Frequently, even though counsel is assigned to represent youth, crushing caseloads, lack of time to investigate charges or gather critical information, and inadequate training and experience result in ineffective representation. A comprehensive study published by the American Bar Association’s Juvenile Justice Center indicated that aggressive advocacy was often discouraged and was not widespread or even very common. Other findings from the study of state juvenile justice court defense systems confirmed that excessive caseloads, inordinately low compensation, lack of counsel at critical stages of the process, lack of training, and lack of investigative and technology resources remain common problems. Juvenile justice court personnel have sometimes perceived that when counsel represents youth, the court process is delayed and made more cumbersome. In contrast to this perception, juvenile justice courts have found that providing counsel facilitates earlier resolution of cases.

Many juvenile justice courts have systems that provide access to counsel the day of the detention or initial hearing. However, most juvenile justice courts wait to address the issue of counsel until the parties appear at court. This system design results in the inability of counsel to meet with the youth prior to the day of the hearing and is generally designed this way because:

• State laws prohibit the public defender from becoming involved in a case until after the juvenile justice court orders the appointment of counsel;
• Funding systems do not allow payment prior to appointment;
• Inadequate funding systems require the public defender to limit the number of cases that can be handled and the amount of time spent on a case to a minimum. This causes processes to be developed that discourage youth and families from requesting counsel; and,
• A belief by juvenile justice courts that representation is not really needed by youth, or that if representation is needed, contact prior to the first hearing is not necessary.

The delay in the appointment of counsel is unfortunate. First, it makes it difficult for juvenile justice courts to set and hold to specific initial hearing times, and it creates unnecessary and inefficient delays, often requiring additional hearings that could have been avoided. Second, it prevents indigent youth and families from being able to access counsel in advance of the hearing to fully explore the options and make advised and considered decisions about the best course of action. Finally, it prevents the public defender from being able to prepare for the initial hearing prior to the court date. Families who can afford private counsel do not have these barriers and rarely appear at a detention or initial juvenile justice court hearing without prior consultation with counsel. There is currently a movement toward appointing counsel for all youth regardless of income. The latest JJDPA reauthorization states that “publicly supported court-appointed legal counsel with experience representing juveniles in juvenile justice proceedings.”

Potential solutions to enable indigent youth and families to interact with counsel before the first hearing include:

• The juvenile justice court and public defender working with the legislature to change rules or statutes that prevent the public defender from becoming involved before the first court hearing.
• Drafting a memorandum of understanding between the juvenile justice court and public defender that allows the public defender to become involved before the first hearing. Three ways to accomplish this are:
  • Agree that at the time the petition is filed and prior to the summons being sent, the juvenile justice court will generate an order on every formal case stating that if a youth qualifies, the juvenile justice court will appoint the public defender to the case nunc pro tunc to the qualification date.
  • Agree that if the youth seeks the services of the public defender prior to the hearing and qualifies, the public defender will immediately submit a request for appointment for the juvenile justice court to consider prior to the first hearing and that the request will be favorably received.
  • The juvenile justice court, public defender, and funding sources work out a funding system that enables the public defender to accept a qualified youth for representation before the hearing.
• The system creates interim legal services that indigent clients can access when the police begin an investigation or when the family learns that a petition has been filed. These services provide fast, free legal advice until a public defender is assigned. A representative meets with the youth and family at the police station or detention facility, advises youth and family of their rights prior to the juvenile justice court hearing, and collects information for the first hearing.

Juvenile justice court judges are responsible to ensure that qualified and effective counsel is available for all youth alleged to have violated the law who appear before the formal juvenile justice court. If such systems do not exist, the judge should work with the public defender, private bar, funding sources, and the legislature to overcome the barriers to creating this system.