Juvenile Indigent Defense Delivery System
West Virginia provides counsel to indigent youth through West Virginia Public Defender Services, a state-funded entity that shall “administer, coordinate and evaluate programs by which the state provides legal representation to indigent persons, monitor the progress of various delivery systems, and recommend improvements.” W. Va. Code § 29-21-3 (2020). The Public Defender Services creates a public defender corporation in each judicial circuit to provide representation. W. Va. Code § 29-21-8(a)(1) (2020). The office may also contract with attorneys or nonprofit groups to provide defense services. W. Va. Code §29-21-6(a) (2020).
Appellate advocacy is provided to certain indigent defendants by the statewide Public Defender Services. W. Va. Code § 29-21-6(e) (2020). The office also contains a criminal law research center that provides training and technical assistance related to the delivery of legal representation and research issues related to the direct representation of eligible clients. W. Va. Code § 29-21-6(c) (2020).
Each circuit court maintains local and regional panels of private attorneys that may be appointed for financially eligible clients in conflict cases. If there is no local or regional panel attorney available and the circuit does not have an operational public defender office, the judge may appoint a panel attorney from any circuit. W. Va. Code § 29-21-9(6) (2020).
West Virginia has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
“The juvenile, the juvenile’s counsel, or the juvenile’s parent or guardian may demand, or the judge on his or her own motion may order a jury trial on any question of fact, in which the juvenile is accused of any act or acts of delinquency which, if committed by an adult would expose the adult to incarceration.” W. Va. Code § 49-4-709(a) (2020).
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. West Virginia’s juvenile court rules are called 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 West Virginia, a young person “has the right to be represented by an attorney at all stages of proceedings brought under the delinquency and status offense provisions.” W. Va. R. Juv. P. 5(a). “This right attaches no later than when the juvenile first appears before a magistrate or circuit judge.” W. Va. R. Juv. P. 5(a). However, the court will not appoint counsel at public expense for “juvenile traffic offenses or other offenses heard in Magistrate Court” or to violations of municipal ordinances. W. Va. R. Juv. P. 5(b)(2)-(3). The young person or the young person’s legal guardian may retain private counsel for those matters. W. Va. R. Juv. P. 5(b)(2)-(3). When a youth appears at a preliminary hearing without counsel, the court is to inform the youth and their parent, guardian, or custodian of the young person’s right to counsel at all stages of the proceedings. W. Va. Code § 49-4-708(a)(1) (2020).
A youth is specifically entitled to counsel at the following stages:
- Detention Hearing. Va. Code § 49-4-706(a) (2020);
- Preliminary Hearing (if not held in conjunction with detention hearing). Va. Code § 49-4-708 (2020);
- Probation Violation Hearings. Va. R. Juv. P. 5(b)(1);
- Disposition Modifications. Va. R. Juv. P. 5(b)(1); and
- Grand Jury Appearances. Va. R. Juv. P. 5(b)(4).
Determination of Indigence
West Virginia has no presumption of indigence in juvenile court proceedings. “If the juvenile advises the court of his or her inability to pay for counsel, the court shall require the juvenile’s parent or custodian to execute a financial affidavit.” W. Va. Code §29-21-16(c) (2020). If the affidavit demonstrates the youth’s parents’ do not have sufficient assets to pay for counsel, the court shall appoint counsel. W. Va. Code §29-21-16(c) (2020).
“If the parents or legal guardians of a juvenile can afford to retain counsel and have not retained counsel for the juvenile, and the juvenile cannot afford to retain counsel, the court may order the parents or legal guardians to provide, by paying for, legal representation for the juvenile in the proceedings. Such order may be entered only after giving the parents or legal guardians a reasonable opportunity to be heard.” W. Va. R. Juv. P. 5(c)(2). “The court may disregard the assets of the juvenile’s parents or guardians and appoint counsel for the juvenile… if the court concludes, as a matter of law, that the juvenile and the parents or guardians have a conflict of interest that would adversely affect the juvenile’s right to effective representation of counsel, or concludes, as a matter of law, that requiring the juvenile’s parents or guardians to provide legal representation for the juvenile would otherwise jeopardize the best interests of the juvenile.” W. Va. R. Juv. P. 5(c)(2).
Waiver of Counsel
The Supreme Court of Appeals of West Virginia has held that a young person’s waiver of a constitutional right is valid and knowing only if it is done upon the advice of counsel. State ex rel. J. M. v. Taylor, 276 S.E.2d 199, 205 (W. Va. 1981).
West Virginia expressly provides for the use of cash bail. “A juvenile is entitled to be admitted to bail or recognizance in the same manner as an adult and be afforded the protection guaranteed by Article III of the West Virginia Constitution.” W. Va. Code § 49-4-701(g) (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. In West Virginia, a detention hearing must be held “without unnecessary delay” and “[i]n no event may any delay in presenting the juvenile for a detention hearing exceed the next day after he or she is taken into custody.” W. Va. Code § 49-4-705(c)(4) (2020). Provisions for the detention of youth are found in W. Va. Code §§ 49-4-705, 49-4-706, 49-4-712, 49-4-720, and 49-4-721 (2020) and W. Va. R. Juv. P. 6, 12, 13, and 16.
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. West Virginia Rules of Juvenile Procedure list two post-disposition proceedings at which youth have a right to counsel.
In West Virginia, youth have a right to counsel in the following post-disposition proceedings:
- Probation Violation Hearings. W. Va. R. Juv. P. 5(b)(1);
- Disposition Modifications. W. Va. R. Juv. P. 5(b)(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 West 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; after age 18, the youth is charged in adult court. Va. Code § 49-4-701(b) (2020);
- If a youth commits an act which would be a crime if committed by an adult, and the youth is adjudicated delinquent for that act, the jurisdiction of the court which adjudged the youth delinquent continues until the youth becomes twenty-one years of age. Va. Code § 49-4-701(f)(1) (2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. West Virginia has several ways that youth can be prosecuted as adults:
- “The court shall transfer a juvenile proceeding to criminal jurisdiction if a juvenile who has attained the age of fourteen years makes a demand on the record to be transferred to the criminal jurisdiction of the court.” Va. Code Ann. § 49-4-710(c).
- If the prosecutor requests, “the court shall conduct a hearing to determine if juvenile jurisdiction should or must be waived and the proceeding transferred to the criminal jurisdiction of the court” Va. Code §49-7-710(a).
- The court shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the youth is at least 14 years of age and has:
- Committed one of several high-level statutorily delineated offenses;
- Committed a felony level crime of violence and has previously been adjudicated of committing a felony level crime of violence; or
- Committed any felony level offense and had twice previously been convicted of a felony level offense. W. Va. Code § 49-4-710(d)(1-3) (2020).
- Committed one of several high-level statutorily delineated offenses;
- The court may transfer a youth for prosecution in adult court if it finds probably cause of any of the three conditions that would have required transfer, if the child had been 14 or older. Va. Code §49-7-710(e) (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 provide 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 West Virginia. 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.
The West Virginia Assessment was completed in Spring 2010.