Laws about Waiver of Counsel

Section 4.7

State and Local Policymakers and Advocates Should Enact Laws that Ensure the Right to Counsel for Youth who Come into Contact with the Juvenile Court for a Status Offense by not Allowing Youth to Waive their Right to Counsel or only Allowing Waiver if: (1) It 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

Each year, thousands of youth who come into contact with the courts waive their constitutional right to counsel without understanding the immediate and long-term ramifications.  In some jurisdictions, more than half of court-involved youth appear without any legal representation.¹  Without the protection of counsel, court-involved youth are more likely to be placed in a locked facility pre- and post-adjudication, where they are more vulnerable to assault, suicide and sexual abuse, and are more likely to commit additional offenses after their release.²  Also, as noted by the Report of the Attorney General’s National Task Force on Children Exposes to Violence, defense attorneys are the only parties in the proceedings required by law to represent the expressed interest of the child:³

Defense attorneys also have a vital role in protecting youth from abuse and other forms of violence that are often found within the justice system.  In the earliest stages of the process, it is the role of the defense attorney to ensure that the underlying facts are investigated and that children who are wrongly accused are able to challenge the case against them.  Defense attorneys also ensure that children with legal defenses and mitigating circumstances are not coerced into admissions without advice about their legal options.  Protecting the due process rights of youth at trial is integral to ensuring that children are not further traumatized.⁴

For more information about waiver, see Section 3.4.