The Capacity for Effective Relationships Among Attorneys, Juvenile Clients, and Parents

An effective (e.g., honest, trusting, and informed) attorney-client relationship is required for adolescents to properly assist counsel in their own defense. These relationships require (a) an understanding of the advocacy role of the attorney, and (b) a sense of trust that the attorney will work diligently to defend and protect their client. However, younger adolescents struggle to understand the advocacy role of defense attorneys and tend to misunderstand attorney-client privilege. Although parents may be thought of as compensating for their children’s lack of knowledge and experience, it is not clear whether parents themselves understand the lawyer’s role and how the lawyer may interact differently with parents and youthful clients. We review the empirical literature on youth understanding of the attorney-client relationship, particularly for public defenders and court-appointed counsel. We also report results from an empirical study of parents’ and youths’ understanding of lawyers, including age-based differences in expectations of attorney behavior. We discuss the implications for policy and practice for individual lawyers who represent youth as well as the justice system more generally. I. THE NEED FOR REPRESENTATION IN JUVENILE COURT The way the United States handles juvenile defendants has changed dramatically within the last century. At its inception in 1899, juvenile court hearings were handled informally: with social workers and probation officers rather than attorneys, judges deciding instead of juries, and no perceived need for due process. 1 The court intended to act as a benevolent parent, viewing the juvenile’s presenting offense as a mere symptom of larger problems, usually attributed to the family, which could be addressed by an intervention approach * Ph.D. Student, Department of Psychology, Georgetown University. ** Associate Professor in Developmental, Community & Law, Department of Psychology, Georgetown University. 1 BARRY A. KRISBERG, JUVENILE JUSTICE: REDEEMING OUR CHILDREN 39 (2005). 494 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:493 consistent with a medical model of curing a disease. 2 This approach afforded the court wide discretion to dispense individualized justice that was tailored to the specific needs of a youth, and his family, rather than a standardized response to a particular offense. In what has become known as the “due process” era of juvenile justice, a series of Supreme Court cases in the 1960’s acknowledged that the promise of benevolent, effective intervention was not regularly achieved. 3 Instead, as Justice Fortas wrote in Kent v. United States, 4 juveniles in court received the “worst of both worlds”—none of the care and intervention promised by the original court and none of the due process protections afforded adult clients who faced punishment in the criminal justice system. One of the major changes to the early court provided juveniles with the rights to counsel, avoid self-incrimination, receive adequate notice of charges, and confront witnesses at hearings. 5 In the landmark decision In re Gault, the Supreme Court determined the Due Process Clause of the Fourteenth Amendment also affords juvenile defendants the right to effective counsel. 6 Moreover, a number of state codes explicitly guarantee juveniles the right to counsel in juvenile court. 7 In the wake of a third wave of juvenile justice reform that introduced harsher punishments, determinate sentencing, and increased avenues for transferring youth to criminal court, 8 Levick and Desai outline three reasons why juveniles need to be represented by counsel throughout court processing, not just the adjudication hearing. 9 First, accumulating research documents the incomplete development of important cognitive and psychosocial capacities that directly bear on youth decision-making generally, and decision-making as defendants specifically. 10 Second, counsel can assist the court in keeping treatment and rehabilitation, the original cornerstones of the court’s approach to delinquency, as a priority. 11 2 David S. Tanenhaus, The Evolution of Juvenile Courts in the Early Twentieth Century: Beyond the Myth of Immaculate Construction, in A CENTURY OF JUVENILE JUSTICE 42 (Margaret K. Rosenheim et al. eds., 2002). 3 Jennifer L. Woolard & Elizabeth S. Scott, The Legal Regulation of Adolescence, in 2 HANDBOOK OF ADOLESCENT PSYCHOLOGY 345 (Richard M. Lerner & Laurence Steinberg eds., 3d ed. 2009). 4 Kent v. U.S., 383 U.S. 541, 556 (1966). 5 In re Gault, 387 U.S. 1, 10 (1967). 6 Id. at 41. 7 Marsha Levick & Neha Desai, Still Waiting: The Elusive Quest to Ensure Juveniles a Constitutional Right to Counsel at All Stages of the Juvenile Court Process, 60 RUTGERS L. REV. 175 (2007). 8 Woolard & Scott, supra note 3, at 358–59. 9 Levick & Desai, supra note 7, at 182. 10 Id. 11 Id. 2017] THE CAPACITY FOR EFFECTIVE RELATIONSHIPS 495 Finally, the attorney’s advocacy can temper the quantity and quality of punitiveness that came to characterize juvenile court proceedings during the latter part of the 20th century. 12 Of the changes afforded by Gault, the right to counsel is arguably one of the most important. 13 The foundation of an effective relationship between an attorney and her client is built on communication and trust. Clients must trust their attorney to be competent legal advocates, while attorneys should trust that their clients are providing relevant and accurate information. The client must trust that their attorney is fighting for the best outcome in court in order for the client to feel secure sharing private, and potentially incriminating, information with their attorney. At its core, the relationship exists to address a legal problem for the client. 14 In this paper we investigate the effectiveness of this critically important relationship between the juvenile client and her attorney. We begin by examining two important characteristics that distinguish the juvenile-attorney relationship from that of adult clients—juveniles’ developmental capacities and the role of parents. We then briefly describe various models of representation that respond in different ways to these unique characteristics of the juvenile client. Next, we turn in greater detail to the three main challenges that derive from these unique characteristics. First, we examine research on youths’ capacities to understand the attorney’s role, to appreciate the nature of the attorney-client relationship, and to trust that attorney’s commitment to treat the client fairly. Then, we focus on parents, presenting original data from our study of 170 parent-youth pairs about those same capacities in parents as well as how parents view their own role in the decisions their adolescents make while working with attorneys. Finally, we review how a high demand for public defenders combined with inadequate funding for indigent defense serves as a hindrance to building rapport with younger defendants who may require more time and attention to build an effective attorney-client relationship. II. TWO KEY DIFFERENCES BETWEEN JUVENILE AND ADULT CLIENTS Generally, the legal system acknowledges that juveniles do not have the same rights and responsibilities as adults. As dependent minors, juveniles are unable to make legally binding decisions in almost any circumstance, including entering 12 Id. 13 Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 NOTRE DAME L. REV. 245, 250 (2005). 14 Vance L. Cowden & Geoffrey R. McKee, Competency to Stand Trial in Juvenile Delinquency Proceedings—Cognitive Maturity and the Attorney-Client Relationship, 33 U. LOUISVILLE. J. FAM. L. 629, 640–45 (1995). 496 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:493 contracts, getting married without parental consent, or voting. 15 The justice system, however, is one of the few contexts in which juveniles are expected to function as autonomous, competent legal actors who understand, appreciate, and assert their constitutional rights. Although the justifications for this legal framework vary, 16 developmental differences play a key role. A. Ongoing Cognitive and Psychosocial Development Advances in brain science over the past twenty-five years have expanded our understanding of the developing structure and function of the brain. Combined with decades of behavioral research, our more nuanced understanding of adolescence indicates important cognitive and psychosocial capacities relevant to their status as defendants are still developing. Brain imaging studies document that both structural and functional changes in the brain continue during adolescence and into young adulthood. 17 Research on psychosocial maturity has focused on several components of judgment and decision making that are particularly relevant for juveniles’ capacity to function effectively as defendants. Studies indicate that adolescents, particularly younger adolescents, are less able than adults to understand risks and benefits, to identify and weigh future consequences against short-term effects, to resist the influence of peers, to delay gratification, and more. 18 Presumably, these capacities for executive functioning, or self-regulation, mature over the course of adolescence and continue developing well into young adulthood, or emerging adulthood. 19 In addition to their underdeveloped capacities, youths are less able than adults to make effective decisions in immediate emotional circumstances (“hot”) compared with more delayed, less emotional conditions (“cool”). For example, Figner and colleagues used a type of card game to test adolescents’ proclivity to take risks under more and less emotionally laden circumstances (e.g., “hot” and “cool” conditions). 20 In the “hot condition,” participants played one card at a time and ended the round when they were satisfied with the points gained or when they 15 Woolard & Scott, supra note 3, at 345. 16 Id. 17 Ni