Juvenile Indigent Defense Delivery System
Oregon provides counsel to indigent youth through a statewide Office of Public Defender Services (OPDS) that administers the delivery of and payment for indigent defense services. OPDS, governed by the Public Defense Services Commission, provides representation in juvenile delinquency cases by setting qualification standards and awarding contracts to private attorneys who may be individuals or members of law firms, nonprofit defender offices, and other groups. Or. Rev. Stat. § 419C.206; Or. Rev. Stat. § 151.010. OPDS provides some appellate representation in adult cases, but does not handle appeals from juvenile delinquency cases.
The Public Defense Services Commission has issued qualification standards for court appointed counsel listing the minimum training and practice requirements that attorneys must have before representing juvenile clients. OPDS has also issued Best Practices for Oregon Public Defense Providers and a statement on the role of counsel for children and youth.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Oregon does not have specific juvenile court rules at the statewide level, but local court rules may apply to juvenile proceedings in a given 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 Oregon, youth in juvenile court have the right to counsel in delinquency cases in which the youth would be entitled to appointed counsel if the youth were an adult charged with the same offense. Or. Rev. Stat. § 419C.200(1). Youth are specifically entitled to counsel at the detention hearing and upon appeal. Or. Rev. Stat. §§ 419C.109(3)(b), 419A.211(1). “The right to counsel shall attach prior to the youth’s entering into a formal accountability agreement.” Or. Rev. Stat. § 419C.245.
The juvenile department counselor shall inform the youth and the youth’s parents or guardian of the youth’s right to counsel and to court appointed counsel if the youth is indigent. Or. Rev. Stat. § 419C.245. The first time the parents or guardian appear in court, the judge shall inform the parents verbally and in writing that they are obligated to pay for the youth’s attorney. Or. Rev. Stat. § 419C.020(1)(a).
The accused youth and the state are the parties to adjudicatory hearing. Or. Rev. Stat. § 419C.285(1). In the dispositional stage, the parents or guardian of the youth are also parties. Or. Rev. Stat. § 419C.285(1)(a). The rights of the parties include “the right to appear with counsel and to have counsel appointed if otherwise provided by law….” Or. Rev. Stat. § 419C.285(2)(b).
A child is specifically entitled to counsel at the following proceedings:
- Adjudicatory Hearing, Or. Rev. Stat. § 419C.285;
- Disposition, Or. Rev. Stat. § 419C.285;
- Transfer Hearing, Or. Rev. Stat. § 419C.352(1);
- Detention Hearing, Or. Rev. Stat. § 419C.109(3)(b);
- Appeal, Or. Rev. Stat. § 419A.211(1).
Determination of Indigence
Oregon has no presumption of indigence in juvenile court proceedings. “If the youth, the parent or guardian requests counsel for the youth but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the youth at state expense if the youth is determined to be financially eligible under the policies, procedures, standards and guidelines of the Public Defense Services Commission.” Or. Rev. Stat. § 419C.200(1).
Parents or guardians are obligated “to pay for compensation and reasonable expenses for counsel for the youth….” Or. Rev. Stat. § 419C.020(1)(a). Therefore, the court may order the parent or guardian to pay all or part of the administrative costs of the indigence determination and all or part of the costs of counsel. Or. Rev. Stat. § 419C.203(1). In addition, the court may order a nonindigent youth to pay some of the costs. Or. Rev. Stat. § 419C.203(1).
A youth or parent requesting court-appointed counsel must complete a detailed financial statement on which the indigence determination will be based. Or. Rev. Stat. § 151.485. Indigence is defined as being “financially unable to retain adequate counsel without substantial hardship in providing basic economic necessities” for oneself or one’s dependents, under standards established by the Public Defense Services Commission. Or. Rev. Stat. § 151.485(1).
In determining whether a youth should pay some of the costs, “the court shall also consider the reformative effect of having the youth pay. The court may order that a portion of any moneys earned by the youth in juvenile work projects be used to pay costs ordered under subsection (1) of this section.” Or. Rev. Stat. § 419C.203(4).
Waiver of Counsel
Oregon does not have a specific juvenile statute or rule addressing a juvenile’s waiver of counsel, but case law allows waiver in specified circumstances. “The court has an obligation to advise child of his right to have counsel present and, if he chose to waive that right, to make a record that clearly indicates that child’s decision is the product of an intelligent and understanding choice.” State ex rel Juvenile Dep’t Linn Cty. V. Anzaldua, 109 Ore.App. 617, 620 (Or. App. 1991). In addition to informing him of the pitfalls of defending himself, the court must inform the child of the possible advantage that an attorney would provide and the responsibility he incurs for undertaking his own defense. State ex rel. Juvenile Dep’t of Marion Cty. v. Afanasiev, 674 P.2d 1199 (Or. Ct. App. 1984) (applying to juvenile cases the standard of State v. Verna, 498 P.2d 793 (Or. Ct. App. 1972)).
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 Oregon, a detention hearing must occur within 36 hours of the child being detained, excluding weekends and judicial holidays, except on order of the court. Or. Rev. Stat. § 419C.139. Provisions for the detention of juveniles are found in Or. Rev. Stat. §§ 419C.130, 419C.133, 419C.136, 419C.139, 419C.142, 419C.145, 419C.150, 419C.153, and 419C.453.
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. Oregon statutes list one post-disposition proceeding at which youth have a right to counsel.
In Oregon, youth have a right to counsel in the following post-disposition proceeding:
- Appeal, Or. Rev. Stat. § 419A.211(1).
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 Oregon:
- 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; after age 18, the youth is charged in adult court, Or. Rev. Stat. §419C.005;
- Juvenile court can retain jurisdiction over youth until age 25, provided that the offense alleged to have been committed occurred before the youth turned 18. Or. Rev. Stat. § 419C.005.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Oregon has two ways that juveniles can be prosecuted as adults:
- Discretionary Waiver, for youth age 15 and older that meet the statutorily delineated offense criteria, after transfer hearing. Or. Rev. Stat. § 419C.349.
- Once an Adult, Always an Adult: “After the juvenile court has entered an order waiving a youth to an adult court…the court may, if the youth is 16 years of age or older, enter a subsequent order providing that in all future cases involving the same youth, the youth shall be waived to [criminal court]. Or. Rev. Stat. § 419C.364.
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 Oregon. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.