Juvenile Indigent Defense Delivery System
Louisiana provides counsel to indigent youth at the judicial district level. All youth are presumed to be indigent and the court will either appoint counsel or refer the youth for representation by the district public defender. La. Child. Code Ann. art. 320(A); 809(A). The Louisiana Public Defender Board, an oversight body, employs a Deputy Public Defender, who is the Director of Juvenile Defender Services. The Director of Juvenile Defender Services must:
- “Assist the state public defender in working with criminal justice stakeholders, including judges, district attorneys, sheriffs, probation officers, and law enforcement officials to promote sound juvenile justice policies in relation to fair adjudication processes, and placement and treatment of [youth] charged in delinquency proceedings that focus on rehabilitation of the offender;
- Promote positive change in educational opportunities and mental health services and other treatment services for [youth] in the court system.
- Ensure that board policies and public pronouncements properly recognize that children and young adults do not possess the same cognitive, emotional, decision-making, or behavioral capacities as adults and, as such, require that special attention be given to the representation of [youth] to ensure uniformly competent representation.
Perform all other duties assigned by the state public defender or the board.” La. Rev. Stat. Ann. § 15:154(B).
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. Louisiana’s juvenile courts are governed by the Rules for Proceedings in District Courts, Family Courts, and Juvenile Courts.
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 Louisiana, a youth’s right to counsel is governed by a variety of statutes. Under Louisiana law, youth in juvenile court have the right to counsel at:
- Every stage of delinquency proceedings. La. Child. Code Ann. art. 809, 848;
- Detention hearings. La. Child. Code Ann. art. 821(A);
- Adjudication hearings. La. Child. Code Ann. art. 855(B)(4);
- Probation and parole revocation hearings. La. Child. Code Ann. art. 810(D)(3);
- Appeals. La. Child. Code Ann. art. 848;
- Any time when “appointment of counsel is otherwise required in the interests of justice.” La. Child. Code Ann. art. 810(C).
A youth must be informed of their right to be represented by counsel:
- By the court at the continued custody hearing, if not earlier. La. Child. Code Ann. art. 821(A).
- By a right to counsel form served on the child and their parents along with the petition. La. Child. Code Ann. art. 847.
- “When the child appears to answer the petition,” the court shall determine that the child “is capable of understanding statements” about their right to be represented by an attorney. La. Child. Code Ann. art. 855(B)(4).
Determination of Indigence
In Louisiana, “for purposes of the appointment of counsel, children are presumed to be indigent.” La. Child. Code Ann. art. 320(A). However, parents may be required to pay for part or all of counsel’s services for their children accused of delinquent acts, unless the parents are indigent. La. Child. Code Ann. art. 848; 321(E). A determination of indigency may be made by the court at any stage of the proceedings. La. Child. Code Ann. art. 320(B). The court will determine indigency through a hearing, where the judge will consider any income, property owned, outstanding obligations, and the number and ages of dependents. La. Child. Code Ann. art. 848, 320(C)(1).
All youth accused of delinquency and their parents must be served with the right to counsel form with the petition. La. Child. Code Ann. art. 847. The form explains that if they cannot afford a lawyer, the court will appoint one for the child, and if the parents can afford a lawyer but do not hire one, the court may appoint one for the child and require the parents to pay for it. La. Child. Code Ann. art. 848.
Waiver of Counsel
If “the interests of the child and the adult consulting with the child conflict,” the court must appoint counsel for the child. La. Child. Code Ann. art. 810(C). The court must also appoint counsel whenever it is “otherwise required in the interest of justice.” La. Child. Code Ann. art. 810(C)
A youth may waive their right to counsel:
(1) After “consultation with an attorney, parent, or caretaker;”
(2) If “both the child and the adult consulting with the child . . . have been instructed by the court about the child’s rights and the possible consequences of waiver;” and
(3) If “the child is competent and is knowingly and voluntarily waiving [their] right to counsel.” La. Child. Code Ann. art. 810 (A).
A youth cannot waive their right to counsel:
“(1) In proceedings in which it has been recommended to the court that the child be placed in a mental hospital, psychiatric unit, or substance abuse facility, nor in proceedings to modify said dispositions;
(2) In proceedings in which [they are] charged with a felony-grade delinquent act; or
(3) In probation or parole revocation proceedings.” La. Child. Code Ann. art. 810(D).
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 Louisiana, when a youth is taken into custody, it is not considered an arrest. La. Child. Code Ann. art 812.
In Louisiana, a youth must be taken to a juvenile detention center if they have been taken into custody for a felony-grade delinquent act or for a misdemeanor-grade delinquent act based upon an offense against the person. La. Child. Code Ann. art 815(B). For any other misdemeanor-grade delinquent act, a youth may be subject to custody in juvenile detention or may be placed in a shelter care facility. La. Child. Code Ann. art 815(C). However, if a youth is under the age of thirteen, the youth may not be detained in a juvenile detention center for a misdemeanor-grade delinquent act. La. Child. Code Ann. art 815(F).
A judge must review an officer’s statement on probable cause within 48 hours of the youth being taken into custody. La. Child. Code Ann. art. 814(D). If the youth is not released, a continued custody hearing must occur within three days of the youth entering the detention center. La. Child. Code Ann. art. 819. In Louisiana, the court may determine a youth requires security, in the form of bail, to be released from detention. La. Child. Code Ann. art 823, 824, 825. Certain youth charged with a delinquent act that would be considered a capital offense will not be admitted to bail. La. Child. Code Ann. art 823.
Provisions for the detention of youth are found in La. Child. Code Ann. art. 306, 812, 813, 814, 815, 817, 819, 820 821, 822, and 886.
Provisions for bail and conditions of release are found in Louisiana statute. La. Child. Code Ann. art 823, 824, 825, 826, 827, 828, 829, 830, 831.
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 Louisiana, youth have a right to counsel in the following post-disposition proceedings:
- Revocation of probation hearings. La. Child. Code Ann. art 810(D).
- Revocation of parole hearings. La. Child. Code Ann. art 810(D).
- La. Child. Code Ann. art. 848.
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. In Louisiana:
- The youngest age at which a youth can be adjudicated delinquent is ten. La. Child. Code Ann. art 804(3).
- After June 30, 2020, juvenile court has jurisdiction over offenses alleged to have been committed prior to a youth’s 18th. After age 18, the youth is charged in adult court. La. Child. Code Ann. art 804(1)(c)(i);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 17 or 18 (see above). La. Child. Code Ann. 804.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Louisiana has three ways that youth can be prosecuted as adults:
- Discretionary Transfer: Discretionary waiver can be used for youth age 14 and older for certain serious, violent offenses. La. Child. Code Ann. art. 857(A).
- Prosecutorial discretion can be used for youth age 15 and older for certain felonies. La. Child. Code Ann. art. 305(B).
- Mandatory Waiver/Statutory Exclusion: Statutory exclusion and mandatory waiver are required for youth age 15 and older for murder, rape, and kidnapping. La. Child. Code Ann. art. 305(A).
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 Louisiana Assessment was completed in 2001.
Current through July 2018.