Juvenile Indigent Defense Delivery System

MTMontana provides counsel to indigent youth through the regional offices of the Office of the State Public Defender. Mont. Code Ann. § 47-1-201. The Public Defender Commission must “establish a conflicts office to contract for attorneys to represent indigent defendants in circumstances where, because of conflict of interest, the public defender program is unable to provide representation to a defendant,” overseen by a conflicts manager, to whom all contracted attorneys report. Mont. Code Ann. § 47-1-118.

The Commission also appoints the Chief Public Defender, establishes uniform standards for indigent defense delivery, oversees a program of training and technical assistance, and distributes funding to pay for the services of investigators and experts. Mont. Code Ann. § 47-1-105. Montana also has a statewide Office of the Appellate Defender.

The Public Defender Commission is tasked with “establishing statewide standards for the qualification and training of attorneys providing public defender services.” Mont. Code Ann. § 47-1-105. The Commission developed Standards for Counsel Representing Individuals Pursuant to the Montana Public Defender Act, which outline specific criteria for representing youth in youth court proceedings in Section XIII. The standards include a requirement that counsel shall “be eligible for assignment to represent youth in youth court, counsel shall demonstrate proficiency or receive training in representing youth in youth court,” and lists the subject matter about which counsel must be knowledgeable.

Montana youth have a right to a trial by jury, which is waived if not demanded. Mont. Code Ann. § 41-5-1502(1).

Court Rules

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. Montana’s delinquency proceedings are governed by the Judicial Branch Policies and Procedures for Youth. These rules govern the internal regulation of the court itself, more than day-to-day procedure, as with most court rules.

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 Montana, youth in juvenile court “may be represented by counsel at all stages of the proceedings.” Mont. Code Ann. § 41-5-1413. The court must advise the youth and his or her parents or guardian of this right “in all proceedings following the filing of a petition alleging that a youth is a delinquent youth or youth in need of intervention.” Mont. Code Ann. § 41-5-1413. Counsel must be appointed if counsel is not retained for the youth and it appears that counsel will not be retained. Mont. Code Ann. § 41-5-1413.

A child is specifically entitled to counsel at the following stages:

Determination of Indigence

Montana appears to have a presumption of indigence in juvenile court proceedings, as statute states that the court is authorized to appoint counsel at public expense regardless of the person’s financial ability to pay in juvenile delinquency cases. Mont. Code Ann. §§ 41-5-1413; 47-1-104(4)(b)(ii). However, even if an indigency determination hasn’t yet occurred, the public defender office assigns counsel “[i]f counsel is not retained or if it appears that counsel will not be retained for the youth…unless the right to counsel is waived by the youth and the parents or guardian.” Mont. Code Ann. § 41-5-1413. It is unclear whether the overall public defender statute applies to juveniles, but according to statute, in general, a defendant requesting appointed counsel must complete an affidavit and detailed financial statement, and is found indigent if his or her gross household income is less than or equal to 133% of the poverty level or his or her disposable income and assets are insufficient to procure competent counsel without substantial hardship. Mont. Code Ann. § 47-1-111(3).

Waiver of Counsel

A juvenile in Montana may waive his or her right to counsel only in conjunction with his or her parent/guardian. Mont. Code Ann. § 41-5-1413; State v. Allen, 206 P.3d 951, 955 (Mont. 2009). That the waiver must be voluntary and intelligently given. State v. Allen, 206 P.3d 951, 955 (Mont. 2009). Once a petition has been filed, neither the child nor his or her parent can waive the child’s right to counsel in an adjudication if the proceeding could result in commitment for a period of more than six months. Mont. Code Ann. § 41-5-1413.

A youth taken into custody for questioning that could result in a juvenile court petition has a right to counsel that can only be waived “under the following situations:

(a) When the youth is 16 years of age or older, the youth may make an effective waiver subject to the provisions of 41-5-333(2);
(b) When the youth is under 16 years of age and the youth and the youth’s parent or guardian agree, they may make an effective waiver subject to the provisions of 41-5-333(2); or
(c) When the youth is under 16 years of age and the youth and the youth’s parent or guardian do not agree, the youth may make an effective waiver only with advice of counsel.”
Mont. Code Ann. § 41-5-331(2).

At a probable cause hearing, a youth can only waive his or her right to custody after consulting with an attorney prior to the hearing. Mont. Code Ann. § 41-5-333(2).

Detention Provisions

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 Montana, a detention hearing must occur within 24 hours of the child being detained, excluding weekends and legal holidays. Mont. Code Ann. § 41-5-349(b).

Provisions for the detention of juveniles are found in Mont. Code Ann. §§ 41-5-321 to 323, 41-5-331 to 334, 41-5-341, 41-5-342, 41-5-349, and 41-5-1413.

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.

Post-Disposition Advocacy

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. Montana statutes list three post-disposition proceedings at which youth have a right to counsel.

In Montana, youth have a right to counsel in the following post-disposition proceedings:

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 Montana:

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. Montana has two ways that juveniles can be prosecuted as adults:


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 Montana Assessment was completed in 2003.

Current through June 2016.