The title of this post is the title of a new article in the Georgetown Journal of Poverty Law and Policy by Professor Megan F. Chaney (La Verne College of Law) on the need for post-adjudicatory juvenile defenders (available via Lexis/Westlaw at 19 Geo. J. Poverty L. & Pol’y 351 (2012)). This is an issue that is currently relevant in my state, where our youth have no right to appointed counsel post-adjudication, and is likely to have meaning in yours as well.
Here is an excerpt from the introduction:
The importance of Gault and the crucial role of juvenile defense counsel became evident to me during my time in the Juvenile Public Defender’s Office in Miami, Florida. My personal experience was that the quality of juvenile representation was equal to that provided for adult clients. However, at the conclusion of the adjudicatory process, I lost contact with my child clients. The focus of my work in juvenile court was on the dispositional or adjudicatory phase of the proceeding, not on the post-adjudicatory phase. It is possible that members of our office were entrusted with monitoring juveniles who were committed to the state for care. I, however, was not. My job was to investigate charges and try cases.
After leaving the public defender’s office, I did not think about the juvenile justice system again until I was asked to co-direct the Juvenile Justice Clinic at the William S. Boyd School of Law at the University of Nevada, Las Vegas in 2006. There, I began to understand firsthand the illusion of “rehabilitation” in the juvenile court. In an effort to discover where the juveniles went after they were committed to the state of Nevada, several students enrolled in the Advanced Juvenile Justice Clinic traveled to all of the residential treatment programs in the state. We were often met with surprise, as few lawyers had ever visited their clients in these facilities. The facilities were so remotely located that not many people visited, including families and parents of those committed. Without many people visiting and commenting on the care of adjudicated juveniles, children were at the mercy of program facilitators and front-line workers entrusted by the state with their care and rehabilitation.
Over the last decade, practices and conditions at various juvenile rehabilitative programs have been examined and have been found to be failing to live up to the promise of a rehabilitative system. Children are sent to impersonal and overcrowded institutions that are often devoid of rehabilitative programming. These programs are often ill equipped to provide individualized treatment and assess each child’s needs.
The first juvenile justice reformers envisioned a safe haven away from the confines and harshness of adult court where less culpable youngsters could be rehabilitated to reenter society as productive, law-abiding adults. However, juvenile rights advocates pointed out that too much of a focus on rehabilitation and benevolent treatment was veiling the realities of juvenile “incarceration.” The United States Supreme Court stated in 1966 that “[t]here is evidence . . . that the child receives the worst of both worlds: that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Juvenile rights reformers sought and gained minimum constitutional protections for juvenile clients.
The pendulum has therefore swung from unmitigated rehabilitative discretion to quasi-criminal courts where children who are adjudicated with the benefit of only a smattering of their rights are not evaluated individually for rehabilitation specific to their potential to reenter society. The juvenile court is an on-going experiment in the best ways to serve the public and adjudicated youth. Not enough has been done to create a unique court that embraces this vision. The court, when working fluidly, may not look like a mini-criminal court. The notion that children must have all of the constitutional rights afforded adults in the criminal justice system or no rights at all is an incorrect dichotomy. The juvenile court should be experimenting with different lawyering roles that fit its institutional missions. These roles may include new and unexplored ways of serving the court and its constituencies. This Article addresses this dilemma. When the juvenile offender has been committed to the care of the state, the journey of the juvenile defender often comes to an end despite the fact that the need for representation continues. The state has the responsibility to provide appropriately tailored and effective rehabilitative programs for the children in its custody, and continued legal representation is the most effective means to ensure that no child is lost in the system.
Part I of this Article provides the reader with a brief history of the juvenile justice system in order to contrast the goals of this unique system with that of the adult criminal court. Such contrast illustrates why the role of a post-adjudicatory lawyer would help the juvenile court be accountable to its original aims.
Part II explains the crucial differences between the adult criminal justice system and the juvenile justice system that justify concentrating the efforts of the lawyers and stakeholders in the juvenile system on the dispositional or post-adjudicatory phase of the juvenile justice system.
Part III explains how the emergence of adult problem-solving courts and the tensions inherent in the defender role in these courts actually help shape a new role of post-adjudicatory juvenile lawyers.
Part IV uses the lessons from the adult problem-solving model to demonstrate why appointing a post-adjudication attorney for juveniles is necessary to ensure that the juvenile justice system is working in the way intended by both its framers and its continuing stakeholders.