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Last year, the criminal justice system celebrated the 40th anniversary of one of the seminal Supreme Court cases interpreting the adoption of the Bill of Rights — the 1963 decision in Gideon v. Wainwright. The case mandated that all criminal defendants have the right to counsel, and if they cannot afford an attorney, one will be appointed to represent them. But for one segment of society — children — the promises of Gideon have been very slow to mature. For many children throughout the country, the promise of careful justice has been delayed and denied. That is particularly true of the children in Maryland, according to a recent report. Last October, the American Bar Association’s Juvenile Justice Center and the Mid-Atlantic Juvenile Defender Center, in partnership with numerous public and private groups concerned about the rights of children, published a report on the Maryland juvenile justice system, called An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings. According to the assessment, “the presence of well-trained, well-resourced counsel is vital to a practical realization of due process and accountability of the juvenile justice system.” Yet, in Maryland, though the law recognizes the importance of counsel at all stages of juvenile proceedings, the implementation of the law has been thwarted by many different parts of the juvenile justice system. JUSTICE FOR CHILDREN? Maryland’s problems are, unfortunately, part of a larger trend in America. The juvenile justice system has a tenuous place in our criminal justice system. And it often changes with the mood of the nation. On any given day, there will be articles about how the weak hand of the juvenile justice system fails to punish children for criminal acts. At the same time, there will be other articles stating that in order to save children from lives of crime as adults, we must treat their problems instead of punishing them. There has been, though, a marked movement toward imposing punishment. The unruly things that children do, such as engaging in minor fights at school, 15 years ago might have led to a trip to the principal’s office; today, they are often referred to prosecutors and the courts. As our society has become “lawsuit happy,” we have also become “delinquency happy.” As a result, the state brings into the juvenile justice system many children who really should not be there. Much of this action is at the behest of the public, to whom many of the state officials ultimately must answer. The growing intrusions by police, state departments of juvenile services, and prosecutors waste courts’ valuable time, drain the limited resources of the government and families, and can affirmatively harm children. The Supreme Court, at least, recognized the problem of juvenile justice long ago. Four years after Gideon, the Court in 1967 gave the nation’s children, by nature the poorest segment of our society, the promise of due process and the right to counsel during juvenile proceedings, in the landmark cases of In re Gault. It followed up in 1970 with In re Winship, which expanded and further detailed those rights. Unfortunately, the promises of Gault and Winship have not been kept. Many of the ills discussed by the Supreme Court concerning the juvenile justice system have not changed in more than 30 years. Maryland’s situation is a sad case in point, as the recent assessment demonstrates. Data collection for the assessment, which was done by a team of local and national experts, included: on-site observations; interviews of judges, prosecutors, private defense attorneys, and public defenders; a review of statistical data kept by the courts, other state agencies, and the federal government; and a review of prior research and reports of the defender system. And the results are bracing. The assessment concluded that, except in a few specific instances and locations, the children of Maryland are plagued with a system that does not protect them or their rights. This negligent treatment of the rights of juveniles occurs at all levels of the juvenile justice system, including the courts, public defenders’ offices, the police, the state Department of Juvenile Services, and even the children’s parents. This lack of vigilance leads to profoundly disturbing results. It leads to the mistreatment of juveniles in numerous detention facilities throughout the state. It leads to draining the state’s coffers in having to settle litigation, such as the massive civil rights suit for abuses at the state’s “boot camps” for juvenile offenders. It leads young people ignored by the community to be placed in circumstances where they learn survival skills instead of academic or job skills. It leads a whole swath of our children down the road to adult crime and to the revolving door of a lifetime of incarcerations. WHO’S AT FAULT In many ways, the group that has led the way to the current decrepit state of representation of juveniles in Maryland is the judiciary. Procedurally, the judiciary usually has the first contact with a child charged with a delinquent offense. Thus it has the most impact on whether a child ultimately is represented during the delinquency proceedings. Maryland law permits the courts to appoint counsel for indigent children. But all too many times, the court allows — and in some situations encourages — children to “waive” their right to counsel. Parents also allow their children to proceed without representation — whether because they will be assessed a fee even by public defenders’ offices, or because they believe they do not qualify for a public defender and cannot afford a private attorney (or do not want to pay for one). As a result, not surprisingly, courts are often left with children who are appearing before them without attorneys. According to the assessment, in many of Maryland’s counties, between 40 to 50 percent of juveniles go unrepresented during the course of their juvenile proceedings. Adding to the lack of representation of children in Maryland is the limited attention often given to children by their court-appointed counsel or public defenders. Unfortunately, in Maryland and throughout the nation, public defenders’ offices often put their least experienced (and often youngest) attorneys in juvenile court. This is the opposite of how things should be, since what is truly needed are attorneys with experience in not just the nuts and bolts of the law, but in psychology, sociology, and life. The complexities of each child are such that the “defense mill” that might work for adults does not work for children. It is often children charged with a less severe “crime” who need the most attention from their counsel, which they are often not getting. As grim as the situation in Maryland may seem, there are some glimmers of hope for the future. First is the fact that the assessment was performed at all, and publicly presented to all the key players in the juvenile justice system. No officials can now say “I did not know about this” or “I had never heard of such things.” Additionally, the assessment shows that Maryland has a diamond in a sea of quartz — Montgomery County. Due in part to a quirk in the law that kept Montgomery County’s juvenile court isolated from the rest of the criminal and civil court system (local and statewide) for more than 30 years, it grew and fully implemented on its own the dictates of Gault and Winship. As a paramount issue, Montgomery County’s juvenile court demands that no child appear before it without counsel. The court has also been vigilant on the rights of the children before it, and demands the highest level skill of the attorneys, both private and public, who appear before it. The local public defender’s office also puts significant time and effort into training its attorneys who represent children, and was found by the assessment to be “an efficient and well run defender system with . . . a strong level of advocacy and sophistication.” MONTGOMERY AS A MODEL Montgomery County’s juvenile justice system should serve as a model for the rest of the state. First and foremost, it should stand for the proposition that when every child proceeds through the system with counsel, not only is the child better off, but also is the system as a whole. It is unfortunate but not surprising that the problems found in Maryland are typical throughout the nation. Only if we demand action will there be a change. Juvenile delinquents have few friends in the corridors of statehouses or the halls of Congress. It is only through vigilance and action that change can come to a system in dire need of it. Neil I. Jacobs is a partner at Merkin & Jacobs, in Rockville, Md., where he practices criminal defense law representing both adults and juveniles. He currently serves as a co-chair of the Criminal Law Section, and is a former chairman of the Juvenile Law Section, of the Bar Association of Montgomery County. His e-mail address is [email protected].

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