Juvenile Indigent Defense Delivery System
New Mexico provides counsel to indigent youth through a state-funded Public Defender Department that provides trial level representation through district offices located around the state. The public defender represents children accused of delinquent acts that carry a possible sentence of incarceration. N.M. Stat. Ann. § 31-15-12(A). Representation includes appeals and post-conviction proceedings. N.M. Stat. Ann. § 31-16-3(B).
New Mexico requires attorneys representing youth in delinquency and families in need of services proceedings to receive periodic cultural recognition training. N.M. Stat. Ann. §§ 32A-18-1; 32A-18-3. The Public Defender Commission is to develop standards related to the minimum experience, training and qualifications for attorneys in juvenile cases. N.M. Stat. Ann. §31-15-2.4(B).
New Mexico youth have a right to a trial by jury “in proceedings on petitions alleging delinquency when the offense alleged would be triable by jury if committed by an adult. If a jury is demanded and the child is entitled to a jury trial, the jury’s function is limited to that of trier of the factual issue of whether the child committed the alleged delinquent acts. If no jury is demanded, the hearing shall be by the court without a jury.” N.M. Stat. Ann. § 32A-2-16(A).
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 Mexico’s juvenile court rules are called the New Mexico Children’s Court Rules.
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 Mexico, youth in juvenile court have the right to “counsel at every stage of the proceedings…, including all post-dispositional court proceedings. If counsel is not retained for the child or if it does not appear that counsel will be retained, counsel shall be appointed for the child.” N.M. Stat. Ann. § 32A-2-14(H). The court must inform a child and the child’s parent, guardian or custodian of this right at the child’s first appearance in court. N.M. Child. Ct. R. 10-224. The court summons must also advise the parties of their right to counsel. N.M. Stat. Ann. § 32A-1-12(B). Counsel must be appointed at the commencement of the detention hearing or within five days of the filing of a delinquency petition, whichever occurs first. N.M. Child. Ct. R. 10-223. Youth are specifically entitled to counsel in proceedings to revoke probation. N.M. Stat. Ann. §§ 32A-2-24. “Unless excused by a court, an attorney appointed to represent a child shall represent the child in any subsequent appeals.” N.M. Stat. Ann. § 32A-1-7.1(B).
Determination of Indigence
New Mexico has no presumption of indigence in juvenile court proceedings. If a public defender is appointed for a youth, the youth’s parents, guardian, or custodian must complete an eligibility determination form within a set amount of time. N.M. Child. Ct. R. 10-223. If they do not return the form or if they are not indigent, they can be charged for the youth’s legal representation. N.M. Child. Ct. R. 10-223(B). If the parent, custodian, or guardian disagrees with the determination of indigence, they can request a court hearing on the matter. N.M. Child. Ct. R. 10-223(C).
“The court shall use a standard adopted and information provided by the public defender department to determine indigency of children in proceedings on petitions alleging delinquency.” N.M. Stat. Ann. § 32A-2-30(A). The determination of indigence is made by the public defender, subject to review by the court, considering such factors as income, assets, debt, and dependents. N.M. Stat. Ann. §§ 31-15-12, 31-16-5. All persons requesting public defender services must pay a non-refundable $10 application fee. N.M. Stat. Ann. § 31-15-12(C).
If the court finds that the parent, guardian or custodian can afford an attorney but will not hire one for the youth, “the court shall order the parent, guardian or custodian to reimburse the state for public defender representation.” N.M. Stat. Ann. § 32A-2-14(B).
Waiver of Counsel
In New Mexico, a youth may waive their rights if the court finds that a “child knowingly, intelligently, and voluntarily” waived their rights. N.M. Stat. Ann. § 32A-2-14(A). However, children are automatically guaranteed counsel at all proceedings, so waiver of counsel might not be possible. N.M. Stat. Ann. § 32A-2-14(H); See State v. Doe, 621 P.2d 519, 521 (N.M. Ct. App. 1980) (acknowledging the argument that waiver may not be possible, but refusing to address it under the facts of that case).
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 Mexico, a detention hearing must occur within 24 hours of the filing of the petition, and the petition must be filed within 24 hours (both excluding weekends and holidays) of the child being taken into custody. N.M. Stat. Ann. § 32A-2-13(2)-(3). Provisions for the detention of youth are found in N.M. Stat. Ann. §§ 32A-2-9, 32A-2-10, 32A-2-11, 32A-2-13, 32A-2-14, and N.M. Child. Ct. R. 10-221, 10-222, and 10-225.
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. New Mexico statutes list two post-disposition proceedings at which youth have a right to counsel. Youth also have counsel guaranteed at all post-disposition proceedings more generally. N.M. Stat. Ann. § 32A-2-14(H).
In New Mexico, youth have a right to counsel in the following post-disposition proceedings:
- N.M. Stat. Ann. § 32A-1-7.1(B)
- Probation revocation. N.M. Stat. Ann. § 32A-2-24
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 Mexico:
- 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 child’s 18th birthday; after age 18, the youth is charged in adult court, M. Stat. Ann. § 32A-1-4(B);
- Juvenile court can retain jurisdiction over youth until age 21 in certain circumstances, provided that the offense alleged to have been committed occurred before the youth turned 18. M. Stat. Ann. § 32A-2-23(E)–(F).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. New Mexico has one way that youths can be prosecuted as adults:
- Statutory Exclusion: youth 15 and older charged with and indicted for first degree murder are prosecuted as adults. N.M. Stat. Ann. § 32A-2-3(H).
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 Mexico. 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 August 2018.