Juvenile Indigent Defense Delivery System
Arkansas provides counsel to indigent youth through a statewide Public Defender Commission that oversees indigent defense. Public defenders, who may serve part-time or full-time, are allocated to each county or judicial district. Ark. Code Ann. § 16-87-304. Each public defender is responsible for youth cases in their judicial district. Ark. Code Ann. § 16-87-306(1)(A)(i). Private attorneys may be appointed when the public defender has a conflict of interest. Ark. Code Ann. § 16-87-307(a)(3).
While the Commission has set detailed standards for indigent defense, Arkansas has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
Arkansas youth have a right to a trial by jury if the court finds that a youth will be treated as an extended juvenile jurisdiction offender. Ark. Code Ann. § 9-27-503(d).
Juvenile Court Rules
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Arkansas does not have specific juvenile court rules at the state level, but Arkansas Supreme Court rules for other proceedings (such as the Rules of Criminal Procedure) may apply in juvenile court proceedings. In addition, local courts may have rules that apply to juvenile courts in that county or judicial district.
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 or delineating that right.
In Arkansas, youth in juvenile court have the right to counsel:
- At all stages of the proceedings, Ark. Code Ann. § 9-27-316(a)(1);
- Additionally, at all reviews for an extended juvenile jurisdiction offender, Ark. Code Ann. § 9-27-316(a)(2);
- At the detention hearing, Ark. Code Ann. § 9-27-326(b)(2); and
- On appeal, Ark. Code. Ann. § 9-27-343(a); Ark. R. App. P. 16(a); Gilliam v. State, 808 S.W.2d 738 (Ark. 1991).
Youth must be informed of their right to be represented by counsel at several points in the process:
- By a law enforcement official taking a youth into custody;
- By the intake officer at the initial intake interview; and
- By the court at the youth’s first court appearance before the circuit court. Ark. Code Ann. § 9-27-316(a)(1).
“In a proceeding in which the judge determines that there is a reasonable likelihood that the proceeding may result in the juvenile’s commitment to an institution in which the freedom of the juvenile would be curtailed and counsel has not been retained for the [youth], the court shall appoint counsel for the [youth].” Ark. Code Ann. § 9-27-316(d). The court is required to appoint counsel far enough in advance of the court appearance that the attorney has time to adequately consult with the client and to adequately prepare the case. Ark. Code Ann. § 9-27-316(e).
Determination of Indigence
Arkansas does not have a presumption of indigence in juvenile court proceedings. The Arkansas Public Defender Commission is responsible for setting standards to determine indigence. Ark. Code Ann. § 16-87-203(a)(1). The determination “shall include a consideration of the [youth]’s financial resources and the financial resources of [their] family.” Ark. Code Ann. § 9-27-316(b)(1)(A). To receive appointed counsel, a family must file an affidavit of financial means and the court must determine whether the family can afford to hire an attorney. Ark. Code Ann. § 9-27-316(b)(2).
However, despite these requirements, “the failure of the [youth]’s family to retain counsel for the [youth] shall not deprive the [youth] of the right to appointed counsel.” Ark. Code Ann. § 9-27-316(b)(1)(B). Instead, if the family does not retain counsel, the court appoints counsel to represent the youth. Ark. Code Ann. § 9-27-316(c).
Waiver of Counsel
In Arkansas, a young person can waive their right to counsel “only upon a finding by the court from clear and convincing evidence, after questioning the juvenile, that:
- The youth understands the full implications of the right to counsel;
- The youth freely, voluntarily, and intelligently wishes to waive the right to counsel; and
- The parent, guardian, custodian, or counsel for the youth has agreed with the youth’s decision to waive the right to counsel.” Ark. Code Ann. § 9-27-317(a).
Ark. Code Ann. § 9-27-317(c) outlines the factors the court must consider before accepting any waiver by the youth and their parent, guardian, or custodian. Some of the factors include the youth’s maturity, whether the waiver was coerced, and whether the waiver was recorded. Id.
If the waiver is not made in the presence of the court, it must “be in writing and signed by the [youth].” Ark. Code Ann. § 9-27-317(h).
Waiver of counsel will not be accepted by the court:
- “[I]n any case in which the parent, guardian, or custodian has filed a petition against the juvenile, initiated the filing of a petition against the [youth], or requested the removal of the [youth] from the home.” Ark. Code Ann. § 9-27-317(d).
- “[I]n any case in which counsel was appointed due to the likelihood of the [youth]’s commitment to an institution.” Ark. Code Ann. § 9-27-317(e).
- “[W]hen a [youth] has been designated an extended juvenile jurisdiction offender.” Ark. Code Ann. §§ 9-27-317(f), 9-27-504(b).
- “[W]hen a [youth] is in the custody of the Department of Human Services, including the Division of Youth Services.” Ark. Code Ann. § 9-27-317(g).
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 Arkansas, a detention hearing must occur within 72 hours after the young person is taken into custody. Ark. Code Ann. § 9-27-313(d)(1)(C). If the time period ends on a weekend or holiday, then the hearing will be held on the next business day. Ark. Code Ann. § 9-27-313(d)(1)(C). Provisions for the detention of juveniles are found in Ark. Code Ann. §§ 9-27-313, 9-27-326, 9-27-336.
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. Youth in Arkansas seem to have a right to counsel at a violation of probation and revocation hearing because Ark. Code Ann. § 9-27-339(c) requires the juvenile’s attorney to be served with the petition, which implies that the juvenile has a right to counsel at the probation revocation hearing.
In Arkansas, youth are entitled to counsel on appeal because counsel’s role continues throughout any appeal, unless counsel is permitted by the court to withdraw. Ark. Code. Ann. § 9-27-343(a); Ark. R. App. P. 16(a). Additionally, Arkansas case law also guarantees youth the right to counsel on appeal. Gilliam v. State, 808 S.W.2d 738 (Ark. 1991).
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 Arkansas:
- The youngest age at which a young person can be adjudicated delinquent is 10. Ark. Code Ann. §§ 9-27-303(15), 9-27-306(a)(1)(A)(i).
- Juvenile court has jurisdiction in matters in which a youth (age 10 to 18 years old) is alleged to have committed a delinquent act, which, if committed by an adult, would be a felony, misdemeanor, or violation. Ark. Code Ann. §§ 9-27-303(15)(A)(i), 9-27-306(a)(1)(A)(i). Juvenile court can retain jurisdiction over a youth until age 21, provided that the offense allegedly committed occurred before the youth turned 18. Ark. Code Ann. §§ 9-27-306(a)(1)(A)(ii), 9-27-331(a)(1), 9-28-206(a).
- The state can request an extended juvenile jurisdiction designation in a delinquency petition or file a separate motion. Ark. Code Ann. § 9-27-501.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Arkansas has two ways in which a youth can be prosecuted in adult court.
- Discretionary Judicial Waiver: The state has discretion to file a motion in juvenile court requesting that a case be transferred to adult court or to designate the youth as an extended juvenile jurisdiction offender (subject to juvenile disposition and adult sentence) if the case involves a youth 14 or 15 years old at the time when they allegedly committed certain enumerated offenses. Some of these offenses include: possession of a handgun on school grounds; aggravated assault; and when a young person is at least 14 years old and engages in conduct that constitutes a felony. Ark. Code Ann. § 9-27-318(b).
- Direct Filing: The state also has discretion whether to charge a youth with an offense in juvenile or adult court if the youth is (1) at least 16 and allegedly committed an offense that would be considered a felony if committed by an adult or (2) is at least 14 years old at the time they allegedly committed certain enumerated offenses. Ark. Code Ann. § 9-27-318(c).
In addition to youth being transferred from juvenile court to criminal court, a youth charged in criminal court can be transferred to juvenile court. Ark. Code Ann. § 9-27-318(e). At a transfer hearing, whether in juvenile or criminal court, the judge must consider statutorily listed factors to determine whether to transfer the child to a different court. Ark. Code Ann. § 9-27-318(g). In some circumstances, a criminal court judge “shall” enter a juvenile delinquency disposition. Ark. Code Ann. § 9-27-318(j).
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 Arkansas. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.