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

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

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)

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

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.

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.

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, www.ylc.org/2012/05/sue-burrells-law-review-article-published/. )

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

On the Home Front…California California Rules of Court, rule 5.663

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.”

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.”

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

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, 21st District

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.

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.

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.

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

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)

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 5.663 requires post-disposition representation by delinquency attorneys until so relieved by the Court

Juvenile Legislative Advocacy Proposition 47

- applies to juvenile adjudications

- non-violent offenses reduce to misdemeanors

- Reduction of fines

- Recalculation of confinement time

- DNA expungement

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

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