Panel attorneys in Los Angeles County are paid a flat rate of no more than $345 per case, no matter how complex the matter, and must petition the court for fees for the expense of experts or investigators.

The article notes that “L.A. appears to stand apart in its use of a one-payment-fits-all-cases strategy.”

“In San Francisco County, panel lawyers are paid $66 an hour for misdemeanor cases, $83 an hour for felonies and $100 an hour for serious felonies, records show. Alameda County pays panel lawyers $390 to $1,000 a case, depending on the severity of charges, and pays additional fees for other appearances.  San Diego County’s juvenile court system handles most conflicts through salaried alternate public defenders and pays at least twice as much for cases referred to private attorneys.”

PJDC Executive Committee members Sue Burrell (Youth Law Center) and Cyn Yamashiro (Loyola Law School Center on Juvenile Law & Policy) were quoted in the article, as well as PJDC member Sherry Gold (Los Angeles Alternate Defender’s Office).

Today the United States Supreme Court ruled 5-4 in Graham v. Florida that the Constitution does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide offense.* Justice Kennedy authored the majority opinion, in which Justices Stevens, Ginsburg, Breyer, and Sotomayor joined. Justice Stevens filed a concurring opinion, in which Justices Ginsburg and Sotomayor joined. Chief Justice Roberts filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined, and in which Justice Alito joined as to Parts I and III. Justice Alito also filed a dissenting opinion.

Facts

On December 18, 2003, 17-year-old Terence Graham pleaded guilty to armed burglary with assault or battery and attempted armed-robbery. Graham’s prosecutor had elected to charge Graham as an adult, which meant that the first crime carried a maximum penalty of life without parole. The trial court sentenced Graham to concurrent 3-year terms of probation. Graham was required to spend the first 12 months of his probation in the county jail, but he received credit for the time he had served awaiting trial, and was released on June 25, 2004. On December 13, 2004, Graham’s probation officer filed with the trial court an affidavit asserting that Graham had violated the conditions of his probation by possessing a firearm, committing crimes, and associating with persons engaged in criminal activity in a subsequent robbery. The trial court held hearings on Graham’s violations about a year later, in December 2005 and January 2006. Graham maintained that he had no involvement in the home invasion robbery; but, even after the court underscored that the admission could expose him to a life sentence on the earlier charges, he admitted violating probation conditions by fleeing. The trial court noted that Graham, in admitting his attempt to avoid arrest, had acknowledged violating his probation. The court further found that Graham had violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity.

The trial court held a sentencing hearing. Under Florida law the minimum sentence Graham could receive absent a downward departure by the judge was 5 years’ imprisonment. The maximum was life imprisonment. Graham’s attorney requested the minimum non-departure sentence of 5 years. A presentence report prepared by the Florida Department of Corrections recommended that Graham receive an even lower sentence—at most 4 years’ imprisonment. The State recommended that Graham receive 30 years on the armed burglary count and 15 years on the attempted armed robbery count. Stating, “I don’t see where any further juvenile sanctions would be appropriate. I don’t see where any youthful offender sanctions would be appropriate. Given your escalating pattern of criminal conduct, it is apparent to the Court that you have decided that this is the way you are going to live your life and that the only thing I can do now is to try and protect the community from your actions,” the trial court sentenced Graham to life imprisonment for the armed burglary and 15 years for the attempted armed robbery.

Reasoning

In holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime, the Court reasoned that juvenile life without parole for non-homicides is cruel and unusual because penological theory does not justify life without parole sentences for juvenile non-homicide offenders; categorically, juvenile offenders have limited culpability; and these sentences themselves are incredibly severe. In a reaffirmance of Roper and the brain science on which it relied in part, the Court added that “No recent data provide reason to reconsider Roper’s holding that because juveniles have lessened culpability they are less deserving of the most serious forms of punishment. 543 U. S., at 551.” The Court also noted the national consensus against juvenile life without parole for non-homicides, looking beyond the mere number of states that allow such sentences (“Thirty-seven States, the District of Columbia, and the Federal Government permit sentences of life without parole for a juvenile non-homicide offender in some circumstances”) to the actual number of instances in which this sentence has been meted out (“Nationwide, there are only 129 juvenile offenders serving life without parole sentences for non-homicide crimes. Because 77 of those offenders are serving sentences imposed in Florida and the other 52 are imprisoned in just 10 States and in the federal system, it appears that only 12 jurisdictions nationwide in fact impose life without parole sentences on juvenile non-homicide offenders, while 26 States and the District of Columbia do not impose them despite apparent statutory authorization”), to determine that these sentences are, in fact, quite rare.

The Court defended its issuance of a categorical rule. The Court found that across the country, states’ rules governing the treatment of youthful offenders allow the imposition of this very severe sentence based on broad discretionary, subjective determination by a judge or jury that the juvenile offender is irredeemably depraved, and so do not adequately prevent the possibility that the offender will receive such a sentence despite a lack of moral culpability. Second, the Court reasoned that a case-by-case approach requiring that the particular offender’s age be weighed against the seriousness of the crime as part of a gross disproportionality inquiry would not allow courts to pick out the few juvenile offenders who are genuinely depraved enough to merit a life without parole sentence from the many that have the capacity for change. Notably, the Court took particular care to describe the specialized skills demanded of juvenile defense counsel, stating, “Nor does such an approach take account of special difficulties encountered by counsel in juvenile representation, given juveniles’ impulsiveness, difficulty thinking in terms of long-term benefits, and reluctance to trust adults.”
 
Finally, the Court found additional support for the Court’s conclusion in the fact that the sentencing practice at issue has been rejected the world over, as the United States is the only Nation that imposes this type of sentence. The Court’s opinion in Graham is posted on the Supreme Court web site and in the PJDC Resource Bank.

*This sentence was imposed by the State of Florida in two cases, Graham v. Florida and Sullivan v. Florida. The Court dismissed the Sullivan case on the grounds that the cert. petition had been improvidently granted.

The need for the standards is great given findings from the most recent Bureau of Justice Statistics that 10.3 percent of institutionalized youth surveyed reported a sexual abuse incident involving a staff member and 2.6 percent reporting an incident involving another youth.  While the groups generally support the proposed standards, the comments express concern that the standards would require mental health and medical staff to ask juveniles about any sexually abusive behavior they have engaged in. This would violate treatment relationship between the professionals and the youths, and the information could be gathered by other means.  The comments also ask that language in the final standards  clarify what constitutes consensual sex between two residents of a juvenile facility. While consensual acts may be a violation of facility rules, and warrant punishment, the advocates wrote, considering such acts as “abuse” may expose juveniles to undeserved criminal charges.

Among the other comments are requests that the Justice Department to require states to keep all youth under the age of 18 out of adult facilities, which is already the practice of the Federal Bureau of Prisons; require more guidance to facility staff on how individualized planning can be used to help protect gay and lesbian youth, who frequently are segregated from the general population in juvenile facilities; and inclusion of a clear statement on the dangers of using isolation as a punishment or placement for youth involved in sexual abuse.

The reports are available through this link.

The article is reprinted here with permission of the Daily Journal. The first part of the series is available here.

Juvenile Defense Attorneys Speak Out

By Sue Burrell

The first part of this article explored the special skills and training needed to represent young people in California juvenile delinquency cases, and the reasons competent representation is so critical.

In 2009, a statewide survey of juvenile defense counsel conducted by the Pacific Juvenile Defender Center revealed serious deficiencies in training among some practitioners. When asked about what kinds of resources and training materials they would like to have, the lawyers surveyed enthusiastically requested everything suggested. They wanted quarterly regional training meetings. They wanted telephonic and on-line lunchtime MCLE trainings that they can do from their office. They wanted access to juvenile subject mater experts; practice materials; list servs and hotlines to people who can provide trial support and information about programs and service; and legal updates. They ranked the importance of dozens of training topics. Their individual comments reflected practitioners who are stretched to the limits of their capacity and who want and desperately need all the help they can get.

The survey results showing deficits in training and professional support are actually quite consistent with this clamoring for help. While there are half a dozen California juvenile law conferences each year directed either all or in part to the needs of juvenile delinquency attorneys, they are not evenly distributed around the state. Los Angeles hosts the majority of such conferences, with some conferences alternating between San Francisco and San Diego. Monterey also holds an annual conference. While this is wonderful for some practitioners, for those in the small counties of Northern California; those in the big counties in the eastern part of Southern California, and those in or near Sacramento; attendance at existing conferences is expensive and time consuming.

This survey was performed against a backdrop of increasing self-scrutiny by juvenile practitioners and broader efforts to improve the juvenile justice system as a whole. We wanted to know the actual status of professional training so we would know what needs to be done to make it more broadly available and more responsive to the needs of juvenile defense counsel. We now have good baseline information and a vehicle for developing helpful additions to California’s training universe.

The Pacific Juvenile Defender Center has recently become the locus for California’s work in the John D. Catherine T. MacArthur Foundation’s Juvenile Indigent Defense Action Network (JIDAN). With JIDAN teams in New Jersey, Massachusetts, Florida, and other states where MacArthur is engaged in juvenile justice reform, California’s team will develop and implement strategies to enhance the capacity of juvenile defense counsel. These efforts will unfold over the next two years. Developing a statewide resource center with enhanced training will form a central part of the work.

Already, the Center has compiled a statewide contact list for attorneys representing children in juvenile delinquency cases, and has launched a Web site with a “members only” resource bank. The defender list serv will be re-launched shortly, with an invitation to every identified juvenile defense attorney in the state. This is important because, again, many counties do not have public defender offices, and those representing youth through panel appointments or through contract offices may have only sporadic access to professional support. The resource bank and list serv will provide access to a much bigger professional community for defense counsel to ask questions and have access to state-of-the art practice materials.

In addition, as part of its MacArthur JIDAN work, the Center has created an Expert’s Corner composed of subject matters experts around the state who are available to answer listserv questions or provide off line trial support to Pacific Juvenile Defender Center members.

The Pacific Juvenile Defender Center has also created a committee structure to coordinate training statewide agendas with the organizations offering juvenile defender training, including staff at the Center for Families Children and the Courts (who annually present the Beyond the Bench Conference); the California Public Defenders Association, the Los Angeles County Public Defenders Office; and Loyola Law School’s Center for Juvenile Law & Policy. In November 2009, the Pacific Juvenile Defender Center hosted an all-day training at Loyola Law School, featuring an agenda developed entirely from the survey responses.

Over the next year, the Center will focus its efforts on reaching out to juvenile defense counsel in parts of the state that make it difficult to attend existing trainings. Plans are under way to provide telephonic and on-line MCLE trainings on topics of interest to those defenders, and regional in-person trainings. Long term plans include the development of a California Juvenile Defense Practice Manual and a training academy for attorneys new to juvenile defense.

In terms of systemic goals, it is clear that specific requirements and support for training for juvenile delinquency defense must be built into indigent defense systems and agency funding streams. Training must be designed to reach counsel unable to attend current offerings because of distance and cost.

California is not alone in this work. As part of the MacArthur Foundation’s JIDAN initiative, we can learn from and benefit from colleagues all over the country engaging in similar endeavors. The Pacific Juvenile Defender Center is actively engaged in work on recommendations stemming from the 2008 Juvenile Delinquency Court Assessment (Administrative Office of the Courts, Center for Families, Children, and the Courts). And in February 2010, California juvenile delinquency practitioners will take part in the U.S. Dept. of Justice National Symposium on Indigent Defense: Looking Back, Looking Forward 2000-2010, which will look at the past and future of indigent juvenile and criminal defense.

For each child whose needs are promptly recognized and addressed, counties and the State will save tens of thousands of dollars in reduced recidivism and associated costs to victims, the courts and ultimately, the taxpayers. Juvenile defense counsel play a key role in assuring that this happens.

No child should have a lawyer who started practicing with one day or less of training in juvenile delinquency practice. No child should have a lawyer who lacks meaningful access to ongoing delinquency training and support. In the experience of the Pacific Juvenile Defender Center, a relatively small investment may pay big dividends in developing professional capacity and assuring competent representation of young people in the delinquency system.

Sue Burrell is a staff attorney at the San Francisco-based Youth Law Center, and leads the California team for the John D. and Catherine T. MacArthur Foundation’s Juvenile Indigent Defense Action Network. This work is focused in the Pacific Juvenile Defender Center, an affiliate of the National Juvenile Defender Center for California and Hawaii, providing support to ensure quality legal representation for children.

The article is reprinted here with the permission of the Daily Journal.  Part Two of her editorial focuses on ways to improve the defender system, and is available here.

Juvenile Delinquency: The Case for Specialty Training

By Sue Burrell

Each year, more than 100,000 young people in California face juvenile court delinquency petitions alleging violations of the law – more than in any other state. Most are represented by an attorney – and for good reason. The potential consequences of juvenile court proceedings are serious and far-reaching. A young person found “unfit” by the juvenile court will be prosecuted in criminal court and held to adult criminal penalties, including imprisonment up to life without the possibility of parole. Those prosecuted in juvenile court may be held up to age 25. They may also suffer adult consequences including the reporting of their DNA and records to the California Dept. of Justice, sex offender registration, and use of juvenile adjudications as “strikes” for sentencing enhancement.

Juveniles adjudicated for less serious offenses may suffer incarceration, educational disruption, and stigma. Depending on the offense, they may find it difficult to get back into school, apply for financial aid, join the military, adjust immigration status, live in public housing, hold a driver’s license, or successfully navigate employment interviews. The cloud of a juvenile adjudication may follow them for their entire lives.

Apart from the consequences of juvenile adjudications for the individual, there are societal issues at stake. Although the juvenile system is designed to rehabilitate, this does not always happen. Young people who go through the system with unaddressed mental health problems, substance abuse issues, family problems, or educational deficits are more likely to reoffend. Similarly, those who are dispatched to programs or facilities that are poorly matched to their needs are destined to fail and to penetrate further into the justice system. Those who are unnecessarily incarcerated experience negative peer influences; interference with critical stages of adolescent development; and an inability to engage in the very kinds of activities and relationships needed to build success in the community.

Those coming before the juvenile court are overwhelmingly youth of color – most often from poor or struggling families. Compared to the general youth population, they have much higher prevalence of developmental disabilities, mental illness, and histories of trauma and abuse. Many of them have not yet or are just reaching adolescence – one out of five is 14-years-old or younger.

The integrity of juvenile justice system depends on the ability of its component parts to skillfully and zealously play their role. If defense counsel lacks the skills to fully investigate, prepare, and litigate the case it is much more likely that an unjust result will be reached.

The required skill set for competent juvenile delinquency defense is considerably different and broader than that needed for adult criminal defense. Juvenile defense counsel need to know criminal law, but also must be aware of separate juvenile standards for fundamental issues such as competence to stand trial, confessions, and capacity to commit a crime. They must master the extensive body of California’s Juvenile Court Law, with its own terminology, procedures, timelines and legal standards. Counsel must also advocate with knowledge of the different purpose of juvenile court proceedings – which requires that youth receive care, treatment and guidance in accordance with their individual needs, and that they be held accountable for their actions, but without retributive punishment. (California Welfare & Institutions Code Section 202.) They must have the skills to explain complex legal principles to their clients in an understandable way, and assert their clients’ expressed wishes even when others would like to impose their own views of the child’s “best interest.” Competent representation requires counsel to be familiar with the kinds of services or programs that produce good rehabilitative results, and the providers available to provide those services. It requires counsel to engage families and assure that needed supports are in place to ensure success. In performing this work, juvenile defenders must understand and be able to apply the principles of adolescent development; education and special education law; and mental health law. In addition, in juvenile court, representation does not end at the time of “sentencing” (California Rules of Court, Rule 5.663.) Because the goal of the juvenile justice system is to actually address the factors that led to juvenile court involvement, counsel must monitor post-disposition progress in implementing the court’s orders and take appropriate action if there are problems.

California has provided for the appointment of counsel in delinquency cases since before In re Gault (1967) 387 U.S. 1, recognized it as a constitutional right. But the right to counsel means very little if lawyers are dispatched to courtrooms without the proper training and knowledge to competently represent their young clients. California’s 2008 Juvenile Delinquency Court Assessment (Administrative Office of the Courts, Center for Families, Children, and the Courts), observed that “…having experienced, well-trained attorneys is critical to ensure the fair processing of delinquency cases and quality representation for youth who enter the delinquency system.” Training is only one of several broader issues affecting the quality of representation – including professional status, indigent defense resources, and juvenile system accountability – but it is a great place to start.

Training is necessarily decentralized because California juvenile delinquency representation is county-based, and a variety of structures are used. Approximately two-thirds of juveniles are represented by public defenders, and the remainder are represented by a combination of panel attorneys, contract office attorneys, or privately retained counsel.

How well prepared are these counsel to perform the highly skilled, responsible role required to assure competent representation for young people coming before the court? The Pacific Juvenile Defender Center undertook a training survey of juvenile defense counsel at two statewide conferences in 2009. More than 200 attorneys responded, representing 38 of the 58 counties and several indigent appellate defense offices. Of those responding, 11 percent had been practicing for two years or fewer; 24 percent for three to ten years; and 65 percent had been engaged in juvenile delinquency practice for more than 10 years. While this was a somewhat self-selecting group because these attorneys were at training conferences, their responses provide a window into juvenile defender training and resources across the state.

For 15 percent, the conference at which they were surveyed was their first training aimed directly at juvenile defense counsel; and 35 percent had attended three or fewer trainings aimed directly at juvenile defense counsel. Those percentages were higher for attorneys in practice for two years or fewer.

More significantly, 45 percent of those responding reported receiving no training when they started representing young people in delinquency proceedings. Of those, there was an even split between public defender and non-defender responses. Of those who received some training, 43 percent received one day or less.

Among those surveyed, 50 percent work in offices that do not provide ongoing training specific to juvenile defense practice, and the percentage is much higher for those who are not in public defender offices. In offices that provide it, training frequency ranges fairly evenly between months, quarterly, twice yearly and annually. Most offices providing juvenile training require attendance, but 21 percent do not, and 3 percent of respondents did know if they are required to attend training.

Of those responding, 71 percent are not paid or reimbursed for attending training, and 88 percent of non-public defender counsel do not receive payment for attending training. Of those whose offices provide payment, the arrangements vary, but include individual annual training allotments; time off to attend the training; reimbursement for conference registration; and travel expenses or combinations of those things.

Seventy percent of survey respondents indicated that their office has no juvenile practice manual or they do not know if such a manual exists. Eighty-two percent responded that they work in offices that lack practice standards (expected practices) for attorneys handling juvenile cases, or do not know if such practice standards exist.

Only 13 percent of those responding were members of the Pacific Juvenile Defender Center’s statewide juvenile defender listserv, which provides the only delinquency specific forum for juvenile defense counsel to discuss legal questions and developments in relevant case law and legislation. The figures were even lower for non-public defenders (4 percent) and those practicing in delinquency cases for less than two years (3 percent).

The survey responses confirm that some juvenile defense counsel practice in offices that provide ample training and ongoing resources, but many do not. Training at the very beginning of juvenile defense careers is minimal at best in many offices. The results suggest that well-meaning, hard working, but professionally ill-prepared attorneys represent all too many young people in our system.

Sue Burrell is a staff attorney at the San Francisco-based Youth Law Center, and leads the California team for the John D. and Catherine T. MacArthur Foundation’s Juvenile Indigent Defense Action Network. This work is focused in the Pacific Juvenile Defender Center, an affiliate of the National Juvenile Defender Center for California and Hawaii, providing support to ensure quality legal representation for children.

The Fresno Bee’s obituary of Jack noted that “though he had cancer for more than three years, he was working on behalf of children with behavioral issues at the Juvenile Justice Campus south of Fresno up until the Christmas break.”

Jack had been honored by the Fresno chapter of the NAACP, Youth Law Center, and State Bar of California for his service on behalf of children and the poor.

Jack died after a long battle with cancer on Jan. 2, 2010 at his home surrounded by his family. He was 60 years old.