Juvenile Indigent Defense Delivery System
Maryland provides counsel to indigent youth through a statewide Maryland Office of the Public Defender. That office is established in the executive branch and comprised of a Public Defender, deputy public defenders, district public defenders, and a panel of private attorneys for conflict cases. Md. Code Ann., Crim. Proc. §§ 16-202, 16-207. The Office of the Public Defender provides services through 12 district offices and is comprised of six divisions at the state level: Appellate, Aggravated Homicide, Children in Need of Assistance, Collateral Review, Forensics, Juvenile Protection Division, and Mental Health.
The Public Defender Office and the district offices are directed by a Public Defender. Md. Code Ann., Crim. Proc. § 16-203(a)(1). A Board of Trustees reviews the system’s administration, advises the Public Defender and coordinates the district advisory boards. Md. Code Ann., Crim. Proc. § 16-302.
Maryland has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
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. Maryland’s delinquency proceedings are governed by the Maryland Rules, Title 11, Juvenile Causes.
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 Maryland, youth in juvenile court have the right to counsel at every stage of any juvenile proceeding except at a peace order proceeding. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(a); Md. R. Juv. Causes 11-106. If a youth appears without counsel for a waiver hearing or an adjudicatory hearing, and the child has not waived the right to counsel, the hearing shall be continued and the public defender shall represent the child. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(e). Such a continuance shall not be a basis for detaining the child under Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-15, 3-8A-20(e).
Determination of Indigence
Maryland has no presumption of indigence in juvenile court proceedings. Eligibility for a public defender is based on the applicant’s financial ability to obtain private counsel. Md. Code Ann., Crim. Proc. § 16-210(b). A person is indigent if he or she states, under oath and in writing, that he or she is financially unable to procure counsel without undue hardship. Md. Code Ann., Crim. Proc. § 16-210. The determination of indigence considers the individual’s assets and disposable net income, the nature of the offense, the burden of gathering information, the length and complexity of the proceedings, and other foreseeable expenses. Md. Code Ann., Crim. Proc. §§ 16-210(b) and (c).
“An indigent child whose parents are either indigent or unwilling to employ counsel, shall be entitled to be represented by the Office of the Public Defender in a delinquency case, a child in need of supervision case, …, at any stage in a waiver, adjudicatory or disposition hearing, or hearing under Md. R. Juv. Causes 11-116 (Modification or Vacation of Order). Md. R. Juv. Causes 11-106(b)(2)(a). In addition, in non-indigent cases, “upon motion of any party or upon the court’s motion, the court may appoint an attorney to represent a child. Compensation for the services of the attorney may be assessed against any party.” Md. R. Juv. Causes 11-106(b)(4).
Waiver of Counsel
A juvenile in Maryland may waive his or her right to counsel if “(i) the child is in the presence of counsel and has consulted with counsel and (ii) the court determines that the waiver is knowing and voluntary.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(3).
Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(4) and Md. Rule 11-106(b)(1) list the factors the court must consider before accepting any waiver by a child.
“A parent, guardian or custodian may not waive the child’s right to assistance of counsel.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(2).
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 Maryland, a detention hearing must occur no later than the next day after the petition is filed unless extended for no more than five days for good cause shown; the petition must be filed immediately upon detention. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-15(d).
Provisions for the detention of juveniles are found in Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-01, 3-8A-06, 3-8A-14, 3-8A-15, 3-8A-19, 3-8A-20, and 3-8A-22, and in Md. R. Crim. Causes 4-251 and Md. R. Juv. Causes 11-113.
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. Maryland statutes list no post-disposition proceedings at which youth have a right to counsel. However, In Maryland, youth in juvenile court have the right to counsel at every stage of any juvenile proceeding except at a peace order proceeding. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(a). This may include appeals.
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 Maryland:
- The youngest age at which a juvenile can be adjudicated delinquent is seven, Md. Code Ann., Cts. & Jud. Proc. § 3-8A-05(d);
- 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, Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01(d);
- 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. Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-07(a), (b).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Maryland has three ways that juveniles can be prosecuted as adults:
- Discretionary Transfer: Discretionary waiver after hearing can be used for youth age 15 and older, no offense is specified, or if youth is not yet 15 but is alleged to have committed a crime which if committed by an adult would be punishable by life imprisonment. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-06(a).
- Statutory Exclusion: Juveniles are automatically under the jurisdiction of the district court (statutory exclusion) if youth are at least 14 and alleged to have committed an act which if committed by an adult would carry a sentence of life imprisonment or are at least 16 years old and alleged to have committed an enumerated felony. Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-03(d)(1) and (4).
- Once an Adult, Always an Adult: “A child who previously has been convicted as an adult of a felony and is subsequently alleged to have committed an act that would be a felony if committed by an adult, unless an order removing the proceeding to the court has been filed under § 4-202 of the Criminal Procedure Article.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-03(d)(5).
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 Maryland Assessment was completed in 2003.