October is Youth Justice Awareness Month in Utah — an opportunity to celebrate positive developments in our juvenile justice system and recommit to the urgent work that still awaits.
There is much to celebrate. HB 239, a substantial juvenile justice reform package that passed during the 2017 legislative session, reflects a broad consensus that unnecessary court involvement and detention harms children and wastes public funds. Witness, for example, the remarkable efforts of Juvenile Justice Services (JJS) in directing resources away from costly detention facilities and towards community, school, and family-based interventions. The Juvenile Probation Department is dramatically expanding their efforts to work with youth in trouble for minor offenses at the front end, eliminating the need for formal court proceedings in many cases.
However, in other parts of our juvenile justice system, we need to do much more to prevent unnecessary detention and protect the rights of youth.
At the top of the list: ensuring the right to counsel for children. Children who face the deprivation of their liberty and removal from their home environment are entitled to no less. Utah’s laws allow children as young as 10 to be detained in juvenile holding facilities.
Over 50 years ago, the U.S. Supreme Court ruled in the landmark case In re: Gault, that children in delinquency proceedings are entitled to an attorney to represent them. But every day in Utah, children in our court system face formal detention hearings without legal assistance of any kind. Judges who would seek to expand a child’s right to counsel, are often stymied by lack of funding.
In the vast majority of states, a child who faces the loss of their freedom and removal from their family home is provided a court-appointed attorney before the detention hearing. Not so in Utah. In Utah, if an attorney is appointed to a child, it is generally after the detention hearing which means Utah is effectively asking many children in detention proceedings to represent themselves; to put forth their own presentation in a court hearing or, more likely, nothing will be said on their behalf.
Common sense and our everyday experience with children tell us that this is not acceptable. Children are not adults in miniature. Not only are children more vulnerable, they are more malleable. The court process itself plays a powerful role in shaping a child’s still-forming identity. And research shows that when youth perceive the court process to be fair, they are more likely to comply with court orders and follow the law in the future — regardless of whether judge rules against them or not. While the outcome of a detention hearing is important, just as important is whether a child feels heard and considered.
Imagine a child facing a detention hearing without anyone speaking up on their behalf, without anyone to explain the judge’s words or the consequences of the judge’s decisions. What will be that youth’s enduring recollection about their court experience? And what will that mean for how he or she views institutions of authority as they grow into adulthood and their prospects for rehabilitation?
A number of reformers have stepped into this area of need. Thanks to judicial leadership, the efforts of pioneering defense attorneys — led out by the Utah Juvenile Defender Attorneys — and the volunteer work of dedicated law students at Brigham Young University, representation for children during detention hearings is now a reality in a small handful of Utah counties.
The rights of children should not vary by county. We need to ensure that the same constitutional rights extend to every child in the state of Utah. The Utah Indigent Defense Commission was created in 2016 to help support indigent defense services across the state. In 2017, the legislature expanded the IDC’s mandate to include juvenile court representation, making available — for the first time — state support for juvenile defense services in the form of grants and technical assistance to counties.
Utah is a child-centered state that works extraordinarily hard to ensure success for our court-involved youth given the available resources. We should seize upon the opportunity to leverage newly available resources to ensure that the rights of all children are protected throughout the life of a juvenile court proceeding, including in the critical early stages.
With children, we are in it for the long game. In order to change the status quo, it will take substantial resources, significant coordination among juvenile court stakeholders and a lot of creativity. Our youth are worth the investment.
Jojo Liu is assistant director of the Utah Indigent Defense Commission.