Gault at 50: Children’s Right to Counsel in North Carolina
Visit North Carolina’s Gault at 50 state profile to learn more about the state’s response to the In re Gault decision through resources, comments, and reflections.
Juvenile Indigent Defense Delivery System
North Carolina provides counsel to indigent youth through a county-operated, state-funded system overseen by the Office of Indigent Defense Services (IDS). IDS and its oversight commission determine the methods of and standards for public defense delivery throughout North Carolina. Dependent on review and certification by the IDS, counties may deliver services through contract attorneys, panel systems, or public defender offices that provide representation or manage panel attorneys. IDS includes a dedicated Office of the Juvenile Defender that trains and supports juvenile defenders and promotes favorable policy change.
The IDS Commission adopted performance guidelines for appointed counsel in juvenile delinquency cases in North Carolina, in addition to model qualification standards for practice in juvenile delinquency court.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. North Carolina does not have specific juvenile court rules at the statewide level, but local court rules may apply in juvenile court proceedings. In addition, local courts may have rules that apply to juvenile courts in that jurisdiction.
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 North Carolina, youth in juvenile court have the right to counsel in all proceedings. N.C. Gen. Stat. Ann. § 7B-2000(a). If counsel has not been retained for a child, counsel shall be appointed in any proceeding alleging the child is “(i) delinquent or (ii) in contempt of court when alleged or adjudicated to be undisciplined.” N.C. Gen. Stat. Ann. § 7B-2000(a). “At the probable cause hearing the juvenile shall be represented by counsel.” N.C. Gen. Stat. Ann. § 7B-2202(b)(2).
Determination of Indigence
North Carolina has a conclusive presumption of indigence for all juveniles; juveniles are not required to assert their indigence in order to receive appointed counsel. N.C. Gen. Stat. Ann. § 7B-2000(b). Parents may be required to repay state for legal services provided to the juvenile, if able (using test for regular indigence determinations). N.C. Gen Stat. Ann. §§ 7A-450.1; 7A-450.3.
Waiver of Counsel
North Carolina does not have a specific juvenile statute or rule, addressing a juvenile’s waiver of counsel. The right-to-counsel statute mandating appointment for all unrepresented juveniles has been interpreted to mean that juveniles cannot waive counsel under any circumstances, according to the Office of Indigent Defense Services, as juveniles do not have the right to self-representation. N.C. Gen. Stat. Ann. § 7B-2000; North Carolina Juvenile Defender, North Carolina Juvenile Defender Manual, Ch. 2, p. 6 (2008).
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 North Carolina, a detention hearing must occur within five calendar days from the time the child is detained if the child is held in secure custody, and seven calendar days if the youth is held in non-secure custody. N.C. Gen. Stat. Ann. § 7B-1906. Provisions for the detention of juveniles are found in N.C. Gen. Stat. Ann. §§ 7B-1900, 7B-1903, 7B1905, and 7B-1906.
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. North Carolina statutes list no post-disposition proceedings at which youth have a right to counsel, but statute clarifies that they are entitled to counsel in all proceedings. N.C. Gen. Stat. Ann. § 7B-2000.
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 North Carolina:
- The youngest age at which a juvenile can be adjudicated delinquent is six, N.C. Gen. Stat. Ann. § 7B-1501(7);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 16th birthday; after age 16, the youth is charged in adult court, N.C. Gen. Stat. Ann. § 7B-1501(7);
- Juvenile court can retain jurisdiction over youth who have committed felony offenses until age 19 or age 21, depending on the offense, provided that the offense alleged to have been committed occurred before the youth turned 16. N.C. Gen. Stat. Ann. § 7B-1602.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. North Carolina has two ways that juveniles can be prosecuted as adults:
- Discretionary and Mandatory Waiver: after motion and hearing, court has option to transfer jurisdiction if juvenile committed felony offense and was at least 13 years old. If the alleged felony constituted a Class A felony, transfer is mandatory. N.C. Gen. Stat. Ann. § 7B-2200.
- Once an Adult, Always an Adult: “A juvenile who is transferred to and convicted in superior court shall be prosecuted as an adult for any criminal offense the juvenile commits after the superior court conviction.” N.C. Gen. Stat. Ann. § 7B-1604.
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 North Carolina Assessment was completed in October 2003.