Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel

The Snapshot, Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel, reveals that nearly every state falls short of its constitutional obligation to provide effective lawyers for youth.

Based on statutory analysis and interviews with juvenile defenders in every state, the Snapshot exposes gaps in procedural protections for children — gaps that perpetuate the over-criminalization of youth, racial and economic disparities, and the fracturing of families and communities.

The Snapshot explores five fundamental barriers to access to counsel for children: 

  • Eligibility procedures that prevent appointment of a publicly funded attorney;
  • Fees charged to children for what should be a free public defender;
  • Appointment that happens too late in the process for children to receive strong representation;
  • Permissive waiver of counsel; and the stripping of young people’s right to an attorney after sentencing.

Key Findings

  • Children in the United States Are Not Guaranteed Lawyers:
    • Only 11 states provide every child accused of an offense with a lawyer, regardless of financial status. 
  • Children Do Not Get Attorneys Until It Is Too Late:
    • No state guarantees lawyers for every child during interrogation, and only one state requires it under limited circumstances. 
  • Children Must Pay for Their Constitutional Right to Counsel:
    • Thirty-six states allow children to be charged fees for a “free” lawyer. 
  • Children’s Rights Are Not Safeguarded by the States:
    • Forty-three states allow children to waive their right to a lawyer without first consulting with a lawyer. 
  • Children’s Access to Counsel Ends Too Early:
    • Only 11 states provide for meaningful access to a lawyer after sentencing, while every state keeps children under its authority during this time.
Graphic created May 2, 2019; citation below

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The states who do not automatically give all youth a lawyer are: Alabama; Alaska; Arizona; Arkansas; California; Colorado; Connecticut; Florida; Georgia; Hawaii; Idaho; Illinois; Iowa; Kansas Kentucky; Maine; Maryland; Michigan; Minnesota; Mississippi; Missouri; Nebraska; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Dakota; Oklahoma; Oregon; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; Wyoming. Contra Del. Code Ann. tit. 29, § 4602(c) (West 2016) (“Any person under the age of 18 arrested or charged with a crime or act of delinquency shall be automatically eligible for representation by the Office of Defense Services”); La. Child. Code Ann. art. 320(a) (2010) (“For purposes of the appointment of counsel, children are presumed to be
indigent.”); Mass. S.J.C. Rule 3:10(h)(iv) (2016) (defining as indigent “a juvenile, a child who is in the care or custody of the Department of Children and Families, or a young adult”); Mont. Code Ann. § 47-1-104 (4)(b)(ii)-(iii) (West 2013) (providing that every youth charged in delinquency proceedings “is entitled by law to the assistance of counsel at public expense regardless of the person's financial ability to retain private counsel”); N.C. Gen. Stat. Ann. § 7b-2000(b) (2001) (“All juveniles shall be conclusively presumed to be indigent, and it shall not
be necessary for the court to receive from any juvenile an affidavit of indigency.”); Ohio Admin. Code 120-1-03(B)(4) (2017) (“An applicant is presumed indigent and thus entitled to the appointment of counsel at state expense [when] [t]he applicant is a child . . . . In determining the eligibility of a child for appointed counsel, the income of the child's parent, guardian, or custodian shall not be considered.”); 42 Pa. Stat. and Cons. Stat. Ann. § 6337.1(b)(1) (West 2012) (“In delinquency cases, all children shall be presumed indigent.”); Vt. Stat. Ann. tit. 13, § 5238(g) (West 2016) (while nearly all potential defendants are evaluated to determine whether they should pay a co-payment or reimburse the state for publicly-funded legal counsel, the statute provides that “[a] juvenile shall not be ordered to pay any part of the cost of representation”); Wash. Rev. Code Ann.§ 13.40.140(2) (West 2014) (while a youth’s family’s ability to pay will be assessed, “[t]he ability to pay part of the cost of counsel does not preclude assignment [and] [i]n no case may a juvenile be deprived of counsel because of a parent, guardian, or custodian refusing to pay”); Wis. Stat. 938.23(1m)(a), (4) (West 2016) (providing a right to counsel to all youth charged with delinquency or held in detention, and providing that “[i]f a [child] has a right to be represented by counsel or is provided counsel at the discretion of the court under this section 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”); Ind. Code. Ann. § 31-32-4-2 (West 2017) (providing that the court “shall appoint counsel for the child at the detention hearing” if not earlier, and “may appoint counsel to represent any child in any other proceeding”). But see Ind. Code Ann. § 33-40-3-6(a) (West 2017) (providing that a guardian may be charged for the representation if it is later determined the guardian is financially able).