Juvenile Indigent Defense Delivery System
Tennessee provides counsel to indigent youth through public defender offices serving judicial districts. Tenn. Code § 8-14-202. The public defenders are elected, with the exception of Shelby County (Memphis) whose chief public defender is appointed by the mayor. Some funding is provided by the state for the public defender offices. Shelby County (Memphis) and Davidson County (Nashville) fund a large part of their own public defender offices. All public defenders in the state participate in the District Public Defenders Conference, established by statute to provide leadership and administrative support to defenders. Tenn. Code § 8-14-301.
Tennessee 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. Tennessee has adopted significant revisions to its Rules of Juvenile Procedure, which effective July 2016, replace the current rules in their entirety.
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 Tennessee, youth have the right to counsel at all stages of any delinquency proceedings and in unruly proceedings that place the child in jeopardy of being removed from home. Tenn. Code § 37-1-126(a)(1). If the youth appears without counsel, the court shall inform the youth of his or her right to counsel, including the right to have counsel appointed if the youth is indigent. Tenn. Code § 37-1-126(a)(3). The court may continue the hearing to allow the youth time to hire an attorney. Id. Counsel must be provided for youth not represented by parents, guardians, or similar representatives, or where the youth’s interests conflict with the parents and guardians Tenn. Code § 37-1-126(a)(4).
A child is specifically entitled to counsel at the following stages:
- Detention Hearing. Tenn. R. Juv. P. 15;
- Transfer Hearing (where representation by an attorney is mandatory). Tenn. R. Juv. P. 24;
- Adjudicatory Hearing. Tenn. R. Juv. P. 28(b);
- Probation Revocation Hearing. Tenn. R. Juv. P. 35(a); and
- Appeals. Tenn. R. Juv. P. 36.
Determination of Indigence
Tennessee has no presumption of indigence in juvenile court proceedings. If a youth appears in court unrepresented, the judge shall make a determination about indigence and in doing so, may call and examine witnesses. Tenn. Code § 8-14-205. A person is considered indigent if he or she “does not possess sufficient means to pay reasonable compensation for the services of a competent attorney.” Tenn. Code § 37-1-126(b)(1). In determining whether a youth is indigent, the court will consider the financial resources of the parent or guardian in addition to the youth’s financial resources. When counsel is appointed for a child, his or her parent, guardian or custodian is assessed a $50 administrative fee. Tenn. Code § 37-1-126(c)(1). If the youth or parents cannot afford that amount, the fee can be waived or reduced; if the youth or parents can pay more, the fee may be increased up to a maximum of $200. Tenn. Code § 37-1-126(c)(2). If the youth’s parents or guardians are financially able to defray a portion or all of the cost of the youth’s representation but refuse to do so, the court may make written findings determining the child as indigent. Tenn. Code § 37-1-126(b)(2).
Waiver of Counsel
A juvenile in Tennessee may waive his or her right to counsel if:
(1) The process of notification of the right to an attorney has occurred;
(2) After thorough inquiry, the court has determined that the “respondent thoroughly comprehends the right to an attorney, has the experience and intelligence to understand, and does understand the consequences of any waiver”;
(3) The [child] has knowingly and voluntarily waived such a right; and
(4) The child has consulted with a knowledgeable adult who has no interest adverse to the child.
Tenn. R. Juv. P. 30(g).
The criteria for a knowing and voluntary waiver are statutorily defined. Tenn. R. Juv. P. 30(c). All waivers must “be made orally in open court, and shall be confirmed in writing.” Tenn. R. Juv. P. 30(e).
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 Tennessee, a detention hearing must occur within three days of the child’s detention, excluding non-judicial days to ensure a maximum of 84 hours is not exceeded. Tenn. R. Juv. P. 6. Other relevant provisions regarding the detention of juveniles can be found in Tenn. Code §§ 37-1-113 to 37-1-117, and Tenn. R. Juv. P. 5 to 7 and 15.
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. Tennessee statutes list two post-disposition proceedings at which youth have a right to counsel.
In Tennessee, youth have a right to counsel in the following post-disposition proceedings:
- Probation Revocation Hearings, Tenn. R. Juv. P. 35(a);
- Appeals, Tenn. R. Juv. P. 36(b).
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 Tennessee:
- 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, Tenn. Code § 37-1-102;
- 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. Tenn. Code § 37-1-102(4)(B)(ii).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Tennessee has two ways that juveniles can be prosecuted as adults:
- Discretionary Waiver: for any child 16 and older at the time of the alleged conduct or under the age of 16 when he or she was charged with serious, statutorily delineated felony offenses. Tenn. Code § 37-1-134;
- Once an Adult, Always an Adult. Tenn. Code § 37-1-134(c).
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 Tennessee. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.