Waiver of Counsel

Section 3.4

Judicial Officers Should Not Allow Children in Status Offense Cases to Waive Counsel or Alternatively Only Allow Waiver If: (1) The Waiver is on the Record, (2) the Court has Fully Inquired into the Child’s Understanding and Capacity and (3) the Waiver Occurs in the Presence of and in Consultation with an Attorney

Children should have legal representation at all stages of status offense cases.  If a child waives his or her right to counsel, he or she loses the benefit of an important advocate throughout the court process.  Lawyers serve many critical functions when representing youth who have been accused of status offenses:¹

• Lawyers help ensure that children’s rights are protected and that they are treated fairly, which includes giving them an opportunity to be heard through their counsel. 

• Lawyers work to limit children’s exposure to the formal court system and avoid detention, making sure children are not adjudicated for offenses they did not commit.

• Lawyers help ensure children are in safe placements, and that services and treatments provided meet children’s specific needs. 

Despite the many benefits associated with having counsel during status offense proceedings, many youth waive this right when it is first offered, whether at the beginning of the case or later.  They often do so without having consulted an attorney, without colloquy with the court and with no assessment of their capacity to understand the rights they are waiving.  For example, the Ohio Public Defender reports that two-thirds of the children who were the subject of status offense or delinquency complaints resolved in 2004 faced those proceedings without a lawyer.²  In addition, a report from the Ohio Department of Youth Services found that 20% of children placed at correction facilities were not represented by a lawyer during their delinquency cases.³

Although the U.S. Supreme Court case, In re Gault,⁴ mandated a right to counsel for children in delinquency proceeding, it did not necessarily do so for status offense cases.  So, while many states appoint counsel for youth for all or most stages of a status offense case, others do not do so until the child faces the threat of incarceration.⁵  Likewise, although many best practice standards call for states to pass laws that make counsel an un-waivable right, many states allow children to too easily waive the right in both delinquency and status offense cases.⁶  

Research on adolescent development, however, has found that a youth’s capacity to understand consequences changes and matures as he or she ages.  Youth are less likely to make informed decisions or consider future consequences for their present actions. (See Section 1.2 for more information on adolescent development).  Hence a child’s waiver of counsel should not be accepted by the court or only done so if it is done knowingly and with the fair and unbiased assistance of an attorney. 

The National Juvenile Defender Center (NJDC) proposes model waiver legislation that includes numerous safeguards for children to ensure that any waiver of counsel is made knowingly and intelligently.  NJDC advocates that states enact laws that do not allow children to waive counsel unless the waiver is executed (1) in the presence of and after consultation with a lawyer (2) on the record in open court and in writing (3) in a language regularly spoken by the child and (4) after the court fully inquires into the youth’s comprehension and capacity.⁷  The model legislation also advocates that standby counsel be appointed if the child waives counsel and that the court renew the offer of counsel at later court proceedings.⁸