V. Attorneys in Juvenile Court
The introduction of attorneys to juvenile proceedings raises several concerns, among which is the availability of attorneys, their role in the court, and their effectiveness. First, it is important to note that many juveniles do not have attorneys. It is not uncommon for juveniles to waive their right to an attorney, often because they do not fully understand their rights, especially the importance of the right to legal representation. When juveniles do utilize an attorney, they often rely on public defenders who are burdened by very high caseloads that can range from 360 to 1,000 cases per defender (Jones, 2004). The public defender system often faces problems of insufficient funding, lack of training, high turnover, low prestige, and low salaries. Low pay rates in juvenile justice do not help to attract or retain competent attorneys. In addition, the juvenile court (often called “kiddie court”) is not considered prestigious, and judges may pressure attorneys into taking cases and cooperating.
Many public defenders and private attorneys are reluctant to fight as hard as possible for all youthful defendants, even those who have admitted that they are factually guilty. They argue that such advocacy is inappropriate when the goal is to help the youths rather than punish them. In juvenile court, some attorneys and judges worry that strong advocacy can result in an outcome where a child who “needs help” will not get it because a failure to establish a delinquency petition leaves the court with no jurisdiction over the child. As a result, at least some attorneys assume a concerned adult role rather than a zealous advocate role, encouraging youths to admit to petitions in cases in which an adversarial approach may have resulted in a dismissal of the petition. In a survey of 100 court workers in three juvenile courts, Sanborn (1994) found that 8 out of 10 workers thought that attorneys gave inadequate representation. In fact, 1 out of every 3 was of the opinion that attorneys engaged in behaviors that undermined a fair trial for their juvenile defendants. In addition, about 25% of the respondents thought that defense attorneys would not vigorously represent their youthful clients, and 29% claimed that attorneys acted like guardians rather than zealous advocates.
One qualitative study indicated that attorneys expressed considerable concern for their youthful clients but that they were not always sure of the correct course of action. Attorneys felt that their youthful clients were often passive about decisions such as pleading guilty, and thus the attorneys were unsure of who was making the decisions and the degree to which the youths were making informed choices (Tobey, Grisso, & Schwartz, 2000).
The increased participation of attorneys in the juvenile system is also evident in the growth of prosecutorial participation. Where the initial decision on whether to file a petition and detain a youth traditionally rested with the intake officer, today these decisions often require the approval of the prosecutor. The prosecutor’s approval of the probation officer’s decision to file a petition ensures that the legal criteria exist for a properly authorized petition. The prosecutor checks the legal wording of the petition, determines that enough evidence is available for establishing the petition (finding the delinquent or status offender “guilty”), and makes sure that the offense occurred in the court’s jurisdiction and that the child was of proper age at the time of the offense.
Because of the importance of such legal criteria and because of the growing emphasis on more punitive juvenile models, some jurisdictions have turned away from the traditional probation officer model of intake to models in which the prosecutor is either the first or the sole intake decision maker. Such models are consistent with more legalistic views of juvenile court in which the state has abandoned the traditional parens patriae philosophy.
A further development is that the prosecutor is now taking on increased responsibility in juvenile cases as more and more states are allowing prosecutors to file cases directly in adult criminal court. In addition to the traditional waiver (transfer), several mechanisms allow prosecutors to proceed against juveniles in criminal court: concurrent jurisdiction; statutory exclusion; presumptive waiver; reverse waiver; and once an adult, always an adult statutes. Bishop (2000) estimates that approximately a quarter million youths under 18 were prosecuted as adults in 1996.
Research has shown some interesting results concerning the effectiveness of attorneys in juvenile court. Recent American Bar Association investigations of juvenile courts produced several disturbing findings. First, significant numbers of youths did not have representation, and many others had ineffective counsel due to lack of preparation or training. For many youths who have attorney representation, the quality of that representation is questionable. At detention hearings, attorneys often have little chance to confer with their juvenile clients and are not familiar with alternatives to detention. Most cases are resolved by pleas, and attorneys see many courts as simply interested in dispensing treatment or punishment. Probation officers also make disposition recommendations with little challenge from attorneys. At disposition, many attorneys simply do not act as advocates for their juvenile clients. Most cases are handled informally or by plea bargaining, and attorneys have little impact at disposition.
The situation in America’s juvenile courts appears to be that some attorneys are adversarial, some are still traditional and act as concerned adults, and some are in between the two extremes. Furthermore, in some states, many juveniles are not represented by attorneys. One frequent problem is simply that many juveniles waive their right to an attorney. This state of affairs raises the issue of which is the best approach: zealous advocate, concerned adult, or some compromise between the two alternatives.
The chief advantage of the zealous advocate model is that it is probably the best insurance that only truly guilty youths will come under court jurisdiction. Since the attorney does not pressure the child to admit to the petition (plead guilty), there is less danger that the court will attempt some type of intervention program with youths who are not really guilty. An added advantage is that this approach may well generate the most respect from juveniles for the court system. Fewer youths will feel that they have been betrayed or tricked into something that some adult thought was best for them, despite their own wishes.
The biggest danger of the zealous advocate approach is that it may contribute to what Fabricant (1983) calls benign neglect. That is, since many youths appearing in juvenile court come from families wracked with problems, such as low income, public assistance, or broken homes, they need assistance. An adversarial approach may prevent these children from being railroaded into juvenile prisons or other types of intervention due to insufficient legal defense. That adversarial approach, however, does nothing about the real problems faced by these children in their homes and their neighborhoods.
The advantage of the concerned adult model is that it seeks to address the problems of the child that presumably led the child into delinquency. It also focuses on the needs of the individual child rather than applying a one-size-fits-all punishment based solely on the criminal act that took place. The problem is that this helping philosophy has been the rationale of the juvenile court since 1899, which unfortunately has not met with success.