Virginia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings

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Summary

September 2002

This assessment of access to counsel and quality of representation that children receive in delinquency proceedings in the Commonwealth of Virginia was conducted by the American Bar Association’s Juvenile Justice Center and the Mid-Atlantic Juvenile Defender Center. It is part of a nationwide effort to address deficiencies and identify strengths in juvenile indigent defense practices. The purpose of the assessment is to take a closer look at juvenile defense practices in Virginia, identify the systematic and institutional barriers that impede the development of an improved legal service delivery system, highlight innovative practices and offer recommendations for change.

To conduct this assessment the investigative team used a variety of modes of data collection. A team of national and state-based experts was assembled to conduct extensive interviews and meetings with judges, prosecutors, defense attorneys, probation officers, detention center staff and administrators, children and families, policymakers, and bar association leaders across the commonwealth. In addition, the teams observed juvenile court proceedings in selected counties and conducted an extensive literature review.

Key Findings

• Timing of Appointment of Counsel - Under Virginia law, counsel need not be appointed until after the initial hearing, referred to as the advisement hearing. For detained youth the advisement hearing is combined with the detention hearing. Children have the right to a detention review hearing after the appointment of counsel has been made, when a lawyer may request a reconsideration of the detention decision. However, detention review hearings are rarely conducted. Most children are detained without benefit of counsel and detention is a pathway to subsequent incarceration.
  
  
• Waiver of Counsel - A related outcome to absence of counsel is the high incidence of children waiving their right to counsel without prior consultation with a lawyer or trained advocate. This study uncovered disturbing numbers of children waiving counsel who do not appear to understand the gravity or consequences of their actions. No verifiable data exists to show how many children waived their right to counsel and traveled the system unguided, but one jurisdiction estimated that 50 percent of the youth charged with misdemeanors waived counsel.
  
  
• Public Defender Offices - The delivery of indigent defense services in Virginia is varied and unequal. Public defenders represent less than half of the population. The lack of a statewide public defender system is by far one of the greatest barriers to access to counsel and quality representation for children. Investigators found that public defender offices represented children more effectively than their counterparts in appointed counsel systems.
  
  
• Untrained and Inexperienced Counsel – In both appointed counsel and public defender office jurisdictions there is a lack of required juvenile specific training and experience. Investigators observed numerous deficiencies in basic defense practices (from open-ended cross examinations to belated motions) that proper training would correct.
  
  
• Inadequate Ancillary Resources – A lack of ancillary resources, including support staff, investigators, paralegals and social workers is present throughout the system. The entire juvenile justice system in Virginia is under funded and overburdened. However, resources are more likely to be available to judges, Commonwealth’s Attorneys and court service units than they are to defense counsel.
  
  
• Inappropriate Referrals – The assessment uncovered that the juvenile justice system is being loaded down with inappropriate referrals - particularly mental health and school-related cases. One of the busiest juvenile courts in the state devotes several court dockets to school conduct cases. Statistics show that 50 to 85 percent of youth in detention are in need of medication. There was unanimous agreement among those interviewed that children with disabilities are over represented in the justice system and the juvenile court is often the mental health service provider for poor children in the Commonwealth.
  
  
• Second-Rate Status - Many people view juvenile court as "kiddy court" and the overall practice of delinquency law as unimportant. The indigent defense system uses juvenile court as a training ground for lawyers seeking to gain courtroom experience. Commonwealth’s Attorneys allow probation officers to prosecute cases, court proceedings lack formality and decorum, hearings are not recorded, and children and families are treated with contempt. The notion that juvenile court is a second rate judicial forum is pervasive throughout the state.
  
  
• Over Reliance on Court Service Units – Virginia’s Department of Juvenile Justice (DJJ) manages community programs and services, community supervision and case management, and custody and care of committed juveniles. The DJJ’s case management or court service unit bears enormous responsibility in juvenile court. Juvenile defense counsel expressed frustration with the court’s total reliance on the DJJ’s court service unit recommendations.
  
  
• Prosecutorial Discretion – Defenders in several jurisdictions reported abuse of prosecutorial discretion by the local Commonwealth’s Attorney in negotiations by threatening to transfer juvenile cases to circuit court. Youth transferred to adult court wait in detention for extraordinarily long periods before the "clock begins" on their sentences, resulting in youths not receiving rehabilitation services or credit for the real time they serve.
  
  
• Over Representation and Disparate Treatment - This study uncovered disparate treatment of minority youths. Despite demographic differences, there was agreement in every jurisdiction that children and youth of color are over represented in Virginia’s juvenile justice system. Interviewees offered many reasons for the disparate treatment including police bias, lack of parental empowerment and access to resources.
  
  
• Attorney Compensation – The $112 maximum paid to defense counsel in Virginia to see a case through the delinquency system is among the lowest in the country. This results in a premium placed on high volume and dispensing with cases quickly, typically through a hurried plea process. Investigators found that appointed counsel received little training in juvenile defense and were expected to pay for ancillary services out of the fee they received on the case. Investigators found that low fees and caps drastically affected the quality of defense. The judges, Commonwealth’s Attorneys and juvenile court personnel interviewed agree that low fees are a disincentive to zealous advocacy for juvenile clients.

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