Pleading the Sixth: On December 18, 2012, the U.S. Department of Justice announced an agreement with Shelby County, Tennessee (Memphis) to usher in major reforms of the county’s juvenile court system and the method for representing children in delinquency proceedings. Sweeping changes are afoot, including systemic safeguards, such as “independence,” “reasonable caseloads,” “attorney performance standards,” and “training” for the juvenile defense function, among others. The DOJ/Shelby County agreement is an acknowledgement that the American Bar Association’s Ten Principles are not just the parameters of a functioning adult indigent defense system, but a juvenile justice system as well.
On December 18, 2012 the United States Department of Justice (DOJ) announced a sweeping agreement with Shelby County, Tennessee (Memphis), as reported in the New York Times the same day. Far-reaching changes will take place in Memphis, as the DOJ is requiring that much of the American Bar Association’s Ten Principles of a Public Defense Delivery System be implemented to transform their current deficient non-system into a national model for juvenile justice. (For more on the problematic adult and juvenile representation systems that currently exist in Shelby County, click here and here.) The settlement marks a new day for indigent defense across the country, as Assistant Attorney General for the Civil Rights Department, Thomas Perez, stated in the Times piece that the DOJ wants to put to an end “assembly-line” justice that offers “little quality assurance,” and that the settlement should “serve as a template for other jurisdictions.” State and counties with “non-systems” that fail to comply with the ABA Ten Principles are officially forewarned.
Required changes for defense representation
The agreement requires that Shelby County “shall take action to ensure independent, ethical, and zealous advocacy by the juvenile defenders representing Children in delinquency hearings,” within one year’s time. The primary requirement to accomplish that admirable goal is the transfer of the supervision and oversight of juvenile delinquency representation from the control of the judiciary to a specialized juvenile defense unit within the Shelby County Office of the Public Defender (OPD).
With the first of the American Bar Association (ABA) Ten Principles explicitly stating that the “public defense function, including the selection, funding, and payment of the defense counsel, is independent,” DOJ is making it clear that none of the other Principles can be met with the Shelby County judiciary remaining in control of the attorneys providing representation to children. After all, the commentary to the first Principle states that the “public defense function “should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel” noting specifically that “[r]emoving oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.”
That the DOJ intended the ABA Ten Principles to be the roadmap to fixing systemic deficiencies in the delivery of Sixth Amendment services is made evident by a simple review of the further required actions on the part of Shelby County. For example, ABA Principle 3 calls for defense counsel to be “assigned and notified of appointment, as soon as feasible after clients’ arrest, detention, or request for counsel.” The DOJ-Shelby County agreement similarly calls for the ethical and zealous representation of children in “all stages of the juvenile delinquency case, including pre-adjudicatory investigation, litigation, dispositional advocacy, and post-dispositional advocacy,” for as long as a case is active. And, specifically, Shelby County must ensure that juvenile defenders are appointed “to represent children at Detention Hearings and Probable Cause Determinations as early as possible, including immediately after intake staff completes required paperwork where possible.”
Additionally, SCPD will be responsible for ensuring that “juvenile defenders have appropriate administrative support, reasonable workloads, and sufficient resources to provide independent, ethical, and zealous representation to Children in delinquency matters,” to comply with ABA Principle 5’s requirement that defense counsel’s “workload is controlled to permit the rendering of quality representation.” To ensure that this portion of the negotiated settlement is adhered to, Shelby County has agreed to track the “average caseload of each Juvenile Defender representing Children.”
Principle 6’s demand that attorneys “[d]efense counsel’s ability, training, and experience match the complexity” of any appointed case, is a particular focus of the DOJ/Shelby County agreement, as the public defenders handling juvenile delinquency cases must have extensive training “on trial/advocacy skills and knowledge of adolescent development.” Training, of course, will not increase the quality of defense representation unless and until Principle 10’s demand that attorneys be “supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards” is fulfilled. Accordingly, the agreement requires “the promulgation and adoption of attorney practice standards” and the “ supervision and evaluation” of defense attorneys “against such practice standards.”
Commentary to ABA Principle 4’s requirement that public defense attorneys be “provided sufficient time and a confidential space” to meet with clients, notes that for attorneys to have “confidential access to the client for the full exchange of legal, procedural, and factual information between counsel and client,” jurisdictions must provide “private meeting space” in “jails, prisons, courthouses, and other places where defendants must confer with counsel.” Accordingly, the agreement requires the attorneys providing juvenile delinquency representation must “have a confidential meeting space to confer with their clients,” wherever necessary.
When indigent defense reform occurs it is too often the case that changes apply solely to the primary indigent defense delivery providers. For example, the state of Rhode Island has a state-funded, state administered public defender office but conflict representation is still under the control of the judiciary. Should the quality of representation guaranteed to defendants under the United States Constitution really be dependent on whether you are accused of committing a crime with a co-defendant? The Sixth Amendment Center (6AC) thinks not, and was therefore especially gratified to see that the DOJ settlement ensures that all of these systemic safeguards will also apply to attorneys that handle those “delinquency cases that either pose a conflict for the specialized unit for juvenile defense or would cause the juvenile unit to breech workload restrictions required by this Agreement.” The settlement specifically calls for the creation of a secondary “juvenile defender panel system, overseen by an independent body.”
A focus on effective representation in transfer hearings
The U.S. Supreme Court, in Roper v. Simmons, has detailed the scientific gap that differentiates children from adults:
“Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies . . . confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ . . . The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. . . . The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. . . . Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.”
As the Simmons Court noted: “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” If trained psychiatrists “with the advantage of clinical testing and observation” refrain from such assessments, then for the courts to make a similar assessment – that the child in question is so irreparably corrupt that the treatment provided through the juvenile justice system is of no option – the process must be of such a degree that the fairness and correctness of the court’s decision is unquestioned.
For this reason, defense counsel performs a critical role in ensuring the child’s due process rights are protected. The defense lawyer is ethically obligated to zealously represent the child’s interests by presenting evidence and arguing in favor of that evidence at the transfer hearing; challenging the state’s arguments and evidence presented in support of that evidence; and to directly challenge the fairness of any procedure or statute that affects the due process concerns that affect children served through the juvenile court. Such independent and vigorous representation of the child improves the court’s ability to properly adjudicate matters involving allegations of serious allegations of violent crime.
To fulfill these ethical obligations in transfer proceedings, the attorney requires sufficient time and resources to prepare and advocate on behalf of each client’s interests. To be blunt, the DOJ’s report on Shelby County published in April 2012 found the transfer of juveniles to adult court is almost a foregone conclusion currently in Shelby County. Subsequently, the DOJ agreement requires significant changes to the way transfer hearings are done to comport with all due process requirements, including (among others):
- Children having “a right to an attorney whose role is to represent their stated interest”;
- “Children, through their attorneys, are provided the opportunity to introduce evidence on their own behalf”;
- “Children, through their attorneys, are provided the opportunity to meaningfully confront evidence presented against them, including cross-examining adverse witnesses;”
- “The Judge makes written findings on whether there are reasonable grounds to believe that: (1) the Child committed the delinquent act as alleged; (2) the Child is not committable to an institution for persons with a developmental disability or mental illness; and (3) the interests of the community require that the Child be put under legal restraint or discipline”; and
- “The Judge must consider and documents his or her consideration of factors relevant to his or her findings, including, but not limited to: (1) the extent and nature of the Child’s prior delinquency; (2) the nature of past treatment efforts and the nature of the Child’s response thereto; (3) the Child’s suitability for additional treatment; (4) the nature of the delinquent act alleged; (5) the Child’s social factors; (6) the alternatives within the juvenile justice system which were considered and the rationale for rejecting those alternatives; and (7) whether the juvenile court and juvenile justice system can provide rehabilitation of the juvenile.”
Required changes for the broader juvenile justice system
The problems with Shelby County’s juvenile justice system go well beyond the quality of defense representation. Unfortunately, this is true of too many juvenile justice systems across the country. Therefore, DOJ went to great lengths to make sure that Shelby County not only fixes the indigent defense system but to also makes changes to the rest of the components impacting how children are treated when charged with delinquency offenses. These changes include the following notable requirements (among others):
Protections against self-incriminations: Within 90 days of the agreement date, the Shelby County courts must “revise its policies, procedures, and practices to prevent probation officers or any other staff from eliciting information about Children’s involvement in the alleged delinquent act or acts in question outside the presence of the Child’s defense attorney.” Specifically, the county must ensure that probation officers appropriately advise Children of their Miranda rights, including: “a). A description of the role of a defense lawyer; b.) A statement that the Child is entitled to the appointment of a defense attorney and that a defense attorney may be provided at no cost if the Child is eligible; c.) A statement that the Child’s statements regarding the alleged offense can be included in the probation report; and, d.) A statement that the Child’s statement could be used against him or her by the prosecutor, probation officer, or the Magistrate Judge in further proceedings, including disposition.” Importantly, Shelby Court under the settlement terms must require its probation officers to have “[c]hildren document in writing their receipt and understanding of their rights against self- incrimination,” and that “[c]hildren must receive the advice of counsel about their rights against self-incrimination and the meaning of any waiver before signing a waiver.”
Training of court personnel: Within six months of the agreement, Shelby County must develop “a training plan for all employees involved with its delinquency docket,” focused on: a) Trial advocacy; b) Constitutional due process requirements; c) Adolescent development; d) Disposition planning; e) Best practices in social service and therapeutic options for Children and families, including; and, f) The functional and practical purposes of the juvenile court, including the Court’s ability to handle cases involving Children charged with serious or violent delinquent acts. The training plan must then be implemented within 12 months.
Protection from harm and suicide prevention at detention facilities: Shelby County immediately agreed to “prohibit all use of a restraint chair and pressure point control tactics,” and to develop policy manuals and training programs to “[e]nsure that staff use the least amount of force appropriate to the harm posed by the Child to stabilize the situation and protect the safety of the involved Child or others.” Policies must also be developed to screen children for suicide risk and other mental health concerns at intake.
Community involvement in juvenile justice policy: Shelby County has agreed that within six-months to develop policies to keep the community informed on the progress of the implementation of the agreement. “The community outreach program shall include a process for updating and receiving input from a countywide juvenile justice consortium comprised of the Memphis/Shelby Juvenile Justice Board and other key stakeholders, including, but not limited to, six to nine citizens selected by the Mayor and approved by the County Commission who are reflective of the cultural and ethnic diversity of the County to include no less than two parents of children who have had delinquency matters before [the juvenile court], a person under the age of twenty-one (21) who has had direct contact with the juvenile justice system, and community advocates.”
Can Shelby County effectively implement the agreement without state help?
Though some advocates most assuredly would want the changes in Shelby County specifically related to defense representation to be implemented in less time than a year, the agreement is realistic in expectations of how long it will take to transition a non-system to one that meets national standards. As it stands today, the Office of the Shelby County Office of the Public Defender (OPD) itself fails to meet many of the ABA Ten Principles, due primarily to flawed implementation of a statutorily required state funding formula for the Shelby County Office of the Public Defender (OPD).
Tenn. Code Ann. § 8-14-210 requires state indigent defense funding to the Shelby County OPD to stay on par with the state funding of the right to counsel in the rest of the state. That is, the state is required to pay Shelby County “an amount equal to the percentage of any general increases in appropriations” for the state-funded district public defender system. That has not happened. Since 1992, state funding for the district public defenders has increased by more than 200% while state funding for public defense services in Shelby County has increased just 44% over that same period. As a result, the state of Tennessee’s financial contribution to the Shelby County OPD has decreased from a high of 71% of the office’s total expenditure (in 1993) to only 34% (2012). During this period the OPD caseload has more than doubled. That is not imply that Shelby County’s contribution is adequate, rather that the state’s commitment has been even more inadequate.
Had Shelby County been receiving annual increases in “an amount equal to the percentage of any general increases in appropriations for district public defenders,” simple math indicates that the OPD would have received an additional $4 million in state funding in 2012. Getting that gap filled appears to be a critical first step. At the very least, the state will need to adjust its baseline funding for Shelby County under Tenn. Code Ann. § 8-14-210 to account for any new juvenile court services OPD provides. Since OPD was not handling any juvenile representation when that baseline was set in 1992-93, using the original, non-adjusted baseline to calculate future increases would further strain limited resources available for both adult and juvenile representation in Memphis. Shelby County is seeking a baseline appropriation of $7M in FY14.
As the nation waits to see the transformation of the Shelby County Office of the Public Defender, we can only speculate about what jurisdiction the Department of Justice will focus their attention on next in regards to the constitutional right to counsel, especially for children. Pennsylvania, Ohio, Indiana, Illinois, Mississippi, South Dakota, rural California, upstate New York, and Idaho are just a few of the regions in our country where states force counties to pay for the majority – if not all – of the financial burden of providing poor people with competent counsel in criminal and delinquency proceedings and where counties fall short on their ability to do so. What we know for certain is that the DOJ is particularly focused on transforming how children are served in our juvenile justice courts. “We’ve simply been setting up a system where they learn from adults,” Mr. Perez was quoted as saying in the New York Times. “It’s dumb law enforcement, and it’s often dumb fiscal policy, and it’s wrong from a basic human perspective.”