1

BROKEN

CONTRACTS:

REIMAGINING HIGH-QUALITY 

REPRESENTATION OF YOUTH 

IN CONTRACT AND APPOINTED 

COUNSEL SYSTEMS
 © National Juvenile Defender Center, November 2019
BROKEN

CONTRACTS:

REIMAGINING HIGH-QUALITY 

REPRESENTATION OF YOUTH 

IN CONTRACT AND APPOINTED 

COUNSEL SYSTEMS
4

NJDC WOULD LIKE TO THANK THE FOLLOWING INDIVIDUALS FOR 

THEIR INSIGHT AND ASSISTANCE IN DEVELOPING THIS REPORT:

And a special thank you to Brianna Vollmer, 2018 NJDC law clerk, 

for her research and assistance with this project.

Cindy Aragon, New Mexico

Amanda Bear, Kentucky

Gar Blume, Alabama

Amy Borror, Ohio

Jackie Bullard, Illinois

Sue Burrell, California

Elizabeth Clarke, Illinois

Stacie Colling, Colorado

Erica Cushna, Massachusetts

Howard Elbling, Pennsylvania

Lindy Frolich, Colorado

Joy Gaines, Michigan

Kristin Henning, DC

Christine Henningsen, Nebraska

Sarah Johnson, Missouri

Pamela Jones, New Hampshire

Kristina Kersey, New Jersey

Chris Kleiser, Tennessee

Kasie Lee, California

Patricia Lee, California

Jojo Liu, Utah

Ellen Marrus, Texas

Lisa Minutola, Delaware

ACKNOWLEDGEMENTS

Christopher Northrop, Maine

Peter Ohman, Montana

Diana Panucci, West Virginia

Chris Phillis, Arizona

Richard Pittman, Louisiana

Amanda Powell, Ohio

Alison Powers, Virginia

Jimmonique Rodgers, Georgia

Diane Rondini, Wisconsin

Susan Roske, Nevada

Wesley Shackelford, Texas

Tiffany Sizemore, Pennsylvania

Debbie St. Jean, Maryland

Karen Stenard, Oregon

Kim Tandy, Indiana

Pamela Vickrey, Utah

Stephanie Volturo, Delaware

Randee Waldman, Georgia

Trent Wetta, Kansas

Wendy Wolf, Massachusetts

Cyn Yamashiro, California

George Yeannakis, Washington

Eric Zogry, North Carolina

This publication was supported in part by grant number 2017-ZE-FX-K016 that was 

awarded by the Office of Juvenile Justice and Delinquency Prevention, Office of 

Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions 

or recommendations expressed in this publication are those of the author and do not 

necessarily reflect those of the Department of Justice.
5

TABLE OF CONTENTS

Introduction.................................................................................................................................................................................................................6

Appointed Counsel System Structures.....................................................................................................................................................11

Differences Between Public Defender & Appointed Counsel Systems ..............................................................................12

The Economic Model of the Appointed Counsel System..............................................................................................................14

Key Components of Effective Appointed Counsel & Contract Systems..................................................................... 15

Conclusion.................................................................................................................................................................................................................22

To access the online toolkit, please visit 

https://njdc.info/contract-counsel.
6

INTRODUCTION
7

In 1967, the United States Supreme Court issued its landmark 

ruling in In re Gault,

1 affirming that children in delinquency court 

are entitled to many of the constitutional protections that apply 

to adults in criminal court. Chief among these constitutional 

protections is the right to counsel:

The juvenile needs the assistance of counsel to cope with 

problems of law, to make skilled inquiry into the facts, to 

insist upon regularity of the proceedings, and to ascertain 

whether he has a defense and to prepare and submit it. 

The child “requires the guiding hand of counsel at every 

step in the proceedings against him.”2

The Gault Court left it to states to determine how to 

implement the ruling and ensure the constitutional 

rights of young people. Many states further delegated 

the responsibility to counties, and even to individual 

courts. This has created a patchwork of approaches and 

systems for ensuring appointed counsel, meaning that 

the protection of children’s constitutional right to counsel 

varies greatly depending on where in the country—and 

even where within a state—a child faces delinquency 

charges.

Some states and counties have organized public defender 

offices. Public defender systems generally employ 

full- or part-time attorneys who earn salaries and work 

within an office management system. Many require their 

employee attorneys to attend regular training relevant to 

their defense practice and have experienced attorneys 

that serve as supervisors and mentors to newer public 

defenders.

Most young people who face delinquency charges, 

however, are not represented by salaried public 

defenders. All states and counties use private lawyers 

to represent some youth in delinquency court, through 

an assortment of contracts, court appointments, and 

assignment systems. These private lawyers are often solo 

practitioners or members of small firms who are paid flat 

fees or hourly rates to represent children in delinquency 

court. They do not benefit from the structure, 

management, oversight, training, mentorship, or support 

of a salaried public defender system.

No comprehensive data exists regarding how many young 

people are represented by public defenders or contract, 

appointed, or assigned counsel in delinquency courts. 

To create a sense of what types of attorneys represent 

youth, NJDC conducted a review of statutes and court 

rules governing the appointment of counsel in all 50 

states, DC, Guam, and Puerto Rico.

The appointment-of-counsel process in juvenile court 

defies easy categorization across states. The map on the 

following page illustrates the primary juvenile defense 

system structures used to appoint or assign defense 

attorneys to youth in delinquency courts in each state.

With more than 3,000 counties in the United States, each 

operating juvenile justice systems in a variety of ways, 

state generalizations can never capture the full picture 

of what is happening county-by-county. Nonetheless, 

having a sense of where salaried public defender systems 

predominate and where contract or panel attorney 

systems predominate can be useful.

1 In re Gault, 387 U.S. 1 (1967). 2 Id.
8

PRIMARILY SALARIEDPUBLIC DEFENDERS ACROSS THE STATE (WHETHER THEY 

WORK FOR A STATEWIDE AGENCY OR INDIVIDUAL COUNTY/JUDICIAL DISTRICT 

DEFENDER OFFICES), WHO ARE SUPPLEMENTED BY CONTRACT OR PANEL 

COUNSEL WHO CAN HANDLE CONFLICTS AND/OR OVERFLOW CASES

PRIMARILY A COUNTY-BY-COUNTY CONTRACT OR APPOINTMENT SYSTEM 

WITHOUTSALARIEDPUBLIC DEFENDERS

THE STATE OR COUNTIES PROVIDE A COMBINATION OF SALARIED PUBLIC 

DEFENDERS, CONTRACT DEFENDERS, AND/OR PANEL ATTORNEYSS

WHO ARE THE LAWYERS THAT REPRESENT 

YOUTH IN DELINQUENCY COURT?
9

For purposes of this report and toolkit, we will use 

“contract counsel,” “appointed counsel,” or “assigned 

counsel” interchangeably to refer to attorneys who 

represent youth in delinquency court and who are neither 

salaried public defenders nor privately retained by the 

youth, regardless of the administrative mechanism used 

to appoint or assign the lawyer to represent youth. 3

While talented lawyers practice in each type of defense 

system, studies that compare the results achieved by 

public defenders versus appointed counsel consistently 

find that people represented by appointed counsel fare 

worse than those represented by public defenders or 

retained counsel.4 States, counties, and courts must 

actively work to ensure children receive the same quality 

of representation regardless of the type of lawyer 

assigned to represent each youth, or risk violating Gault.

Access to counsel is more than simply placing a lawyer in 

the room. Failure to provide qualified counsel who can 

advocate effectively for a client can result in constructive 

denial of counsel.5 Specifically with respect to juvenile 

defense systems, the United States Department of 

Justice has pointed out that “where lawyers regularly 

fail to advocate for clients in a manner traditionally 

expected of effective counsel and/or where lawyers lack 

the structural support necessary to do their jobs, it is 

tantamount to the system’s failure to appoint counsel.”6

Fortunately, much can be done to improve appointed 

counsel systems and ensure young people’s constitutional 

rights are protected. This report and the accompanying 

toolkit provide policymakers and managers of appointed 

counsel systems with information and support to improve 

the quality of representation provided by appointed 

counsel.

The Gault decision promised all children the right to 

counsel under the U.S. Constitution. The quality of 

representation a child receives should reflect neither the 

county in which they live nor the system used to uphold 

their constitutional rights.

Methodology 

In May 2018, the National Juvenile Defender Center 

(NJDC) convened more than 30 juvenile defense system 

experts from across the country for a full-day discussion 

of how jurisdictions operate delinquency contract 

counsel systems, how those systems could be improved, 

and the essentials of contract counsel systems that 

support attorneys who provide high-quality defense to 

young people.

From that convening, participants formed three working 

groups focused on subject areas identified as crucial 

to quality contract counsel systems: Leadership and 

Oversight, Contracts and Fees, and Data. Over the course 

of the following year, those working groups identified best 

practices and the resources contract counsel systems 

need to begin to improve their structures and the quality 

of representation provided.

The expertise of the convening participants informed 

this report, and the research, drafting, and editing done 

by the members of the working groups created the 

accompanying toolkit.

While some attorneys who are contracted to provide representation to youth are referred to as public defenders in their jurisdiction, if they are independent contractors who work 

outside of an agency’s supervisory and reporting structure, we consider them to be contract attorneys for purposes of this report. However, firms, non-profits, or other agencies that 

are contracted to provide exclusive, dedicated juvenile or public defense services and provide their employees with a salary to do so would be considered public defender agencies for 

purposes of this report. The key distinction is whether the individual attorneys are salaried employees within the management structure of a larger entity.

See Cyn Yamashiro et al., Kids, Counsel and Costs: An Empirical Study of Indigent Defense Services in the Los Angeles Juvenile Delinquency Courts (Loy. Law Sch. L.A., Working Paper No. 

2013-9, 2013); Miriam S. Gohara et al., The Disparate Impact of an Under-funded, Patchwork Indigent Defense System on Mississippi’s African Americans: The Civil Rights Case for Establishing 

a Statewide, Fully Funded Public Defender System, 49 How. L.J. 81, 88-89, 94-95 (2005); Radha Iyengar, An Analysis of the Performance of Federal Indigent Counsel (Nat’l Bureau of Econ. 

Research, Working Paper No. 13187 2007); James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 

Yale L.J. 154 (2012); Thomas H. Cohen, Who is Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes, 25 Crim. Just. Pol’y Rev. 29 

(2014); Michael Roach, Explaining the Outcome Gap between Different Types of Indigent Defense Counsel: Adverse Selection and Moral Hazard (2010).

Hurrell-Harring v. State, 930 N.E.2d 217, 224 (N.Y. 2010) (“Actual representation assumes a certain basic representational relationship . . . . It is very basic that “[i]f no actual ‘Assistance’ 

‘for’ the accused’s ‘defence’ is provided, then the constitutional guarantee has been violated. To hold otherwise ‘could convert the appointment of counsel into a sham and nothing 

more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be 

satisfied by mere formal appointment.’” (quoting United States v. Cronic, 466 U.S. 648, 654-655 (1984))).

DEP’T OF JUST. STATEMENT OF INT. IN N.P. et al., v. Georgia, 15, https://www.justice.gov/sites/default/files/crt/legacy/2015/03/13/np_soi_3-13-15.pdf.

3

4

6

5
10

APPOINTED

COUNSEL

SYSTEMS
11

States and counties employ numerous structures, 

to widely varying degrees, for managing and 

appointing attorneys who provide representation 

outside of a salaried public defender system:

Alternative Defense Agencies: 

Some states and localities have alternative defense 

counsel agencies that manage non-public defender 

attorneys. These agencies generally are staffed by 

salaried government employees who select, manage, 

oversee, and provide supportive resources to nonsalaried assigned counsel. Of these various appointed 

counsel structures, alternative defense agencies 

generally provide the greatest amount of oversight 

and management of appointed counsel.

Independent Contracts: 

Some juvenile defense attorneys enter into a formal 

contract with a court, defender agency, county, or 

other governmental entity to receive appointments 

to represent youth in delinquency proceedings. The 

contract may allow appointment on a case-by-case 

basis, for a certain percentage of cases, or by some 

other metric, and may provide payment based on 

cases accepted, hours worked, or predetermined flat 

fees. The key, however, is that the individual lawyer 

has a written contract to provide such services.

Appointment Lists or Panels: 

In what is perhaps the most common appointed 

counsel structure, a court or an appointment entity 

maintains a panel or list of attorneys who may 

receive appointments in individual cases. There are 

often minimum qualifications to become a member 

of the panel or list, but there is not a binding written 

contract. Payment is usually based on defined rules 

for reimbursement of services rendered.

Discretionary Judicial Appointments: 

In the least formal systems, a judge will simply select 

an attorney to provide representation in a particular 

case. The attorney has no formal contract or list 

membership and has met no minimum qualifications 

to receive the appointment, beyond a license to 

practice law in that jurisdiction. There is typically no 

oversight of attorney performance beyond the judge 

who made the appointment.

APPOINTED COUNSEL SYSTEM STRUCTURES

Regardless of the structure or combination of structures used 

to manage appointed counsel, changes can be made to improve 

management and oversight, increase the qualifications and 

training of appointed counsel, and improve the representation 

of youth facing delinquency charges and their case outcomes.
12

DIFFERENCES BETWEEN PUBLIC DEFENDER 

& APPOINTED COUNSEL SYSTEMS

While most public defender offices across the nation 

face overwhelming caseloads and inadequate funding, 

a salaried public defender’s practice generally benefits 

from the resources and support their office provides. A 

reasonably resourced public defender office can allow 

individual public defenders to focus on representing their 

clients, by providing administrative, human resources, 

technology, and other support. Better-resourced offices 

may employ investigators, social workers, paralegals, and 

other staff to enhance a defender’s legal practice.

Public defenders in structured systems are generally 

salaried employees who receive paid leave time and other 

benefits and are covered by governmental or agency 

liability insurance or indemnification. Because they are 

salaried employees, these public defenders are usually 

paid for all the time they spend on cases and other work, 

including time spent traveling, performing administrative 

tasks and, importantly, conducting investigations and 

attending training.

Salaried public defender offices usually have a managerial 

hierarchy that allows more experienced attorneys to 

oversee and manage less experienced attorneys. Public 

defenders can benefit from the availability of in-house 

mentors and co-workers who also practice juvenile 

delinquency or criminal defense law. These supervision 

and feedback mechanisms are crucial to helping attorneys 

develop theories, hone arguments, anticipate opposition, 

prepare alternatives, and improve their practice.

Finally, salaried public defenders are often able to 

specialize. Juvenile delinquency defense is a demanding, 

evolving field. Like adult criminal defenders, juvenile 

defenders must master criminal laws and criminal court 

rules and procedures. But to provide competent juvenile 

delinquency representation, they must also be trained 

in juvenile law, juvenile court rules and procedures, 

adolescent development, communicating with children, 

alternative placements, and other systems that impact 

court-involved children, such as the child welfare, 

education, and mental health systems. Public defenders 

who devote their full-time employment to juvenile 

defense are able to become the specialized defenders 

young people need and deserve.

By stark contrast, appointed counsel are usually solo 

practitioners or members of small firms who benefit 

from none or few of the systemic supports available in 

structured public defender systems. Many appointed 

counsel function as attorney, investigator, paralegal, law 

clerk, and administrative staff. Appointed counsel must 

also cover their overhead costs, including office rent, 

supplies, technology, legal research tools, and liability 

insurance.

Often, appointed counsel systems only pay counsel for 

specific case-related work. In these systems, attorneys 

may not be compensated for time spent traveling, which 

may hinder an attorney’s ability to investigate a case or 

visit their client; performing administrative tasks, which 

Systemic Supports
13

are vital to a robust motions practice and filing appeals; or 

attending relevant training, which is critical to providing 

competent representation in juvenile court.

Appointed counsel are rarely able to become juvenile 

delinquency defense specialists. The nature of 

operating a solo practice or small law firm demands 

that most appointed counsel take on a range of clients 

and cases, including appointments in the child welfare 

or adult criminal systems and retained cases in these 

and other fields.

Given the vast differences between the resources 

available to public defenders and appointed counsel, it 

is perhaps not surprising that studies have found that 

children represented by appointed counsel tend to fare 

worse than those represented by public defenders or 

retained counsel. 7

A study of case outcomes in two Midwestern juvenile 

courts found that children represented by private 

attorneys were less likely to have their case dismissed 

and more likely to be placed in secure confinement 

after adjudication, than children represented by public 

defenders. 8

A survey of data from counties that record the type of 

counsel children receive in juvenile court shows similar 

results.9 Sixty-six percent of children represented by 

appointed counsel were adjudicated, versus 55 percent 

of children represented by public defenders. Of children 

adjudicated, 48 percent of those represented by 

appointed counsel were removed from their homes as a 

disposition, versus 40 percent of those represented by 

public defenders. 

Numerous studies comparing outcomes for adults 

represented by public defenders and court-appointed 

counsel in criminal courts have also found that people 

represented by public defenders receive better outcomes 

than those represented by appointed counsel. 10

Researchers have identified several issues that contribute 

to the disparate outcomes achieved by public defenders 

and assigned counsel, including financial pressures caused 

by low compensation rates, which cause attorneys to 

take on more cases than they can ethically handle; lack of 

funding for investigators, experts, and other specialists; 

and conflicts of interest caused by the judicial oversight of 

many appointed-counsel systems. 11 

Researchers also point to the competency of assigned 

counsel versus public defenders, noting that assigned 

counsel often lack the subject-specific legal training 

available to public defenders12 and practice in isolation, 

without the input of other lawyers. 13

This isolation increases the risk of a variety 

of human errors, such as overlooking a key 

issue in a case, overestimating the strength 

of a defense theory, or underestimating the 

strength of the prosecution’s evidence. It 

also makes it more difficult to keep current 

with new strategies, current case law, and 

developments in scientific evidence. 14

Fortunately, these issues that contribute to disparate 

outcomes can be addressed by making changes to the 

structures that manage the appointment, assignment, and 

contracting of private attorneys to represent children in 

delinquency court.

Quality of Representation

CAUSES OF OUTCOME DISPARITIES

7 See sources cited, supra note 4.

8 Lori Guevara et al., Race, Legal Representation, and Juvenile Justice: Issues and Concerns, 50 Crime & Delinq. 344 (2004).

9 See Case Flow of Formal Juvenile Court Cases by Type of Representation, Juvenile Justice Geography, Policy, Practice, & Statistics, 

http://www.jjgps.org/juvenile-defense#national-outcomes?option=0&race=-1&offense=-1 (last visited Oct. 2, 2019).

10 See sources cited, supra note 4.

11 Anderson & Heaton, supra note 4.

12 George W. Burruss Jr. & Kimberly Kempf-Leonard, The Questionable Advantage of Defense Counsel in Juvenile Court, 19 Just. Q. 37 (2002).

13 Anderson & Heaton, supra note 4.

14 Peter A. Joy & Kevin C. McMunigal, Does the Lawyer Make a Difference? Public Defender v. Appointed Counsel, Am. Bar Ass’n, 27 Crim. Just. _ (2012). 
14

THE ECONOMIC MODEL OF THE 

APPOINTED COUNSEL SYSTEM

When considering reforms to improve a contract counsel system, it 

helps to understand the economic theory behind the system and guard 

against its inherent shortcomings. Publicly funded defense counsel 

systems are single-payer systems, known as monopsonies. 15

When there is a single buyer paying for a service in an 

economy—in this case, a county or local government—that 

buyer dictates the price of services, and the lawyers must 

agree to the government’s terms if they want the work. 

Such price setting, however, creates a “perverse sorting 

mechanism,” grouping lawyers based on efficiency, not 

quality. Ultimately,

those [defense lawyers] who remain in the 

market long-term would tend to be the 

most efficient ones—those who can provide 

adequate-quality work for the low rates, 

whether they achieve this efficiency legitimately 

(through superior ability, innovation, etc.), or 

illegitimately (through cutting corners, covering 

up their reduction in quality, overbilling and 

double billing, and so forth). 17

Those who are skilled performers, but less efficient 

under the parameters of the system, are pushed from 

the market. Moreover, those providing services in such a 

system become dependent upon the single buyer, leading 

to a tendency to perform at a status quo, rather than to 

innovate, improve, or develop greater skills, since there is 

no financial incentive to do so. 18

In the context of a governmental monopsony 

purchasing legal services for poor defendants, 

we would therefore expect to see a shortage 

of lawyers willing to take court appointments, 

or a shortage of lawyers working in a public 

defender’s office. Moreover, an analysis based on 

monopsony effects would predict that the few 

lawyers who do represent indigent defendants 

would carry an overwhelming caseload and 

therefore have to spread their time thinly 

between clients. 19

Finally, because the buyer—the government—is not 

the recipient of the services—the indigent person 

needing defense who has no alternative but to accept 

the appointed lawyer who is provided—failures or 

inadequacies in service are liable to go unaddressed, 

unless those failures directly affect court operations.

While many of these problems within indigent defense 

systems are caused or exacerbated by the artificially low 

rates of pay all too common in contract counsel system, 

funding levels alone cannot fix the problems inherent 

in a monopsonist system. Reforms to the underlying 

structure of appointed counsel systems are necessary to 

counteract these innate failings of the delivery model.

“One way to counteract this effect is through commandand-control regulation of the quality of representation—

that is, forcing providers to meet minimum guidelines.”20 

Additionally, an entity dedicated to overseeing the 

implementation of and ongoing adherence to these 

guidelines is necessary. 21

The key components that follow and the toolkit that 

accompanies this report aim to address the structural 

deficiencies inherent in the appointed counsel system 

of providing constitutional defense services to young 

people.

15 Dru Stevenson, Monopsony Problems with Court-Appointed Counsel, 99 Iowa L. Rev. 2273, 2280 (2014).

16 Id. at 2280.

17 Id.

18 Id. at 2281-2.

19 Id. at 2283.

20 Id. at 2289.

21 Id.
15

22 See Sue Burrell, Contracts for Appointed Counsel in Juvenile Delinquency Cases: Defining Expectations, 16 U.C. Davis J. Juv. L. & Pol’y 314, 367 (2012) (“Our system of justice can 

function properly only if each player has the ability to function without actual or perceived pressures that inhibit or thwart zealous representation.”). 

23 Ferri v. Ackerman, 444 U.S. 193, 204 (1979).

24 Polk Cty. v. Dodson, 454 U.S. 312, 321-22 (1981).

25 Ferri, 444 U.S. at 204.

26 Polk Cty., 454 U.S. at 322.

27 Id. at 321.

28 MODEL RULES OF PROF’L RESPONSIBILITY r. 1.8(f). (AM. BAR. ASS’N 2018).

29 CRIM. JUST. STANDARDS, Standard 5-1.3(a) (AM. BAR. ASS’N 1992).

30 CRIM. JUST. STANDARDS, Standard 5-1.3 (b) (AM. BAR. ASS’N 1992).

KEY COMPONENTS OF EFFECTIVE APPOINTED 

COUNSEL & CONTRACT SYSTEMS

To ensure youth receive effective, quality representation, there must 

be consistent standards, oversight, and leadership for defenders. 

The key components offered below can be applied to any contract, 

appointment, or assignment mechanism that governs non-public 

defenders assigned to represent children in delinquency court.

Effective oversight of contract counsel begins with 

leadership that is separate from political and judicial 

influence.22 As the United States Supreme Court 

has recognized, the defense attorney’s “principal 

responsibility is to serve the undivided interests of his 

client. Indeed, an indispensable element of the effective 

performance of his responsibilities is the ability to act 

independently of the Government and to oppose it in 

adversary litigation.”23

Just as it is “the constitutional obligation of the State 

to respect the professional independence of the public 

defenders whom it engages,”24 that obligation extends to 

appointed counsel not operating with a public defender 

system.25 The validity of a criminal or delinquency court 

system is based on “the assumption that counsel will be 

free of state control. There can be no fair trial unless 

the accused receives the services of an effective and 

independent advocate.”26

Every appointed defense attorney, just like private 

counsel, “works under canons of professional 

responsibility that mandate his exercise of independent 

judgment on behalf of the client.”27 That judgment cannot 

be influenced by any third party, including the court, 

simply because that entity pays for the representation.28

Independent Appointment of Defenders

Given this requirement of defense independence, the 

American Bar Association’s Criminal Justice Standards 

call for appointed counsel systems to “be designed to 

guarantee the integrity of the relationship between 

lawyer and client.... The selection of lawyers for specific 

cases should not be made by the judiciary or elected 

officials, but should be arranged for by the administrators 

of the defender, assigned-counsel and contract-forservice programs.”29 The ABA recommends that defense 

appointment systems be managed by independent 

boards, which “should not include prosecutors or 

judges.”30

If appointment in a particular case is determined by a 

single judge or group of judges who preside over that 

attorney’s individual cases, there is a lack of defense 

independence. In such cases, appointments are not made 

by an independent entity tasked with ensuring quality 

defense of youth, but by someone who, by the nature of 

their position, has divided responsibilities and interests. 

The judge’s role is to act as the trier of fact, arbiter of legal 

arguments and motions, protector of individual rights, 

and manager of court efficiency and decorum. In each of 

these roles, judges have an interest in the progression and 

outcomes of the adversarial processes that come before 

them.
16

Zealous defense representation is sometimes slow, 

often lacks transparency, is regularly adversarial, and is 

not always intended to make the work of the county or 

the court easy. It is inevitable that stakeholders—even 

judges—will become frustrated at times by effective 

defense practice. In order to ensure independence of the 

defense and to allow attorneys to act according to their 

ethical obligations to vigorously defend their clients, 

appointments cannot be made by someone involved in 

the proceedings. “Defense attorneys who must keep 

watch over their shoulder, worried that their zealous 

advocacy may affect funding for their cases or the 

likelihood of future appointments, cannot be considered 

independent.”31

In jurisdictions where judges are elected, this adds an 

even greater concern for the independence of defense 

counsel. Examples of attorneys contributing to judicial 

campaigns and then being appointed to defend people in 

that judge’s courtroom are, unfortunately, not as rare as 

one would hope.32 Even if there is no actual collusion, the 

appearance of impropriety calls the entire system into 

question.33

Appointment of attorneys to represent youth in 

delinquency proceedings must be done in such a way 

as to ensure independence, while also ensuring quality 

controls. The best way to create such a balance is through 

managed contract systems that require attorneys to 

agree to a set of conditions, expectations, and obligations 

in order to receive appointments to delinquency cases. 

Where fixed-term contracts are not practicable, at a 

minimum, jurisdictions should use panel appointment 

systems that have a clear written set of expectations 

and obligations for attorneys who represent youth in 

delinquency hearings. In either case, terms of contract 

or panel membership should be finite, have minimum 

qualification requirements, clearly articulate a pay 

structure, provide for some measure of quality control, 

and have clearly established renewal criteria.

Oversight of Contract Systems

Where statewide juvenile defense funding and structures 

exist, a juvenile defense oversight entity can ensure that 

juvenile defense delivery in contract systems operates 

cohesively across county lines. In states where funding 

and contracting happen at the district, county, or local 

level, an independent oversight entity should be created 

at those levels. In whichever case, the juvenile defense 

oversight entity should be responsible for:

Tony Fabelo et al., Justice Ctr. Council of State Gov’ts, Harris County Public Defender: Preliminary Report on Operations and Outcomes (2012), 43, http://tidc.tamu.edu/DGReportDocuments/212-13-D03%20%20HC%20PDO%20Report%20from%20Justice%20Center%2010-19-12.pdf.

Neena Satija, Harris County Juvenile Judges and Private Attorneys Accused of Cronyism: “Everybody Wins But the Kids”, Tex. Trib. (Nov. 1, 2018, 3:22 PM), https://www.houstonpublicmedia.

org/articles/news/2018/11/01/310201/harris-county-juvenile-judges-and-private-attorneys-accused-of-cronyism-everybody-wins-but-the-kids/ ; In re Lawrence, 335 N.W.2d 456 

(Mich. 1983) (finding that judicial misconduct where a judge improperly allowed appearances by, and assigned indigent criminal cases to, attorneys with whom he was formerly associated and with whom he had and still has financial ties); Texas Appleseed Fair Defense Project, The Fair Defense Report: Findings and Recommendations on Indigent Defense Practices in Texas 9 

(2000), https://www.texasappleseed.org/sites/default/files/185-FairDefense-ReportFindingsReccomendations.pdf. 

(“A number of court-appointed attorneys commented that making political contributions to judges’ election campaigns was a requirement for getting on the appointment list. A larger 

number of attorneys stated that it was not clear to them that contributions were necessary, but they felt a need to make them just in case.”). 

See, e.g., Lawrence, 335 N.W.2d at 460 (“The extensive financial involvement with the named attorneys and the fact that there were 202 appointments to represent indigent criminal 

defendants definitely raise an appearance of impropriety and violation of the [judicial] canons.”).

31

32

33

Developing juvenile defense 

contracts with specific compliance 

standards;

Enforcing compliance standards;

Eliciting contract counsel 

applications from knowledgeable, 

experienced attorneys;

Evaluating applications and awarding 

contracts to the most qualified 

candidates;

Managing assignments based on 

complexity of cases and collateral 

issues (immigration, sex offender 

registration, adult transfer, etc.);

Supervising workloads with 

considerations for the complexity of 

each case;

Creating standardized evaluation 

and data collection forms; and

Overseeing assessment and 

continuous training.
17

Standardized Professional Obligations 

Fewer than half of U.S. states have guidelines or 

performance standards specific to juvenile defense, and 

those that do are not always applicable to attorneys 

in contract or appointed systems outside of the public 

defense system.34 For juvenile defense counsel to fully 

and effectively represent youth, they should have 

contracts and oversight that hold them to the same 

ethical and professional standards as other juvenile 

defenders. The following minimum standards should be 

included in every juvenile defense contract:

Qualified Counsel 

Qualifications for representing youth in delinquency 

proceedings should extend beyond mere membership 

in the state or local bar. An effective oversight entity 

should monitor the qualifications of contract counsel.37 

Oversight ensures contract counsel have the time, 

training, experience, and expertise to represent youth. 

Moreover, juvenile court should never be treated as 

“kiddie court” or a training ground for new attorneys.38 

Systems can ensure quality representation by requiring:

Alternatively, some states make compliance with an 

identified set of specific juvenile defense standards a 

condition of every contract.35 Clearly outlining these 

responsibilities can be achieved by incorporating NJDC’s 

National Juvenile Defense Standards or similar standards 

into a contract for representation. 36

Just as an oversight committee should standardize 

professional obligations, it should also standardize the 

elements of quality representation. An effective oversight 

committee should create an application, a contract, a 

structure for data collection, and an evaluation form that 

can be used to effectively monitor appointments.

Specialized knowledge of juvenile court, 

especially the specific purposes and goals of 

delinquency proceedings;

A commitment to ongoing continuing legal 

education specific to juvenile defense, such as, 

but not limited to, the science of adolescent 

development, educational issues impacting 

delinquency cases, and adolescent mental 

health issues; 

An awareness of the effect of both racial biases 

and socioeconomic class on youth involved in 

the juvenile justice system and a commitment 

to raise them where appropriate;

Full, holistic representation from the point 

of interrogation, initial detention, and initial 

court appearance through post-disposition 

proceedings and until the client is no longer 

under court or state supervision; and

Continuity of representation to promote 

positive relationships between counsel and 

youth clients without disruption.

Experience criteria that consider an attorney’s 

years spent in adult criminal court, number 

of delinquency cases tried or observed, and 

representation in dependency cases;39

Programs that allow inexperienced attorneys 

to shadow or be mentored by senior juvenile 

defenders;

Thorough evaluations that use a standard form 

to collect data on contract counsel performance;

Prompt reviews and feedback for all contract 

counsel, regardless of experience level; and

Training and professional development in 

juvenile law, adolescent development, implicit 

racial biases, and other issues impacting 

delinquency proceedings.

For a list of states with guidelines or standards specific to juvenile defense, visit: https://njdc.info/our-work/juvenile-defense-standards/.

See, e.g., Mass. Comm. for Pub. Counsel Servs., Assigned Counsel Manual: Policies & Procs. (2019), https://www.publiccounsel.net/wp-content/uploads/Assigned-Counsel-Manual.pdf

(Massachusetts’ Committee for Public Counsel Services requires all contracted juvenile defense attorneys to commit to the agency’s Assigned Counsel Manual, which includes performance standards governing the representation of juveniles and youthful offenders).

Nat’l Juvenile Def. Ctr., National Juvenile Defense Standards (2012), http://njdc.info/wp-content/uploads/2013/09/NationalJuvenileDefenseStandards2013.pdf. 

See Burrell, supra note 22 at 344 (explaining that “experience requirements should be as high as possible to attract experience attorneys” while also allowing for “promising attorneys”). 

 Katayoon Majd & Patricia Puritz, The Cost of Justice: How Low-Income Youth Continue To Pay the Price of Failing Indigent Defense Systems, 16 Geo. J. Poverty L. & Pol’y 543, 557-58 (2009).

See Burrell, supra note 22 at 345.

34

35

36

37

38

39
18

Just Compensation & Funding 

Oversight entities should ensure contract counsel are 

paid for the full scope of the work necessary to provide 

zealous representation for youth. State-level oversight 

entities can eliminate any disparity in contract counsel 

compensation among counties within the same state. 

Even without statewide oversight, however, district, 

county, or local oversight bodies can help ensure fairness 

and parity in defense system funding.

Contract counsel compensation should be proportional 

to the workload required for zealous representation 

of youth. When compensating contract counsel, states 

should consider the following:

Pay-by-the-hour or similar billing 

systems often encourage more zealous 

representation since counsel are being 

paid for the full extent of their work;

Separating budgets for necessary 

resources and supports—such as 

investigators, experts, paralegals, and 

social workers—prevent counsel from 

choosing between funding such resources 

from their own compensation or going 

without;

Procuring funding from the state or 

judicial district can eliminate disparities in 

representation shaped by county wealth 

and budgetary restraints; and

If state or judicial district money is 

allocated among a variety of counties, 

doing so through a need-based system 

accounts for less affluent areas that 

tend to have a higher percentage of 

youth clients who qualify for publicly 

appointed counsel.

Build fair and effective juvenile justice 

systems,

Allocate sufficient resources to defense 

systems, and

Ensure the efficient use of public funds.

Data Collection & Analysis 

The entity that manages and oversees an assigned 

counsel system should collect comprehensive data about 

cases, clients, outcomes, and attorney activities. Data 

is needed to evaluate the impact and effectiveness of 

the assigned counsel system and of individual attorneys, 

identify areas in need of improvement, support budget 

requests and policy reform efforts, ensure the efficient 

use of public funds, and improve the protection of 

children’s constitutional rights.

In 2016, juvenile courts processed more than 850,000 

juvenile delinquency cases nationwide.40 Despite the 

enormous reach of the juvenile delinquency system, there 

exists no national data regarding the number of children 

represented by public defenders or contract counsel, or 

the outcomes each system achieves.41

The importance of collecting, analyzing, and using data in 

the juvenile court system is recognized by policymakers,42

judges,43 and defenders44 alike. Data is useful to all 

involved because it tells us what resources are being used, 

whether they are being used well, and what outcomes are 

being achieved.

Policymakers need comprehensive data to:

In January 2018, the National Conference of State 

Legislatures (NCSL) released Principles of Effective 

Juvenile Justice Policy, designed to help state lawmakers 

“construct[] juvenile justice systems that are both fiscally 

responsible and improve outcomes on many important 

fronts....”45 Five of the 12 principles urge lawmakers to 

use data, research, and evidence-based practices when 

40 Sarah Hockenberry & Charles Puzzanchera, Nat’l Ctr. for Juvenile Justice, Juvenile Court Statistics 2016 6 (2016), https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2016.pdf.

41 Andrew Wachter, M.S., Juvenile Justice Geography, Policy, Practice & Statistics Indefensible: The Lack of Juvenile Defense Data 1 (2015), 

http://www.ncjj.org/pdf/JJGPS%20StateScan/JJGPS_Indefensible_The_Lack_of_Juvenile_Defense_Data_2015_5.pdf.

42 Nat’l Conference of State Legislatures, Principles of Effective Juvenile Justice Policy (2018) [hereinafter Principles], 

https://comm.ncsl.org/productfiles/108957002/Juvenile_Justice_Principles_NCSL.pdf.

43 Teri Deal & Andrew Wachter, Nat’l Council of Juvenile & Family Court Judges & Nat’l Ctr. for Juvenile Justice 5 Ways Juvenile Court Judges Can Use Data (2017), 

http://www.ncjj.org/pdf/Model%20Data%20Series/NCJFCJ_5_Ways_Data_R9.pdf.

44 Marea Beeman, Nat’l Legal Aid & Def. Ass’n, Basic Data Every Defender Program Needs to Track: A Toolkit for Defender Leaders (2014), 

http://www.nlada.org/sites/default/files/pictures/BASIC%20DATA%20TOOLKIT%2010-27-14%20Web.pdf.

45 Principles, supra note 42 at iv.
19

Adopting standards and qualifications to govern a 

contract counsel system is a vitally important step in 

ensuring quality representation for children facing 

delinquency charges. But the performance of contract 

attorneys should be monitored more frequently than 

contracts are renewed, and many aspects of providing 

quality representation can only be evaluated by 

overseeing the representation an attorney provides on 

individual cases. 

Data collection can provide defense system managers 

with the information needed to oversee attorney 

performance and address shortcomings before they 

result in the denial of children’s constitutional right to 

counsel.

Basic Data Every Defender Program Needs to Track: A Toolkit 

for Defender Leaders, by the National Legal Aid & Defender 

Association (NLADA), explains the importance of data 

in defense systems and provides guidance on collecting 

and using data to improve defenders’ representation of 

their clients.52 Defense system managers need data in 

order to answer the three most basic questions about the 

effectiveness of a contract counsel system:

46 Id. (referring to Principle 1, 2, 4, 5, & 7).

47 Id. (referring to Principle 5 & 10).

48 Id. at vi, 13-15.

49 Id. at 33-34.

50 Id. at vii.

51 Id. at vii, 33-34.

52 See Beeman, supra note 44.

53 See id. at 11.

Provide oversight of contract counsel 

system and individual attorneys,

Allocate resources,

Track outcomes,

Support policy efforts, including budget 

requests and system reform, and

Improve representation and 

outcomes for youth.

1.

2.

3.

What resources exist, and are they adequate?

What work are attorneys performing?

What outcomes are being achieved for clients? 53

crafting policies.46 Two are focused on evaluating the 

system and tools used in the system to avoid disparate 

treatment of youth. 47

Principle 6 states: “Juvenile justice policies should 

promote fairness and protect youths’ due process 

rights,” and encourages lawmakers to “dedicate 

sufficient resources to indigent juvenile defenders to 

provide high-quality legal representation in delinquency 

proceedings....”48

Principle 12 states: “Cross-branch oversight mechanisms 

should hold government systems accountable, monitor 

youth outcomes, encourage system improvements 

and invest in effective justice system practices,”49 and 

encourages policymakers to “invest in data systems, 

training and other infrastructure that promote 

transparency and continuous quality improvement 

in juvenile justice system”50 and to “provide access to 

high-quality data and analysis, and include performance 

review.”51

Without comprehensive data from contract counsel 

systems, policymakers cannot evaluate the fairness 

and effectiveness of juvenile court proceedings, ensure 

that children’s constitutional right to counsel is being 

protected, or monitor the use of public funds dedicated 

to courts and defense systems. Comprehensive data 

from contract counsel systems is needed to inform 

policymakers’ budgeting and efforts to improve the 

juvenile court system.

Defense system managers need comprehensive data to:
20

NLADA explains, “At their core, defenders are advocates. 

Data can support advocacy efforts on multiple fronts, 

including individual client advocacy, advocacy for your 

program and advocacy for criminal justice policy that 

is fair, just and cost-effective.”54 With comprehensive 

data about contract counsel systems, managers of those 

systems can have the objective information they need to 

properly allocate resources, identify trends in charging 

and sentencing, plan for budget and personnel needs, and 

support requests for changes in funding, resources, and 

policies.

Juvenile court judges need comprehensive data to:

Ensure the protection of 

children’s constitutional right 

to counsel

Measure the effectiveness of 

the contract counsel system,

Identify opportunities for 

improvement, 

and

Ensure the appropriate use of 

public resources.

54 See id. at 5. 

55 Deal & Watcher, supra note 43 at 1.

56 Id.

57 Id.

In 5 Ways Juvenile Court Judges Can Use Data, a model data 

brief from the Office of Juvenile Justice and Delinquency 

Prevention’s Juvenile Justice Model Data Project, juvenile 

court judges are encouraged to use data to “describe 

a court’s overall functioning, replacing anecdotes with 

objective answers.”55 Comprehensive data about 

contract counsel systems and attorneys can give judges 

the information they need to objectively assess the 

performance of contract counsel in their courtrooms and 

avoid making decisions based on anecdotes, assumptions, 

and personalities.

Data is crucial to understanding the impact of juvenile 

court intervention in young people’s lives and ensuring 

best outcomes. “It’s impossible to know whether policies 

and practices are resulting in positive outcomes for 

justice-involved youth without collecting and analyzing 

data . . . . Understanding which youth succeed in which 

programs can help judges match youth with the response 

that is likely to produce the best outcomes.” 56

Data can also give judges a new viewpoint of what 

happens in their courtrooms and help them identify ways 

to improve the representation children receive and better 

use the system’s limited resources. “Data empowers court 

staff and stakeholders to suggest opportunities for new 

policies or practices that may be more efficient, lead to 

better outcomes, or ensure fairness.” 57

As the ultimate decision-makers in juvenile courts, 

juvenile court judges need high-quality, objective 

information about the systems and people that interact 

with the court and the young people brought before 

it. Among a judge’s most important responsibilities are 

ensuring fairness in their courtroom and protecting 

children’s constitutional rights. These are achieved 

through strong, effective juvenile defenders.
21

“AMONG A JUDGE’S 

MOST IMPORTANT 

RESPONSIBILITIES ARE 

ENSURING FAIRNESS IN 

THEIR COURTROOM AND 

PROTECTING CHILDREN’S 

CONSTITUTIONAL RIGHTS.”
22

CONCLUSION
23

To access the online toolkit, please visit 

https://njdc.info/contract-counsel.

For assistance with implementing reforms to your contract 

counsel system, please contact NJDC at 202-452-0010 or 

inquiries@njdc.info.

Young people facing delinquency charges need and deserve full 

access to high-quality, zealous defense representation, regardless 

of where they live. Even in counties with public defenders, at 

least some of the attorneys appointed to represent youth in 

delinquency court are engaged through a contract or other courtappointment system. It is, therefore, imperative that policymakers, 

defense system managers, and stakeholders work together 

to elevate the quality of representation provided by contract 

attorney systems.

Defenders who work in contract or appointed systems generally 

lack supports inherent in public defender systems—structure, 

oversight, mentorship, and quality review—and are too often 

disadvantaged by pay structures that do not compensate them 

for all the time they spend on a case or the time it takes to 

obtain the specialized training necessary to provide competent 

representation in delinquency cases.

Fortunately, these shortcomings can be addressed within existing 

contract counsel system structures by adopting standards, 

formalizing contracts, instituting oversight, and reforming payment 

systems. The Toolkit accompanying this report contains resources 

for stakeholders who want to enhance their contract counsel 

systems and ensure that the quality of representation every child 

receives reflects not where they live but the demands of the 

Constitution and the promises of Gault.
24

NATIONAL JUVENILE 

DEFENDER CENTER

FACEBOOK.COM/NJDC.INFO

TWITTER.COM/NATJUVDEFEND

1350 CONNECTICUT AVE NW, SUITE 304

WASHINGTON, DC 20036

202.452.0010 (P)

202.452.1205 (F)

WWW.NJDC.INFO