Juvenile Indigent Defense Delivery System
Washington provides counsel to indigent youth through a county-based system which includes public defender offices, contract attorneys, and private appointed attorneys. “Each county or city . . . shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office.” Wash. Rev. Code. § 10.101.030 (2020).
The Washington State Office of Public Defense (OPD) provides general guidance on indigent defense. “All powers, duties, and functions of the supreme court and the administrative office of the courts pertaining to appellate indigent defense are transferred to the office of public defense.” Wash. Rev. Code § 2.70.050 (1) (2020). “The office of public defense shall not provide direct representation of clients.” Wash. Rev. Code § 2.70.020 (2020).
The OPD offers a Resource for Public Defense Representation in Juvenile Offender Cases where they provide information regarding a variety of juvenile justice related issues.
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. Washington’s juvenile court rules are called the Washington State Court Rules: Juvenile 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 Washington, “[t]he juvenile has a right to be represented by counsel at all critical stages of the proceedings.” Wash. Rev. Code § 13.40.140(2) (2020). Youth have the right to counsel in any proceeding “where the juvenile may be subject to transfer for criminal prosecution or in any proceeding where the juvenile may be in danger of confinement.” Wash. Rev. Code § 13.40.140(2) (2020). “The juvenile shall be fully advised of his or her right to an attorney.” Wash. Rev. Code §§ 13.40.140(1), (2) (2020). “The right to counsel includes the right to the appointment of necessary experts . . . .” Wash. Rev. Code. § 13.40.140(3) (2020).
Youth explicitly have the right to counsel at the following proceedings:
- Diversion decisions. Wash. Juv. Ct. R. 6.2.
- Transfer hearings. Rev. Code § 13.40.140(2) (2020).
- Detention hearings. Rev. Code §§ 13.40.140(2), 13.40.050(3) (2020).
Determination of Indigence
Washington has no presumption of indigence in juvenile court proceedings. A young person “who is financially unable to obtain counsel without causing substantial hardship to [themselves] or the juvenile’s family” shall have counsel provided. Wash. Rev. Code § 13.40.140(2) (2020). “The ability to pay part of the cost does not preclude assignment.” Wash. Rev. Code § 13.40.140(2) (2020). “In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay.” Wash. Rev. Code § 13.40.140(2) (2020).
Waiver of Counsel
In Washington, waiver of counsel “must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived.” Wash. Rev. Code § 13.40.140(10) (2020). “If a juvenile is under twelve years of age, the juvenile’s parent, guardian, or custodian shall give any waiver or offer any objection contemplated. . .” Wash. Rev. Code § 13.40.140(11) (2020).
Washington state expressly allows the use of cash bail in delinquency court, providing that a child may be released “upon posting a probation bond.” Wash. Rev. Code § 13.40.040(5) (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. “A detention hearing, a community supervision modification or termination of diversion petition, or a parole modification petition shall be held within seventy-two hours.” Wash. Rev. Code § 13.40.050(1) (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. Washington statutes list no specific post-disposition proceedings at which youth have a right to counsel.
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, as well as the age of culpability, is defined by state law.
- “Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.” Rev. Code§ 9A.04.050 (2020).
- “‘Juvenile offender’ means any young person who has been found to have committed an offense, including persons 18 years of age or older over whom jurisdiction has been extended.” Rev. Code §13.40.020(16) (2020).
- “A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of children, youth, and families beyond the juvenile’s eighteenth birthday only if prior to the juvenile’s eighteenth birthday” conditions detailed in Washington Code section 13.40.300(3) are met. Otherwise, “in no event may the juvenile court have authority to extend jurisdiction over any juvenile offender beyond the juvenile offender’s twenty-first birthday.” Rev. Code § 13.40.300(4) (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Washington has three ways that youth can be prosecuted as adults:
- “The prosecutor, respondent, or the court on its own motion may, before a hearing on the information on its merits, file a motion requesting the court to transfer the respondent for adult criminal prosecution . . . .” if the child and the offense meet conditions detailed in Washington Code section 13.40.110(1).
- A hearing on adult court jurisdiction shall be held when the information alleges an escape by the respondent and the respondent is serving a minimum juvenile sentence to age twenty-one,” but that hearing may be waived with the agreement of all parties. Rev. Code § 13.40.110(2) (2020).
- Jurisdiction may be waived if “[t]he juvenile is sixteen or seventeen years old on the date the alleged offense is committed and the alleged offense is: A serious violent offense . . . A violent offense . . . and the juvenile has a criminal history consisting of” certain offenses detailed in Washington Code section 13.04.030(1)(e)(v).
- Anyone “previously transferred to adult court . . . unless the individual was convicted of a lesser charge or acquitted of the charge for which he or she was previously transferred” no longer qualifies as a juvenile under the code.” Rev. Code §13.40.020(15) (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 attempt to become successful adults. NJDC worked with local partners to create a youth and family-friendly guide 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.
The Washington booklet was completed in December 2017.
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.
The Washington State Assessment was completed in October 2003.