Juvenile Indigent Defense Delivery System
Maryland provides counsel to indigent youth through a statewide Maryland Office of the Public Defender. That office is established in the executive branch and comprised of a Public Defender, deputy public defenders, district public defenders, and a panel of private attorneys for conflict cases. Md. Code Ann., Crim. Proc. §§ 16-202, 16-207. The Office of the Public Defender provides juvenile services through 12 district offices and is comprised of 9 divisions at the state level: Appellate, Parental Defense, Major Crimes and Complex Litigation, Post Conviction Defenders, Social Work, Forensics, Juvenile Protection, Mental Health, and Training.
The Public Defender Office and the district offices are directed by a Public Defender. Md. Code Ann., Crim. Proc. § 16-203(a)(1). A Board of Trustees reviews the system’s administration, advises the Public Defender, and coordinates the district advisory boards. Md. Code Ann., Crim. Proc. § 16-302.
Maryland has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings. By law, the Public Defender may “adopt regulations to carry out the purposes” of the Office, but no such regulations currently exist. Md. Code Ann., Crim. Proc. § 16-207(c)(1).
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. Maryland’s delinquency proceedings are governed by the Maryland Rules, Juvenile Causes.
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 Maryland, youth in juvenile court have the right to counsel at every stage of any juvenile proceeding except at a peace order proceeding. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(a), (d); Md. R. Juv. Causes r. 11-106(a). If a youth appears without counsel for a waiver hearing or an adjudicatory hearing, and the youth has not waived the right to counsel, the hearing shall be continued and a public defender shall represent the youth. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(e). Such a continuance cannot be a basis for detaining the youth. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(e)(4).
Determination of Indigence
Maryland has no presumption of indigence in juvenile court proceedings. An individual must apply for services of the Office in order to be deemed eligible. Md. Code Ann., Crim. Proc. § 16-210(a). A person is indigent if they state, under oath and in writing, that they are financially unable to procure counsel without undue hardship. Md. Code Ann., Crim. Proc. § 16-210(a). For individuals whose assets and net income fall below 100 percent of the federal poverty guidelines, their eligibility may be determined without assessment. Md. Code Ann., Crim. Proc. § 16-210(b). The assessment of indigence for individuals whose assets and net annual income equal or exceed 100 percent of the federal poverty guidelines must consider the individual’s assets, disposable net income, the nature of the offense, the burden of gathering information, the length and complexity of the proceedings, and other foreseeable expenses. Md. Code Ann., Crim. Proc. §§ 16-210(c).
A youth is entitled to indigent defense either if their parent is indigent or unwilling to pay for counsel. Md. R. Juv. Causes r. 11-106(b)(2)(a). If it is determined that the youth and parent are not indigent, the court may appoint counsel to represent the youth and compensation for the services “may be assessed against any party.” Md. R. Juv. Causes r. 11-106 (b)(4).
Furthermore, whenever “it appears to the court that the protection of the right of a child requires independent representation, the court may . . . appoint an attorney to represent the interest of the child in that particular action.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-32(a). The cost of such service may be assessed against any parties to the action. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-32(b).
Waiver of Counsel
A youth in Maryland may waive their right to counsel if “the child is in the presence of counsel and has consulted with counsel, and the court determines that the waiver is knowing and voluntary.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(3).
The factors the court must consider before accepting any waiver by a youth is defined by statute and court rules. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(4); Md. R. Juv. Causes r. 11-106(b)(1)
“A parent, guardian or custodian may not waive the child’s right to assistance of counsel.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(b)(2).
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 Maryland, a detention hearing must occur no later than the next court day after the petition is filed unless extended for no more than five days for good cause shown; the petition must be filed immediately upon detention. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-15(d)(1), (2).
Provisions for the detention of youth are found in Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-01, 3-8A-14, 3-8A-15, 3-8A-16, 3-8A-17.2, 3-8A-19, 3-8A-20, 3-8A-22, and in Md. R. Crim. Causes, r. 4-251 and Md. R. Juv. Causes, r 11-113.
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 Maryland, youth in juvenile court have the right to counsel in the following post-disposition proceedings:
- At every stage of any juvenile proceeding except at a peace order proceeding. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-20(a), (d). This may include appeals.
- Any “proceeding when possible incarceration pursuant to a judicial commitment of individuals in institutions of a public or private nature may result.” Md. Code Regs, 14.06.03.04(D).
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 Maryland:
- The youngest age at which a youth can be adjudicated delinquent is seven. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-05(d).
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a youth’s 18thbirthday; after age 18, the youth is charged in adult court. Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-01(c), (d); 3-8A-05(a).
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-07(a), (b).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Maryland has three ways that youth can be prosecuted as adults:
- Discretionary Transfer: For any youth age 15 and older for any alleged offense, or for youth not yet 15 but alleged to have committed a crime which, if committed by an adult, would be punishable by life imprisonment. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-06(a).
- Statutory Exclusion: For youth age 14 and older and alleged to have committed an act which, if committed by an adult, would carry a sentence of life imprisonment, or for youth at least 16 years old and alleged to have committed an enumerated serious felony. Md. Code Ann., Cts. & Jud. Proc. §§ 3-8A-03(d)(1), (4).
- Once an Adult, Always an Adult: “A child who previously has been convicted as an adult of a felony and is subsequently alleged to have committed an act that would be a felony if committed by an adult, unless an order removing the proceeding to the court has been filed under § 4-202 of the Criminal Procedure Article.” Md. Code Ann., Cts. & Jud. Proc. § 3-8A-03(d)(5).
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 Maryland Assessment was completed in 2003.