According to a 1996 study by The Children's Law Center, 15% of youth detained in 1995 in detention centers and residential treatment facilities were unrepresented on their most recent charges in juvenile court. According to data collected by the DPA Juvenile Post Dispositional Branch 15% of those youth who have chosen to become clients of the branch, and are detained in the state's twelve residential treatment facilities had no lawyer to assist them before they were committed to the Department of Juvenile Justice. Many of these youth will not be free of the state's custody or control until their eighteenth birthday.

According to recent data from AOC and from DPA's case tracking system, over 40% of youth appearing in juvenile court on status and public offenses are not represented by DPA contract and fulltime public defenders. Though we have no data on the involvement of private counsel, surely a quick survey of our Commonwealth's juvenile courts would reveal that the appearance of a privately retained lawyer is few and far between in juvenile court. Thus, a preliminary look at the crossreferencing of DPA case tracking data and AOC data indicates that a large number of youth go unrepresented in our juvenile courts.

KRS 610.060(1)(a) provides that "if the child and his parents, guardian, or person exercising custodial control are unable to obtain counsel, [the court] shall appoint counsel for the child" "As used in statutes, contracts, or the like, this word is generally imperative or mandatory." Black's Law Dictionary, Fifth Edition, 1979. KRS 31.110 recognizes that such a child whose parents cannot afford to secure counsel is a "needy" or "indigent" person, entitled to the appointment of counsel. KRS 31.110(d) goes one huge step further. This subsection provides that even if a parent has means but fails to obtain counsel or obtains counsel not consented to by the child, the child qualifies as a needy person and is thus entitled to appointed counsel. With these statutory protections in place, why do so many juveniles go unrepresented? Why do youth end up in DJJ's custody and in juvenile detention centers, never having had the benefit of counsel?

A juvenile, who admits as a public offender, to having committed a felony will never have that charge expunged. The adjudication may be used against him in later circuit proceedings or as a means to transfer him to circuit court on a later charge. Do we really think that persons under the age of eighteen understand the specific, legal distinctions between a felony and a misdemeanor?

Though the law may seem clear, juvenile court judges are not routinely appointing counsel for children appearing before them. The Department of Juvenile Justice Advisory Board will be recommending legislation to the Governor in an attempt to see this right more broadly enforced. The board's proposal will include the mandatory appointment of counsel for initial consultation, with the child, before the court can accept a waiver of the right to counsel. In the meantime, the Juvenile Post Dispositional Branch will continue to litigate this issue on behalf of children who had viable legal defenses which were not raised because counsel was not appointed.
 
 

Return to Table of Contents