Serving Our Children
I recently had the opportunity to attend and speak at a right to counsel symposium at the University of Tennessee. The topic I was speaking about was the right to counsel for children. I would like to share those comments with the NAPD community. My comments contain messages for those who work in public defense, primarily leaders, for juvenile advocates, and for judges. Before I start, I want to say I get to see firsthand what excellence in juvenile advocacy looks like. You see, I have the extraordinary good fortune to have the finest juvenile advocacy crew in the nation – the Juvenile Division of the Office of the Ohio Public Defender. They are fierce and creative advocates for children.
My message for public defense leaders: You must lead a culture change in the public defense community about juvenile practice. It is not ‘kiddie court’, it is not a training ground for new lawyers, and it is not a lesser practice area because it does not have juries. These are children, they deserve the best we can provide, they are our future and they present to us our greatest obligation to do our best. For far too many public defense agencies in this country, juvenile practice is where we place new lawyers. Lawyers should not gain experience with children as the training ground. And all of us in the public defense community need to take a moment and examine our own views about juvenile practice. Too many of us think of juvenile as a second tier area of practice and not as respected as other areas that include jury trials. Our culture must change. Juvenile practice is a specialized area of law that requires expertise and dedication equal to any other area.
My message for juvenile practitioners: You have been handed a gift wrapped in gold in the form of Roper, Graham, and Miller. Not since Gault has the United States Supreme Court handed down such great language in the area of juvenile law. I have spoken to juvenile practitioners who say they have taken care of the Roper, Graham, and Miller cases in their jurisdictions. My response – reread those cases. They are not just about life sentences or life equivalent sentences. These cases are full of glorious language about the unique nature of being a child, special circumstances about adolescent brain development, and the fact that a judge must have the discretion to take these factors into consideration in juvenile matters. This means mandatory bind over/transfer should end, mandatory time cases should end, and specifications for guns that mandate certain outcomes should end. So, juvenile practitioners, open your gift and go to court, there is much to be done.
Finally, my messages for judges: Give these children lawyers. In Tennessee, I was informed that the practice is if the parents are not indigent and choose not to hire a lawyer for their child, this constitutes a waiver of counsel. My response was not fit for print. With that mantel of being a judge comes great power and great responsibility. You cannot have one without the other. That a parent has the choice to hire counsel is telling. Compare it to medical care – if a parent fails to seek necessary medical treatment a judge can order the child to be treated and the parent can be prosecuted for failing to do so. But if they have a choice not to hire counsel and a judge cannot force them do so then this means the parent has no duty. The only constitutionally correct outcome of that means that you cannot look to the parent’s income as if the child has access to those resources. The child does not. Until you can hold a parent in contempt for not hiring counsel you cannot impute the parent’s income to the child. I am told that there are areas in this country where waiver rates are 50|PERCENT|, 60|PERCENT|, and even 70|PERCENT| in juvenile court. This is a stain on our justice system.
So let me end with what I believe is a simple and obvious solution: Give them lawyers, they are children.