Utah youths who find themselves in trouble with the law are often defending themselves.
There’s no attorney there to help navigate the legal intricacies. No one to advocate for them, to explain the details of a plea offer, how a trial would work or how court proceedings could impact their future.
This is one of a number of issues with young Utahns' limited access to defense attorneys, according to a joint report released Thursday by Voices for Utah Children and the University of Utah College of Law. The report is based on observations of nearly 200 proceedings in juvenile courts around the state in the past year.
The state Legislature is looking at issues surrounding court-provided attorneys to juveniles, and this report was released, in part, to inform lawmakers' debate.
Among the big takeaways for courtroom observers: Where you live plays a big role in a young person’s experience in the juvenile justice system. The more rural and sprawling an area, the report found, the less likely a child will receive adequate representation.
If a young person does want an attorney, a hearing often can be delayed if a public defender isn’t already in the courtroom — a frequent occurrence in rural counties where a contracted lawyer juggles both juvenile and adult cases. And when young people live two or three hours from their nearest courthouse, it can discourage them from waiting for an attorney if they know they’ll have to drive back another day.
“This is particularly disturbing in the case of young people who are detained prior to arraignment,” the report reads. “In such cases, any delay means additional time in a secure state facility, away from their home. The desire to avoid additional unnecessary detention creates an overwhelming pressure to waive the assistance of an attorney.”
And whether a young person is being offered a public defender also varies from courtroom to courtroom, according to the report. Most juvenile court judges appoint attorneys when a young defender is accused of serious, felony-level charges. But when it comes to more minor charges, there is less consistency.
In some courtrooms, judges appoint attorneys to all youths, no matter the level of charges. In others, the report found, a young person must actively assert his or her right to have an attorney and also go through a process to determine whether the parents can afford one. And even if the youth does receive representation, that may not happen at his or her first hearing — a critical stage when a judge makes the decision on whether the child should be required to go to a youth detention center. The report did not specify which counties regularly offer attorneys and which don’t.
Sen. Todd Weiler, R-Woods Cross, has sponsored a bill that would start to address the issues raised in the report. It would require public defenders to be appointed to all youths who can’t afford one.
Anyone who is charged with a crime that includes the possibility of jail time — in Utah, that’s anything above an infraction — is entitled to an attorney, even if the defendant is poor. It’s a constitutional right that is supposed to extend to young people, as well. In Utah, the law was changed only a few years ago to require public defenders for youths facing felony charges, but that same requirement was not extended to lower-level crimes.
Weiler’s bill, SB32, would change that.
“In some parts of the state, we’ve been turning a blind eye to juveniles in general,” Weiler said, “and especially their constitutional right to counsel.”
The bill also would require an appointed attorney to be present at all court hearings, even detention hearings for youths or review hearings.
Weiler said the measure also would make it so young people are presumed to be indigent, and their ability to pay for an attorney would not be dependent on their parents’ income. It can become a conflict, he said, if a young person does not qualify for an attorney and his or her parents refuse to pay for one — forcing young people to navigate the system without help.
“The parents might say, ‘We’re not hiring you an attorney; you have to deal with it,’ ” he said. “A child’s constitutional rights are not contingent on what the parents' disciplinary methods are.”
The bill would allow a juvenile court judge to order the parents to pay for a public defender.
It passed out of the Senate Judiciary, Law Enforcement and Criminal Justice Committee earlier this week with a favorable recommendation and awaits debate on the Senate floor.
There has been some concern about cost incurred by Utah counties, which are required to foot the bill for public defenders. Weiler estimated it would take another $750,000 to pay for attorneys for youths, but he said he hopes that funding will be covered by the state’s Indigent Defense Commission — a body created in 2016 to tackle problems with the state’s public defender system and dole out state grants.
IDC Executive Director Joanna Landau noted during a Wednesday committee hearing that after lawmakers passed a juvenile justice reform bill two years ago that focused on keeping kids out of the court system for minor offenses, the number of misdemeanor cases has plummeted. So it will not cost as much as estimated in years past to have attorneys available for young people who face low-level crimes.
“It would ensure that children do not come into formal court proceedings without a defense attorney at their side,” Landau said.
One public defender from Davis County, Todd Utzinger, spoke in opposition to a part of the bill at the hearing. Considering public defenders' caseloads, Utzinger said that it may not be the best use of their time to be required to attend review hearings in which clients do little more than check in with the judge.
“We’re going beyond what the constitution requires,” he said.
But Pamela Vickery, executive director of the Salt Lake City-based Utah Juvenile Defender Attorneys, said those hearings can quickly go sideways. And defendants who are young — she noted some of her clients are 8 or 9 years old — cannot be expected to speak up for themselves in a courtroom setting.
“[Defense attorneys] make sure their voice is heard,” she said. “We can’t expect all kids [who] come into court to be brave enough to speak up and say what they want to say.”