Juvenile Indigent Defense Delivery System
Kansas provides counsel to indigent youth at the county level. The Kansas State Board of Indigent Defense Services handles adult felony representation through several regional defender offices, but does not administer juvenile indigent defense unless the youth is charged as an adult with a felony or is appealing from a decision to transfer the youth into adult court. Kan. Admin. Regs. 105-1-1(b)(1), (a)(9). Any public defender, with the director’s approval, can choose to accept juvenile appointments; any public defender may refuse to accept any juvenile appointments. Kan. Admin. Regs. 105-21-4.
The Kansas Juvenile Justice Oversight Committee was established to oversee juvenile reform and all state and local juvenile programs must abide by their rules. Kan. Stat. Ann. § 75-52,161(a). The oversight committee is responsible for identifying and recommending evidence-based training models for juvenile justice-involved staff. Kan. Stat. Ann. § 75-52,161(d)(11). The Kansas advisory group on juvenile justice and delinquency prevention is responsible for overseeing programs that reduce the effect of “racial, geographic and other biases” on youth in the juvenile justice system. Kan. Stat. Ann. § 75-7007(g).
Kansas youth have a right to a trial by jury in felony or misdemeanor cases if a request is made in writing within 30 days from the date of the youth’s entry of a plea of not guilty (unless the time requirement is waived by the court). Kan. Stat. Ann. § 38-2357(a)(1).
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Kansas does not have specific juvenile court rules at the statewide level, but Kansas Supreme Court rules for other proceedings (such as the Rules Relating to District Courts) 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 on or delineating that right.
In Kansas, youth in juvenile court have the right to counsel at every stage of the proceedings, including detention hearings and appeals. Kan. Stat. Ann. §§ 38-2306(a)-(b), 38-2343(e). If no retained attorney is present at the detention hearing, the court will appoint counsel for the youth and may recess the hearing for 24 hours so the attorney can attend the hearing. Kan. Stat. Ann. § 38-2343(d).
When youth appear before the court, the court will inform the youth and their parent of the right to counsel; however, if the parent fails to retain counsel for the youth, the court will appoint counsel. Kan. Stat. Ann. § 38-2306(a). Whenever the court appoints counsel for youth, the associated expenses may be assessed to the youth, their parent, or both. Kan. Stat. Ann. § 38-2306(a).
Upon first appearance before the court in response to a complaint, the court must allow the youth time to consult with counsel before requiring the youth to enter a plea. Kan. Stat. Ann. § 38-2344(a).
Determination of Indigence
Kansas has no presumption of indigence in juvenile court proceedings. However, whenever a youth fails to retain an attorney, the court must appoint one. Kan. Stat. Ann. § 38-2306(a). The court will determine whether to assess the appointed counsel’s expense to the youth, parent, or both. Kan. Stat. Ann. § 38-2306(a).
Waiver of Counsel
Kansas does not have a specific juvenile statute, rule, or case law addressing a youth’s waiver of counsel. A parent, however, may not waive the youth’s right to an appointed counsel. Kan. Stat. Ann. § 38-2333(c). The statute implies that youth under the age of 14 may waive their right to counsel after the youth confers with a parent or attorney. Kan. Stat. Ann. § 38-2333(a).
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 Kansas, a detention hearing must be held within 48 hours of the youth being detained, excluding weekends and holidays. Kan. Stat. Ann. § 38-2343(a).
Provisions for the detention of youth are found in Kan. Stat. Ann. §§ 38-2331, 38-2332, 38-2343, 38-2260.
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 Kansas, the right to counsel extends to “every stage of the proceedings,” and “an attorney appointed for a [youth] shall continue to represent the [youth] at all subsequent court hearings in the proceeding.” Kan. Stat. Ann. § 38-2306(a)-(b). Presumably, youth thus have a right to counsel in hearings on violations of probation or conditions of placement, and in hearings to modify a sentence. Kan. Stat. Ann. §§ 38-2368 and 38-2367. In addition to these hearings, youth have a right to counsel in appellate proceedings, unless a waiver is granted by the court for good cause. Kan. Stat. Ann. § 38-2306(b).
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 Kansas:
- The youngest age at which a youth can be adjudicated delinquent is 10, Kan. Stat. Ann. 38-2302(n);
- Juvenile 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. Kan. Stat. Ann. § 38-2302(n);
- Juvenile court can retain jurisdiction over youth in certain circumstances until age 21 or 23, provided that the offense alleged to have been committed occurred before the youth turned 18, Kan. Stat. Ann. § 38-2304(d)-(e);
- Juvenile court does not have jurisdiction over a youth under the age of 18 who has previously been convicted as an adult. Kan. Stat. Ann. § 38-2302(s)(3).
The maximum duration of commitments (including conditional release periods) extends to age 22 and 6 months for certain sentencing matrix classifications, but the court can retain jurisdiction of the case until the offender turns age 23. Kan. Stat. Ann. § 38-2369(a).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Kansas has one way that youth can be prosecuted as adults:
- The district attorney may always motion, prior to the evidentiary hearing, to have a case transferred to adult court if the youth is 14 years or older; and the presumption of juvenile status must be rebutted by a preponderance of the evidence. Kan. Stat. Ann. § 38-2347(a)(1).
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 Kansas. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.