Juvenile Indigent Defense Delivery System


Wisconsin provides counsel to indigent youth through a statewide public defender office  that provides trial and appellate representation in juvenile delinquency cases. Wis. Stat. Ann. §§ 977.05(4)(gm),(h), and 48.23(4). Public defenders handle about 60% of cases; overflow and conflict cases are handled by private attorneys who are certified by the State Public Defender. Certification requirements depend on the complexity and specialized knowledge needed for a case. The public defender’s office provides legal representation to the indigent throughout the state in all of Wisconsin’s 72 counties.

Though Wisconsin does not have statutorily required training requirements or standards for attorneys representing youth in delinquency proceedings, the Wisconsin State Public Defender developed Principles of Juvenile Defense Practice that outline best practices for juvenile defense attorneys.

Court Rules

In addition to statutes and case law, juvenile court proceedings are governed by court rules. Wisconsin does not have specific juvenile court rules at the statewide level, but local court rules may apply to juvenile proceedings in that jurisdiction. Some have juvenile court specific court rules within their local 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 Wisconsin, a young person alleged to be delinquent or who is held in a juvenile detention facility has the right to counsel at “all stages of the proceedings.” Wis. Stat. Ann. §§ 938.23(1m)(a); 48.23(1m)(a). If a young person is alleged to be in need of protection or services (a status offender) the youth may be represented by counsel at the discretion of the court. Wis. Stat. Ann. § 938.23(1m)(b). Additionaly, if not explicitly prohibited in the right to counsel statute, “at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing.” Wis. Stat. Ann. § 938.23(3).

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

Determination of Indigence

Wisconsin presumes all youth before the juvenile court are indigent. “If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under [Wis. Stat. Ann. § 938.23] and counsel is not knowingly and voluntarily waived, the court shall refer the child to the state public defender and counsel shall be appointed by the state public defender … without a determination of indigency.” Wis. Stat. Ann. § 938.23(4). The youth’s parent may be ordered to reimburse the public defender, dependent on ability to pay. Wis. Admin. Code PD 6.05.

Waiver of Counsel

A young person in Wisconsin may waive their right to counsel if they are 15 years of age or older, “if the court is satisfied that the waiver is knowing and voluntary” and the court accepts the waiver. Wis. Stat. Ann. §§ 938.23(1m)(a); 48.23(1m)(a). If the court accepts the child’s waiver, the court may not place the child in a secure facility, transfer supervision of the child to the serious juvenile offender program, or transfer the child to adult court jurisdiction. Wis. Stat. Ann. § 938.23(1m)(a).

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. In Wisconsin, a detention hearing must occur within “24 hours after the end of the day on which the decision to detain the child was made, excluding weekends and legal holidays.” Wis. Stat. Ann. § 938.21(1)(a). Provisions for the detention of juveniles are found in Wis. Stat. Ann. §§ 938.19, 938.20, 938.205, 938.208, 938.209, 938.21, 938.217, and 938.23.

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. Wisconsin statutes list three post-disposition proceedings at which youth have a right to counsel.

In Wisconsin, youth have a right to counsel in the following post-disposition proceedings:

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 Wisconsin:

Youth in Adult Court

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


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 Wisconsin. If you would like to collaborate with NJDC to fund-raise for, plan, or engage in an assessment in this state, please contact us.


Current through July 2018.