Juvenile Indigent Defense Delivery System
- The Committee for Public Counsel Services (CPCS) is the state-wide public defender office in Massachusetts. M.G.L. ch 211D §§ 1 to 15. CPCS provides legal representation for those who cannot afford an attorney in criminal, delinquency, youthful offender, child welfare, mental health, sexually dangerous person and sex offender registry cases, as well as related appeals and post-conviction matters. CPCS oversees approximately 500 staff attorneys and approximately 3,000 private attorneys trained and certified to accept appointments.
- Oversight for CPCS is by a “committee” which is comprised of “15 persons: 2 of whom shall be appointed by the governor; 2 of whom shall be appointed by the president of the senate; 2 of whom shall be appointed by the speaker of the house of representatives; and 9 of whom shall be appointed by the justices of the supreme judicial court, 1 of whom shall have experience as a public defender, 1 of whom shall have experience as a private bar advocate, 1 of whom shall have criminal appellate experience, 1 shall have background in public administration and public finance, and 1 of whom shall be a current or former dean or faculty member of a law school.” C. 211D § 1.
- The Youth Advocacy Division (YAD) is the juvenile division of CPCS and consists of nine staff offices in which lawyers and forensic social service advocates work together as a team to help young people achieve their legal and life goals, and over four hundred private attorneys. YAD is responsible for oversight and training of lawyers who represent indigent children in delinquency, youthful offender, parole revocation and appellate cases.
Right to Counsel and the Determination of Indigence
- If a juvenile initially appears before the court without an attorney the court must follow the procedures outlined in G.L. c. 211D and Supreme Judicial Court Rule 3:10 regarding appointment of counsel. Mass. R. Crim. Pro. 8.
- In determining indigency, under G.L. c. 211D, the Commonwealth established a system for the implementation of indigent defense. A person is considered indigent if they receive certain types of Federal or State aide. See G.L. c. 211D § 2. The form for determining indigence can be found here.
- Supreme Judicial Court Rule 3:10 also addresses the assignment of counsel and must be looked at in conjunction with G.L. c. 211D. Currently there are proposed changes to this rule. One of the proposals is for all juveniles, regardless of the financial status of their parent or guardian, to be entitled to the appointment of counsel.
- Under General Laws c. 119, § 29A, except where the parent is the alleged victim the parent or guardian of an unemancipated minor is responsible for legal fees. If the parent or guardian is not indigent, the court assesses a $300 fee against the parent or guardian to pay for the cost of any attorney that is supplied by the Committee for Public Counsel Services or assigned to represent the minor by the court and paid out of public funds in the criminal proceedings. If the parent is determined to be indigent but is still able to contribute toward the payment of some of the costs, the court shall order the parent to pay a reasonable amount toward the cost of appointed counsel.
Payment of Extra Fees and Costs
- In addition to the appointment of counsel, indigent juveniles may secure additional services “necessary to assure as effective. . . a defense as he would have if he were financially able to pay.” Commonwealth v. Lockley, 381 Mass. 156, 408 N.E.2d 834 (1980). These services may include investigators, experts, social workers or other professionals related to the nature of the charges. The form for requesting waiver or state payment of costs is here.
Ages of Juvenile Court Jurisdiction
- Juvenile Court has jurisdiction over children ages 7 to 18. G. L. c. 119 § 54. If a youth is alleged to have committed an offense on his/her 18th birthday, the juvenile court does not have jurisdiction.
- The juvenile court has continuing jurisdiction over cases after a youth is age 18 pending the final adjudication of the case which includes: “all remands and retrials following appeals from their cases, or during continuances or probation or after their cases have been places on file, or for any other proceeding arising out of their cases.” G.L. c. 119 § 72(a).
- If a child is alleged to have committed an offense prior to age 18 and is not apprehended until between such child’s 18th and 19th birthday, the juvenile court has jurisdiction. G.L. c. 119 § 72(a).
- If a child is alleged to have committed an offense prior to his/her 18th birthday and is not apprehended until after age 19 the juvenile court will conduct a “transfer hearing.” G.L. c. 119 § 72A. This is a two-part hearing where the court must first determine if there is probable cause to believe that the individual committed the crime. If probable cause is found the juvenile court can discharge the individual if discharge is consistent with “the protection of the public” or transfer the case to adult court.
- Massachusetts has a Youthful Offender Law, which went into effect in 1996 and took the place of the state’s transfer law. G.L. c. 119 § 54. A Youthful Offender is a child between the ages of 14 and 18, charged with a felony, and:
- Who was previously committed to the Department of Youth Services; or
- Who is charged with a violation of certain gun offenses; or
- Who is charged with a felony which involves the “infliction or threat of serious bodily harm.”
- Juvenile Court does not have jurisdiction over first and second degree murder cases allegedly committed by an individual between the ages of 14 to 18. G.L. c. 119 § 74.
Transfer to Adult Court
- Under G.L. c. 211B, § 9(x), the Chief Justice of the trial court has the power to grant permission for a Juvenile case, under certain circumstances, to be tried in the Superior Court. In this instance the Judge serves, for the purpose of this case, as a Juvenile Court Judge.
- Under G.L. c. 278, § 58 juveniles may be held on bail or released on personal recognizance, or released on personal recognizance with certain conditions of release. Under § 58 there is a presumption of personal recognizance.
- The purpose of bail in Massachusetts is to assure the person’s appearance in court. Querubin v. Commonwealth, 440 Mass. 108, 113 (2003), Commonwealth v. Pagan, 445 Mass. 315 (2005).
- In October of 2006, the Massachusetts Department of Youth Services was chosen to participate in an initiative supported by the Annie E. Casey Foundation, known as the Juvenile Detention Alternative Initiative (JDAI). JDAI is a national systems-reform initiative working to improve the detention component of the juvenile justice system. Click here for more information.
Life Without Parole
- On December 24, 2013 the Supreme Judicial Court held that a juvenile sentenced to life without parole for a murder committed under the age of 18 violated the 8th Amendment; this holding was deemed retroactive. Diatchenko v. DA, 466 Mass. 655 (2013). At the time there were approximately 63 individuals who were juveniles at the time they committed the crime serving life without parole for first degree murder. As a result of the Diatchenko decision these individuals are now eligible for parole.
- Indigent juvenile homicide offenders convicted of first degree and second degree murder are entitled to the assistance of counsel at a parole hearing. Diatchenko v. DA, 471 Mass. 12 (2015), Commonwealth v. Okoro, 471 Mass. 51 (2015).
Disproportionate Minority Confinement
- Click here for the Massachusetts Government webpage on DMC.
- Click here for the ACLU report on DMC in Massachusetts.
Important Massachusetts Resources
- The Committee for Public Counsel Services
- The Youth Advocacy Division
- Department of Youth Services
- Office of the Child Advocate
- The Children’s Law Center of Massachusetts
- Citizens for Juvenile Justice
- An organization that advocates for a fair and effective juvenile justice system designed to promote the healthy development of children and youth so they can grow up to live as responsible and productive adults in our communities.
Visit Massachusetts’ National Juvenile Justice Network Page