Juvenile Indigent Defense Delivery System
Louisiana provides counsel to indigent youth at the judicial district level. All children are presumed to be indigent and the court will either appoint counsel or refer the youth for representation by the district public defender. La. Child. Code Ann. art. 320; 809. The Louisiana Public Defender Board, an oversight body, employs a Deputy Public Defender, who is the Director of Juvenile Defender Services. The Director of Juvenile Defender Services:
- Assists the State Public Defender in working with criminal justice stakeholders, including judges, district attorneys, sheriffs, probation officers, and law enforcement officials to promote sound juvenile justice policies in relation to fair adjudication processes, placement, and treatment of juveniles in delinquency court;
- Promotes positive change in educational opportunities and mental health services and other treatment services for juveniles in the court system.
- Ensures that Board policies and public pronouncements properly recognize that children and young adults do not possess the same cognitive, emotional, decision-making, or behavioral capacities as adults and, as such, require that special attention be given to the representation of juveniles to ensure uniform and competent representation.
- Performs all other duties assigned by the State Public Defender or the Board. La. Rev. Stat. Ann, § 15:154.
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. Louisiana’s juvenile court rules are called the Rules for Juvenile Proceedings in District Courts and in the Juvenile Courts for the Parishes of East Baton Rouge, Orleans, Jefferson, and Caddo.
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 or delineating that right.
In Louisiana, a juvenile’s right to counsel is governed by a variety of statutes. Under Louisiana law, youth in juvenile court have the right to counsel at:
- Every stage of delinquency proceedings, La. Child. Code Ann. art. 808, 809;
- Detention hearings, La. Child. Code Ann. art. 821(A);
- Adjudication hearings, La. Child. Code Ann. art. 855(B)(4);
- Revocation of probation hearings, La. Child. Code Ann. art. 913;
- Appeals, La. Child. Code Ann. art. 848;
- Any time when “appointment of counsel is otherwise required in the interests of justice.” La. Child. Code Ann. art. 810(C).
A child must be informed of his or her right to be represented by counsel:
- By the court at the continued custody hearing, if not earlier. La. Child. Code Ann. art. 821(A);
- By a right to counsel form served on the child and his or her parents along with the petition, La. Child. Code Ann. art. 847;
- “When the child appears to answer the petition,” in language understandable to the youth. La. Child. Code Ann. art. 855(B)(4).
Determination of Indigence
In Louisiana, “for purposes of the appointment of counsel, children are presumed to be indigent.” La. Child. Code Ann. art. 320(A). However, parents may be required to pay for counsel for children accused of delinquent acts, unless the parents are indigent. La. Child. Code Ann. art. 848. A determination of indigency may be made by the court at any stage of the proceedings and includes consideration of income, property owned, outstanding obligations, and the number and ages of dependents. La. Child. Code Ann. art. 320.
The right to counsel form that must be served on the child and his or her parents along with the petition explains that if the parents of the child accused of delinquency cannot afford a lawyer, the court will appoint one for the child, and if the parents can afford a lawyer but do not hire one, the court may appoint one for the child and require the parents to pay for it. La. Child. Code Ann. art. 848. “The financial ability or inability of the parents to employ a lawyer will be determined by the court after a hearing. The court may require the parents to pay for some or all of the costs of lawyer’s services on behalf of the child.” La. Child. Code Ann. art. 848.
Waiver of Counsel
A juvenile may waive his or her right to counsel:
(1) After consultation with an attorney, parent, or caretaker;
(2) If both the child and the adult consulting with the child have been instructed by the court about the child’s rights and the possible consequences of waiver; and
(3) If the child is competent and knowingly and voluntarily waives his or her right to counsel.
La. Child. Code Ann. art. 810 (A)(1)-(3).
In addition, if “the interests of the child and the adult consulting with the child conflict,” the court shall appoint counsel for the child. La. Child. Code Ann. art. 810(C).
The child shall not be permitted to waive counsel:
“(1) In proceedings in which it has been recommended to the court that the child be placed in a mental hospital, psychiatric unit, or substance abuse facility, nor in proceedings to modify said dispositions;
(2) In proceedings in which he or she is charged with a felony-grade delinquent act; or
(3) In probation or parole revocation proceedings.”
La. Child. Code Ann. art. 810(D)(1)-(3).
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 Louisiana, a child must be taken to a juvenile detention center if the child has been taken into custody for a felony-grade delinquent act or for a misdemeanor-grade delinquent act based upon an offense against the person. 2016 S.B. 301. For any other misdemeanor-grade delinquent act, a child may be subject to custody in juvenile detention or may be placed in a shelter care facility. La. Child. Code Ann. art 815. However, if a child is under the age of thirteen, the child may not be detained in a juvenile detention center for a misdemeanor-grade delinquent act. 2016 S.B. 301.
A judge must review an officer’s statement on probable cause within 48 hours of the child being taken into custody. La. Child. Code Ann. art. 814(d). If the child is not released, a continued custody hearing must occur within three days of the child entering the detention center. La. Child. Code Ann. art. 819. A child may be released on bail bond instead of detention if the court finds it is in the child’s best interest. La. Child. Code. Ann. art 825; 826.
Provisions for the detention of juveniles are found in La. Child. Code Ann. art. 306, 808 to 810, 814, 815, 817, 819 to 821, and 886.
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 Louisiana, youth have a right to counsel in the following post-disposition proceedings:
- Revocation of probation hearings, La. Child. Code Ann. art. 913;
- Appeals, La. Child. Code Ann. art. 848.
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 Louisiana:
- The youngest age at which a juvenile can be adjudicated delinquent is ten;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday, under 2016 SB No. 324. After age 18, the youth is charged in adult court;
- 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. La. Child. Code Ann. art. 804. Beginning July 30, 2018, the juvenile court has jurisdiction over children until a child becomes 21 and has committed a delinquent act prior to the age of 18. 2016 SB No. 324.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Louisiana has three ways that juveniles can be prosecuted as adults:
- Discretionary Transfer: Discretionary waiver can be used for youth age 14 and older who meet the offense criteria. La. Child. Code Ann. art. 857(A).
- Prosecutorial discretion can be used for youth age 15 and older for certain felonies. La. Child. Code Ann. art. 305(A).
- Mandatory Waiver/Statutory Exclusion: Statutory exclusion and mandatory waiver are required for youth age 15 and older for murder, rape, and kidnapping. La. Child. Code Ann. art. 305(B)(2)(A).
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 Louisiana Assessment was completed in 2001.
Current through July 2016.