“Do you know what a defense attorney does?”

This question is often asked by juvenile court judges to determine whether a youth appearing in their courtroom is knowingly and voluntarily waiving their right to counsel. Youth often respond in the affirmative, but when asked to explain the function of a defense attorney, they have nothing to say. We are concerned that, in these cases, youth are giving up an important right they do not fully understand.

Defense attorneys play a crucial role in ensuring their youthful clients’ rights are protected and in helping their clients comprehend the long-term collateral consequences of their legal case. It is a common misconception that juvenile court records are sealed and will have no effect on a person’s life after they turn 18. In reality, juvenile records can negatively impact future employment, educational opportunities, immigration status and interactions with the adult justice system. For example, certain charges, adjudications, and plea agreements may hinder a youth’s opportunity to eventually join the military or obtain a federal job.

Defense attorneys gather facts and evidence, interview witnesses, negotiate with prosecutors, find legal issues, and determine if the youth has any potential legal defenses. Furthermore, defense attorneys clarify the complicated justice process to help young clients make informed decisions about either negotiating with the state or proceeding to trial. By advocating zealously on behalf of their clients, defense attorneys challenge the state to be fair, accurate and just.

Under the Sixth Amendment to the Constitution, competent legal representation is guaranteed to every accused person in all court proceedings. The right to adequate representation for youth in delinquency matters was determined to be imperative by the U.S. Supreme Court in the landmark case known as Gault. Unfortunately, many states, including Utah, do not guarantee that all youth are represented by counsel in delinquency proceedings.

While there has been much discussion about meeting the state’s Constitutional obligation to provide indigent defense counsel to adults, Utah’s similar obligation to children has received little attention. In 2017, the Utah Legislature had the opportunity to remedy this problem by enacting the original version of HB239, sponsored by Rep. Lowry Snow, R-Saint George. However, the section requiring counsel for juveniles in every legal proceeding was removed before the amended bill was passed.

Without the automatic appointment of counsel for every child at every stage of the court process, Utah will continue to fall short of the constitutional mandate to protect the rights of its youth. Utah’s Indigent Defense Commission is proposing legislation to provide appointment of counsel in every matter petitioned to the juvenile court. Additionally, youth would not be allowed to waive their right to an attorney without first consulting with a counsel. Youth would be presumed indigent, and the court would be able to order parents who are not indigent to reimburse the county the cost of representation. Once counsel has been appointed for a juvenile, representation would extend to all stages of the proceeding.

We strongly encourage the legislature to pass changes that meet the standards of the Constitution and protect our youth.

Marina Peña is a juvenile justice fellow at Voices for Utah Children.

Anna Thomas is a senior policy analyst at Voices for Utah Children.

Wyatt Kirk is the public policy fellow working with Adjunct Professor Lincoln Nehring at the S.J. Quinney College of Law.

Views expressed are those of the authors and do not reflect the official position of the University of Utah or the S.J. Quinney College of Law.