Juvenile Indigent Defense Delivery System
Pennsylvania provides counsel to indigent youth through county public defenders. Each county is statutorily required to appoint a public defender, and the public defenders are responsible for representing youth in delinquency matters. 16 Pa. Cons. Stat. Ann. §§ 9960.3, 9960.6. The Public Defender Act is interpreted as requiring counties (except Philadelphia County) to pay for the cost of public defenders. Counties must also pay for the appointment of conflict defenders when needed. 16 Pa. Cons. Stat. Ann. § 9960.7.
Pennsylvania has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings. The Juvenile Defender Association of Pennsylvania (JDAP), a statewide membership organization supporting quality legal representation for youth in delinquency proceedings, has issued nonbinding Performance Guidelines for Quality and Effective Juvenile Delinquency Representation.
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. Pennsylvania’s juvenile court rules are called the Rules of Juvenile Court Procedure, Delinquency Matters.
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 Pennsylvania, youth in juvenile court have the right to counsel at all stages of any proceedings, and if they cannot afford counsel, the court will appoint counsel. 42 Pa. Cons. Stat. Ann. §§ 6337- 6337.1. “If a juvenile appears at any [delinquency] hearing without counsel, the court shall appoint counsel for the juvenile prior to the commencement of the hearing.” Pa. R. Juv. Ct. P. 151. If a juvenile is given a summons to appear in court, the summons must inform the juvenile of his or her right to counsel, and the right to assigned counsel where the juvenile is indigent. Pa. R. Juv. Ct. P. 124. [However, note that Pennsylvania presumes indigence (42 Pa. Cons. Stat. Ann. § 6337.1), so this Rule may no longer be accurate.]
Once appointed, an attorney is to represent a child “until final judgment, including any proceeding upon direct appeal and dispositional review, unless permitted to withdraw….” Pa. R. Juv. Ct. P. 150(B). Juveniles have the right to counsel (and have counsel appointed automatically) at the following stages:
- Beginning of the detention hearing, Pa. R. Juv. Ct. P. 242(A)(2).
- Disposition hearing, the juvenile must be informed of the right to counsel to prepare post-dispositional motions and appeal(s). Pa. R. Juv. Ct. P. 512(C)(4).
Determination of Indigence
Pennsylvania presumes that all children in delinquency cases are indigent. 42 Pa. Cons. Stat. Ann. § 6337.1. The presumption that a child is indigent may be rebutted if the court determines that the child has the financial resources to retain counsel of his choice at his own expense. The court may not consider the financial resources of the child’s parent, guardian or custodian when determining whether the child can afford to retain counsel of his choice. 42 Pa. Cons. Stat. Ann. § 6337.1(b)(1.
Waiver of Counsel
A juvenile age 14 and over in Pennsylvania may waive his or her right to counsel the following limited circumstances:
- “The waiver is knowingly, intelligently, and voluntarily made;
- The court conducts a colloquy with the juvenile on the record;
- The proceeding for which waiver is sought is not one of the following:
a. Detention hearing pursuant to Rule 242;
b. Transfer hearing pursuant to Rule 394;
c. Adjudicatory hearing pursuant to Rule 406, including the acceptance of an admission [ ];
d. Dispositional hearing pursuant to Rule 512; or
e. A hearing to modify or revoke probation pursuant to Rule 612.”
42 Pa. Cons. Stat. Ann. § 6337.1(b)(3). Pa. R. Juv. Ct. P. 152.
The child’s parent, guardian or custodian may not waive counsel for a child. Pa. R. Juv. Ct. P. 152 (cmt.). Waiver only applies to the hearing at which the right to counsel is waived, waiver can be revoked at any time, and at subsequent hearings the court shall inform the youth of his or her right to counsel. 42 Pa. Cons. Stat. Ann. § 6337.1(b)(5). If a child waives the right to counsel, the court may appoint stand-by counsel. 42 Pa. Cons. Stat. Ann. § 6337.1(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 Pennsylvania, a detention hearing must occur within 72 hours of the child being detained. Pa. Cons. Stat. Ann. § 200.101. Provisions for the detention of juveniles are found in 42 Pa. Cons. Stat. Ann. §§ 6324 to 6327, 6331, 6332, 6335, 6337; 37 Pa. Cons. Stat. Ann. §§ 200.1 to 200.9, 200.101 to 200.106, and Pa. R. Juv. Ct. P. 240-243.
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. Pennsylvania statutes list two post-disposition proceedings at which youth have a right to counsel.
In Pennsylvania, youth have a right to counsel in the following post-disposition proceedings:
- A hearing to modify or revoke probation or other disposition entered under section 6352. 42 Pa. Cons. Stat. Ann. § 6337.1(b)(3)(vi).
- With post-dispositional motions and appeal(s). Pa. R. Juv. Ct. P. 512(C)(4).
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 Pennsylvania:
- The youngest age at which a juvenile can be adjudicated delinquent is 10, 42 Pa. Cons. Stat. Ann. § 6302;
- 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, 42 Pa. Cons. Stat. Ann. § 6302;
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18, 42 Pa. Cons. Stat. Ann. § 6302.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Pennsylvania has three ways that juveniles can be prosecuted as adults:
- Discretionary and Presumptive Waiver, where Discretionary Waiver can be used for youth 14 and older for any felony after a hearing. 42 Pa. Cons. Stat. Ann. § 6355(a). Presumptive waiver exists for youth age 14 and older or 15 and older depending on the felony. 42 Pa. Cons. Stat. Ann. § 6355(g).
- Statutory Exclusion for the offense of murder at all ages, and for youth 15 and older that meet the statutorily-delineated offense criteria. 42 Pa. Cons. Stat. Ann. § 6302.
- Once an Adult, Always an Adult. 42 Pa. Cons. Stat. Ann. § 6302.
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 Pennsylvania Assessment was completed in 2003.