Juvenile Indigent Defense Delivery System
Utah provides counsel to indigent youth through a county-based and county-funded system that includes contract attorneys, legal aid organizations, and private attorneys appointed from a panel. Utah Code Ann. § 77-32-306. Appellate representation is also provided and funded by counties.
Utah 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. Utah’s juvenile court rules are called the Utah Rules of Juvenile Procedure.
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 Utah, youth in juvenile court have the right to counsel at every stage of delinquency proceedings. Utah Code Ann. § 78A-6-1111, Utah Juv. P. R. 26(a). “The parents, guardian, custodian, and the child, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings … and if any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court. Utah Code Ann. § 78A-6-1111(1)(a). “The court may appoint counsel without a request if it considers representation by counsel necessary to protect the interest of the child or of other parties.” Utah Code Ann. § 78A-6-1111(1)(a). The court must appoint counsel in all juvenile felony matters. Utah Code Ann. § 78A-6-1111(1)(a).
A child is specifically entitled to counsel at the following stages:
- At the detention hearing with or without the minor’s request. Utah R. Juv. P. 9.
- At an appeals. Utah R. Juv. P. 52(f); Utah Code Ann. § 78A-6-1109.
- In transfer matters. § 78A-6-1111.
- In hearings on allegations the child violated a court order. § 78A-6-1111; § 78A-6-1101.
Determination of Indigence
Utah has no presumption of indigence in juvenile court proceedings. “The court shall take into account the income and financial ability to retain counsel of the parents or guardian of a child in determining the indigency of the child.” Utah Code Ann. § 78A-6-1111(1)(c). Indigence is defined as an inability to pay for counsel without depriving oneself or one’s family of basic necessities, or as having an income level no higher than 150% of the current federal poverty level. Utah Code Ann. § 77-32-202 (3)(a).
“If the parent, guardian, or custodian of a minor is found not to be indigent, but does not or will not retain counsel for the minor and the minor has no means to retain counsel, the court may appoint counsel at public expense. However, the court may order, after giving the parent, guardian or custodian reasonable opportunity to be heard, that the parent, guardian or custodian reimburse the county for the cost of appointed counsel, in whole or in part, depending on ability to pay.” Utah Juv. P. R. 26(c).
Waiver of Counsel
A juvenile age 14 and older in Utah may waive his or her right to counsel if the court finds the waiver to be knowing and voluntary. Utah Juv. P. R. 26(e). A youth under 14 years of age may not waive the right to counsel outside the presence of his or her parent, guardian, or custodian. Utah Juv. P. R. 26(d).
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 Utah, a detention hearing must occur within 48 hours of the child being detained, excluding weekends and holidays, unless a continuance has been granted. Utah Juv. P. R. 9(b). Provisions for the detention of juveniles are found in Utah Code Ann. §§ 62A-7-101, 78A-6-113, and 78A-6-112, and Utah Juv. P. R. 8 to 11.
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. Utah statutes list one post-disposition proceeding at which youth have a right to counsel.
In Utah, youth have a right to counsel in the following post-disposition proceeding:
- Appeals. Utah R. Juv. P. 52(f); Utah Code Ann. § 78A-6-1109.
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 Utah:
- 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, Utah Code Ann. § 78A-6-103(i);
- 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. Utah Code Ann. § 78A-6-103(i).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Utah has three ways that juveniles can be prosecuted as adults:
- Discretionary and presumptive waiver, where youth for any felony may be transferred, after hearing. Utah Code Ann. § 78A-6-703. Presumptive waiver is used for youth age 16 and older who meet the statutorily-delineated offense criteria. Utah Code Ann. § 78A-6-702.
- Statutory Exclusion is mandatory for youth age 16 and older where the charge is murder or where he or she has been previously committed to a secure facility. Utah Code Ann. § 78A-6-701.
- Once an Adult, Always an Adult, Utah Code Ann. § 78A-6-703(12).
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 Utah. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.