For young people in our juvenile courts, the essence of access to justice is access to defense counsel.
On May 15, 1967, the U.S. Supreme Court ruled that children in juvenile court must receive due process protections, including the right to counsel. The case, In re Gault, which originated in Gila County, Az., created the foundation of juvenile defense as we know it today. No longer would children face the awesome power of the state and the prospect of losing their liberty without benefit from “the guiding hand of counsel.”
On May 15, 2017, to mark the 50th anniversary of the Gault decision, the National Juvenile Defender Center (NJDC) published a national report, “Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel.” The snapshot concluded that “though every state has a basic structure to provide attorneys for children, few states or territories adequately satisfy access to counsel for young people.”
In that 50th anniversary year, the Arizona judiciary invited NJDC to examine whether the Supreme Court’s mandates had been fully and successfully implemented in the state where the case was first adjudicated. We were asked to undertake the review because of our past record.
With the release of the Arizona assessment in September 2018, NJDC has conducted assessments of juvenile defense delivery systems in 24 states.
As we mark the 52nd anniversary of the decision this week, it’s worth taking a close look at what we found in Arizona, the home of Gault.
Juvenile defense assessments are comprehensive evaluations in which teams of juvenile defense experts from around the country review background research and data on a state’s system, and then visit numerous jurisdictions within a state to observe court proceedings, conduct extensive and confidential in-person interviews, participate in meetings, and tour facilities.
NJDC produces a report that compiles our collective observations, findings and recommendations in order to provide policymakers and other stakeholders with a comprehensive understanding of children’s access to defense counsel in the state.
Our assessment reports identify structural and systemic barriers that impede effective representation of children, highlight best practices where they exist, and make recommendations for improving juvenile defender services in the state. Each report has helped support reform of the juvenile defense and juvenile justice systems in every state they have been conducted.
‘Justice by Geography’
So, what did we find in Arizona?
Our assessment of Arizona, released in the Fall of 2018, concluded that even in the birthplace of Gault, court culture in the juvenile justice system has been largely unchanged.
While Arizona is geographically vast, there are only 15 counties. And for the young person coming into contact with the juvenile system, their court experience, their access to counsel, and the quality of representation they receive depends heavily on where they live.
Some Arizona counties have adopted best practices, ensuring all children are represented by counsel. In other counties, however, children have little access to counsel and attorneys lack opportunities for training and specialization.
Nationally, we often see “justice by geography”—variations in applying laws and providing access to rights. In Arizona, however, the assessment investigators found that differences among and between counties in Arizona were particularly stark.
Investigators found that the culture in several counties’ juvenile courts values stakeholder efficiency and collegiality over due process and youth success. The assessment report notes: “It seems in some places and in some moments that the Gault decision never happened.”
Nothing in Arizona’s Juvenile Court is Free
From the moment a young person enters Arizona’s juvenile court system, she and her family become subject to an extraordinary number of fees and costs. These financial sanctions, which can accrue to thousands of dollars, are regularly assessed against youth and families who have been presumed or found by a court to be indigent.
Court-ordered financial obligations were found to interfere with children’s constitutional right to counsel, corrupt the role of courts and court officials, and mire youth and families in debts that last far longer than the child’s involvement in the juvenile court system.
And, importantly, investigators found no evidence that the state or local jurisdictions realize any financial gain from these harmful fees and costs.
Hope for Arizona Reform
NJDC’s Arizona report offers 16 recommendations for reform, including automatically appointing counsel to all youth, eliminating burdensome fees and costs, promoting statewide standards for juvenile defense practice and training, eliminating racial disparities, and ensuring juvenile courts do not compromise due process for youth.
Fortunately, Arizona’s juvenile court stakeholders are willing to take on these important and necessary reforms. Work is underway on reforms to the state’s record destruction laws, public defenders across the state have expressed their intention to work together to improve representation for youth, and stakeholders have indicated willingness to discuss reforming financial sanctions.
We’re encouraged by some of the steps that have already been taken. In fiscal year 2020, the Arizona Office of the Courts, at the direction of the incoming Chief Justice, will create a Juvenile Rules Committee to review and update the current rules. The Committee will be asked to address some of the issues outlined in our assessment.
Also, the Arizona Public Defender’s Association has provided juvenile defense-specific training on motions, disposition, and post-disposition advocacy, and will continue to furnish training to ensure skilled juvenile advocates.
The care and compassion displayed by Arizona’s juvenile court stakeholders convinced assessment investigators that the state’s many barriers to quality representation are not insurmountable.
NJDC looks forward to continuing to work with Arizona to finally bring Gault home— and to a day when the promises of the constitutional right to counsel are afforded to all young people regardless of where they may live.
Mary Ann Scali is the Executive Director of the National Juvenile Defender Center, a non-profit, non-partisan organization committed to promoting justice for all children by ensuring excellence in juvenile defense. She welcomes comments from readers.