New Jersey

Juvenile Indigent Defense Delivery System

NJ

New Jersey provides counsel to indigent youth through regional public defender offices coordinated and directed by a statewide Office of the Public Defender. N.J. Stat. Ann. § 2A:158A-24 (2020). The public defender represents youth who are charged as delinquent or as youth in need of supervision in cases where the judge believes the proceeding could result in institutional commitment of the child. N.J. Stat. Ann. § 2A:158A-24 (2020). The state public defender office manages a pool of private attorneys who can be appointed when the public defender has a conflict. N.J. Stat. Ann. § 2A:158A-9 (2020). The state office also has an Office of Juvenile Defense Services that oversees planning, policy, and training for juvenile delinquency cases. Indigent defense is entirely state-funded.

New Jersey has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings. However, the Office of the Public Defender does offer ongoing training to “ensure quality services to its clients.”

Court Rules

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. New Jersey delinquency proceedings are governed by Part V of the Rules Governing the Courts of the State of New Jersey.

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 New Jersey, youth in juvenile court have the right to “counsel at every critical stage in the proceeding which, in the opinion of the court may result in the institutional commitment of the juvenile” “or other consequence of magnitude to any family member.” N.J. Stat. Ann. § 2A:4A-39 (2020); N.J. R. Ch. Div. Fam. Pt. R. 5:3-4(a). “The court shall advise the juvenile and the juvenile’s parents, guardian, or custodian of their right to retain counsel” and have counsel assigned if they cannot afford it. N.J. R. Ch. Div. Fam. Pt. R. 5:3-4(a). Notice of the right to be represented by counsel and the right to appointed counsel is also provided in the court summons. N.J. R. Ch. Div. Fam. Pt. R. 5:20-2(b).

If a child appears at the initial detention hearing without counsel and the court detains the youth, “a second detention hearing shall be held within two court days after the initial hearing at which the juvenile shall be represented by assigned or retained counsel.” N.J. Stat. Ann. § 2A:4A-38(h) (2020); N.J. R. Ch. Div. Fam. Pt. R.5:21-3(a). If a youth is detained prior to adjudication, periodic detention review hearings are held and “the juvenile shall be represented by counsel at all such hearings.” N.J. R. Ch. Div. Fam. Pt. R.5:21-3(c).

Determination of Indigence

New Jersey has no presumption of indigence in juvenile court proceedings. For any defendant younger than 21 years of age, “the question of eligibility for services shall be measured not only in terms of the financial circumstances of the individual, but also in terms of the financial circumstances of the individual’s parents or legal guardians.” N.J. Stat. Ann. § 2A:158A-25 (2020). Financial eligibility is determined by certain criteria, such as the defendant’s finances, the cost of legal representation, and whether the defendant has tried and been unable to find counsel at an affordable cost. N.J. Stat. Ann. § 2A:158A-14 (2020). “The court may, depending upon the financial circumstances of the parents, guardian or custodian, order them to pay the fee of assigned counsel in such amount as it fixes.”  N.J. R. Ch. Div. Fam. Pt. R. 5:3-4(a); see also N.J. Stat. Ann. § 2A:158A-25 (2020).

Waiver of Counsel

A youth in New Jersey may waive his or her right to counsel if the waiver is “accomplished in the following manner:

(1) A juvenile who is found to have mental capacity may not waive any rights except in the presence of and after consultation with counsel, and unless a parent has first been afforded a reasonable opportunity to consult with the juvenile and the juvenile’s counsel regarding this decision. The parent or guardian may not waive the rights of a juvenile found to have mental capacity.

(2) Any such waiver shall be executed in writing or recorded. Before the court may accept a waiver, the court shall question the juvenile] and the juvenile’s counsel to determine if the juvenile is knowingly, willingly, and voluntarily waiving any right. If the court finds after questioning the juvenile that the waiver is not being made voluntarily and intelligently, the waiver shall be denied.

(3) A juvenile who is found to lack mental capacity may not waive any right. A guardian ad litem shall be appointed for the juvenile who may waive rights after consultation with the juvenile and the juvenile’s counsel.”

(4) Waivers shall be executed in the language regularly spoken by the juvenile. N.J. Stat. Ann. § 2A:4A-39(b)(1)-(4) (2020).

Cash Bail

New Jersey expressly prohibits the use of cash bail for youth. “All rights guaranteed to criminal defendants by the Constitution of the United States and the Constitution of this State, except the right to indictment, the right to trial by jury and the right to bail, shall be applicable to cases arising under this act.” N.J. Stat. Ann. § 2A:4A-40 (2020).

Cash Bail

New Jersey expressly prohibits the use of cash bail for youth. “All rights guaranteed to criminal defendants by the Constitution of the United States and the Constitution of this State, except the right to indictment, the right to trial by jury and the right to bail, shall be applicable to cases arising under this act.” N.J. Stat. Ann. § 2A:4A-40 (2020).

Detention Provisions

When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In New Jersey, a detention hearing must occur no later than the morning after the child is placed in detention, including weekends and holidays. N.J. Stat. Ann. § 2A:4A-38(e) (2020); N.J. R. Ch. Div. Fam. Pt. R. 5:21-3(a). If the child is detained beyond the initial detention hearing, a probable cause hearing must be held within two court days after the initial hearing. N.J. Stat. Ann. § 2A:4A-38(i) (2020); N.J. R. Ch. Div. Fam. Pt. R.5:21-3(b). “A detention review hearing with counsel shall be held within 14 court days of the prior detention hearing and if detention is continued, detention review hearings shall be held thereafter at intervals not to exceed 21 court days.” . N.J. Stat. Ann. § 2A:4A-38(j) (2020); N.J. R. Ch. Div. Fam. Pt. R. 5:21-3(c). If a youth is detained pending the adjudicatory hearing, that hearing must “be held no later than 30 days from the date of detention.” N.J. Stat. Ann. § 2A:4A-38(k) (2020).

Provisions for the detention of youth are found in N.J. Stat. Ann. §§ 2A:4A-31 to 2A:4A-38 (2020), and N.J. R. Ch. Div. Fam. Pt. R. 5:21-2, 5:21-3, 5:21-4, 5:21-5, 5:21-6, and 5:22-3.

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.

Post-Disposition Advocacy

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. New Jersey statutes list no post-disposition proceedings at which youth have a right to counsel.

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 New Jersey:

No statute specifies the youngest age at which a juvenile can be adjudicated delinquent. The juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; once 18, the youth is charged in adult court. N.J. Stat. Ann. § 2a:4A-22(a)-(b) (2020). “[T]he court shall have exclusive jurisdiction in all cases where it is charged that a juvenile has committed an act of delinquency. . . .” N.J. Stat. Ann. § 2A:4A-24(a) (2020).

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. New Jersey has one way that youth can be prosecuted as adults:

Upon a motion by the prosecutor, “the court shall waive jurisdiction of a juvenile’s delinquency case without the juvenile’s consent. . . if: (1) the juvenile was 15 years of age or older at the time of the alleged delinquent act; and (2) there is probable cause to believe that the juvenile committed a delinquent act which if committed by an adult would constitute” one of the delineated offenses. N.J. Stat. Ann. §2A:4A-26.1 (2020); N.J. R. Ch. Div. Fam. Pt. R. 5:22-2.

Collateral Consequences

Involvement with the delinquency system can affect a youth’s employment, housing, and educational opportunities, leaving the young person with tremendous hurdles as they transition to adulthood. The NJDC Collateral Consequences Page provides more information about collateral consequences of juvenile court involvement.

In a variety of states, NJDC has worked with local partners to create youth and family-friendly guides that provide general information about the collateral consequences of juvenile court involvement, how to overcome these hurdles, and resources to assist in reducing the harm of having a juvenile record. The guide for New Jersey can be found here.

State Race Statistics

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) provides juvenile justice  profiles for all fifty states and the District of Columbia. Specifically, the data compares the Black, non-Hispanic proportion of the youth population of each state, with the national average, as well as the Hispanic proportion of the youth population of each state with the national average. The data also provides the ratio of youth of color to white youth in residential placement in each state and compares it with the national average.  

OJJDP Juvenile Justice State Profiles can be accessed here.

Assessments

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 New Jersey. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.


Current through February 2021.