Juvenile Indigent Defense Delivery System
Massachusetts provides counsel to indigent youth through the Committee for Public Counsel Services (CPCS) Public Defender Division, the state public defender agency for Massachusetts. Mass. Gen. Laws ch. 211D, §§ 1 to 16. In 1992, the Youth Advocacy Division (formerly the Youth Advocacy Project) was established within CPCS to provide improved defender services to juveniles. CPCS also contracts with local bar advocate programs and private attorneys in each county to provide indigent juvenile defense services. Roughly 75% of cases are handled by private contract attorneys overseen by CPCS, with 25% of cases being taken on by CPCS staff attorneys themselves. The indigent defense system is 100% state funded.
The CPCS is responsible for developing training and performance standards and has developed Performance Standards governing the representation of indigent juveniles in delinquency, youthful offender, and criminal cases.
Massachusetts youth are tried by jury in delinquency cases unless the child files a written waiver and consent to be tried by the court without a jury. Mass. Gen. Laws Ann. ch. 119, § 55A.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Massachusetts does not have specific juvenile court rules at the statewide level, but Massachusetts Rules of Court for other proceedings, including some of the Massachusetts Supreme Judicial Court Rules and Massachusetts Criminal Procedure Rules, 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 Massachusetts, youth in juvenile court delinquency proceedings have the right to counsel at any proceeding that could result in commitment to the custody of the Department of Youth Services. Mass. R. Crim. P. 8. If a youth appears unrepresented at any delinquency “proceeding in which the law of the Commonwealth or the rules of this court establish a right to be represented by counsel,” the judge shall advise the youth and his or her parent or legal guardian of the youth’s right to counsel. Mass. Sup. Ct. R. 3:10 Section 2. Youth are specifically entitled to counsel at:
- The initial appearance and arraignment, Mass. R. Crim. P. 7(b)(2);
- Transfer hearings, CPCS Standards for Representation of Indigent Juveniles, J. 3.1-3.4;
- Youthful offender prosecutions, CPCS Standards for Representation of Indigent Juveniles, J. 4.1-4.3.
- Some interlocutory appeals, Mass. R. Crim. P. 15(a);
- Appeals from final judgments. Mass. R. Crim. P. 29 and CPCS Standards for Representation of Indigent Juveniles, J. 9.1.
Determination of Indigence
Massachusetts has no presumption of indigence in juvenile court proceedings. The court determines whether a child is indigent and in the determination, considers the available funds of the child’s parent or guardian, except when the parent or guardian has an adverse interest in the proceeding. Mass. Gen. Laws Ann. ch. 119, § 29A and Mass. Sup. Ct. R. 3:10 Section 1. A person is Indigent if he or she receives certain types of public assistance, has net income less than or equal to 125% of the federal poverty threshold, or is unable to hire a lawyer without depriving oneself or one’s dependents of basic life necessities. Mass. Gen. Laws Ann. ch. 261, § 27(A)(a). If the court finds that the parent or guardian is not indigent, the parent must pay $300 toward the cost of the child’s public defender. If the parent is determined to be indigent, the court can still “order the parent to pay a reasonable amount toward the cost of appointed counsel.” Mass. Gen. Laws Ann. ch. 119, § 29A.
Even if a party is not indigent, “the interests of justice may require … appointment [of counsel] if, for example, the party is incompetent to obtain counsel, incapable of obtaining access to funds, or incapable of locating or contracting with a lawyer.” In such case, the party may be ordered to reimburse the state for the costs of counsel. Mass. Sup. Ct. R. 3:10 Section 5.
Waiver of Counsel
There are no statutes regarding a juvenile’s waiver of counsel. Case law does not dictate any special restrictions on a juvenile’s ability to waive counsel. In re Thomas J., 372 Md. 50, 57-66 (Md. App. 2002).
In Massachusetts, a detention hearing must occur within 24 hours of a juvenile entering any detention facility. Mass. Dist. Ct. Standing Order 2-88; Mass. R. Crim. P. 3.1. Provisions for the detention of juveniles are found in Mass. Gen. Laws Ann. ch. 119 and Mass. R. Crim. P. 3.1.
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. Massachusetts statutes list no post-disposition proceedings at which youth have a right to counsel, but court rule indicates that juveniles may be entitled to counsel for post-disposition relief. Specifically, the judge has the discretion to assign/appoint counsel to represent a defendant in the preparation and presentation of motions. “The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule.” Mass. R. Crim. P. Rule 30(c)(5).
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 Massachusetts:
- The youngest age at which a juvenile can be adjudicated delinquent is seven, Mass. Gen. Laws Ann. ch. 119, § 52;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 17th birthday; after age 17, the youth is charged in adult court, Mass. Gen. Laws Ann. ch. 119, § 52;
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned Mass. Gen. Laws Ann. ch. 119, § 72(b).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Massachusetts has one way that juveniles can be prosecuted as adults:
- Statutory exclusion: mandatory for youth 14 and older charged with first- or second-degree murder. Mass. Gen. Laws Ann. ch. 119, § 72B.
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 Massachusetts. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.