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The first specialized juvenile court in the United States was created on July 1, 1899, as part of an Illinois legislative act establishing the juvenile court division of the circuit court for Cook County.2 The 1899 Illinois legislation codified a more progressive way to treat wayward youth: instead of showing them the error of their ways by punishing them, the state would help youth correct their course and become productive, law-abiding citizens. Because the goal of the newly-created system focused on rehabilitation and not just punishment, the state law required only cursory legal proceedings that placed judicial economy and youth rehabilitation before due process.3 There was no role for defense attorneys—and little role for prosecutors—in that system.

Social workers and behavioral scientists advised the court on the most appropriate disposition of the cases. For the first time, detained youth were separated from adult offenders and placed in training and industrial schools, as well as in private foster homes and institutions.4 This type of specialized juvenile court was quickly duplicated in the larger cities of the East and Midwest, so that by 1925, some form of juvenile court existed in all but two states.5

Until the 1960s, constitutional challenges to juvenile court practices and procedures were consistently overruled. Children were denied the rights to counsel, public adjudications, and jury adjudications. They did not have any immunity against self-incrimination. They could be convicted on hearsay testimony.6 They could also be convicted by only a preponderance of the evidence. Previous case law found that juvenile proceedings were civil in nature and that their purpose was to reha- bilitate rather than punish.7 Research on the juvenile justice system had begun to show that juvenile court judges often lacked legal training;8 that probation officers were undertrained and that their heavy caseloads often prohibited meaningful social intervention; that children were still regularly housed in adult facilities; and that juvenile correctional institutions were often, in reality, overcrowded and violent juvenile prisons serving as little more than breeding grounds for further criminal activity.

In 1963, the United States Supreme Court held that the Sixth Amendment right to counsel requires that indigent adults charged with a felony offense be appointed an attorney at public expense. In that seminal case, Gideon v. Wainwright,9 a unanimous court wrote that any person too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him, explaining that “lawyers in criminal court are necessities, not luxuries.”10 In the wake of Gideon, in a series of cases starting in 1966, the Supreme Court extended this and other bedrock elements of due process to youth facing delinquency proceedings. Arguably the most important of these cases, In re Gault,11 held that juveniles facing delinquency proceedings have the right to counsel under the Due Process Clause of the United States Constitution, applied to the states through the Fourteenth Amendment. The Court observed that youth in juvenile court were getting “the worst of both worlds,” ex- plaining that youth received, “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”12

The Court continued: “[t]he probation officer cannot act as counsel for the child. His role … is as arresting officer and witness against the child. Nor can the judge represent the child.”13 The Court concluded that no matter how many court personnel were charged with looking after the accused child’s best interests, any child facing “the awesome prospect of incarceration” needed “the guiding hand of counsel at every step in the proceedings against him” for the same reasons that adults facing criminal charges need counsel.14

The introduction of legal advocates into the juvenile court system was meant to infuse the informal juvenile court process with more of the strictly observed constitutional protections of adult criminal court and its concomitant adversarial nature: the Court observed specifically that juvenile respondents needed defenders to enable them “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether [the client] has a defense and to prepare and submit it.”15 The Court specifically denounced the typical pre-Gault courtroom proceeding in which the child’s due process rights were not protected by juvenile defense counsel, in acknowledgement of the unfortunate reality that the “absence of substantive standards ha[d] not necessarily meant that children receive[d] careful, compassion- ate, individualized treatment.”16

Perhaps most importantly, beginning with this line of due process cases, juveniles accused of delinquent acts were to become par- ticipants, rather than spectators, in their court proceedings. In addition to the right to counsel, Gault also extended to youth the right to notice of the charges against them, the privilege against self-incrimination,17 and the right to confront and cross-examine

CHAPTER ONE Due Process and the Juvenile Justice System

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adverse witnesses.18 In later cases, using fundamental fairness as its touchstone, the Court held that a youth cannot be adjudi- cated delinquent unless the state proves his or her guilt beyond a reasonable doubt,19 that a delinquency proceeding constitutes being placed “in jeopardy” and bars future prosecution for the same allegations,20 and that youth have the right to a formal hearing and an attorney before being transferred to adult court for criminal prosecution.21 In each of these cases, the Court reaffirmed, that “civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile court[.]”22

As the President’s 1967 Commission on Law Enforcement and the Administration of Justice stated, “[N]o single action holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel.”23

Role of Counsel in Delinquency Proceedings The defense lawyer plays a critical role for youth in delinquency court by protecting clients from unfairness, promoting accuracy in decision making, providing alternatives for decision makers, and monitoring institutional treatment, aftercare, and re-entry. Throughout the entire court process, the juvenile defender is the singular individual responsible for bringing the child’s perspective before the court.

The role of the juvenile defender has evolved to require a complex and challenging skill set, as well as an acute understand- ing of what it means to be an advocate for a child client. By the early 1980s, there was professional consensus that defense attorneys owe their juvenile clients the same duty of loyalty as owed to their adult clients.24 That coextensive duty of loyalty requires defenders to represent the legitimate “expressed interests” of their juvenile clients, and not the “best interests” as determined by the individual judge, a probation officer, or a guardian ad litem.25 This role is central to the kind of juvenile court Gault requires: one in which there is an advocate whose sole responsibility is protecting the due process rights of the child within the well-intentioned efforts of the other system stakeholders.

In order to effectuate this role, juvenile defenders have ethical and professional obligations that are central to their work. Unlike other actors in the system, juvenile defenders must empower their clients to understand and make important and reasoned decisions about their cases, such as whether to accept a plea agreement or exercise the right to trial; whether to exercise the right to remain silent or testify; whether to choose a jury trial or bench trial, when applicable; and whether to advocate for particular services. This kind of empowerment can be difficult with an adult client, but with children, the ability to properly advise and counsel a client is even more challenging because it requires an understanding of developmen- tally-appropriate communication styles and interview techniques.

Juvenile defenders have the added complication of maintaining client confidentiality when so many players— parents, teachers, mentors, service providers, etc.—have a stake in and an opinion about what should happen in the case. While each of these players can be an ally that helps further the goals of the youth within the case, not every actor will always share the same goals. It is impossible to understand a child in a vacuum, and these other people are vital to the defender’s understanding of the circumstances of the case in context. However, defenders have the difficult task of maintain- ing relationships with all the people who are important in the child’s life while ensuring that a confidential relationship is maintained.

Every lawyer has an ethical responsibility to represent his or her client with competence and diligence. This requires more than simply being well-versed in the law, rules, and procedures of a juvenile court. For juvenile defenders, the day-to-day in- teractions with their clients require fluency in areas of child and adolescent development, an understanding of and comfort with age-appropriate communication techniques, and familiarity with non-courtroom advocacy that includes everything from special education systems to mental health providers.

Juvenile defense counsel plays a vital role throughout the duration of the court’s jurisdiction over the young person. The scope and duration of appointment ought to extend from the initial hearing, at the latest, through post-disposition rep- resentation. Access to counsel is needed for post-disposition review hearings, sentence modifications, appeals or other col- lateral reviews, accessing particular services such as drug or mental health treatment, or challenging dangerous or unlawful condition of confinement.

Critical Importance of the Attorney-Client Relationship The breadth of responsibilities an expressed interest representation requires are difficult, if not impossible, to live up to if the defender does not build a trusting relationship with the client. All codes of professional conduct and defender practice guides acknowledge that good communication is at the heart of the attorney-client relationship. Communicating effectively,

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building rapport, and cultivating client engagement take time, which is a luxury many defenders feel they do not have. The reality, however, is that the entire system is better served when defenders are able to develop these kinds of relationships and are able to ensure that children not only understand what is happening, but have the ability to engage thoughtfully in the decision-making process. Juvenile defense counsel cannot assume that he or she knows what is best for the client, but instead must employ a client-centered model of advocacy that actively seeks the client’s input, conveys genuine respect for the client’s perspective, and works to understand the client in his or her own socioeconomic, familial, and community con- text. Juvenile defense counsel’s abiding purpose is to empower the client to make informed decisions.26 It is only through skilled, developmentally and age-appropriate communication that the lawyer can be prepared to competently advise and represent the client’s interests.

Developing a good working relationship with youth under highly stressful circumstances raises unique challenges and re- quires special awareness and responses by counsel. A defender’s ability to both perceive and appropriately address a youthful client’s fears and anxieties is central to his or her ability to work effectively with the client to ensure high-quality defense. Youth in delinquency systems often have disabilities that affect critical aspects of their functioning, especially their ability to communicate and comprehend. Juvenile defenders must be alert to the special needs or challenges of each client, while also identifying the client’s strengths—be they familial, personal, or potential—and help integrate those strengths into the theory of the case and the disposition planning.

The Mandate for Juvenile Defense as a Specialized Practice Children are different from adults; this is a fact that has been regularly upheld by the United States Supreme Court. Juvenile defenders and the public defense delivery system must respond accordingly. Juvenile defense is a highly specialized practice that requires not only the trial skills of an attorney in the criminal system, but also knowledge of a whole host of juvenile- specific procedures, systems, and statutes.27 According to a Colorado Department of Public Safety report, the Colorado juvenile justice system is more complex than the adult criminal justice system.28 The report states that “The juvenile justice system comprises complex processes involving multiple agencies with different objectives and mandates.”29

The job of the juvenile defense attorney is enormous. Beyond their complexity, delinquency cases carry consequences with significant and lasting implications for youth and families. A juvenile defender has dual responsibilities to prepare and present not only the criminal case, but must also be skilled in presenting the social case to assist courts in making determinations at every stage of the proceedings. Balancing these sometime competing tensions makes juvenile defense especially challenging. Counsel must be patient and build rapport with his or her client, explaining the confidential nature of their relationship.

At a minimum, juvenile defenders must be aware of the strengths and needs of their juvenile clients and of their clients’ families, communities, and other social structures. Juvenile defenders must also understand child and adolescent devel- opment to be able to communicate effectively with their clients and to evaluate their level of maturity and competency and its relevance to the delinquency case. Juvenile defenders must have knowledge of and contacts at community-based programs to compose individualized disposition plans. Similarly, they must be familiar with mental health, education, special education, and immigration laws and services. Juvenile defenders must be able to enlist the client’s parent or guardian as an ally without compromising due process or the attorney-client relationship. Juvenile defenders must help the client understand the impact of a plea or other juvenile court adjudications, and the direct and collateral conse- quences that attach to that decision.

Juvenile defense delivery systems must reflect the field’s knowledge of the unique attributes of adolescence in defense prac- tices. To do otherwise would be irresponsible because it ignores our understanding of adolescent development, impedes counsel’s ability to communicate effectively with a young client, and limits a child’s ability to meaningfully assert his or her rights. If counsel must guide youth toward informed decision making, systems must provide juvenile defenders with the training and support needed to perform accordingly. Juvenile defense counsel has an obligation to maximize each client’s participation in his or her case, and they can only be expected to do so with ongoing and specialized skills and training. Underscoring this importance, the United States Supreme Court noted in 2010 that there are “special difficulties encoun- tered by counsel in juvenile representation.”30 Indeed, “the features that distinguish juveniles from adults also put them at significant disadvantage in criminal proceedings.”31 The role of a juvenile defender is multifaceted and challenging. It requires extraordinary sensitivity as well as all the legal knowledge and courtroom skills of a criminal defense attorney representing adult defendants.