ENSURING EFFECTIVE DEFENSE FOR JUVENILES

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1 ENSURING EFFECTIVE DEFENSE FOR JUVENILES National Conference of State Legislators Oct. 1, 2015 Representative Pete Lee, Colorado Kim Dvorchak, National Juvenile Defender Center, Washington DC Patricia Lee, Managing Attorney - San Francisco Office of the Public Defender Authur Bowie, Managing Attorney Sacramento Office of the Public Defender

2 California Juvenile Arrests 2014 Felonies: 19,627 Violent felonies: 8,024 Misdemeanors: 48,297 Status Offenses: 10,881 Eight out of ten juveniles arrested (80.4 percent)were referred to county juvenile probation departments More than three-fourths (87.8 percent) of the juveniles tried in adult court were convicted

3 Survey of Training & Practice Resources for California Delinquency Counsel 45 % had no juvenile specific training before representing youth in court Of those with some specific training, 43 % received one day or less 50% work in offices that do not provide ongoing delinquency training 70% work in offices with no practice manual or do not know if one exists 82% work in offices that lack practice standard do not know if standards exist (Survey of more than 200 juvenile defense counsel from 38 counties in 2010)

4 Effective Juvenile Delinquency Representation Helps to Prevent: Wrongful conviction Formal wardship without informal or diversion consideration Unnecessary incarceration Unrecognized mental health, educational, juvenile competence or immigrations issues Findings of unfitness for juvenile court Re-entry without representation or support Recognition/prevention of collateral consequences Unchallenged legal errors

5 Tale of Two Cities (Sacramento) Promises Unfulfilled Cathryn Crawford & Lorrane Boissoneault, Promise Unfulfilled: Juvenile Justice in America, (2012) Many communities, particularly urban ones, juvenile courts are the first, rather than last, resort. Riddled with systemic problems. Youth of color are disproportionately represented. Children appearing in court without lawyers or with lawyers who are overwhelmed and under resourced.

6 Tale of Two Cities (Sacramento) Some prosecutors, judges, and defense counsel suspend constitutional protections out of a misguided belief that helping a child trumps due process rights. The overall juvenile justice system is ill-equipped to properly assess and/or address the needs of youth in it, often resulting in adverse and long lasting consequences for youth and their communities.

7 Private Contract Models California Sue Burrell, Contracts for Appointed Counsel in Juvenile Delinquency Cases: Defining Expectations, 314 UC Davis Journal of Juvenile Law & Policy, Vol.61:1 (Winter 2012) [JIDAN Initiative] Analysis of 56 of 58 (California) county contracts for appointed counsel in delinquency cases to see if they contained the key elements of representation for compensation, training and experience requirements, and oversight. The article concluded that appointed counsel contracts from California reveal a disappointing lack of attention to basic elements of delinquency representation, i.e., training and experience requirements to handle the complex set of specialized skills needed by delinquency counsel, including knowledge of criminal and juvenile law, juvenile court procedure, trial and appellate skills, adolescent development, juvenile adjudicative competence, rehabilitative services, and collateral consequences of court involvement. The article further found that the prevalent use of generic contracts for multiple kinds of cases means that cases are regularly handled without reference to critical issues such as post-disposition representation. Furthermore, the failure of many contracts to include qualifications for employment represented a missed opportunity for contracting agencies to obtain experienced, well-trained counsel and to provide ongoing training requirements and quality assurance. Counsel appointed under the contracts are left with little idea of what is expected of them, and no basis which to negotiate resources and conditions of employment that are needed to proved competent representation. (See at, )

8 A Brief Survey of Jurisdictional Standards District of Columbia: Attorney Practice Standards for Representing Juveniles Charged with Delinquency or as a Person in Need of Supervision Ohio: Standards of Representation of Clients in Juvenile Delinquency Proceedings Georgia: State of Georgia Performance Standards for Juvenile Representation in Indigent Delinquency and Unruly Cases North Carolina: Performance Guidelines for Appointed Counsel in Juvenile Delinquency Proceedings at the Trial Level Nevada: In the Matter of the Review Issues Concerning the Representation of Indigent Defendants in Criminal and Juvenile Delinquency Matters Louisiana: Trial Court Performance Standards for Attorneys Representing Children in Delinquency Proceedings Florida: Florida Guidelines of Practice for Attorneys Who Represent Children in Delinquency Proceedings Massachusetts: Committee for Public Counsel Services Performance Standards Governing Representation of Indigent Juveniles in Delinquency, Youthful Offender, and Criminal Cases

9 On the Home Front California California Rules of Court, rule A child s counsel is charged in general with defending the child against the allegations in all petitions filed in delinquency proceedings and with advocating, within the framework of the delinquency proceedings, that the child receive care, treatment, and guidance consistent with his or her best interest. Includes post-dispositional hearings. Rule supported by Judicial Counsel (Administrative Office of the Court): Pamphlet on the Effective Representation of Children in Juvenile Delinquency Court. This pamphlet provides juvenile court defense attorneys with both guidance on fulfilling the requirements of rule [5.663] of the California Rules of Court and suggestions for effective advocacy beyond what is mandated by law. It does not establish minimum practice standards, nor does it supply an exhaustive list of responsibilities.

10 On the Home Front California State Bar of California Guidelines on Indigent Defense Services Delivery Systems (2006) The... guidelines discuss standards of representation and quality of services with suggested applications for each delivery system. When referring to the guidelines, defenders should consider ways in which they might be applied within their particular delivery system.

11 The Sacramento Model Committed to long-term assignments Juvenile delinquency as a specialization Committed to vertical representation Continuity of counsel Committed to promotional opportunities Committed to training and meeting guideline/standards of practice expectations More effective litigation Education rights Mental health Better outcomes, and more GREAT!... UNTIL THE MONEY RUNS OUT!!! or PERSONNEL/PERSONALITIES/PHILOSOPHIES CHANGE!!! Revert back to old practices

12 Legislative Push For Standards of Practice and Mandatory Training Senate Bill 166 (2012) Hello, Arthur! I m looking for bills and I was thinking back on our discussion in Florida. Can you send me any information you have about the trainings required for lawyers in the delinquency system, what current trainings are available, and how this compares to lawyers in the dependency system. I know that s a lot, so feel free to call me to discuss. It sounds like a great idea! Andi Andi Lane, Legislative Aide Pathways Program Manager Senator Carol Liu, 21 st District

13 Legislative Push For Standards of Practice and Mandatory Training Senate Bill 166 (2012) Would have required the California Judicial Counsel to establish minimum hours of training and education necessary in order to be appointed as counsel in delinquency proceedings. Would have also required the Judicial Counsel to adopt rules of court establishing required training areas for counsel in juvenile delinquency proceedings as specified: Developments in juvenile delinquency law Child and adolescent development Special education Mental health issues Child abuse and neglect issues Counsel s ethical duties Appellate issues Direct and collateral consequences for a minor of court involvement Securing effective rehabilitative resources.

14 Legislative Push For Standards of Practice and Mandatory Training Senate Bill 166 Would have encouraged public defender offices and agencies that provide representation in juvenile delinquency hearings to provide training on juvenile delinquency issues. District attorneys would have also been encouraged to pursue education in the relevant areas. Provide that experts whose appointment is requested by delinquency attorneys are agents of he attorneys and require those experts to adhere to the attorney-client privilege. (LA County) Attorneys practicing in juvenile delinquency courts shall be solely responsible for compliance with the training and education requirements adopted.

15 Where Do We Go From Here Chaos or Community? What did we learn from the political process? Lots of opposition The courts The prosecutors The State Bar The defense bar Public Private Must be able to show how better outcomes are achievable when quality representation is provided. Must get defense bar managers on board, especially public defender and/or indigent defense delivery systems.

16 Tale of Two Cities (San Francisco) San Francisco model site for holistic defense: Felony experience Fitness Career juvenile defender specialists Holistic representation Social Worker/Youth advocates mitigation experts Girls and gender specific, culturally competent Education advocacy Immigration Magic resource and programs - prevention

17 Tale of Two Cities (San Francisco) San Francisco 2008 controller s audit What percent of the Public Defenders Budget is used in defense of indigent and juvenile clients VS. social work and other non-criminal defense functions? Have social Services and reentry work provided by the Office of the Public Defender been shown to reduce recidivism? Data collection: - Court adopted defense alternative recommendations 36 out of 45 cases 20 cases home supervision vs. removal ($600,000 in savings to the City)

18 Tale of Two Cities (San Francisco) Only 2 youth re-offended with a new delinquent offense 412 school, home, and community based organization visits Court rule requires post-disposition representation by delinquency attorneys until so relieved by the Court

19 Juvenile Legislative Advocacy Proposition 47 - applies to juvenile adjudications - non-violent offenses reduce to misdemeanors - Reduction of fines - Recalculation of confinement time - DNA expungement

20 Automatic Record Sealing Satisfactory completion of informal non-wardship or probation for non serious felonies (707 (b) WIC) Dismissal of petition Court sealing of records in the custody of the juvenile court Exceptions: DEJ eligibility and WIC 388 for long term foster care benefits AB 666 clean up legislation and the role of the juvenile defender

21 AB 703 Minimum Training Requirements for Juvenile Defenders (PJDC sponsored) Delinquency attorneys need specialized skills, education and training ensuring competent representation Express interest and confidentiality Confer with minor before hearings, maintain meaningful and professional attorney client relationship including post disposition Consult with social workers, mental health professionals, educators and other experts Judicial Council to establish protocols and requirements

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