THE GUIDING HAND OF COUNSEL, FOR A PRICE: JUVENILE PUBLIC DEFENDER FEES AND THEIR EFFECTS.

TABLE OF CONTENTS INTRODUCTION 1001 I. THE JUVENILE JUSTICE SYSTEM AND THE RIGHT TO COUNSEL 1003 A. The Development of the Juvenile Justice System 1003 B. The History and Development of the Right to Counsel for Juveniles 1004 C. Juveniles and Waiver of the Right to Counsel 1005 II. CHARGING FOR "FREE" REPRESENTATION: AN OVERVIEW OF PUBLIC DEFENDER FEE LAWS AND RELEVANT CONSTITUTIONAL PRECEDENTS 1008 III. PROBLEMS POSED BY JUVENILE PUBLIC DEFENDER FEE STATUTES 1012 A. Public Defender Fees Reinforce the Shift from Rehabilitation to Punishment in Juvenile Justice 1012 B. Juvenile Public Defender Fees Lack Procedural Due Process Protections 1015 C. Public Defender Fees Unduly Pressure Children to Waive Their Right to Counsel 1019 1. Children Receive Special Treatment in Supreme Court Jurisprudence 1019 2. Social Science on Juvenile Development and the Justice System Demonstrates Children's Immaturity 1022 3. States Have Enacted Additional Safeguards to Protect the Rights of Children 1023 4. Juveniles' Relative Immaturity Renders Them Vulnerable to Waiving the Right to Counsel in Response to Public Defender Fees 1024 5. Juveniles' Particular Characteristics Heighten the Need for Legal Protections Against Waiver 1026 a. Chilling Effects Analysis 1027 b. Mathews Analysis 1032 IV. SOLUTIONS: CURBING AND ELIMINATING THE CHILLING EFFECT 1034 A. Reducing Parental Influence on the Juvenile Right to Counsel 1034 1. Methods of Minimizing Parental Influence 1034 2. Addressing Counterarguments to These Solutions 1035 B. Ending the Practice of Imposing Juvenile Defender FEES 1037 CONCLUSION 1040

INTRODUCTION

When he was thirteen, Jonathan, a teenager from New Hampshire, was charged with simple assault after a fight with his father. (1) During his hearing in juvenile court, his father refused to pay the $275 New Hampshire public defender fee, and Jonathan--unable to afford the price of counsel--waived his right to an attorney. (2) He was placed on probation and struggled to meet his probation requirements, resulting in his arrest for probation violations.' (5) Because the court was deciding whether to detain Jonathan, Jonathan was appointed a juvenile defender. (4) The attorney brought Jonathan's unstable home life to the judge's attention, and the judge dismissed the case. (5) While Jonathan was ultimately fortunate, his story illustrates how public defender fees destabilize children's'' lives and leave them unrepresented at critical points during delinquency proceedings. (7)

In 1967, the Supreme Court extended the right to counsel to juveniles during delinquency proceedings through the Due Process Clause of the Fourteenth Amendment, holding that a "juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." (8) Since then, every state has guaranteed juveniles the right to counsel, which juveniles can usually waive if their waiver is knowing and voluntary. (9) However, states still erect barriers to juveniles' access to public defenders and court-appointed counsel by imposing public defender fees. (10) Some public defender fees impose costs on the front end of juveniles' involvement...