Last updated: June 2018 www.ojjdp.gov/mpg

Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 1

Suggested Reference: Development Services Group, Inc. 2018. “Indigent Defense for Juveniles.” Literature review. Washington, D.C.: 

Office of Juvenile Justice and Delinquency Prevention. https://www.ojjdp.gov/mpg/litreviews/Indigent-Defense-for-Juveniles.pdf

Prepared by Development Services Group, Inc., under contract number GS–10F–0166K. Points of view or opinions expressed in this 

document are those of the author and do not necessarily represent the official position or policies of OJJDP or the U.S. Department of 

Justice.

Indigent Defense for Juveniles 

Indigent defense provides juveniles in the justice system with constitutionally mandated access to 

counsel, even if they cannot afford it. The Sixth Amendment to the U.S. Constitution protects this right 

to counsel. In 1963, the Gideon v. Wainwright Supreme Court decision affirmed the right to counsel to 

all criminal cases with a threat of imprisonment, including state or federal cases and felony or 

misdemeanor cases.1 The Court’s decision in In re Gault (1967) further extended the right to counsel to 

juveniles in delinquency cases (Feld and Schaefer, 2010).2

The In re Gault case first brought the issue of juvenile indigent defense to the public’s attention. Gerald 

Gault, 15, of Arizona was accused of making an inappropriate phone call to his neighbor. He was 

arrested and later sentenced to 6 years in confinement. However, neither Gault nor his parents were 

formally notified of the charges and he did not receive any legal counsel. The Supreme Court ruled that 

juveniles are entitled to certain procedural safeguards under the Due Process Clause of the Fourteenth 

Amendment, one of which is appointment of counsel (see In re Gault 387 U.S. 1 [1967]). Ultimately, the 

Gault decision protects juveniles’ rights in the courtroom, including the constitutional rights to a notice 

of charges, the presence of counsel, cross-examination of the prosecution’s witnesses, and protection 

from self-incrimination. 

Despite the Supreme Court’s affirmation of these constitutional protections, studies have shown that 

youth often do not access the legal resources afforded to them. For example, a study in Ohio found that 

about 15 percent of youth held in the Ohio Department of Youth Services facilities were unrepresented. 

Additionally, this rate was even higher for youth in community correctional facilities, with almost one 

in five individuals having been processed through the system without counsel (Brooks and Kamine, 

2003). A similar evaluation conducted in Illinois found that 70 percent of the cases held in Illinois 

juvenile courts were resolved through an inappropriate use of plea bargaining; namely, that the plea is 

entered at the first meeting with the judge, prior to any investigation of the case, and without the 

defendants, their lawyers, and parents having had minimal time to discuss the case (Crawford et al., 

2007).

1

In re Gideon, 373 U.S. 335 (1963)

2

In re Gault, 387 U.S. 1 (1967).
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 2

Determination of Indigence for Juveniles

Similar to other court processing measures (such as determinations of a juvenile’s competency to stand 

trial), the person with the authority to determine a juvenile’s indigent status varies by state. Indigent 

status can be determined by the judge, public defender’s office, or the clerk of the court. Factors taken 

into consideration include federal poverty guidelines3 and the financial status of the juvenile or, in most 

cases, the financial status of the juvenile’s parents.

In North Carolina, for example, a juvenile is presumed indigent only in the absence of hired private 

counsel. In Texas, youth may qualify for assigned counsel if their parents are incarcerated or if they 

receive food stamps, among other factors (National Conference of State Legislators, n.d.).

In addition, in some cases, juvenile defendants are expected to pay for their public defender. The 

National Juvenile Defender Center (NJDC; 2017) reported that 36 states charge for provided counsel, 

with fees ranging from a $10 application fee to $1,000 for attorney services.4

Barriers to Receiving Counsel

Research suggests that states’ juvenile court systems may not be fully compliant in appointing counsel 

to youth (Feld and Schafer 2010). The American Bar Association (ABA) in 1993 investigated the state of 

juvenile defense through an initiative called the Due Process Advocacy Project. Out of this initiative 

came the first national assessment of the state of representation for youth. The ABA found that “the 

interest of many young people in juvenile court are significantly compromised, and that many children 

are literally left defenseless” (Puritz, 1995, p. 7). In partnership with NJDC, ABA conducted 12 statewide 

investigations, all of which concluded that subpar counsel was often afforded to juveniles in court, if 

counsel was afforded to them at all (Puritz, 1995; Feld and Schafer, 2010). 

The ABA found several barriers to juveniles’ receipt of proper counsel, including excessive caseloads 

of defense lawyers who represent juveniles, inadequate compensation for lawyers, and a lack of 

juvenile-specific training for lawyers (Puritz, 1995).

Research that followed the ABA report found that these barriers continue to present a challenge for 

juvenile defendants (VanVleet et al., 2004; Cumming et al., 2003). For example, a 2004 bulletin from the 

Office of Juvenile Justice and Delinquency Prevention indicated that the average annual caseload of 

juvenile defense attorneys was 300, despite government recommendations that annual caseloads not 

exceed 200–250 (Jones 2004). NJDC (2017) recently found that only 11 states provide all juveniles 

accused of a crime in juvenile court with a defense attorney. 

The ABA also found that juvenile representation does not offer a competitive salary compared with 

other areas of the law, and many jurisdictions enforce a cap on hours billed to a specific case (Puritz, 

1995). Other research has shown that 55 percent of juvenile defense attorneys stay in their role for less 

than 2 years; low compensation has been implicated in this high rate of turnover (Jones, 2004). 

Lastly, the ABA noted a lack of juvenile-specific training. Juveniles have unique needs and require a 

more nuanced approach to counsel than would be employed in adult criminal cases (Puritz, 1995; this 

issue is discussed further below). Despite this, training on juvenile-relevant topics (such as alternatives 

to detention, community resources specific to juveniles, and adolescent developmental science) is 

3

 The U.S. Census Bureau set the poverty threshold in 2016 for a family of four at $24,339. 

4

Ibid.
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 3

largely absent from public defender curricula (Jones, 2004).

In 2016 and 2017, NJDC issued reports to mark the 50th anniversary of the In re Gault decision. The 

reports contained updated research on access to counsel. Since 2000, NJDC has reviewed access to and 

quality of juvenile defense in two dozen states, and waiver of counsel was an issue in at least some 

courts in half the states.5

Differences Between Juvenile and Adult Representation

Indigent defense for adults and juveniles differ in various ways. The Reforming Juvenile Justice report 

indicated that developmental differences between juveniles and adults support the importance of 

juvenile-specific counsel and court processing (Bonnie et al., 2013). Recent youth-specific jurisprudence 

has relied on research to support the fact that adolescents are developmentally distinct from adults in 

three key ways: 

 They sometimes demonstrate a lack of emotional self-regulation relative to adults; 

 They may have increased susceptibility to external social influence, such as peer pressure, 

relative to adults; and 

 They sometimes are less able to properly assess long-term consequences. 

Because of these tendencies, juveniles can be susceptible to engaging in risky behaviors and activities, 

with little understanding of the harm their actions may have on themselves or others. And because 

youth struggle—more so than adults—at understanding long-term implications of their decisions, the 

decision to waive their right to an attorney, for example, is common. This phenomenon, paired with 

limited internal oversight of juvenile indigent defense practices, can leave youth legally unrepresented 

(Bonnie et al., 2013).

For example, a study of juvenile’s access to counsel in Maryland found that in four counties as many as 

58 percent of youth waived their right to counsel (Cumming et al., 2003). As many as 90 percent of those 

who waive their right to counsel do so because they do not understand what it means to “waive” their 

right to something (Jones, 2004). 

Additionally, juveniles in 43 states can waive their right to counsel without having spoken to an 

attorney (NJDC, 2017). Juveniles, therefore, must navigate the justice system despite developmental 

disadvantages, underscoring the importance of a more tailored justice system. 

Types of Indigent Defense 

The In re Gault case did not provide specific guidance on how court systems can guarantee a juvenile’s 

right to counsel. Therefore, states have different methods to provide counsel to juveniles who do not 

waive their rights and who cannot afford a private attorney (Majd and Puritz, 2009). Indigent 

defendants may be appointed counsel through any of four ways: 

5

 National Juvenile Defender Center. 2017. Access Denied: A National Snapshot of States’ Failure to Protect Children’s 

Right to Counsel. Washington, DC: National Juvenile Defender Center. http://njdc.info/wpcontent/uploads/2017/05/Snapshot-Final_single-4.pdf;

National Juvenile Defender Center. 2017. Defend Children. Washington, DC: National Juvenile Defender Center. 

http://njdc.info/wp-content/uploads/2016/11/Defend-Children-A-Blueprint-for-Effective-Juvenile-DefenderServices.pdf
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 4

 Public defender offices. Public defender offices employ staff attorneys who practice indigent 

defense services through either a public or private nonprofit organization or as a government 

employee. 

 Assigned counsel. Through assigned counsel, attorneys are appointed by the court, at the state 

level, from a list of private bar members. 

 Panel attorneys. Panel attorneys are also private attorneys appointed by the court, but at the 

federal level, from a list on a case-by-case basis. 

 Contract attorneys. Contract attorneys are private attorneys appointed to provide indigent 

defense services through bar associations, law firms, groups of attorneys, and nonprofit 

corporations in compliance with legal agreements with the state, county, or local government 

(Harlow, 2000; Majd and Puritz, 2009).

Limitations to Indigent Defense Data

Data on juvenile indigent defense, especially by type of counsel, are limited. What information is 

available is found in annual reports from state public defender agencies. Only nine state public 

defender agencies6 collect such data, and even this information is limited, in that it reflects caseload 

activity of the public defender agency. Only four states7 report the larger number of youth who either 

retain private counsel or youth who decide to waive their right to counsel (Wachter, 2015).

In California, for example, 22 percent of juveniles’ legal representatives in 2015 were court-appointed, 

70 percent were public defenders, and 6 percent were private attorneys. One percent of juveniles went 

unrepresented. That same year in Pennsylvania, 67 percent of juveniles used a public defender, 11 

percent used a private attorney, and 1 percent waived their right to counsel (Juvenile Justice 

Geography, Policy, Practice & Statistics, 2015).

The data from California and Pennsylvania show that the majority of youth are represented by public 

defenders. However, the data collected for these reports are not comprehensive. They are used merely 

to track a work product within the defender’s office, not to monitor and improve upon the current state 

of juvenile indigent defense (Wachter 2015). 

Another source of indigent defense data comes from the Bureau of Justice Statistics’ 2007 Census of 

Public Defender Offices, which collected data on 427 public defender offices. Contract and assigned 

counsel cases were omitted. Again, the same data limitations apply, because these numbers are 

reflective of the public defender offices. Out of 1,491,420 state public defender cases across 21 states, 

208,400 (14 percent) were juvenile cases (Sickmund and Puzzanchera, 2014). 

Reports on frequency of requested counsel compared with granted requests for counsel among youth 

are available through OJJDP’s Survey of Youth in Residential Placement. The survey found that in 2003, 

42 percent of youth in custody reported having a lawyer, while 20 percent had requested a lawyer, and 

13 percent had requested and received contact with a lawyer (Sedlak and McPherson, 2010).

Outcome Evidence

There is mixed evidence about the potential positive or negative impact on case outcomes for juveniles 

represented by public defenders or appointed counsel.

6 Connecticut, Kentucky, Maryland, Missouri, Montana, Ohio, Oklahoma, Washington, and West Virginia.

7 California, Indiana, Pennsylvania, and Texas.
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 5

Burruss and Kempf-Leonard (2002), in an investigation of delinquency cases in three juvenile courts in 

Missouri, found that appointed counsel had an adverse effect on juveniles. For those youth who opted 

for public counsel, out-of-home placement was more common, after controlling for other characteristic 

and legal variables.

Though no formal explanation was presented, Burruss and Kempf-Leonard (2002) posited a few 

explanations, one of which was counsel competency due to lack of specific legal training. Another 

explanation presented by the study authors included co-opted counsel, wherein the attorney favors the 

position held by the court over that of the juvenile they represent. A third explanation was that courts 

punish youth for having an attorney, because it represents a denial of culpability and perhaps resistance 

to treatment on behalf of the adjudicated juvenile. The final explanation was predetermined case 

outcomes, meaning that attorneys were purposefully assigned to cases likely to have an out-of-home 

placement. 

Guevara and colleagues (2004) found that youth without representation in one Midwestern state were 

more likely to have charges dropped and were less likely to be placed in secure confinement, compared 

with youth who were represented during disposition. They also found that the type of representation 

(indigent versus private defender) is an important variable to consider; findings suggested private 

attorneys produced worse outcomes for youth than public defenders. In fact, youth with a private 

attorney were least likely to have their case dismissed and most likely to be placed in secure 

confinement following adjudication, while representation by a public defender increased the likelihood 

of case dismissal and reduced the likelihood of secure confinement. 

Guevara and colleagues (2004) presented several explanations for their findings. Courts may assume a 

paternalistic role with youth in the absence of counsel and are, therefore, more lenient. Second, private 

attorneys are more likely to be involved if there is a serious charge against a youth; the outcomes of 

these cases, therefore, are inherently disadvantaged when compared with outcomes from public 

defender cases. Lastly, public defenders often possess insider knowledge of the court and of other court 

actors, which could benefit case outcomes, while private attorneys are viewed as outsiders.

Armstrong and Kim (2011) examined the effect of counsel as well as the type of counsel (public versus 

private) when controlling for a range of individual and contextual variables that could also impact 

juvenile case outcomes. Consistent with prior studies, they found that juveniles represented by counsel 

were more likely to receive out-of-home placements, compared with juveniles who waived their right 

to counsel. In addition, juveniles represented by public defenders were slightly more likely to receive 

an out-of-home placement compared with juveniles represented by private attorneys (a finding 

inconsistent with the Guevara, Spohn, and Hertz, 2004). Armstrong and Kim (2011) noted that other 

legal and extralegal factors also significantly impacted case disposition decisions, including the number 

of prior offenses, detention status, and family income level.

Armstrong and Kim (2011) provided possible explanations for the adverse effects of counsel. In cases 

where juveniles waive their right to counsel and are not represented, juvenile court judges may be less 

certain that due process is achieved and, therefore, may not sentence juveniles harshly (i.e., to out-ofhome placements). However, judges may go back to normal sentencing behavior if juveniles are 

represented by counsel, whether public or private.

A recent study examining an indigent defense program in Philadelphia found promising results for 

adult defendants in homicide cases. Through a randomized controlled trial, Anderson and Heaton 

(2013) found that defendants with indigent defense were less likely to be convicted of murder, had
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 6

shorter sentences, and spent fewer years in prison than defendants represented by private counsel. 

However, further research is needed to determine how these findings would compare in a juvenile 

justice setting.8

One study showed that public defenders help safeguard clients against procedural biases that may be 

inherent in the juvenile justice system. Kupchik and Harvey (2007) found that juveniles experienced 

more discretion in decision making by juvenile court judges and broader consideration for factors that 

determine their case outcomes; yet, they have fewer procedural protections when compared with adults 

in the larger criminal justice system. The authors argued that this unique disposition of the juvenile 

justice system may lead to increased instances of subjective decision making within the courts. The 

authors cited competent and aggressive public defenders as a necessary protection to counter a 

discretionary juvenile justice system. 

Conclusion 

Juveniles who cannot afford legal representation in court because of indigence are required to be 

provided with an attorney, in compliance with constitutional law. However, many youth are left either 

unrepresented or not effectively represented. Recent data on juvenile indigent defense, especially by 

type of counsel (i.e., counsel from a public defender office, assigned counsel, panel attorney, or contact 

attorney), are limited and come largely out of public defender agencies.

Research has found mixed results regarding the benefits (or detriments) of counsel on juvenile court 

outcomes. One study found that for youth with public counsel, out-of-home placement was more 

common (Burruss and Kempf-Leonard, 2002), while another study found that youth without 

representation were more likely to have charges dropped and less likely to be placed in secure 

confinement, compared with youth with legal counsel (Guevara, Spohn, and Herz, 2004). The study 

also suggested that private attorneys produced worse outcomes for youth than public defenders. 

Armstrong and Kim (2011) also found that juveniles without representation had better cases outcomes 

and were less likely to receive out-of-home placements, compared with juveniles who had counsel 

present. However, Armstrong and Kim (2011) found that juveniles with public defenders were more 

likely to be placed out of the home than juveniles with private attorneys. Lastly, Kupchik and Harvey 

(2007) illustrated how public defense is an important safeguard against potential inequities within the 

juvenile justice system. They argued that extralegal information about defendants is commonly 

discussed in juvenile court and the presence of a public defender may protect against this subjectivity 

in sentencing.

Overall, indigent defense for juveniles is understudied, and more research relative to this topic is 

necessary to better serve the population of juveniles who cannot afford legal counsel.

Additional Resources 

Additional information on juvenile indigent defense can be found at the Juvenile Justice Information 

Exchange and at the National Juvenile Defender Center. 

References 

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Armstrong, G., and Kim, B. 2011. Juveniles penalties for “lawyering up”: The role of counsel and

8 More information on the program is at www.crimesolutions.gov/ProgramDetails.aspx?ID=349.
Office of Juvenile Justice and Delinquency Prevention www.ojjdp.gov 7

extralegal case characteristics. Crime & Delinquency 57(6):827–48. 

Bonnie, R.J., Johnson, R.L., Chemers, B.M., and Schuck, J. 2013. Reforming Juvenile Justice: A 

Developmental Approach. Washington, DC: National Academy of Sciences. 

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