Interim committee seeks representation for juveniles

Critics complain it could take away parental control
The Colorado Statesman

Following revelations that an estimated 45 percent of juveniles last year in Colorado faced delinquency cases without an attorney, lawmakers this week recommended legislation to address the deficiency.

But some prosecutors and lawmakers believe requiring attorneys for a youth offender limits parental rights, which could set up a partisan fight in the legislature next year.

The interim Juvenile Defense Attorney Committee finalized two bills and a resolution on Oct. 28 after months of discussions. The proposed measures head to Legislative Council before being formally introduced for the upcoming legislative session, which begins in January.

The crux of the reforms would come through a bill that aims to increase legal representation for juveniles facing prosecution. The bill would require clear language stating that a juvenile offender has a right to counsel and it would mandate representation at a detention hearing.

Juveniles who are at least 15 years old would be allowed to waive the right to counsel, but not if they are facing a sexual offense, crime of violence, an offense that could result in a mandatory sentence, or a charge as a repeat juvenile offender.

Parents who are deemed by the court to possess adequate financial resources would be ordered to reimburse the court for legal fees.

Concerns have grown that such mandates would take control away from parents, placing it in the hands of the court, which might not make a decision in line with that of individual families.

“These are decisions that these people engage in, not because of a lack of resources, or a lack of information about the rights that are available to them, but as decisions that are made by juveniles, and by the families that love them, care for them, and at the end of the day, are going to be responsible for shepherding them into adulthood,” explained Arapahoe County District Attorney George Brauchler, echoing concerns raised by other prosecutors across the state.

“This deteriorates that,” Brauchler continued, speaking before the committee. “It comes close to destroying that.”

In addition to his role as prosecutor, Brauchler has also become a rising star in the Colorado Republican Party. His concern around parental rights is one that has caught the attention of fellow Republicans, who often place greater emphasis on family values than on government mandates.

The committee backed the measure requiring legal counsel for juveniles on a Democratic party-line vote of 6-3, suggesting that a partisan divide will surface in the upcoming session.

In addition to concerns around parental rights, Brauchler and the GOP are fearful about creating a potential unfunded mandate on jurisdictions that may not have the resources to comply with the reforms. There is also trepidation around a one-size-fits-all state law that may not meet the needs of unique districts.

“This appears to be an over-the-top statewide solution to problems that do not… exist in these very jurisdictions,” said Brauchler.

“Some of this bill is borne out of a nationwide theory on how juvenile justice is handled across the country, and I don’t think it takes into consideration what we have done in Colorado,” he added.

Brauchler suggested that the juvenile court system in Colorado is unique, and is designed to be different than that of the adult system. He accused the committee of a “natural mistrust about what prosecutors do.”

Sen. Ted Harvey, R-Highlands Ranch, carried the torch for Brauchler during comments by lawmakers, suggesting that the bill is an over-reach. Harvey was one of three Republicans sitting on the committee on Monday. One member of the GOP was absent.

“We’re going to do a broad bill that I don’t believe it’s just bringing in counsel, I think it’s a direct attack on parental rights,” said Harvey, suggesting that diversion, or alternative sentencing programs, are sometimes valued by the parents of youth offenders.

“You have a diversion program there for a reason, so that parents have the ability to intervene…” Harvey continued. “If you bring an attorney in the middle of a diversion hearing, that attorney’s job is to represent the legal rights of the child, and at that diversion hearing they will be determining, ‘No, don’t do that because we think you can get off on this case,’ when the parents at that diversion hearing are saying, ‘No, this is a good deal…’”

But outgoing Rep. Claire Levy, D-Boulder, a sentencing reform advocate who chaired the committee, responded by pointing out that attorneys advise based on the best outcomes and desires of their clients and their clients’ families.

“It’s not going to prevent them from directing kids into diversion who should go into diversion and there’s no reason why an attorney would not want their client to go into diversion…” said Levy. “I can’t see an attorney saying, ‘No, don’t go into diversion, we’ll take our chances on trying to beat this.’”

The concerns aren’t limited to that of prosecutors. The state public defender’s office is also fearful of the bill. The Office of the Colorado State Public Defender would be responsible for providing counsel at detention hearings, which would likely stress resources.

“The practical aspects of doing what this committee is suggesting are daunting,” opined Doug Wilson, the state public defender.

He pointed out that the bill essentially requires the public defender’s office to act as standby counsel in courtrooms all over the state in order to advise children on whether or not they should waive counsel. He said doing so could create conflicts within the criminal justice system.

“If you somehow create a standby counsel in the public defender’s system, that would mean in Burlington, Colo. we would be required to be present in some way… to wait to advise kids as they come in. You will create an enormous amount of conflicts by doing that. In essence, you’re appointing us to every juvenile case… That’s an impossibility.”

Wilson said the bill is broad in that it requires an advisement by counsel before a juvenile can waive. Because that would require standby by the public defender’s office, Wilson said the bill might as well just say no juvenile can waive counsel. But he said that would likely not pass constitutional muster.

Levy explained the motivation of the committee to require consult with an attorney before a juvenile waives counsel, pointing out that such a consultation would likely lead to a more informed decision.

“We ended up wanting the advice of counsel because we were concerned about all these subtle pressures, emotional pressures, and the inability in that environment, in the courtroom, for the kids to really sort out all these conflicting pressures,” explained Levy.

But she acknowledged that the practical conflicts could lead to problems down the road.

“We don’t know how to deal with [that] at this point,” she said.

Kim Dvorchak, executive director of the Colorado Juvenile Defender Coalition, who served as a non-voting member of the committee, said it is critical that the legislation include consultation with counsel.

“Eliminating that will just maintain the status quo,” she said.

“I would hope that the intention of the committee is to staff… the courtroom,” Dvorchak added. “Somehow in Colorado we’ve made it acceptable for there not to be a defense attorney in the courtroom when juvenile court is in session.”

For Dvorchak, the work of the committee is a culmination of many years of advocating for change. Her group was empowered by a 2012 study by the National Juvenile Defender Center in which it was reported that Colorado has wide disparities in youth having access to counsel.

Forty-five percent of all juvenile delinquency cases had no defense lawyer during any point in the process, and in some counties the number climbs to as high as 60 percent.

“People were shocked; legislators were shocked,” explained Dvorchak. “Colorado is typically on the progressive side of juvenile justice… people were surprised to hear of the significant deficiency.”

She pointed out that the deficiency is not restricted to poor juveniles and their families. She said middle-income families also feel the burden. A family of four in Colorado must make less than $32,000 per year to qualify for a public defender, said Dvorchak. The proposed legislation would instead determine indigence based on the child’s income, which by default qualifies them for a public defender.

“Here you have this working middle-class family, they want to support their kid, but they can’t afford to hire a lawyer, so they say, ‘Let’s just waive counsel and take a plea,’” explained Dvorchak.

“What the committee decided was, let’s just determine indigence based on the child’s income,” she continued. “The child doesn’t have access to their parents’ assets; the child doesn’t work; the child can’t control the families’ bank account; the child can’t even legally sign a contract — so, how can the child retain an attorney on their own?”

Dvorchak is hopeful that the legislature will be able to find bipartisan consensus, pointing out that the legislative process is just beginning. In the meantime, she is pleased with the progress, but says there is still a climb ahead.

“There’s more work to be done,” she said. “But I think the heavy lifting in terms of studying the problem was very well addressed.”