Juvenile Indigent Defense Delivery System
Colorado provides counsel to youth who cannot afford an attorney through the Office of the Colorado State Public Defender. “The state public defender shall represent indigent persons charged in any court. . . [including] juveniles upon whom a delinquency petition is filed or who are in any way restrained by court order, process, or otherwise. . .” Colo. Rev. Stat. Ann. § 21-1-103(2) (2020).
Colorado also has a statewide office of Alternate Defense Counsel that “provide(s) legal representation in circumstances in which the state public defender has a conflict of interest in providing legal representation.” Colo. Rev. Stat. Ann. § § 21-2-101, 21-2-103 (2020).
The Colorado Juvenile Justice and Delinquency Prevention Advisory Council passed a resolution in 2013 endorsing specialization in juvenile court practice. Under this resolution, the Advisory Council supports the establishment of standards of practice for juvenile defense.
A youth or the District Attorney may demand a jury trial if the youth is “alleged to be an aggravated juvenile offender. . . or is alleged to have committed an act that would constitute a crime of violence. . . or the court, on its own motion, may order” a jury trial, except “when the petition alleges a delinquent act which is a misdemeanor, a petty offense, a violation of a municipal or county ordinance, or a violation of a court order.” Colo. Rev. Stat. Ann. § 19-2-107 (2020). See also Colo. R. Juv. P. 3.5 (2020).
Juvenile Court Rules
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. Colorado’s juvenile court rules are called the Colorado 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 Colorado, youth in juvenile court have right to counsel:
“If the juvenile and his or her parents, guardian, or other legal custodian are found to be indigent. . . or the juvenile’s parents, guardian, or other legal custodian refuses to retain counsel for the juvenile, or the court, on its own motion, determines that counsel is necessary to protect the interests of the juvenile or other parties, or the juvenile is in the custody of the state department of human services or a county department of human or social services, the court shall appoint the office of state public defender or, in the case of a conflict, the office of alternate defense counsel for the juvenile.” Colo. Rev. Stat. Ann. § 19-2-706(2)(a) (2020).
“The appointment of counsel. . . shall continue until:
(i) The court’s jurisdiction is terminated;
(ii) The juvenile or the juvenile’s parent, guardian, or legal custodian retains counsel for the juvenile;
(iii) The court finds that the juvenile or his or her parents, guardian, or other legal custodian has sufficient financial means to retain counsel or that the juvenile’s parents, guardian, or other legal custodian no longer refuses to retain counsel for the juvenile; or
(iv) The court finds the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel, as described in paragraph (c) of this subsection (2).” Colo. Rev. Stat. Ann. § 19-2-706(2)(d) (2020).
Determination of Indigence
Colorado has no presumption of indigence in juvenile court proceedings. “The determination of indigency shall be made by the state public defender, subject to review by the court.” Colo. Rev. Stat. Ann. § 21-1-103(3) (2020). “[T]he public defender, before determining indigency… [may] provid[e] representation to juveniles in detention hearings.” Colo. Rev. Stat. Ann. § 21-1-103(5) (2020). “A nonrefundable processing fee of twenty-five dollars shall be paid by the applicant if the court-appointed counsel enters an appearance based upon the application”. Colo. Rev. Stat. Ann. § 21-1-103(3) (2020).
“If the court appoints counsel for the juvenile because of the refusal of the parents, guardian, or other legal custodian to retain counsel for the [youth]. . . then the court will order the juvenile’s parent, guardian, or legal custodian, other than a county department of human or social services or the state department of human services, to reimburse the court for the cost of the representation unless the court, for good cause, waives the reimbursement requirement.” Colo. Rev. Stat. Ann. § 19-2-706(2)(b)(i) (2020).
Waiver of Counsel
“The court may accept a waiver of counsel by a juvenile only after finding on the record, based on a dialogue conducted with the juvenile, that:
(i) The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
(ii) The juvenile understands the sentencing options that are available to the court in the event of an adjudication or conviction of the offense with which the juvenile is charged;
(iii) The juvenile has not been coerced by any other party, including but not limited to the juvenile’s parent, guardian, or legal custodian, into making the waiver;
(iv) The juvenile understands that the court will provide counsel for the juvenile if the juvenile’s parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
(v) The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged, which consequences may occur in addition to the actual adjudication or conviction itself.” Colo. Rev. Stat. Ann. § 19-2-706(2)(c) (2020).
Colorado law expressly allows for the use of cash bail in delinquency matters.
“Unless the district attorney consents, no juvenile charged or accused of having committed a delinquent act that constitutes a felony or a class 1 misdemeanor shall be released without a bond or on a personal recognizance bond, if:
(a) The juvenile has been found guilty of a delinquent act constituting a felony or class 1 misdemeanor within one year prior to his or her detention;
(b) The juvenile is currently at liberty on another bond of any type; or
(c) The juvenile has a delinquency petition alleging a felony pending in any district or juvenile court for which probable cause has been established.” Colo. Rev. Stat. Ann. § 19-2-509(1) (2020).
“In determining the type of bond and conditions of release for the juvenile, the judge or magistrate fixing the same shall consider the criteria set forth in [the adult criminal code].” Colo. Rev. Stat. Ann. § 19-2-509(1) (2020).
When and how the court may decide to detain a youth or otherwise place restrictions on the youth’s freedom is defined by statute and court rules. In Colorado, a “juvenile taken into custody . . . and placed in a detention or shelter facility or a temporary holding facility is entitled to a hearing within forty-eight hours, excluding Saturdays, Sundays, and legal holidays, of such placement to determine if he or she should be detained.” Colo. Rev. Stat. Ann. § 19-2-508(3)(a)(1) (2020).
Provisions for the detention of youth are found in Colo. Rev. Stat. Ann. §§ 19-2-502, 19-2-507, 19-2-508, 19-2-509, and 19-2-911(2020), and in Colo. R. Juv. P. 3.1, 3.7, and 3.8 (2020).
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 youth 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.
In Colorado, youth have a right to counsel in the following post-disposition proceedings:
- Probation violation hearings: “The juvenile and his or her parents, guardian, or other legal custodian shall be given a written statement concerning the alleged violation and shall have the right to be represented by counsel at the [probation violation] hearing. . .” Rev. Stat. Ann. § 19-2-925 (2020).
- Parole proceedings: “The juvenile and his or her parents or guardian shall be informed that they may be represented by counsel in any hearing before the board or a hearing panel to grant, modify, or revoke parole.” Rev. Stat. Ann. § 19-2-1002(8) (2020).
“The appointment of counsel shall continue until the court’s jurisdiction is terminated . . .” Colo. R. Juv. Proc. 3.9(c)(1)(A) (2020).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a youth who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Colorado:
- Generally, the “juvenile court shall have exclusive original jurisdiction in proceedings [c]oncerning any juvenile ten years of age or older. . .” Rev. Stat. Ann. § 19-2-104(1)(a) (2020).
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a youth’s 18thbirthday. Rev. Stat. Ann. § 19-2-104(7) (2020).
- “The juvenile court may retain jurisdiction over a juvenile until all orders have been fully complied with by such person, or any pending cases have been completed, or the statute of limitations applicable to any offense that may be charged has run, regardless of whether such person has attained the age of eighteen years, and regardless of the age of such person.” Rev. Stat. Ann. § 19-2-104(6) (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many young people are still tried as adults.
The prosecutor may file charges directly in adult court or seek an indictment in adult court if “[t]he juvenile is sixteen years of age or older at the time of the commission of the alleged offense and:
(i) Is alleged to have committed a class 1 or class 2 felony; or
(ii) Is alleged to have committed a sexual assault that is a crime of violence, or a sexual assault under the circumstances described in section 18-3-402(5)(a), C.R.S.; or
(iii) (a) Is alleged to have committed a felony enumerated as a crime of violence. . ., other than a sexual assault as described in subparagraph (II). . ., or is alleged to have committed sexual assault. . ., sexual assault on a child. . ., or sexual assault on a child by one in a position of trust. . .; and
(b) Is found to have a prior adjudicated felony offense; or
(iv) Has previously been subject to proceedings in district court as a result of a direct filing pursuant to this section or a transfer. . .; except that:
(a) If the juvenile is found not guilty in district court of the prior felony or any lesser included offense, the subsequent charge shall be remanded to the juvenile court; and
(b) If the juvenile is convicted in district court in the prior case of a lesser included or nonenumerated offense for which criminal charges could not have been originally filed by information or indictment in the district court pursuant to this section, the subsequent charge may be remanded to the juvenile court.” Colo. Rev. Stat. Ann. § 19-2-517(1) (2020).
The juvenile court judge may transfer a case to district court if:
“(I) A petition filed in juvenile court alleges the juvenile is:
(A) Twelve or thirteen years of age at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a class 1 or class 2 felony or a crime of violence, as defined in section 18-1.3-406, C.R.S.; or
(B) Fourteen years of age or older at the time of the commission of the alleged offense and is a juvenile delinquent by virtue of having committed a delinquent act that constitutes a felony; and
(II) After investigation and a hearing, the juvenile court finds it would be contrary to the best interests of the juvenile or of the public to retain jurisdiction.” Colo. Rev. Stat. Ann. § 19-2-518(1)(a) (2020).
Involvement with the delinquency system can affect a young person’s employment, housing, and educational opportunities, leaving them with tremendous hurdles as they transition to adulthood. The NJDC Collateral Consequences Page provides more information about collateral consequences of juvenile court involvement.
In a variety of states, NJDC has worked with local partners to create youth and family-friendly guides that provide general information about the collateral consequences of juvenile court involvement, how to overcome these hurdles, and resources to assist in reducing the harm of having a juvenile record. NJDC has not yet created a guide for Colorado. We hope to do so in the future.
State Race Statistics
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) provides juvenile justice profiles for all fifty states and the District of Columbia. Specifically, the data compares the Black, non-Hispanic proportion of the youth population of each state, with the national average, as well as the Hispanic proportion of the youth population of each state with the national average. The data also provides the ratio of youth of color to white youth in residential placement in each state and compares it with the national average.
OJJDP Juvenile Justice State Profiles can be accessed here.
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 Colorado Assessment was completed in 2012.