Press Contacts: Kim Brooks Tandy

Press Release

Embargoed Until 12:01 a.m.

April 12, 2006

Press Contacts: Kim Brooks Tandy

CentralJuvenileDefenderCenter

Children’s Law Center, Inc.

859-431-3313

Elizabeth Kehoe

NationalJuvenileDefenderCenter

Washington, D.C.

202-452-0010, Ext. #103

NEW REPORT SHOWS INDIANA’S CHILDREN

ARE BEING DENIED DUE PROCESS

Lack of Counsel Hinders Justice for Many Young Offenders

Indianapolis, IN- A report released today found that Indiana’s system for ensuring constitutionally required defense services for children in the juvenile justice system is seriously flawed. The report, entitled “Indiana: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings,” reveals that nearly half of Indiana’s youth routinely waived their right to counsel in delinquency proceedings, and in some jurisdictions, the waiver rate is as high as 80%.

The assessment found that current laws and practices frequently delay appointment of counsel for youth accused of breaking the law, especially at the stage where critical decisions are being made, such as the use of detention. Appointment of counsel often occurs too late in the legal process and provides too little time for juvenile defenders to adequately represent their clients. The high rates at which youth waive their right to counsel is spurred by several factors, including pressure by parents, inadequate or incomplete advisement of rights, and an overall undervaluation and misunderstanding of the role of defense counsel in delinquency proceedings.

The study was conducted by the NationalJuvenileDefenderCenter, the CentralJuvenileDefenderCenter, a project of the Children’s Law Center, Inc. in Covington, Kentucky, and the Youth Law T.E.A.M. of the Indiana Juvenile Justice Task Force. The findings and recommendations in the report were based on extensive survey data from and interviews with juvenile court judges, magistrates, defense counsel, prosecutors and other juvenile court personnel; interviews with hundreds of incarcerated juveniles throughout Indiana; and site visits and court observations in various counties across the state.

“In many jurisdictions it has become tolerated, and even accepted, for poor youth to traverse through the juvenile justice system without representation,” explained Kim Brooks Tandy, the Executive Director of the Children’s LawCenter, a partner for the assessment project.

The report found that in many jurisdictions, youth waive their right to counsel without even a basic understanding of the rights they are giving up. “Youths’ inability to understand the right to counseland circumstances encouraging youth to waive counsel combine to give youth a hope that no serious consequences will result. Unfortunately, this hope is misplaced and youth often face consequences that they never contemplated,” said Tandy.

The report also finds that zealous representation from well-trained lawyers is seriously lacking in many jurisdictions. “Too many indigent youth are represented by public defender programs that are inadequately resourced, and many defenders lack the specialized training required to handle these complex cases,” notes Patricia Puritz, Executive Director of the NationalJuvenileDefenderCenter. “The system does not ensure the early and timely appointment of counsel, nor does it ensure that this representation extends throughout the duration of the juvenile court process,” she adds.

Adding to the problem of inadequate representation and lack of access to counsel is the fact that Indiana’s juvenile justice system is overloaded with youth who would be more appropriately served through less restrictive means. The report notes that Indiana school systems refer a large number of cases to juvenile court for disciplinary reasons that could be better handled with the resources within the school. Many of these cases involve youth with serious mental health problems, turning the courts into a “de facto” mental health treatment system. “We are criminalizing and often incarcerating youth with significant mental health problems, using a more punitive approach, rather than developing appropriate community based alternatives. Courts should not be the dumping grounds for these youth,” said Bill Glick, Executive Director of the Indiana Juvenile Justice Task Force.

The report concludes with a number of important recommendations for the Indiana General Assembly, local counties and court programs, the state public defender office, local defender programs, bar associations, and law schools. The recommendations present a challenge to make sweeping reforms to Indiana’s juvenile defense system. Most importantly, the report recommends full funding of a system that will ensure all youth have early appointment of counsel in which waiver does not occur except in rare instances and only after consultation with an attorney. Also recommended is the creation of a Juvenile Defender office that can focus on training and accountability issues for juvenile defenders, increase resources and advocate for effective policy changes.

Key Findings and Talking Points for Media Contacts

1) Children in Indiana are denied justice by a system that fails to ensure their rights

Large numbers of youth waive their right to representation by counsel for various reasons:

Youth do not understand their rights and the potential consequences they face
Inadequate colloquies are given by judges and magistrates in some jurisdictions, if they are given at all
A pervasive philosophy that courts act in the best interests of the child and, thus, defense attorneys are unnecessary
The time and method of the appointment process discourages access to attorneys in some jurisdictions
Youth feel pressure by parents or others in the system to get the proceedings over with quickly
Youth don’t think they can afford an attorney

2) Children in Indiana are often denied effective representation

Zealous representation from well-trained lawyers is seriously lacking in many jurisdictions

Lawyers are often not appointed until the detention or initial hearing stage, after critical decisions have already been made about the case and the youth’s incarceration
Pre-trial motions practice and trial skills are lacking in many jurisdictions
An overwhelming number of cases are never investigated and do not proceed to fact-finding hearings, but end in plea agreements with little or no discussion of the potential consequences
There is little appellate work done in the state to challenge practices and establish case law in juvenile matters
Juvenile defense attorneys in full-time offices are often swamped with caseloads that prevent effective lawyering for youth
Some attorneys are reluctant to take on cases for fear it will negatively impact their funding from the state
Most defender offices have little or no access to support services, including social workers, paralegals, investigators and technology.

3) Indiana’s juvenile justice system is overloaded with youth who would be better served through less restrictive means

The Indiana school systems refer a dramatic number of cases to the court system instead of taking care of them within the school

School referrals have increased dramatically over the last several years. One county estimated that its school related cases had increased three fold, while another suggested that its school related cases had quadrupled over the past three years.
Several reasons suggested for this increased reliance by schools on the court system include schools failing to produce appropriate Individualized Education Plans for special education youth, the teacher’s union forcing the schools to refer more cases to the delinquency system, and several courts utilizing programs whereby youth who were suspended from school were automatically referred to the court, sometimes without a formal petition having been filed.
Indiana schools are clearly using the juvenile justice system as a “dumping ground” for youth with special needs.
Judges, probation staff, defense counsel and others who have limited resources and expertise in solving education related issues for the child are frustrated by the continuous flow of cases.

Many youth incarcerated in detention facilities have mental health problems and could be better served in the community.

Studies have consistently shown that juvenile justice populations experience much higher rates of mental disorders than youth in the general population.
According to the Indiana State Bar Association, the combination of shortages in community based care for such children and an increasingly more punitive approach to the misconduct of children has inappropriately turned the juvenile justice system into the “de facto” mental health treatment system for far too many of Indiana’s children with mental health needs.
Indiana courts and juvenile justice systems lack adequate resources for youth with mental illness and other disabilities.
Often, these behaviors are criminalized in an attempt to get services for the youth.

Youth with long histories of out-of-home placements are given harsh and unrealistic outcomes when they are inappropriately involved in the delinquency system.

Many of these cases involve Child In Need of Services (CHINS) youth who were experiencing behavior problems as they moved into pre-adolescence or adolescence.
These “problems” were often normal adolescent experiences with schools, relationships, and/or minor delinquent behaviors.
Inappropriate referrals also involved school truancy cases or “educational neglect” where youth with education issues were being shifted into the child welfare system and facing the possibility of removal from home.
These cases clog the delinquency system and overload the number of cases assigned to defense counsel, further compromising the quality of representation for all youth in the system.

Recommendations Focus On:

Development of a system whereby all children have counsel throughout all critical stages of proceedings
Appointment of counsel at the earliest stage and continuing through appellate and post-disposition stages
Adequate funding and resources of public defender programs, including support services and technology
Training and accountability of indigent defense counsel
Adequately addressing needed services for youth with mental illnesses
Reduce the number of youth incarcerated unnecessarily and for minor offenses in detention and other facilities
Reduce the over-reliance by school systems on the juvenile courts
Enhance opportunities for training and clinical experience for law students interested in children’s advocacy work

CONTACTS FOR PRESS

National:

Elizabeth Kehoe

NationalJuvenileDefenderCenter

Washington, D.C.

202-452-0010, Ext. #103

Regional:

Kim Brooks Tandy, Exec. Director

CentralJuvenileDefenderCenter

Children’s Law Center, Inc.

859-431-3313

Indiana:

William Glick, Executive Director

Indiana Juvenile Justice Task Force

317-926-6100

Michael Jenuwine, Professor

Notre Dame School of Law

Associate Professional Specialist in Law

(574) 631-7795

Larry Landis, Executive Director

Indiana Public Defender Council

317-232-2490

Roxanne Butler

Indiana Criminal Justice Institute

317-232-1233

317-232-7611

Norman Lefstein

Professor of Law and Dean Emeritus

Indiana University School of Law-Indianapolis

317-274-8241