HD46 - Earlier Representation of Juveniles in Delinquency Cases

Executive Summary:
History and Requirements of the Legislation.

Chapter 437 (House Bill 600) of the 2004 Acts of Assembly requires the earlier representation of juveniles who are charged with delinquent acts. An attorney must be appointed prior to any detention hearing. Also, juveniles who may be subject to commitment to the Department of Juvenile Justice (“DJJ”) upon adjudication cannot waive representation except after consultation with an attorney and a determination that the waiver is voluntary.

An enactment clause of the Act directs the Office of the Executive Secretary of the Supreme Court of Virginia to develop procedures for implementing this legislation, in conjunction with the Commonwealth's Attorneys' Services Council, the Indigent Defense Commission and DJJ. That enactment clause also directs this office to submit a report to the Chairmen of the Senate Courts of Justice and House Courts of Justice Committees by December 1, 2004, regarding the work done by these entities to implement this legislation.

Members of the affected entities – judges, clerks, Court Services Unit staff, public defenders – met to formulate strategies for implementing the legislation. Just as courts across the Commonwealth face different sets of problems in implementing this legislation, there emerged a number of corresponding approaches to those problems. Common themes include the identification and timely appointment of attorneys for this representation, expanded use of video-conferencing equipment to conduct these hearings and streamlined procedures for juveniles who will not require pre-adjudication detention.

Fiscal Impact of the legislation. There will be increased use of court-appointed counsel for juveniles, both for detention hearings and for ascertaining whether waiver of counsel is voluntary. As regards detention hearings, there was a consensus that it will frequently be necessary to appoint a separate attorney simply for the detention hearing, to appoint a second attorney for the remaining stages of the proceeding and, thus, to compensate both attorneys for the representation. There are narrower and broader interpretations of who falls within the requirement for pre-waiver consultation with an attorney. Therefore, the total estimated annual fiscal impact of this legislation described in this report ranges from approximately $1.5 million to $2.3 million.

Legislative proposals. The report contains two legislative proposals relating to the increase in the use of court-appointed counsel. First, in addition to the fiscal impact of appointing two attorneys in a single matter, since there is no specific authorization for such sequential representation, the report contains a proposal for such authorization. Second, since it is not absolutely clear whether the class of offenses requiring appointment of counsel prior to waiver includes only offenses which would immediately result in commitment of the juvenile or those which may eventually result in commitment, the report contains a proposal to require pre-waiver appointment of counsel only when the charged offense could immediately result in commitment of the juvenile.