Tennessee

Juvenile Indigent Defense Delivery System

Tennessee provides counsel to indigent youth through public defender offices serving judicial districts. Tenn. Code Ann. §8-14-101. Individual public defenders offices provide representation at trial and appellate levels. Tenn. Code Ann. §8-14-104. The only state-wide entity is the Office of the Executive Director of the Public Defender. Established by statute, it provides leadership and administrative support to defenders. Tenn. Code Ann. § 8-14-301.

Tennessee has no statutorily mandated or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.

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. Tennessee’s delinquency proceedings are governed by the 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 Tennessee, youth have the right to counsel at “all stages of any delinquency proceedings and in unruly proceedings that place the child in jeopardy of being removed from home.” Tenn. Code Ann. § 37-1-126(a)(1). 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). The court may continue the hearing to allow the youth time to hire an attorney. Tenn. Code Ann. § 37-1-126(a)(3). “In all delinquency hearings or in unruly hearings in which the child may be in jeopardy of being removed from the home…counsel must be provided for a child not represented by the child’s parent, guardian, guardian ad litem or custodian or where the child’s interests conflict with the parent, guardian, custodian or guardian ad litem.” Tenn. Code Ann. § 37-1-126(a)(4).

A youth is specifically entitled to counsel at the following stages:

• Detention Hearing. Tenn. R. Juv. P. 203(d); 205(a)(1)
• Probation or Home Placement Supervision Violation. Tenn. R. Juv. P. 212; 205(a)(1)
• Transfer Hearing (where representation by an attorney is mandatory). Tenn. R. Juv. P. 208(b)(1)(B); and
• Appeals. Tenn. R. Juv. P. 118.

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). 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). When counsel is appointed for a youth, their parent, guardian or custodian is assessed a $50 nonrefundable administrative fee. Tenn. Code Ann. § 37-1-126(c)(1). 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). If the child’s parents or guardians are financially able to defray a portion or all of the cost of the child’s representation but refuse to do so, the court may determine the child is indigent and appoint counsel. Tenn. Code Ann. § 37-1-126(b)(2). 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)

Waiver of Counsel

In Tennessee, “No child shall be deemed to have waived the assistance of an attorney until and unless:

1. The youth has been fully informed of the right to an attorney;
2. The youth subsequently knowingly and voluntarily waives the right to an attorney; and
3. 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).

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. When a youth is taken into custody and is not detainable, the youth is to be released to the 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. If the youth is taken into custody pursuant to an order or probable cause determination, the maximum 84 hours, is not to be exceeded, 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.

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. Tennessee statutes list two post-disposition proceedings at which youth have a right to counsel.

• Appeals. Tenn. R. Juv. P. 118.
• Probation or Home Placement Supervision Violation. Tenn. R. Juv. P. 212; 205(a)(1)

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 18^th birthday; after age 18, the youth is charged in adult court. Tenn. Code Ann. § 37-1-102(5)(A);
• Juvenile court can retain jurisdiction over youth until their 19^th 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).

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. Tennessee has two ways that youth can be prosecuted as adults:

• Discretionary Transfer: After a petition has been filed alleging delinquency…the [juvenile] court, before hearing the petition on the merits, may transfer the youth…to be dealt with as an adult in the criminal court if:

• • The youth was less than fourteen (14) years at the time of the alleged conduct and the alleged conduct is murder;
  • The youth is fourteen (14) years of age but less than seventeen (17) at the time of the alleged conduct and the alleged conduct is a serious, statutorily delineated felony offense;
  •  The youth is sixteen (16) years of age or older at the time of the alleged conduct and charged with robbery or attempted robbery; or
  • The youth is seventeen (17) years of age or more at the time of the alleged conduct. Tenn. Code Ann. § 37-1-134(a)(1)(A).

• Once an Adult, Always an Adult. Upon transfer and conviction in [adult criminal court] “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.” Tenn. Code Ann. § 37-1-134(c).

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 Tennessee. 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.