Juvenile Indigent Defense Delivery System
Tennessee provides counsel to indigent youth through district public defender offices established in each judicial district. Tenn. Code Ann. §§ 8-14-101, 8-14-102 (2020). Public defenders have the responsibility of representing indigent persons at trial and appellate levels. Tenn. Code Ann. § 8-14-104 (2020). The office of the executive director of the district public defenders conference coordinates defense efforts of the various district public defenders. Tenn. Code Ann. § 8-14-301 (2020).
Tennessee has no statutorily mandated or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
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. Tennessee’s delinquency proceedings are governed by the Rules of Juvenile Procedure. Judicial districts may also have local rules applicable to juvenile court.
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 Tennessee, youth have the right to counsel at “all stages of any delinquency proceedings or proceedings alleging unruly conduct that place the child in jeopardy of being removed from the home. . . .” Tenn. Code Ann. § 37-1-126(a)(1) (2020). If the youth appears without counsel, the court shall inform the youth of his or her right to counsel, including the right to have counsel appointed if the youth is indigent. Tenn. Code Ann. § 37-1-126(a)(3) (2020). The court may continue the hearing to allow the youth time to hire an attorney. Tenn. Code Ann. § 37-1-126(a)(3) (2020). Counsel must also be provided “where the child’s interests conflict with the parent, guardian, custodian or guardian ad litem.” Tenn. Code Ann. § 37-1-126(a)(4) (2020).
Beyond a general right to counsel at all stages of the proceedings, the Tennessee Rules specifically outline a right to counsel at the following stages:
- Detention Hearing. Tenn. R. Juv. P. 203(c)(2)(C).
- Probation or Home Placement Supervision Violation. Tenn. R. Juv. P. 212(a).
- Transfer Hearing. Tenn. R. Juv. P. 208(b)(1)(B).
- Appeals. Tenn. R. Juv. P. 118(b).
Determination of Indigence
Tennessee has no presumption of indigence in juvenile court proceedings. A person is considered indigent if they do “not possess sufficient means to pay reasonable compensation for the services of a competent attorney.” Tenn. Code Ann. § 37-1-126(b)(1) (2020). In determining whether a youth is indigent, the court will consider the financial resources of the youth and the youth’s parents, legal custodians, or guardians. Tenn. Code Ann. § 37-1-126(b)(1) (2020). “[I]f the child, the child’s parents, legal custodians or guardians are financially able to defray a portion or all of the cost of the child’s representation but refuse to do so timely, the court may make written findings determining this as indigency. . . .” Tenn. Code Ann. § 37-1-126(b)(2) (2020). In these circumstances, the court shall enter an order directing the parents or legal custodians or guardians to pay any sum that the court determines they are able to pay. Tenn. Code Ann. §§ 37-1-126(b)(2); 37-1-150(g)(1) (2020). When counsel is appointed for a youth, their parent, guardian or custodian may be assessed a $50 nonrefundable administrative fee. Tenn. Code Ann. § 37-1-126(c)(1) (2020). If the youth or parents cannot afford that amount, the fee can be waived or reduced; if the youth or parents can pay more, the fee may be increased up to a maximum of $200. Tenn. Code Ann. § 37-1-126(c)(2) (2020). The fee must be paid within two weeks of appointment of counsel or prior to disposition of the case, whichever first occurs. Tenn. Code Ann. §37-1-126(c)(2) (2020).
Waiver of Counsel
In Tennessee, “No child shall be deemed to have waived the assistance of an attorney until and unless:
- (A) The child has been fully informed of the right to an attorney;
(B) The child subsequently knowingly and voluntarily waives the right to an attorney; and
(C) The waiver is confirmed in writing by the child.” Tenn. R. Juv. P. 205(a)(2).
“The court shall only accept a waiver if the child is able to make an intelligent and understanding decision based on the child’s mental condition, age, education, experience, the nature or complexity of the case, or any other relevant factor.” Tenn. R. Juv. P. 205(c)(1). “Any and all waivers of rights at a hearing shall be made orally and in open court, and shall be confirmed in writing by the child and the judge. When the child is not represented by an attorney, the court shall advise the child in open court of the right to an appointed attorney. The court shall not proceed with the hearing unless the child has waived the right to an attorney in accordance with [the rule].” Tenn. R. Juv. P. 205(c)(2).
Tennessee law expressly allows for the use of bail with children in juvenile courts. A child may be released “on an appearance bond or on the child’s own recognizance.” Tenn. Code Ann. § 37-1-117(a)(2) (2020).
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. “When a child is taken into custody and is not detainable, the child shall be released to the child’s parent, guardian or other custodian within a reasonable time.” Tenn. R. Juv. P. 203(a).
If the youth is taken into custody without an order, is alleged delinquent and is held in secure detention, a probable cause determination must occur within 48 hours of the youth being taken into custody. Tenn. R. Juv. P. 203(b)(1)(A). Under the special circumstance exception, the probable cause determination must occur within 24 hours, excluding nonjudicial holidays, but no later than 48 hours after the youth has been detained. Tenn. R. Juv. P. 203(b)(1)(B); Tenn. Code Ann. §37-1-114(c)(3). If the youth “is taken into custody pursuant to an order of attachment or if a probable cause determination is made … the child shall not remain in detention longer than 72 hours, excluding nonjudicial days, but in no event more than 84 hours, unless a detention hearing is held.” Tenn. R. Juv. P. 203(b)(2).
Other relevant provisions regarding the detention of youth can be found in Tenn. Code Ann. §§ 37-1-113 to 37-1-117 (2020).
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. Tennessee statutes list two post-disposition proceedings at which youth have a right to counsel.
- Appeals. Tenn. R. Juv. P. 118(b).
- Probation or Home Placement Supervision Violation. Tenn. R. Juv. P. 212
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 Tennessee:
- 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. Tenn. Code Ann. § 37-1-102(5)(A); §37-1-103 (2020).
- Juvenile court can retain jurisdiction over youth until their 19th birthday, provided that the offense alleged to have been committed occurred before the youth turned 18. Tenn. Code Ann. § 37-1-102(5)(B)(ii)-(iii); §37-1-103 (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. In Tennessee, youth can be prosecuted as adults in the following situations:
- “After a petition has been filed alleging delinquency. . . the court, before hearing the petition on the merits, may transfer the child. . . to be dealt with as an adult in the criminal court of competent jurisdiction. The disposition of the child shall be as if the child were an adult if: (1)(A) The child was:
- (i) Less than fourteen (14) years of age at the time of the alleged conduct and charged with first degree murder or second degree murder or attempted first of second degree murder;”
- (ii) Fourteen (14) years of age or more but less than seventeen (17) years of age at the time of the alleged conduct and charged with” one of the delineated offenses;
- (iii) Sixteen (16) years of age or more at the time of the alleged conduct and charged with the offense of robbery or attempt to commit robbery; or
- (iv) Seventeen (17) years of age or more at the time of the alleged conduct.”
Code Ann. § 37-1-134(a) (2020).
- Once a youth has been transferred to adult court it “terminates jurisdiction of the juvenile court with respect to any and all delinquent acts with which the child may then or thereafter be charged, and the child shall thereafter be dealt with as an adult as to all pending and subsequent criminal charges. . . .” Code Ann. § 37-1-134(c) (2020).
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 provides 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. NJDC has not yet created a guide for Tennessee. We hope to do so in the near future.
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.
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 Tennessee. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.