Juvenile Indigent Defense Delivery System
New Jersey provides counsel to indigent youth through regional public defender offices coordinated and directed by a statewide Office of the Public Defender. N.J. Stat. § 2A:158A-25. The public defender represents youth who are charged as delinquent or as juveniles in need of supervision in cases where the judge believes the proceeding could result in institutional commitment of the child. N.J. Stat. § 2A:158A-24. The state public defender office manages a pool of private attorneys who can be appointed when the public defender has a conflict. The state office also has an Office of Juvenile Services that oversees planning, policy, and training for juvenile delinquency cases. Indigent defense is entirely state-funded.
New Jersey 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. New Jersey’s delinquency proceedings are governed by the Rules Governing the Courts of the State of New Jersey, Part V: Rules Governing Practice in the Chancery Division, Family Part.
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 New Jersey, youth in juvenile court have the right to “counsel at every critical stage in the proceeding which, in the opinion of the court may result in the institutional commitment of the juvenile” “or other consequence of magnitude to any family member.” N.J. Stat. § 2A:4A-39; N.J. R. Chancery Div. Fam. Pt. 5:3-4(a). “The court shall advise the juvenile and the juvenile’s parents, guardian, or custodian of their right to retain counsel” and have counsel assigned if they cannot afford it. N.J. R. Chancery Div. Fam. Pt. 5:3-4(a). Notice of counsel is also provided in the court summons. N.J. R. Chancery Div. Fam. Pt. 5:20-2(b).
If a juvenile appears at the initial detention hearing without counsel and the court detains the youth, “a second detention hearing shall be held within two court days after the initial hearing at which the juvenile shall be represented by assigned or retained counsel.” N.J. Stat. § 2A:4A-38(h); N.J. R. Chancery Div. Fam. Pt. 5:21-3(a). If the juvenile is detained prior to adjudication, periodic detention review hearings are held and “the juvenile shall be represented by counsel at all such hearings.” N.J. R. Chancery Div. Fam. Pt. 5:21-3(c).
Determination of Indigence
New Jersey has no presumption of indigence in juvenile court proceedings. For any defendant younger than 21 years of age, the financial circumstances of the parents or guardians as well as the child are used in determining indigence. N.J. Stat. § 2A:158A-25; State v. Morgenstein, 147 N.J.Super. 234, 371 A.2d 96 (A.D.1977). Indigence is determined by looking at the defendant’s finances, the cost of legal representation, and whether the defendant has tried and been unable to find counsel at an affordable cost. N.J. Stat. § 2A:158A-14. Depending on the financial circumstances of the child’s parent or guardian, the court may order them to pay some or all of the costs of appointed counsel. N.J. Stat. § 2A:158A-25; N.J. R. Chancery Div. Fam. Pt. 5:3-4(a).
Waiver of Counsel
A juvenile in New Jersey may waive his or her right to counsel if the waiver is “accomplished in the following manner:
(1) A juvenile who is found to have mental capacity may not waive any rights except in the presence of and after consultation with counsel, and unless a parent has first been afforded a reasonable opportunity to consult with the juvenile and the juvenile’s counsel regarding this decision. The parent or guardian may not waive the rights of a juvenile found to have mental capacity.
(2) Any such waiver shall be executed in writing or recorded. Before the court may accept a waiver, the court shall question the juvenile and the juvenile’s counsel to determine if the juvenile is knowingly, willingly, and voluntarily waiving any right. If the court finds after questioning the juvenile that the waiver is not being made voluntarily and intelligently, the waiver shall be denied.”
N.J. Stat. §§ 2A:4A-39(b)(1), (2).
An incompetent juvenile many not waive any right; however, the court shall appoint a guardian ad litem for an incompetent youth, and after consulting with the juvenile and the juvenile’s counsel, the guardian ad litem can waive the juvenile’s rights. N.J. Stat. § 2A:4A-39(3). Waivers of right to counsel must be “executed in the language regularly spoken by the juvenile.” N.J. Stat. § 2A:4A-39(b)(4).
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 New Jersey, a detention hearing must occur no later than the morning after the child is placed in detention, including weekends and holidays. N.J.R. Chancery Div. Fam. Pt. 5:21-3. If the child is detained beyond the initial detention hearing, a probable cause hearing must be held within two court days after the initial hearing, and detention review hearings must be held at 14 and 21 court-day intervals thereafter. N.J. Stat. §§ 2A:4A-38(h), (i); N.J.R. Chancery Div. Fam. Pt. 5:21-3. If a youth is detained pending the adjudicatory hearing, that hearing must “be held no later than 30 days from the date of detention.” N.J. Stat. § 2A:4A-38(l).
Provisions for the detention of juveniles are found in N.J. Stat. §§ 2A:4A-30 to -39, and N.J.R. Chancery Div. Fam. Pt. 5:21-2 to -5; and 5:22-3.
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. New Jersey statutes list no post-disposition proceedings at which youth have a right to counsel.
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 New Jersey:
- No statute specifies the youngest age at which a juvenile can be adjudicated delinquent;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; once 18, the youth is charged in adult court.
N.J. Stat. § 2a:4A-22.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. New Jersey has one way that juveniles can be prosecuted as adults:
- Discretionary, Presumptive, and Mandatory Waiver. Discretionary and presumptive waiver can be used for youth age 14 and older that meet statutorily-delineated offense criteria. N.J. Stat. §2A:4a-26; N.J. R. Chancery Ct. Fam. P. 5:22-2. Mandatory waiver can be used for youth age 16 and older for certain felonies. Id.
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 New Jersey. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.
Current through June 2015.