Juvenile Indigent Defense Delivery System
Nebraska provides counsel to indigent youth through a county-based system that includes elected public defenders, contract public defenders, and assigned counsel. Counties with populations in excess of 100,000 are required to have elected public defenders. Neb. Rev. Stat. § 23-3401. Counties with populations below 35,000 may choose to have appointed public defenders. Neb. Rev. Stat. § 23-3404. The judges in one or more judicial districts make the determination of whether a public defender is needed and that “determination shall be certified to the Governor.” Neb. Rev. Stat. § 29-3910. Indigent juveniles are entitled to counsel by statute. Neb. Rev. Stat. § 29-3915(3). If the attorney appointed by the court has a conflict, another attorney shall be appointed by the court. Neb. Rev. Stat. § 29-3904.
Counties fund most of the costs of indigent defense, although the Nebraska Commission on Public Advocacy provides money and technical assistance for serious cases, including those of accused juveniles. Neb. Rev. Stat. § 29-3923.
The Nebraska Commission on Public Advocacy is responsible for developing guidelines and standards for indigent defense. Neb. Rev. Stat. § 29-3923. Non-binding standards issued by Nebraska Supreme Court Commission on Children in the Courts include that all juvenile indigent defense attorneys to have completed a minimum of 16 hours of relevant training every two years.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. In Nebraska, those are the Uniform Separate Rules for Juvenile Court Practice and Procedure.
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 Nebraska, youth in juvenile court have the right to counsel in “all proceedings before the juvenile court.” Neb. Rev. Stat. § 43-272(1). The juvenile must be informed of his right to counsel in “developmentally appropriate language.” Neb. Rev. Stat. § 43-248.01. If a youth appears in court without an attorney, the court shall advise the youth and his or her parent or guardian of the right to counsel and ask if the youth wants an attorney. If the court determines that the youth and parent or guardian cannot afford an attorney, the court shall appoint one “for all proceedings before the juvenile court.” Neb. Rev. Stat. § 43-272(1). If the court later determines that a parent is able to afford an attorney, the court shall order the parent or juvenile to pay for the attorney. Neb. Rev. Stat. § 43-272(1). The right to counsel specifically applies to:
- Juveniles in custody, Neb. Rev. Stat. § 43-248.01;
- Adjudicatory hearings, Neb. Rev. Stat. § 43-279;
- Probation violation hearings, Neb. Rev. Stat. § 43-286.
In addition, in parole violation hearings, a youth has a right to “be represented by legal counsel at the expense of the Department of Health and Human Services unless retained legal counsel is available to the juvenile.” Neb. Rev. Stat. § 43-421.
Determination of Indigence
Nebraska has no presumption of indigence in juvenile court proceedings. The court must make a reasonable inquiry about indigence, based on an affidavit filed by the person seeking appointment. Neb. Rev. Stat. § 29-3902. Prior to a court appearance, the public defender shall make the indigence determination. Neb. Rev. Stat. § 29-3901(3). Indigence is defined as being unable to “retain legal counsel without prejudicing one’s financial ability to provide economic necessities for one’s self or one’s family.” Neb. Rev. Stat. § 29-3901(3).
“When neither the minor nor his or her parent or guardian is able to afford counsel,” the youth is entitled to court appointed counsel. Neb. Rev. Stat. § 29-3915(3). The court can appoint an attorney for a child and if the court determines that the parent can afford an attorney, the court will order the parent or juvenile to pay the cost, and refusal to pay may lead to contempt actions. Neb. Rev. Stat. § 43-272(1).
Waiver of Counsel
After a youth has been given Miranda warnings, the court may accept an affirmative waiver of counsel as long as it is “knowingly, intelligently, and understandingly made.” Neb. Rev. Stat. § 42-273(1)(g). Case law requires a totality of the circumstances inquiry to determine whether the waiver was knowing, intelligent, and voluntary. In re Dalton S., 730 N.W.2d 816, 825 (2007). “The circumstances considered in a totality of the circumstances analysis include the age, intelligence, and education of the juvenile; the juvenile’s background and experience generally, and more specifically, in the court system; the presence of the juvenile’s parents; the language used by the court in describing the juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional stability; and the intricacy of the offense.” Id. at 825.
In counties of 150,000 or more, juveniles cannot waive their right to counsel at a detention hearing, when being transferred to a criminal court, or if they are under the age of 14. L.B. 894, Neb. 104th Leg. (effective July 2016).
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. Pursuant to Neb. Rev. Stat. § 43-251.01(5), a child shall not be securely detained “unless it is a matter of immediate and urgent necessity” for:
- the protection of the juvenile;
- the protection of another person or property of another; or
- if it appears that such juvenile is likely to flee the jurisdiction of the court.
Provisions related to the detention of juveniles are also found in Neb. Rev. Stat. §§ 43-248, 43-248.01, 43-249, 43-250, 43-251, 43-251.1, 43-253 to 255, 43-257, 43-259, 43-260.01, 43-271, 43-272, and 43-423.
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. Nebraska statutes list two post-disposition proceedings at which youth have a right to counsel.
In Nebraska, youth have a right to counsel in the following post-disposition proceedings:
- Probation violation hearings, Neb. Rev. Stat. § 43-286.
- Parole violation hearings, right to “be represented by legal counsel at the expense of the Department of Health and Human Services unless retained legal counsel is available to the juvenile.” Neb. Rev. Stat. § 43-421.
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 Nebraska:
- A juvenile means any person under the age of 18 who was 11 or older when the offense was committed. Neb. Rev. Stat. §§ 43-245(10), 43-247(1-2);
- 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. Neb. Rev. Stat. § 43-245;
- 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. Neb. Rev. Stat. §§ 43-247(1), 43-245(1).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. In Nebraska, the prosecutor has discretion in determining whether to charge a juvenile in adult court. Neb. Rev. Stat. § 43-276. The prosecutor is required to consider a variety of circumstances in making this determination. Id. To be eligible for arraignment in adult court, the juvenile must have been 14 years old or older when the alleged offense occurred, and must be accused of a felony or traffic offense. Neb. Rev. Stat. § 29-1816(1)(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 Nebraska Assessment was completed in 2009.
Current through July 2016.