Juvenile Indigent Defense Delivery System
Kentucky provides counsel to indigent youth through a statewide Department of Public Advocacy (DPA) that operates indigent defense offices in all counties. Youth accused of status offenses and delinquent acts are entitled to be represented by the DPA. Ky. Rev. Stat. Ann. § 31.110. The DPA has a Post-Trial Division which provides representation for clients facing sentences of confinement arising from a juvenile court order. The Post-Trial Division has a specialized Juvenile Post Disposition Branch which supports youth confined in both residential treatment facilities and detention centers with representation at resentencing hearings, assistance with securing appropriate aftercare, aid for youth victims of human trafficking, and representation in appeals.
The DPA must develop and promulgate “standards and regulations, rules, and procedures for administration of the defense of indigent defendants,” but Kentucky has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings. Ky. Rev. Stat. Ann. § 31.030(4). The DPA has published a juvenile advocacy manual.
In Kentucky, the Chief District Judge may establish a Juvenile Court Advisory board. This board must visit each juvenile facility in the county and provide the court with a report on the conditions of the facilities. Ky. Rev. Stat. Ann. § 605.140.
Kentucky has juvenile court rules that apply to certain offenses. With a few exceptions, including school, tobacco and alcohol-related offenses, the Rules of Criminal Procedure apply to juvenile delinquency proceedings. Ky. Rev. Stat. Ann. §§ 610.080(2), 610.010(2); Juv. Ct. R. Proc. & Prac., r. 1.C. The Juvenile Court Rules of Procedure and Practice apply to youth considered status offenders, youthful offenders, and public offenders. Juv. Ct. R. Proc. & Prac., r. 1.B.
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 Kentucky, a youth’s right to counsel is governed by both juvenile code statutes and Department of Public Advocacy statutes. When read together, the statutes provide youth with a right to counsel in delinquency and status proceedings “at all stages of the matter beginning with the earliest time when a person providing [their] own counsel would be entitled to be represented by an attorney.” Ky. Rev. Stat. Ann. § 31.110(2)(a). The statutes further imply youth have a right to counsel during interrogation. Ky. Rev. Stat. Ann. §§ 31.110(1), 610.030(4)(b). The statutes specifically delineate a right to counsel during:
- Detention hearings;
- Adjudicatory hearings;
- Disposition hearings;
- Revocation of probation;
- Hearings related to conditions of confinement;
- Other post-disposition proceedings (with some exceptions);
- Ky. Rev. Stat. Ann. §§ 610.060, 610.290(2), 31.110.
When a youth appears in court, the court shall explain to the youth and their parents, guardian, or custodian their respective rights to counsel and, if the youth and their parents, guardian, or custodian are unable to obtain counsel, shall appoint counsel for the youth and may appoint counsel for the parents, guardian, or custodian as provided by law. Ky. Rev. Stat. Ann. § 610.060(1)(a).
For youth in post-disposition actions, if the court and DPA finds that a “reasonable person with adequate means” would not be willing to bring the action at their own expense, the youth no longer has the right to representation. Ky. Rev. Stat. Ann. § 31.110(2)(c).
A youth maintains the right to counsel in subsequent proceedings even if they previously retained counsel at their own expense or waived counsel at an earlier stage. Ky. Rev. Stat. Ann. § 31.110(3).
Determination of Indigence
Kentucky has no presumption of indigence in juvenile court proceedings. A determination of indigence is to be made “no later than [the] first appearance in court” and then at every step in the proceedings. Ky. Rev. Stat. Ann. § 31.120(1)(a), (b). At arraignment and at each stage of the proceedings, “the court shall conduct a nonadversarial hearing to determine whether a person who has requested a public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs.” Ky. Rev. Stat. Ann. § 31.211(1).
When an unemancipated minor requests counsel, the court considers the custodial parent’s or guardian’s ability to pay. Ky. Rev. Stat. Ann. §§ 31.120, 31.125. Youth and their parent or guardian must complete an affidavit of indigency to determine eligibility as a “needy person.” Ky. Rev. Stat. Ann. § 31.120(3). In its determination of “inability to pay” for counsel, the court uses the same indigency standards as if the parent were a criminal defendant and factors considers such as:
- Income and source of income,
- Property owned,
- Other assets,
- Number and ages of dependents,
- US Department of Labor poverty guidelines,
- Complexity of case. Rev. Stat. Ann. § 31.120(2).
The court may order payment of the youth’s legal expenses by any custodial parent who is not indigent. Ky. Rev. Stat. Ann. §§ 31.125(2), 405.027, 610.060(4). If a youth is in public custody, the parents will not be ordered to pay for the youth’s defense. Ky. Rev. Stat. Ann. § 31.125(3)(b). Parental ability to pay is disregarded if a parent is the victim of the alleged criminal act or the complaining witness against the youth. Ky. Rev. Stat. Ann. § 31.125(4). Regardless of parental ability to pay, the youth must have a lawyer from the time that the right to counsel attaches until a determination of indigency is made. Ky. Rev. Stat. Ann. § 31.125(5).
Waiver of Counsel
In Kentucky, a youth may waive their right to counsel in writing or by the record. Ky. Rev. Stat. Ann. § 31.140. For youth, the court must “(1) conduct a hearing about the child’s waiver of counsel and (2) make specific findings of fact that the child knowingly, intelligently and voluntarily waived [their] right to counsel.” Ky. Rev. Stat. Ann. § 610.060(2). During the waiver hearing, the court will consider the person’s age, education, English language proficiency, and the complexity of the alleged crime. Ky. Rev. Stat. Ann. § 31.140.
A youth’s rights cannot be waived by the youth’s parents, guardian, or person exercising custodial control. Ky. Rev. Stat. Ann § 610.060(1)(e). A youth may not waive counsel for an adjudication, plea, or admission for a felony, a sex offense, or any offense “for which the court intends to impose detention or commitment as a disposition.” Ky. Rev. Stat. Ann. § 610.060(2)(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 Kentucky, a status offender must have a detention hearing within 24 hours of being detained, excluding weekends and holidays. Ky. Rev. Stat. Ann. § 610.265(1). Youth accused of committing a delinquent offense must have a hearing within 48 hours of detention, excluding weekends and holidays. Ky. Rev. Stat. Ann. § 610.265(1). The youth’s “parents, person exercising custodial control or supervision or other responsible adult shall have a right to attend the hearing if such attendance will not unnecessarily delay the hearing.” Ky. Rev. Stat. Ann. § 610.290(2).
Provisions for the detention of youth are found in Ky. Rev. Stat. Ann. §§ 610.010, 610.265, 610.280, 610.290, 610.295, 630.010, 630.040, 630.080, 15A.210, and in Ky. R. Crim. Pro., r. 3.05, 3.14.
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. Kentucky statutes list several post-disposition proceedings at which youth have a right to counsel.
In Kentucky, youth have a right to counsel in the following post-disposition proceedings:
- Any post-disposition proceeding that the attorney and the youth considers appropriate. However, if DPA and the court “determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at [their] own expense, there shall be no further right to be represented by counsel.” Ky. Rev. Stat. Ann. § 31.110(2)(c).
- A youth, whether indigent or not, “who is in the custody of the Department of Juvenile Justice and is residing in a residential treatment center or detention center is entitled to be represented on a legal claim related to [their] confinement involving violations of federal or state statutory rights or constitutional rights.” Ky. Rev. Stat. Ann. § 31.110(4).
- Revocation of probation. Ky. Rev. Stat. Ann. § 31.110(2)(a).
- Appeals. Ky. Rev. Stat. Ann. § 31.110(2)(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 Kentucky:
- No statute specifies the youngest age at which a youth can be adjudicated delinquent.
- 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. Ky. Rev. Stat. Ann. § 610.010(1).
- Juvenile court can retain jurisdiction until a youth turns 19 if they are committed in a placement or treatment facility and the youth was 16 or older when adjudicated for a felony offense and had previously been adjudicated delinquent or as a public offender for a felony offense. Ky. Rev. Stat. Ann. § 635.090(2).
If the youth is declared a juvenile sex offender and receiving proscribed treatment, the juvenile court may retain jurisdiction over the youth until they complete the treatment, but treatment must end before the youth turns 21. Ky. Rev. Stat. Ann. § 635.515(1). Likewise, the court may authorize an extension of a youth’s commitment up to the age of 21 for the purpose of permitting the Department of Juvenile Justice or the cabinet to assist the youth in establishing independent living arrangements. Ky. Rev. Stat. Ann. § 610.110(6).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Kentucky has two ways that youth can be prosecuted as adults:
- Discretionary Transfer: Upon motion by the county attorney, youth can be proceeded against as a youthful offender for the following:
- Youth 14 or older at the time they allegedly committed a capital offense or a class A or B felony. Ky. Rev. Stat. Ann. § 635.020(2).
- Youth 16 or older at the time they allegedly committed a Class C or D felony if the youth has also previously been adjudicated delinquent as a public offender for a felony offense. Ky. Rev. Stat. Ann. § 635.020(3).
- Youth previously convicted as a youthful offender and under 18 at the time they allegedly committed a subsequent felony Ky. Rev. Stat. Ann. § 635.020(5).
- Youth 18 or older that allegedly committed a felony before their 18th birthday. Ky. Rev. Stat. Ann. § 635.020(7).
- Mandatory Waiver: Youth 14 or older at the time they allegedly committed a felony with a firearm are transferred to the Circuit Court as an adult. Ky. Rev. Stat. Ann. § 635.020(4).
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 Kentucky Assessment was completed in 2002.
Current through July 2018.