Juvenile Indigent Defense Delivery System
Ohio provides counsel to indigent youth through a county-based system which includes local public defender offices, non-profit corporations, private appointed attorneys, and contracts with the Office of the Ohio Public Defender. Ohio Rev. Code Ann. § 120.01 et seq. County Boards of Commissioners determine which type of indigent defense services will be provided in counties. Counties that meet certain indigent defense standards are eligible for state funding from the Ohio Public Defender. Ohio Rev. Code Ann. § 120.18. The state public defender has a Juvenile Department that provides legal representation and services primarily post-disposition for youth who have been committed to the Ohio Department of Youth Services (ODYS), as well as representation to youth who have been “bound over” to be tried as an adult, convicted and sentenced to the Ohio Department of Rehabilitation and Correction. The state public defender is overseen by the Ohio Public Defender Commission.
Ohio requires a certain level of experience and training for attorneys representing youth accused of murder, facing the threat of transfer, and in other similar circumstances, but not for regular delinquency cases. Ohio Admin. Code § 120-1-10(J)-(M). The Public Defender Commission is responsible for promulgating training standards for attorneys representing indigent defendants. Ohio Rev. Code Ann. § 120.03(B). The Commission adopted Standards of Representation of Clients in Juvenile Delinquency Cases, which serve as a general guide for juvenile defense attorneys.
Ohio youth only have a right to a trial by jury in serious youthful offender cases in which trial by jury has not been waived. Ohio R. Juv. Pro. 27(A)(3).
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. Ohio’s juvenile court rules are the Ohio Rules of Juvenile Procedure.
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 Ohio, a youth or the youth’s parent, guardian, or custodian has a right to counsel at all stages of juvenile court proceedings. Ohio Rev. Code Ann. § 2151.352. This right is established when the “person becomes a party to a juvenile court proceeding.” Ohio R. Juv. Pro. 4(A). If a party appears in court without an attorney, the court must determine whether they know of their right to counsel and determine whether the right has been waived; the court may continue the hearing to allow counsel to be retained or appointed for the indigent party. Ohio Rev. Code Ann. § 2151.352.
“Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian.” Ohio Rev. Code Ann. § 2151.352. If a child is alleged to be delinquent, unruly, or a traffic offender, the court shall order the child to appear with a parent, guardian, or custodian to all proceedings regarding that child. Ohio Rev. Code Ann. § 2151.35(A)(1). The court may find the parent, guardian, or custodian in contempt if they fail to appear at the child’s proceedings. Ohio Rev. Code Ann. § 2151.35(A)(1).
Parties shall be informed of their right to counsel at the beginning of hearings, and the court summons must advise the parties of their right to counsel and provide information about how to request appointed counsel. Ohio Rev. Code Ann. § 2151.314(A), (D); Ohio R. Juv. Pro. 7(F)(2), 15(B)(3), 15(B)(10), 29(B)(3)-(5).
Youth are specifically entitled to counsel in detention hearings and probation revocation hearings. Ohio Rev. Code Ann. § 2151.314(A); Ohio R. Juv. Pro. 35(B).
Determination of Indigence
In Ohio, youth are presumed indigent. In determining the eligibility of a child for court-appointed counsel in juvenile court, only the child’s income shall be considered when determining if counsel should be appointed. Ohio Admin. Code 120-1-03(B)(4). Courts may order non-indigent parents to pay for the necessary costs of representation of a child applicant. Ohio Admin. Code 120-1-05.
Waiver of Counsel
A youth in Ohio may waive their right if the waiver is “made in open court, recorded, and in writing,” and the court determines the waiver is made “knowingly, intelligently, and voluntarily” based on the totality of the circumstances. Ohio R. Juv. Pro. 3(D). Before accepting a waiver, the court will make sure that the “child consults with a parent, custodian, guardian, or guardian ad litem.” Ohio R. Juv. Pro. 3(D).
A child may not waive the right to counsel when:
- The child is a party to a hearing for transfer to adult court. Ohio R. Juv. Proc. 3(D).
- A dispositional sentence has been requested for a serious youthful offender. Ohio R. Juv. Proc. 3(D).
- There is a conflict in the home or if the parent, guardian, or custodian requests the child’s removal from the home. Ohio R. Juv. Proc. 3(A)(3).
A youth charged with a felony cannot waive counsel “unless the child has met privately with an attorney to discuss the child’s right to counsel and the disadvantages of self-representation.” Ohio R. Juv. Pro. 3(C). “[N]o parent, guardian, custodian, or other person may waive the child’s right to counsel.” Ohio R. Juv. Pro. 3(D).
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 Ohio, a detention hearing must occur promptly, but no later than 72 hours after the youth is detained. Ohio Rev. Code Ann. § 2151.314(A). Provisions for the detention of young people are found in the Ohio Rev. Code Ann. §§ 2151.31; 2151.311-2151.314; Ohio R. Juv. Pro. 6; Ohio R. Juv. Pro. 7.
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 Ohio, youth have a right to counsel in the following post-disposition proceeding:
- Probation revocation hearings. Ohio R. Juv. Pro. 35(B).
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 Ohio:
- No statute specifies the youngest age at which a child 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 child is charged in adult court. Ohio Rev. Code Ann. § 2151.011(B)(6).
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the child turned 18. Ohio Rev. Code Ann. § 2151.011(B)(6).
- Juvenile court does not have jurisdiction over any case against a person accused of committing a felony prior to their 18th birthday but who is apprehended after turning 21. Ohio Rev. Code Ann. § 2151.23(I).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Ohio has two ways that youth can be prosecuted as adults:
- Discretionary Waiver: can be used for youth age 14 and older for any felony. Ohio Rev. Code Ann. § 2152.12(B).
- Youth are eligible for mandatory transfer after a probable cause hearing: Ohio Rev. Code Ann. § 2152.12.
- If they are alleged to have committed a category one offense – such as aggravated murder, murder, attempted aggravated murder, or attempted murder – and:
- The youth is age 16 or older. Ohio Rev. Code Ann. § 2152.10(A)(1)(a); or,
- The youth is age 14 or 15 at the time of the charge, has been previously adjudicated delinquent for committing a category one or category two offense, and was committed based on that adjudication. Ohio Rev. Code. Ann. § 2152.10(A)(1)(b).
- If they are 16 or older and are alleged to have committed a category two offense – such as voluntary manslaughter, kidnapping, rape, aggravated arson, aggravated robbery, aggravated burglary, involuntary manslaughter, felonious sexual penetration – and:
- The youth was previously adjudicated for committing a category one or category two offense and was committed based on that adjudication. Ohio Rev. Code. Ann. § 2152.10(A)(2)(a); and/or,
- The youth is charge with an offense involving a firearm. Ohio Rev. Code. Ann. § 2152.10(A)(2)(b).
- Once an Adult, Always an Adult. Once a child has been waived into adult court, any future cases against the child may be automatically waived to adult court in certain circumstances, including if the child is convicted of a felony in a criminal prosecution and has an adult sentence imposed, or a child adjudicated delinquent has the adult portion of their youthful offender sentence invoked. Ohio Rev. Code Ann. § 2152.02(C)(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 Ohio Assessment was completed in 2003.