610.060(1)(e). A youth may not waive counsel for an adjudication, plea, or admission for a felony, a sex offense, or any offense “for which the court intends to impose detention or commitment as a disposition.” Ky. Rev. Stat. § 610.060(2)(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 Kentucky, a status offender must have a detention hearing within 24 hours of being detained, excluding weekends and holidays, and youth accused of committing a delinquent offense must have a hearing within 48 hours of detention, excluding weekends and holidays. Ky. Rev. Stat. § 610.265. The youth’s “parents, person exercising custodial control or supervision or other responsible adult shall have a right to attend the hearing if such attendance will not unnecessarily delay the hearing.” Ky. Rev. Stat. § 610.290(2).
Provisions for the detention of juveniles are found in Ky. Rev. Stat. §§ 610.010, 610.265, 610.280, 610.290, 630.010, 630.040, 630.080, and 15A.210, and in Ky. R. Crim. Pro. 3.05 and 3.14.
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. Kentucky statutes list several post-disposition proceedings at which youth have a right to counsel.
In Kentucky, youth have a right to counsel in the following post-disposition proceedings:
- A youth has a right “to be represented in any … post-disposition proceeding that the attorney and the [youth] considers appropriate. However, if the counsel appointed …, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense, there shall be no further right to be represented by counsel under the provisions of this chapter.” Ky. Rev. Stat. § 31.110(3). In addition, a minor, whether indigent or not, who is in the custody of the Department of Juvenile Justice and is residing in a residential treatment center or detention center is entitled to be represented on a legal claim related to his or her confinement involving violations of federal or state statutory rights or constitutional rights.” Ky. Rev. Stat. § 31.110(5).
- Revocation of probation;
- Other post-disposition proceedings (with some exceptions);
- Appeals. Ky. Rev. Stat. §§ 610.060, 31.110.
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 Kentucky:
- 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, Ky. Rev. Stat. § 610.010(1);
- Juvenile court can retain jurisdiction over youth until age 19, provided that the offense alleged to have been committed occurred before the youth turned 18, Ky. Rev. Stat. § 610.120(3);
- Juvenile court can retain jurisdiction over youth until age 21, if the the offense alleged to have was a capital offense or certain other felony, Ky. Rev. Stat. § 610.110.
If the juvenile is receiving sexual offender treatment and reaches the age of 19 prior to completing his or her treatment, the juvenile will return to sentencing court. At that time, the court may order the individual to complete the prescribed treatment subject to the contempt powers of the court. Ky. Rev. Stat. § 635.515. The court may authorize an extension of a youth’s commitment up to the age of 21 for the purpose of permitting the Department of Juvenile Justice or the cabinet to assist the child in establishing independent living arrangements. Ky. Rev. Stat. § 610.110(6).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Kentucky has two ways that juveniles can be prosecuted as adults:
- Discretionary Transfer can be used for youth age 14 and older for class A or B felonies and age 16 for Class C or D felonies. Ky. Rev. Stat. § 635.020(2), (3).
- Mandatory Waiver is required for a youth age 14 or older accused of committing a felony with a firearm. Ky. Rev. Stat. § 635.020(4).
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 Kentucky Assessment was completed in 2002.
Current through January 2014.