Juvenile Indigent Defense Delivery System
Massachusetts provides counsel to indigent youth through the Committee for Public Counsel Services (CPCS), the state public defender agency for Massachusetts. Mass. Gen. Laws Ann. ch. 211D, § 1. In 1992, the Youth Advocacy Division (formerly the Youth Advocacy Project) was established within CPCS to provide defender services to youth. In addition to CPCS staff attorneys, YAD includes several hundred private attorneys with whom CPCS contracts, trains, and certifies to accept delinquency cases. In order to represent youth, these attorneys “must comply with rigorous CPCS Performance Standards, annual caseload limits, continuing legal education requirements, supervision, oversight, and other requirements.” Additionally, private counsel must be accepted to a CPCS-contracted bar advocate program that provides “legal services delivery systems and professional oversight” in each county. The vast majority of youth accused of crimes in Massachusetts are represented by these private attorneys. The indigent defense system is 100% state funded.
Massachusetts youth are tried by jury in delinquency cases unless the youth files a written waiver and consents to be tried by the court without a jury. Mass. Gen. Laws Ann. ch. 119, § 55A.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. In Massachusetts, all delinquency and youthful offender proceedings in Juvenile Court are governed by the Massachusetts Rules of Criminal Procedure. Mass. R. Crim. P. 1(b). However, Massachusetts law clearly states that proceedings against youth are not deemed criminal proceedings. Mass. Gen. Laws Ann. ch. 119, § 53. Special procedures for the hearing of youth offenses have been established under Chapter 119 of the General Laws of Massachusetts and are “designed to treat [youth] as children in need of aid, encouragement and guidance, rather than as criminals.” Reporters’ Notes, Mass. R. Crim. P. 8.
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 Massachusetts, youth in Juvenile Court delinquency or youthful offender proceedings have the right to counsel at any proceeding that could result in commitment to the custody of the Department of Youth Services. Mass. R. Crim. P. 8. If a youth appears unrepresented at any proceeding “where the party has a right to be represented by counsel under the law of the Commonwealth”,” the judge must advise the youth and their parent or legal guardian of the availability of counsel at reduced or no cost if found financially eligible . Mass. Sup. Ct. R. 3:10, § 2. . In delinquency and youthful offender proceedings, youth are afforded the same rights and protections as adults in criminal proceedings. Mass. Gen. Laws Ann. ch. 218, § 59; Mass. R. Crim. P. 1. Specifically, this includes the right to counsel at:
- The initial appearance and arraignment. Mass. R. Crim. P. 7(b)(2);
- Transfer hearings. CPCS Assigned Counsel Manual, Policies and Procedures, ch. 4(C), § 3;
- Youthful offender prosecutions, CPCS Assigned Counsel Manual, Policies and Procedures, ch. 4(C);
- Some interlocutory appeals. CPCS Assigned Counsel Manual, Policies and Procedures, ch. 4(C), § 5.k;
- Appeals from final judgments. CPCS Assigned Counsel Manual, Policies and Procedures, ch. 4(C), § 9.
Determination of Indigence
All youth are entitled to appointed counsel, regardless of the finances of their parents or guardians. Mass. Sup. Ct. R. 3:10, § 6A. The court may, after counsel has been appointed, determine that the parent or the guardian of a youth who has been appointed counsel is either not indigent or indigent but able to contribute to the cost of counsel. If so, the parent or guardian shall be ordered to pay toward the cost of representation, unless they have an adverse interest in the proceeding or the youth has been removed from their custody by a court. Mass. Sup. Ct. R. 3:10, § 6A; Mass. Gen. Laws Ann. ch. 119, § 29A. A person is considered indigent if they receive certain types of public assistance, have net income less than or equal to 125% of the federal poverty threshold, or are unable to hire a lawyer and afford basic life necessities. Mass. Gen. Laws Ann. ch. 261, § 27A(a). If the court finds that the parent or guardian is not indigent, the parent must pay $300 toward the cost of the child’s public defender. Even if the parent is determined to be indigent, the court can still “order the parent to pay a reasonable amount toward the cost of appointed counsel.” Mass. Gen. Laws Ann. ch. 119, § 29A. The failure to pay required fees by a youth’s parents or guardians cannot be grounds for withholding or revoking appointed counsel. Mass. Sup. Ct. R. 3:10, § 11(c).
Waiver of Counsel
In Massachusetts, waiver of counsel in Juvenile Court proceedings is governed by the same rules that govern waiver by adults in criminal court. Mass. Gen. Laws Ann. ch. 218, § 59; Mass. R. Crim. P. 1. In order to waive counsel, a party must sign a written waiver that is certified by a judge who has informed them of their right to counsel. Mass. Sup. Ct. R. 3:10, § 3. Before allowing waiver of counsel, a judge must find that the party is competent and is waiving counsel knowingly and voluntarily. Mass. Sup. Ct. R. 3:10, § 3.
In Massachusetts, a detention hearing must occur within 24 hours of a child entering any detention facility. Mass. Dist. Ct. Standing Order 2-88; Mass. R. Crim. P. 3.1(a). Provisions for the detention of youth are found in Chapter 119 of the Massachusetts General Laws and Rule 3.1 of the Massachusetts Rules of Criminal Procedure.
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. Massachusetts statutes list no post-disposition proceedings at which youth have a right to counsel, but court rule indicates that youth may be entitled to counsel for post-disposition relief. Specifically, the judge has the discretion to assign/appoint counsel to represent a defendant in the preparation and presentation of motions. “The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule.” Mass. R. Crim. P. 30(c)(5). There is a continuing duty to provide representation to youth in post-trial proceedings, including at some meetings related to a client’s commitment to the Department of Youth Services. CPCS Assigned Counsel Manual, Policies and Procedures, ch. 4(C), § 9.b.ii-iii.
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 Massachusetts:
- The youngest age at which a youth can be adjudicated delinquent is seven. Mass. Gen. Laws Ann. ch. 119, § 52;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court. Mass. Gen. Laws Ann. ch. 119, § 52;
- Juvenile court can retain jurisdiction over certain youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18 years old. Mass. Gen. Laws Ann. ch. 119, § 72(b).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. In Massachusetts, youth ages fourteen and older charged with first- or second-degree murder are tried in adult criminal courts. Mass. Gen. Laws Ann. ch. 119, § 74.
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 Massachusetts. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.