Juvenile Justice

Staff Report | May 12, 2017

Image of a young man resting his head on his forearm, leaning against a chain link fence

Decided by the U.S. Supreme Court in 1967, In re Gault signified a turning point for the rights of children in juvenile courts.

This month marks the 50th anniversary of a watershed ruling by the U.S. Supreme Court for the treatment of juveniles in the nation’s courts. The 1967 In re Gault decision held that youth are entitled to many of the same rights adults have when encountering the judicial system – the right to an attorney, the right to have an attorney appointed if not able to afford one, the right to remain silent, the right against self-incrimination, and the right to confront witnesses against them.

The particulars of these principles are applied, though, in varied ways throughout the country and across Ohio. Juvenile justice is a balancing act that at once acknowledges children are different because of their age, immaturity, vulnerability, and other distinct qualities, yet considers that youth shouldn’t be deprived of certain protections fundamental to our justice system simply because they aren’t legally adults.

Home-Rule Structure
In Ohio, those who work in the juvenile justice system identify “home rule” – the concept that local governments can choose how to govern themselves – as one reason for the divergent ways the state’s juvenile courts handle cases.

“Every county is different,” said Elizabeth Miller, assistant director of the Office of the Ohio Public Defender.

Take the structure of appointing counsel in the state’s 88 counties. Each one has a board of county commissioners, which determines how counsel will be provided. Miller explained that populous counties have county public defender’s offices, which encompass a juvenile department focusing on the representation of children. In more-rural counties, however, there typically are no public defender’s offices. Instead, courts appoint local lawyers to represent those in need, including children. In addition, financial resources in each location fluctuate due to a hybrid system in which counties must fill gaps left by limits on state funding.

Franklin County Juvenile Court Judge Elizabeth Gill acknowledges the challenges of a home-rule state.

“It is hard to account for differences in population numbers, economics, and rural, suburban, and urban settings before Ohio’s 88 juvenile courts. Smaller counties may have fewer serious violations committed by juveniles, less resources, and a smaller bar,” Judge Gill said. “The primary barrier is not so much that there are 88 counties, but the vast differences in available resources, such as a limited numbers of attorneys available for appointments, lack of treatment programs, and heavy caseloads across the state.”

Headway has been made, though, to bring greater uniformity in administering justice in Juvenile Courts.

Limits on Waiving Counsel
Rule 3 of the Ohio Rules of Juvenile Procedure sets the parameters for a juvenile’s right to counsel and when that right may be waived. A child charged with a felony offense heard in juvenile court can’t waive his or her right to an attorney unless the child first meets privately with counsel to discuss the right and the disadvantages of representing oneself. If a child in juvenile court faces any potential loss of liberty, the court must inform the child on the record of the right to counsel and the downsides of self-representation before accepting a waiver.

A proceeding where the issue is whether the child will be found ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.”
- In re Gault (1967), U.S. Supreme Court

Ten years ago, the Ohio Supreme Court decided In re C.S., where it delineated certain standards surrounding a juvenile’s waiver of counsel that were incorporated into Rule 3. Based on the case, the rule requires courts to consider “the totality of the circumstances including, but not limited to: the child’s age; intelligence; education; background and experience generally and in the court system specifically; the child’s emotional stability; and the complexity of the proceedings” before determining whether a child is waiving the right to counsel knowingly, intelligently, and voluntarily.

The rule also prevents juveniles from waiving their right to an attorney in specific situations. Juveniles can’t reject legal representation when they’re subject to prosecution in adult court or when a request has been made that the child be designated a “serious youthful offender” under state law. In addition, when there’s disagreement with the parent, guardian, or custodian or a request to remove the child from the home, the juvenile cannot waive legal representation.

The updates to Rule 3, effective in 2012, initially took shape in the Supreme Court’s Advisory Committee on Children and Families. Proposed changes to the rule were published for public comment, and the final rule reflects a compromise among many interests.

Lesser Offenses Still Troublesome
Judge Anthony Capizzi of the Montgomery County Juvenile Court believes that youth accused of misdemeanors or status offenses need access to legal representation.

“Too often misdemeanors and status offenses are stepping stones to more serious crimes,” Judge Capizzi said. “If we’re able to redirect the juvenile before their behavior escalates, we do a greater service to both the juvenile and the community.”

Ensuring a child’s right to counsel in all cases would more likely open up options for youth, such as education, drug treatment, and other diversion programs, Judge Capizzi and Miller stated.

Judge Gill, who chaired the Court’s subcommittee that worked on the rule changes, said the initial proposal covered all offenses.

“However, any step toward implementation of Gault is positive,” she said. “Some progress is better than no progress. I think it was important that all voices were heard, which created buy-in from all parties.”

Juvenile Cases Need Specialized Knowledge
To give the best legal guidance to children, both the Ohio Public Defender’s Office and the Ohio Supreme Court support bolstering the skill level of lawyers who represent juveniles. Miller said that even public defenders representing adults often think the juvenile process is the same. She stressed, though, that representing kids is a specialization. The many differences between the adult and juvenile justice systems are made clear in statutes, juvenile court rules, and the overall mission of the juvenile justice system to rehabilitate, rather than punish, children.

Miller has seen many attorneys treat juvenile court as a training ground for their legal careers, an avenue to the next level. However, she explained, more legal talent is needed from those who have a long-term commitment to the unique nature of helping youth in the legal system. Lawyers working with children need to be able to speak the child’s language, to connect and build trust, and to address some special challenges, such as mental health issues and wide-ranging literacy skills, she said.

“I do think people want to do the right thing regarding kids,” Miller noted. “If we catch kids on the front end of the juvenile justice system, we may be able to stop them from ending up in adult court. That’s a success.”

On May 1, heightened training standards were implemented via the Ohio Administrative Code, and the Office of the Ohio Public Defender has implemented training on those standards.

For a county to receive reimbursement from the state for the cost of juvenile defense, lawyers who represent children accused of serious crimes need specialized training or experience in juvenile law. For example, an attorney appointed to represent a child charged with a felony must have earned in the two years before the appointment at least 12 hours of continuing legal education in criminal practice/procedure with half those hours in juvenile delinquency practice and procedure, or have one or two years’ experience practicing law in juvenile delinquency, depending on the felony level.

Training Achievements
Stephanie Graubner Nelson, who manages the Ohio Supreme Court's Children & Family Section, points to a national effort that has enhanced training in juvenile courts. The Juvenile Detention Alternatives Initiative (JDAI), created by the Annie E. Casey Foundation, focuses on cutting the number of low-risk youth confined in detention before and during their court proceedings by speeding up court procedures and finding alternative options. The initiative offers funding to local jurisdictions to sponsor education to help implement these goals. Eight counties in Ohio participate – Cuyahoga, Franklin, Lucas, Mahoning, Marion, Montgomery, Summit, and Trumbull.

“JDAI is promising work,” Graubner Nelson said.

The appointment of counsel for a juvenile is not a mere formality or a grudging gesture to a ritualistic requirement; it is a venerable right at the core of the administration of justice and due process.”
- In re C.S. (2007), Ohio Supreme Court

In 2013, results indicated that fewer kids were spending time locked up. Over a 21-year timespan, locations implementing JDAI reduced the number of children held in detention nationwide by 44 percent, according to the foundation’s data.

In Montgomery County, Judge Capizzi reported that putting JDAI into practice has slashed the number of youth in detention by approximately 70 percent over the last five years.

“JDAI is more than just a detention alternative program,” he said. “In fact, it is a much broader juvenile justice reform movement.”

“In addition, JDAI training has helped our staff understand that detaining a child is, in and of itself, a traumatic experience,” he added. The court has developed many “pro-social and community programs in lieu of sending youth to corrections and/or secured facilities,” he said.

JDAI dovetails with the Behavioral Health Juvenile Justice Initiative, run by the state’s Department of Youth Services (DYS), which primarily deals with youth after they’re sentenced. Both initiatives identify children with special needs, mental health issues, or substance abuse problems and try to divert those youth to community-based treatment programs. Established in 12 counties, the DYS effort, combined with other projects and grants, has resulted in the number of youth in the state’s correctional facilities plummeting from 2,600 in 1992 to approximately 450 in 2014.

Racial Discrepancies Persist
Still a challenge nationally is the number of children of color who are disproportionately represented in the juvenile system compared with ethnic and racial makeups outside the juvenile detention walls.

According to statistics from the federal Office of Juvenile Justice and Delinquency Prevention, racial and ethnic minority youth comprise 46 percent of children in the United States. However, they represent 68 percent of the children held in detention before their case is resolved, serving a commitment after sentencing, or placed in a facility as part of a diversion agreement. Miller would like to see more information gathered on this issue in Ohio as a tool to combat the disparities.

The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’”
- In re Gault (1967), U.S. Supreme Court

“The problem is we don’t have comprehensive data, and the statistics we have aren’t uniform statewide,” Miller said.

Judge Gill agrees, adding that it’s very difficult to manage this type of data collection on a statewide level.

“There’s the issue of definitions, for example. What is recidivism? Over what timeframe? Do you count only adult convictions? If we don’t use exact definitions, then it’s difficult to collect accurate numbers. And few, if any, courts can afford excellent data collection software,” she said.

Judge Capizzi sees the hurdles as well.

“We need to be able to compare apples to apples,” he said. “A robbery, assault, drug possession, or unruly in Montgomery County must mean the same thing in Ashtabula, Hamilton, and Henry counties.”

“Without the ability to review data, though, there is a possibility of abuse and of juveniles not receiving appropriate services or having their rights protected,” he added.

Cooperative Endeavors Praised
While many organizations press for more improvements statewide, collaboration is common among those working in the juvenile court system. The Public Defender’s Office has seats on various juvenile justice committees, including ones at DYS, the Ohio Criminal Sentencing Commission, and the Supreme Court. Judge Gill said Ohio counties implementing JDAI standards have had extraordinary success bringing together all the stakeholders – police, schools, public defenders, prosecutors, probation officers, and others.

She noted that the Supreme Court has taken the lead on fostering collaboration to further juvenile justice.

“The Court unifies us across the state, is very supportive of the juvenile courts, and keeps us on track to move Gault forward for the next 50 years,” she said.

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