Juvenile Indigent Defense Delivery System
Hawaii provides counsel to indigent youth through a statewide public defender office governed by an appointed defender council. Haw. Rev. Stat. Ann. §§ 802-8, 802-9. The public defender represents youth charged with delinquent acts and status offenses, though in cases of conflict, or in the interest of justice, the youth may be represented by appointed counsel. Haw. Rev. Stat. Ann. §§ 802-1; 571-11, 571-87. Hawaii’s indigent defense system is state-funded.
Hawaii has no statutorily required or recommended training requirements for attorneys representing youth in delinquency proceedings. Likewise, there are no specific standards for attorneys representing youth; however, the Hawaii Rules of Professional Conduct suggest considering age and maturity in two areas: communication with clients and confidentiality. Haw. Rules of Prof’l Conduct, r. 1.4, cmt. 6, r. 3.6 cmt. 2.
In addition to statutes and case law, juvenile and family 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. Hawaii’s delinquency proceedings occur in family court and are governed by the Hawaii Family Court Rules.
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 Hawaii, youth in juvenile court have the right to counsel.
- The court may appoint counsel for the youth in any situation in which it deems it advisable. Haw. Fam. Ct. R., r. 155.
- “When it appears to a judge that a person requesting the appointment of counsel satisfies [indigence requirements], . . . the judge shall appoint counsel or a guardian ad litem to represent the person at all stages of the proceedings, including appeal.” Haw. Rev. Stat. Ann. § 571-87(a).
- Juveniles shall be represented by counsel at all transfer and waiver hearings, including those to adult criminal court. Haw. Fam. Ct. R., r 129.
Determination of Indigence
Hawaii has no presumption of indigence in juvenile court proceedings. Unless otherwise ordered by the court, the Office of the Public Defender makes the initial determination of indigence, based on an investigation and an affidavit or declaration of inability to pay that is signed by the person requesting legal counsel. Haw. Rev. Stat. Ann. § 802-4. Numerous factors are considered. Public defender services will be provided to people determined indigent, subject to review by the court. A person waives the right to counsel by refusing to furnish any information pertinent to the determination of indigence.
Waiver of Counsel
Hawaii does not have a specific juvenile statute or rule addressing a youth’s waiver of counsel. Juvenile case law indicates that a youth may voluntarily, intelligently/knowingly waive his/her right to counsel if the youth fully understands the nature of the charges and potential consequences. In re Doe, 881 P.2d 533, 537 (Haw. 1994). The family court will determine the “extent of [his/her] understanding” by reviewing the “totality of the circumstances” pertaining to the youth’s waiver “with great care.” In re Doe, 881 P.2d 533, 537-38 (Haw. 1994). It is not necessary for a youth to consult with counsel before waiving his/her right. In re Doe, 881 P.2d 533, 537 (Haw. 1994).
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 Hawaii, “No [youth] shall be held in a detention facility for [youth] or shelter longer than twenty-four hours, excluding weekends and holidays, unless a petition or motion for revocation of probation, or motion for revocation of protective supervision has been filed, or unless the judge orders otherwise after a court hearing.” Haw. Rev. Stat. Ann. § 571-32(d).
Provisions for the detention of youth are found in Haw. Rev. Stat. Ann. §§ 571-11, 571-31, 571-31.1, 571-31.2, 571-32, and Haw. Fam. Ct. R., r. 130-136, 155.
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. Hawaii statutes list one post-disposition proceeding at which youth have a right to counsel.
- Appeal. Haw. Rev. Stat. Ann. §§ 571-87(a), 571-54.
Generally, the court may also appoint counsel for youth “in any situation in which it deems advisable.” Haw. Fam. Ct. R., r. 155.
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 (family) courts is defined by state law. In Hawaii:
- No statute specifies the youngest age at which a youth can be adjudicated delinquent;
- Family court has jurisdiction over offenses alleged to have been committed prior to a youth’s 18th birthday; after age 18, the youth is charged in adult court. Haw. Rev. Stat. Ann. § 571-11(1);
- Other courts must transfer any criminal case to family court upon discovering the individual allegedly committed the offense before age 18. Haw. Rev. Stat. Ann. § 571-12;
- Family court can retain jurisdiction over a youth “after the minor becomes 18 years of age until the full term for which any order entered shall have expired,” provided that the offense alleged to have been committed occurred before the youth turned 18. Haw. Rev. Stat. Ann. § 571-13.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Hawaii has two ways that youth can be prosecuted as adults:
- Discretionary Transfer: Juvenile court may transfer cases after amenability for transfer hearing of all youth 16 and older who have committed felony offenses. Haw. Rev. Stat. Ann. § 571-22(a). Juvenile court may transfer cases after amenability for transfer hearing of all youth 14 and older who have committed a class A felony offense, caused serious bodily harm, or had previously been adjudicated delinquent. Haw. Rev. Stat. Ann. § 571-22(b). Factors to be considered for discretionary transfers can be found in Haw. Rev. Stat. Ann. § 571-22(c). Juvenile court may also transfer cases after amenability for transfer hearing of all youth alleged to have committed murder/attempted murder. Haw. Rev. Stat. Ann. § 571-22(d).
- Once an Adult, Always an Adult. Haw. Rev. Stat. Ann. § 571-22(e).
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 Hawaii. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.