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. Ann. § 10.101.030.
The Washington State Office of Public Defense (OPD) provides general guidance on indigent defense services and systemic issues related thereto. OPD also oversees contracts with appellate attorneys representing indigent clients. Wash. Rev. Code Ann. § 2.70.050. OPD does not provide direct representation of clients.” Wash. Rev. Code Ann. § 2.70.020.
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, youth in juvenile court have the right to counsel at “all critical stages of the proceedings.” Wash. Rev. Code Ann. § 13.40.140(2). 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 Ann. § 13.40.140(2). The court must inform the youth and their parent, guardian, or custodian of this right. Wash. Rev. Code Ann. §§ 13.40.140(1), (2). “The right to counsel includes the right to the appointment of necessary experts.” Wash. Rev. Code. Ann. § 13.40.140(3). Notice of the right to counsel must also be provided in notices of shelter care hearings and in court summons. Wash. Juv. Ct. R. 2.3 (c).
Youth specifically have the right to counsel at the following proceedings:
- Commencement of the detention hearing. Wash. Rev. Code. Ann. § 13.40.050(3); Wash. Juv. Ct. R. 7.4(b).
- For youth found eligible for diversion, before the initial interview with the diversion unit. Wash. Juv. Ct. R. 6.2.
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 Ann. § 13.40.140(2). “The ability to pay part of the cost does not preclude assignment.” Wash. Rev. Code Ann. § 13.40.140(2). “In no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay.” Wash. Rev. Code Ann. § 13.40.140(2).
Waiver of Counsel
In Washington, a youth who is at least twelve years old may waive the right to counsel. Wash. Rev. Code § 13.40.140(11). The waiver of counsel must be “an express waiver intelligently made” by the young person after they have been “fully” informed of the right being waived. Wash. Rev. Code Ann. § 13.40.140(10). If a youth is under twelve years of age, the youth’s parent, guardian, or custodian “shall give any waiver or offer any objection” to waiver of counsel. Wash. Rev. Code Ann. § 13.40.140(11).
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 petition must be filed within 72 hours of the child being detained, excluding weekends and holidays, and a detention hearing must occur within 72 hours of when the petition is filed. Wash. Rev. Code Ann. § 13.40.050(1).
Provisions for the detention of youth are found in Wash. Rev. Code Ann. §§ 13.40.038, 13.40.040, 13.40.050, and Wash. Juv. Ct. R. 7.3 and 7.4.
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. In Washington:
- “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.” Wash. Rev. Code § 9A.04.050;
- A “juvenile offender” means a 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. Wash. Rev. Code Ann. §13.40.020(16)
- “A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of social and health services beyond the juvenile’s 18th birthday only if prior to their 18th birthday” if proceedings are pending seeking adjudication of a juvenile offense and the court, by written order, extends jurisdiction of the juvenile court over the young person beyond their 18th Wash. Rev. Code Ann. § 13.40.300(3); Juvenile court jurisdiction shall not extend beyond their 21st birthday. Wash. Rev. Code Ann. § 13.40.300(4).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. The court may decline jurisdiction on a discretionary and mandatory basis through decline hearings. Washington has three ways that youth can be prosecuted as adults:
- Discretionary Decline Hearing: The prosecutor may elect to file a motion to request transfer of a young person, 15 years of age or older, who is charged with a statutorily delineated serious violent offense; or the young person, 14 years of age or younger is charged with first-degree murder and/or second-degree murder. Wash. Rev. Code Ann. §13.40.110(1).
- Mandatory Decline Hearing: “Unless waived by the court, the parties, and their counsel, a decline hearing 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.” Wash. Rev. Code Ann. § 13.40.110(2).
- Statutory Exclusion: The adult criminal court has exclusive original jurisdiction over youth age 16 or 17 on the date of the alleged offense and the alleged offense is a (1) statutorily delineated serious violent offense or (2) violent offense and the child has been previously adjudicated of other certain delineated offenses; or (3) the rape of a child in the first degree. Wash. Rev. Code Ann. § 13.04.030(1)(e)(v)(A)-(C).
- Once an Adult, Always an Adult: “Juvenile,” “youth,” and “child” means any individual. . .who has not been 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…or who is not otherwise under adult court jurisdiction” Wash. Rev. Code Ann. §13.40.020(15)
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.
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.