Juvenile Indigent Defense Delivery System
Virginia provides counsel to indigent youth through a combination of public defender offices and private attorneys appointed by the court. The Virginia Indigent Defense Commission, an independent state agency within the judicial branch, oversees indigent defense in Virginia and certifies attorneys to represent indigent clients. Va. Code Ann. § 19.2-163.01. State statute defines where public defender offices are located. Va. Code Ann. § 19.2-163.04.
The duties of the Indigent Defense Commission include establishing and enforcing qualifications and standards for attorneys representing indigent defendants; receiving and expending moneys appropriated by the General Assembly of Virginia; developing and certifying training courses for attorneys who serve as court-appointed counsel; and maintaining a list of attorneys, admitted to practice law in Virginia, who meet the eligibility requirements. Va. Code Ann. § 19.2-163.01.
Virginia has statutorily required initial and ongoing qualifications for attorneys representing youth in delinquency proceedings. Va. Code Ann. § 19.2-163.03(A)(3). The requirements include both training and experience in juvenile cases. The Indigent Commission developed Standards of Practice for Indigent Defense Counsel in Non-Capital Criminal Cases at the Trial Level, which include a specific section on Standards of Practice for Juvenile Defense Counsel. The Standards are intended to provide juvenile defense attorneys with a general guide to appropriate and zealous advocacy on behalf of clients in delinquency proceedings as well as children being tried as an adult.
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. Virginia’s delinquency proceedings are governed by the Rules of Supreme Court of Virginia, Part Eight, Juvenile and Domestic Relations Courts.
Right to Counsel
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 Virginia, youth in juvenile court have the right to counsel in detention, adjudicatory and transfer hearings involving a child alleged to be in need of services, in need of supervision, or delinquent. Va. Code Ann. § 16.1-266(B), (C). At the first appearance in court in a delinquency case, the judge shall advise the youth of their rights, including, but not limited to, a right to counsel. Va. Sup. Ct. R. 8:17. Prior to the detention hearing, the court shall appoint “a qualified and competent attorney-at-law” to represent an unrepresented child. Va. Code Ann. § 16.1-266(B).
The court must inform a child and his parent, guardian, or legal custodian of the child’s right to counsel and of the parent’s liability for the costs of the child’s legal representation. Va. Code Ann. § 16.1-266(C). The court must provide this information after the detention hearing (if there is one) and before the adjudicatory or transfer hearing, and then the parents and child must be given an opportunity to” hire private counsel, request a court-appointed attorney, or waive the right to counsel. Va. Code Ann. § 16.1-266 (C)(1)-(3).
A child is specifically entitled to counsel at the following stages:
- Prior to the detention hearing: Va. Code Ann. § 16.1-266(B).
- Prior to adjudicatory hearing: Va. Code Ann. § 16.1-266(C).
- Prior to transfer hearing: Id.
Determination of Indigence
Virginia has no presumption of indigence in juvenile court proceedings other than the detention hearing. “For the purposes of appointment of counsel for the detention hearing held pursuant to §16.1-250 only, a child’s indigence shall be presumed.” Va. Code Ann. § 16.1-266(B). For all other proceedings, when a child or the child’s parent or guardian requests court-appointed counsel for the child, the parent or guardian must complete a statement of indigence and financial statement, and from that information, the court determines whether the child is indigent. Va. Code Ann. § 16.1-266(C)(2). Receipt of federally funded public assistance programs creates a rebuttable assumption of indigency. Va. Code Ann. §19.2-159(B). Indigence is defined as earning up to 125% of the federal poverty level. Va. Code Ann. § 19.2-159(B)(3). If the “accused” income exceeds 125% of the federal poverty income guidelines, the court may, “in exceptional circumstances, and where the ends of justice so require, appoint an attorney to represent the “accused.”” Va. Code Ann. § 19.2-159(B)(3).
Waiver of Counsel
A youth in Virginia may waive their right to counsel “if the court finds the child and the parent, guardian, legal custodian or other person standing in loco parentis of the child consent in writing and such waiver is consistent with the interests of the child.” Va. Code Ann. § 16.1-266(C)(3). The court must make sure the youth is “capable of making an intelligent and understanding decision in light of the child’s age, mental condition, education, and experience, considering the nature and complexity of the case.” Va. Sup. Ct. R. 8.17. “A child who is alleged to have committed an offense that would be a felony if committed by an adult, may waive [the right to counsel] only after [they] consult with an attorney and the court determines that their waiver is free and voluntary. The waiver shall be in writing, signed by both the child and the child’s attorney and shall be filed with the court records of the case.” Va. Code Ann. § 16.1-266(C)(3).
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 Virginia, a detention hearing must occur on the next day on which the court sits within the city or county where the charge against the child is pending. Va. Code Ann. § 16.1-250(A). If that court does not sit on the next day, then the hearing must occur no later than 72 hours after the child was detained, excluding weekends and legal holidays. Va. Code Ann. § 16.1-250(A). Hearings can also occur over two-way electronic video and audio in the courthouse of the county or city wherein the charge is pending. Va. Code Ann. § 16.1-250(A). Provisions for the detention of youth are found in Va. Code Ann. §§ 16.1-246, 16.1-247, 16.1-248.1, 16.1-249, 16.1-250, 16.1-250.1, 16.1-255, and 16.1-266.
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.
“The order of appointment of counsel pursuant to § 16.1-266 shall be filed with and become a part of the record of such proceeding. The attorney so appointed shall represent the child or parent, guardian or other adult at any such hearing and at all other stages of the proceeding unless relieved or replaced in the manner provided by law.” Va. Code Ann §16.1-268.
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 Virginia:
- 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. Va. Code Ann. § 16.1-228(2);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. Code Ann. § 16.1-242. If the person reaches 21 years of age and prosecution has not yet commenced against them, they shall be tried as an adult, even if they were a minor at the time of committing the offense. Va. Code Ann. § 16.1-242.
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Virginia has four ways that youth can be prosecuted as adults:
- Discretionary transfer: Discretionary transfer can be used for youth age 14 and older for any offense that would be a felony, if committed by an adult. Va. Code Ann. § 16.1-269.1(A).
- Mandatory transfer: Upon the juvenile court judge’s finding of probable cause, where a youth 14 and older and is charged with murder or aggravated malicious wounding the case will be sent to the adult court. Va. Code Ann. § 16.1-269.1(B). If the prosecutor elects to charge the young person as an adult for statutorily designated serious offenses and the juvenile court judge finds probable cause, then the case will be sent to adult court. Va. Code Ann. § 16.1-269.1 (C).
- Once an Adult, Always an Adult: Convictions as an adult preclude the juvenile court from taking jurisdiction of subsequent offenses committed by that young person. Va. Code Ann. § 16.1-271.
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 Virginia Assessment was completed in 2002.