Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System
or diversion without understanding what is realistic for the
situation. When unrealistic probation rules are put in place,
and a child violates these rules, they can be forced into
detention. An effective attorney advocate will understand
these risks and navigate fair probationary and diversion
programs.
As established by In re Gault, the right to counsel is
status, and other information to inform the judge. Without
adequate time and investment in the child, incarceration
may be used when a less restrictive and expensive option
would be sufficient, like therapy or substance abuse
treatment.
A joint report from the Institute for Judicial Administration
and American Bar Association advised counsel to be
granted to juveniles when facing the possibility of present for juveniles from pretrial hearings to
incarceration. 79 However, in many states, it is legal for
children, or guardians, to waive the right to counsel for the
child in juvenile hearings. In Ohio, a recent report by the
National Juvenile Defender Center found that 80 percent of
children accused of criminal wrongdoing were not
represented by an attorney. 80 Many youth and their
guardians may not understand the prospect of ?waiving?the
right. In a study of competence to stand trial, youth were
more likely to make choices deferring to authority, like
accepting harsh probation standards or detention. 81
post-disposition through the Juvenile Justice Standards
(IJA-ABA, 1980). However, there are many barriers in
accessing counsel in juvenile proceedings. Many states
have no formal system to provide counsel, which gives
discretion for judges to appoint counsel when available.
Furthermore, since youth detention hearings occur only 24
hours after an arrest, an attorney is often not appointed
until the adjudication. This can result in children in
pre-trial detention when they have never even met with an
attorney.
The waiver of attorneys is significant? as many as 90
percent of adjudication hearings result in a plea bargain. 82
Without adequate counsel, a child may not fully
understand the plea bargain or the alternatives to accepting
the bargain. By making uninformed decisions, and being
influenced by a deference to authority, children are at risk
for punishment and incarceration by a punitive system.
Furthermore, In re Gault and subsequent cases only
established a right to counsel at adjudication hearings, but
disposition and post-disposition hearings are equally
important for juveniles. Counsel at disposition hearings,
where the court decides any placement or sanctions, can
advocate for the child by presenting letters of support from
the community, medical information, special education
Due to these barriers, some youth may choose to waive
their right to an attorney to be released from pre-trial
detention. In Georgia, where bail can be set at $2,500 or
more, many parents or children waive counsel to have an
earlier hearing date. 83 In many states, youth can sign a
waiver form without a guardian present and without first
speaking to an attorney. 84 Further, even when public
defenders are provided, they are often strapped with high
caseloads and are therefore unable to use the total range of
motions and investigations to defend their clients. 85
Juvenile courts have a long way to go to ensure every child
is given adequate counsel, as mandated by the
Constitution.
79. In re Gault, 387 US 1, 34.
80. Judith B. Jones, ?Access to Counsel,? Juvenile Justice Bulletin: Office of Juvenile Justice and Delinquency Prevention, (2004), 8.
81. Thomas Grisso et al., ?Juveniles?Competence to Stand Trial: A Comparison of Adolescents?and Adults?Capacities as Trial Defendants,? Law
and Human Behavior 27, no. 4, (Aug. 2003): 333-363.
82. Jones, 2.
83. Ibid., 8.
84. Ibid.
85. Ibid., 19.
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