It’s always struck me as ironic that the criminal defense of adults is considered to be more “advanced” and “complicated” than the defense of young people in juvenile court. Having practiced in both realms, I have personally found representing children and teens in the delinquency setting to require a wider range of skills and knowledge than defending adults – one must be conversant in such areas as adolescent development, education law and the child welfare system, to name just a few.
I have experienced this divide most dramatically, perhaps, in the area of dispositional (or “sentencing”) advocacy. A juvenile defender must work closely with her young client to develop a theory of disposition and a plan that is consistent with the juvenile’s desired outcome (rather than what she believes is in client’s “best interest”). In order to do this, she must be familiar with the full range of available disposition alternatives, the short- and long-term consequences of dispositions, and potential out-of-home placement options, including group homes, foster care, resitdential programs, and treatment facilities. This can be quite challenging, particularly given that the client’s parent may be at odds with the child’s wishes and may also be a victim or witness in the case.
All of these issues are clearly and insightfully explored in a new article by my colleague, Professor Barbara Fedders, in the Children’s Legal Rights Journal and available for free download via SSRN. Here is the abstract:
What is the role of counsel in a juvenile delinquency case? This question has vexed and divided scholars and practitioners in the forty-plus years since the Supreme Court first granted the right to counsel to juveniles. The early scholarly view in favor of best-interest representation has now been supplanted by one that supports expressed-interest lawyering. The scholarly near-consensus has not always reached juvenile defenders on the ground, however. While commentators have previously explored the reasons for the gulf between theory and practice in juvenile court with respect to role of counsel, this article is the first to focus on the sentencing phase. Because juvenile sentences have grown more punitive over time, such a focus is necessary and timely. Youth should be able to fully confide in their lawyers and know what to expect from them in return. At the same time, lawyers need clear and consistent guidance on this important ethical issue.
After providing a brief introduction to the features and changed purposes of juvenile sentencing, the Article provides relevant rules, standards, statutes, and appellate cases on the role of counsel, nearly all of which support expressed-interest lawyering at sentencing. After providing a descriptive account of the ways in which lawyers in fact practice at sentencing, the Article argues that lawyers must allow their clients to direct representation throughout the case. The Article concludes with recommendations for policy changes that will enhance the likelihood that attorneys will fulfill the role here described.
What are your thoughts and experiences with the sentencing phase of juvenile delinquency court? Please share in the comments.