Juvenile Indigent Defense Delivery System
Georgia primarily provides counsel to youth through a statewide public defender system, the Georgia Public Defender Council (GPDC). Ga. Code Ann. § 17-12-21 (2020). GPDC is responsible for ensuring the effective representation of all indigent youth charged in any delinquency case that places them at risk of confinement, commitment, or probation. Ga. Code Ann. § 17-12-1(c) (2020). GPDC oversees staffed circuit public defender offices in 43 of 49 judicial circuits across the state. In each of these offices, the Circuit Public Defender must establish a juvenile division to specialize in youth representation. Ga. Code Ann. § 17-12-23(a), (c) (2020). Counties provide the majority of funding for juvenile defense in their county, while the state provides partial funding. Ga. Code Ann. § 17-12-34 (2020).
The GPDC does not provide representation through a Circuit Public Defender Office in Gwinnett, Cobb, Houston, Forsyth, Douglas, and Cherokee. To get representation in one of those counties, one needs to contact the county directly.
Georgia has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceeding. GPDC provides training for juvenile public defenders; and the Council of Juvenile Court Judges offers education seminars on juvenile law and procedure, child development and psychology, sociological theories relative to delinquency, and breakdown of the family structure for its judges. Ga. Code Ann. § 17-12-9; 15-11-59 (2020). The GPDC is responsible for ensuring the effective representation of indigent persons. Ga. Code Ann. § 17-12-1(c) (2020).
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. Georgia’s juvenile court rules are called the Uniform Rules for the Juvenile Courts of Georgia.
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 Georgia, youth in juvenile court “have the right to be represented by an attorney at all proceedings under [the Delinquency Article].” Ga. Code Ann. § 15-11-475(a) (2020). “At arraignment, the court shall inform a child of: . . . (4) [h]is or her due process rights, including the right to an attorney and to an appointed attorney. . .” Ga. Code Ann. § 15-11-511(a)(4) (2020). “The court shall appoint an attorney to represent an alleged delinquent child whose liberty is in jeopardy and who is an indigent person.” Ga. Code Ann. § 15-11-511(c) (2020). “[E]ntitlement to the services of counsel begins not more than three business days after the indigent person is taken into custody or service is made upon him or her of the charge, petition, notice, or other initiating process and such person makes an application for counsel to be appointed.” Ga. Code Ann. § 17-12-23(b) (2020).
Determination of Indigence
Georgia has no presumption of indigence in juvenile court proceedings. “The circuit public defender, any other person or entity providing indigent defense services, or the system established pursuant to Code Section 17-12-80 shall determine if a person or [youth] arrested, detained, or charged in any manner is an indigent person entitled to representation under this chapter.” Ga. Code Ann. § 17-12-24(a) (2020). Qualification for a public defender as an indigent defendant for Georgia youth is determined, by the parents’ income. Ga. Code Ann. § 17-12-2(6)(B) (2020). Individuals must apply within their county.
Waiver of Counsel
In Georgia, a youth may waive his or her right to counsel only under limited circumstances and only if his or her liberty is not in jeopardy. Ga. Code Ann. § 15-11-475(b)-(c) (2020). “If a child’s liberty is not in jeopardy, he or she may waive the right to counsel at arraignment, provided that such waiver is made knowingly, voluntarily, and on the record.” Ga. Code Ann. § 15-11-511 (2020). Parents cannot waive their child’s right to counsel. Ga. Code Ann. § 15-11-475(b) (2020).
Georgia expressly allows for the use of bail in juvenile court. “All children alleged to have committed a delinquent act shall have the same right to bail as adults.” Ga. Code Ann. § 15-11-507(a) (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 Georgia, “[a] detention hearing shall be held to determine whether preadjudication custody of an alleged delinquent child is required. If such hearing is not held within the time specified, such child shall be released from detention or foster care.” If “not released from preadjudication custody, a detention hearing shall be held promptly and not later than:
- Two days after such child is placed in pre-adjudication custody if such child is taken into custody without an arrest warrant; or
- Five days after such child is placed in preadjudication custody if such child is taken into custody pursuant to an arrest warrant.” Ga. Code Ann. § 15-11-506(b) (2020).
“If the detention hearing cannot be held within two days . . . because the date for the hearing falls on a weekend or legal holiday, the court shall review the decision to detain such child and make a finding based on probable cause within 48 hours of such child being placed in preadjudication custody.” Ga. Code Ann. § 15-11-506(c) (2020).
Provisions for the detention of youths are found in Ga. Code Ann. §§ 15-11-500-508, 15-11-472 (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 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.
In Georgia, the statute providing a general right to counsel in delinquency matters affords youth with the right to counsel “at all proceedings under this article.” Ga. Code Ann. § 15-11-600 (2020). The article referenced includes statutes covering the following post-disposition proceedings: probation Ga. Code Ann. § 15-11-605 (2020), termination of order of disposition Ga. Code Ann. § 15-11-607 (2020), probation revocation Ga. Code Ann. § 15-11-608 (2020), motions for early release GA. Code Ann. § 15-11-70 (2020), and appeals GA. Code Ann. § 15-11-35 (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 child who comes within the jurisdiction of the state’s juvenile courts is defined by state law.
- No statute specifies the youngest age at which a youth can be adjudicated delinquent;
- “’Child’ means any individual who is: (A) Under the age of 18 years; (B) Under the age of 17 years when alleged to have committed a delinquent act; (C) Between 18 and 21 years of age and receiving extended care youth services from DFCS; (D) Under the age of 21 years who committed an act of delinquency before reaching the age of 17 years and who has been placed under the supervision of the court or on probation to the court for the purpose of enforcing order of the court.” Ga. Code Ann. 15-11-2(10) (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Georgia has three ways that youth can be prosecuted as adults:
- Discretionary Transfer: The juvenile court may hold a hearing to transfer a youth’s case to adult criminal court in which the court determines that there is probable cause to believe the child committed the offense and the “petition alleges that such child: (A) Was at least 15 years of age at the time of the commission of the offense and committed an act which would be a felony if committed by an adult; or (B) Was 13 or 14 years of age and either committed an act for which the punishment is loss of life or confinement for life in a penal institution or committed aggravated battery resulting in serious bodily injury to an in serious bodily injury to an alleged victim who is not a public safety officer as such term is defined in Code Section 16-5-19.” Ga. Code Ann. § 15-11-561(a)(3) (2020). The juvenile court shall consider mitigating factors including but not limited to age, culpability, patterns of behavior, and home environment in determining the transfer. Ga. Code Ann. § 15-11-562(a) (2020).
- Statutory Exclusion: Adult criminal (superior) court has exclusive original jurisdiction over the trial of any youth, 13 to 17 years-old, alleged to have committed any of the offenses delineated in subsection (b). Ga. Code Ann. § 15-11-560(b) (2020). The prosecutor may opt to reverse transfer these cases to juvenile court. Ga. Code Ann. § 15-11-560(d) (2020). Alternatively, the superior court may transfer the cases involving a few of the above delineated offenses to juvenile court. Ga. Code Ann. § 15-11-560(e) (2020).
- Concurrent Jurisdiction: the court shall have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in a superior court and for which an adult may be punished by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution. Ga. Code. Ann. § 15-11-560(a) (2020).
Involvement with the delinquency system can affect a youth’s employment, housing, and educational opportunities, leaving the young person 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 Georgia. We hope to do so in the near 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 Georgia Assessment was completed in 2001.