INTRODUCTION

Chris¹ shuffled through the courthouse to his holding cell with shackles binding his wrists, waist, and ankles. His neon jumpsuit dwarfed his five-foot, one-hundred-pound frame. He had just been arrested and charged for the rape of his twelve-year-old cousin. He faced a transfer to adult court, decades in prison, and lifetime registration as a sex offender. He was thirteen.

I was his therapist and had arrived early to see how I could advocate on his behalf. I had previously worked at a holistic juvenile² defender’s office, in which social workers and lawyers teamed up to represent children in and out of the courtroom.³ Our social workers were critical in helping our lawyers communicate to the court how the developmental stage and trauma history of a child affected the child’s behavior and why the court needed to consider that information. Chris needed someone to show the judge and prosecutor that he was not who they thought.

Chris was not a rapist who needed to do adult time and be stigmatized for the rest of his life. He was a prepubescent thirteen-yearold who had been exposed to chronic and complex trauma. When he was just five, his father, whom he adored, had been shot by the police. Chris then lived with a series of violent stepfathers; one sexually abused him. At nine, his mother died of AIDS. Unable to cope, he was sent to a psychiatric facility by age ten and then to foster care. He had recently returned home to his grandmother’s and was trying to adjust to a chaotic household with little supervision. He was making progress, but he still felt shame about his own sexual abuse victimization. He did not understand why he had been sent away. The court needed to see Chris’s complexity—his pain and his promise. I trusted his lawyer would help.

Chris’s grandmother could not afford to hire an attorney, so a public defender seemed like the only option. But the “court counselor”—the equivalent of a probation officer in juvenile court— informed me that there was no public defender in their county, just private attorneys who contracted with the state and were appointed to represent children.⁴ Chris’s attorney had not arrived yet, so I went to sit with Chris’s grandmother.

She told me that she was overwhelmed. Despite her desire to engage, she had struggled throughout therapy, largely because her own trauma made her avoid emotional discussions with her grandchildren. Now, with one grandchild a victim and the other in chains, she felt even more paralyzed. She was preoccupied with the distress of her granddaughter and felt conflicted about how to help her grandson. To make matters worse, she had just learned that she would pay an hourly fee for Chris’s representation. As the sole provider, earning minimum wage, she was worried about how she would afford the lawyer and, as a result, whether to engage with him.⁵

When the lawyer finally arrived, the bailiff brought Chris in for his secure custody hearing. Had there been a holistic defender, someone from the defense team would have already spoken to the family and assessed options for the child to stay with an extended family member or another adult to avoid exposing a thirteen-year-old to the traumatic environment of jail. But this lawyer had not even spoken to Chris, let alone his family. At the hearing, the lawyer passively went along with the court counselor and prosecutor’s recommendation that Chris remain in jail pre-adjudication. For a charge like rape, it could be months.

After the hearing, the lawyer should have accompanied Chris to the holding cell to see how he was doing; to tell Chris that he would fight for him; and to explain, in a developmentally and trauma-informed way, the situation Chris faced. Unfortunately, the lawyer left immediately. Chris was a smart kid, but without attention from the lawyer, the seriousness of his situation eluded him. He kept asking: “Can you make sure Grandma doesn’t give away my new puppy?”

After a week of phone calls, I finally got a hold of the lawyer. I asked about his plan. His response: “Take whatever deal the prosecutor gives us.” I was unable to accept his apathy. I took steps to show the court that Chris deserved a mitigated disposition, including getting letters from Chris’s school counselor about his academic and behavioral growth and a letter from the food pantry where he routinely volunteered. I also wrote a letter detailing how he had been affected by his own sexual victimization and how diligently he was working in therapy. I found a psychiatric facility for youth with sexualized behaviors and helped Chris’s grandmother, still processing her feelings about whether and how to help her grandson, navigate the complex enrollment process. I called the lawyer back to suggest that we approach the prosecutor with these mitigation materials and a deal of our own that involved treatment instead of incarceration. “That’s a terrific idea!” he said, as if it were his first time seeking a mitigated disposition.⁶

The judge listened intently as I explained our plan. Chris was given probation for a lesser charge and sent to treatment. While Chris smiled as his cuffs were removed, many other children across this country remain crying in a cell because their lawyers were well-meaning but overworked, apathetic,⁷ or never trained to advocate for children. This Note is for those kids.

Nearly sixty years ago, In re Gault⁸ guaranteed children in juvenile court the right to counsel.⁹ Four years behind Gideon v. Wainwright,¹⁰ which guaranteed the right to indigent adults,¹¹ the extension of the right to our society’s most vulnerable was welcome news.¹² However, Gault left unfinished business, creating a right for children that was weaker than that of adults and failing to recognize how youth may require a more robust right to counsel.¹³

This Note is not the first to take issue with the anemic right to counsel in the juvenile context.¹⁴ Nor is it the first to argue that the unique vulnerability of children demands a right to counsel that provides additional protections.¹⁵ However, this Note appears to be the first to ground this argument in the Eighth Amendment revelation that “children are constitutionally different.”¹⁶ It also makes specific constitutional and policy recommendations for remedying the problems with Chris’s representation and guaranteeing effective assistance for children.

This Note proceeds in three parts. Part I will outline the unique characteristics of juvenile court, what the right to counsel guarantees in this context, and the current state of youth defense. Part II will delve into the Eighth Amendment “children are different” cases and argue that the specific characteristics of youth that have compelled the Court to require additional protections for children in sentencing justify additional protections in the context of the right to counsel. Part III will make specific recommendations for how to expand the right to effective counsel for children, drawing on the characteristics of youth discussed in the Eighth Amendment cases. These recommendations are: requiring each jurisdiction to have a dedicated youth defender’s office, which provides specialized training and supervision; eliminating common conflicts of interest, which are exacerbated when indigent parents are required to pay an hourly rate for their child’s defense; making mitigation a mandatory component of effective representation; guaranteeing the right to postdisposition advocacy; moving toward a holistic defense model; and adopting a youth-specific standard for ineffective-assistance-of-counsel (“IAC”) claims.

I. BACKGROUND: JUVENILE COURT AND CHILDREN’S RIGHT TO COUNSEL

In our nation’s early history, a defendant’s youth provided no meaningful protection, and young children were given draconian sentences in adult court.¹⁷ In response, reformers at the turn of the twentieth century championed the creation of juvenile courts, arguing that children required a different system in which the child is an “object of [the state’s] care and solicitude.”¹⁸ These courts did not see crimes committed by children as the child’s fault but rather the fault of ill-equipped parents.¹⁹ As a result, juvenile courts were designed not to punish but to rehabilitate, at least for white children.²⁰ Juvenile courts were to serve as parens patriae, acting in the child’s best interest as a competent parent would to “save him from a downward career.”²¹ In 1899, Illinois established the first juvenile court,²² and within twenty years, all but three states followed suit.²³ Today, every state has a separate court for children.²⁴

The concept of juvenile court, however, was fraught with contradiction from the start. While the creation of juvenile courts was itself a recognition that children need additional protection in the criminal process, the core procedural protections provided to criminal defendants were not initially provided in juvenile courts.²⁵ Reformers believed that “[t]he ordinary trappings of the court-room [were] out of place” and even impeded the “sympathetic spirit” of juvenile court.²⁶ In other words, “the apparent rigidities, technicalities and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded.”²⁷ Reformers believed that the rehabilitative goals of juvenile court were better served by a less formal court atmosphere in which the judge can be “[s]eated at a desk, with the child at his side, where he can on occasion put his arm around his shoulder and draw the lad to him.”²⁸

Sixty years later, in In re Gault, the Court considered whether the vision of a juvenile court—to serve as an informal parens patriae— justified the continued denial of procedural rights to children in juvenile proceedings.²⁹ In Gault, a fifteen-year-old boy was charged with making lewd phone calls to a neighbor.³⁰ He was not served with the petition against him.³¹ He was not given notice of the specific facts alleged.³² He was not informed of his rights against self-incrimination nor his confrontation rights.³³ He was not informed of a right to counsel.³⁴ While the maximum punishment in adult court would have been two months in jail, the purportedly rehabilitative juvenile court sentenced him to six years in what it described as “in all but name a penitentiary or jail.”³⁵ Overruling the Arizona Supreme Court’s denial of the family’s habeas petition, the majority observed that “Juvenile Court history has again, demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principal and procedure” and that “due process standards, intelligently and not ruthlessly administered, will not . . . displace any of the substantive benefits of the juvenile process.”³⁶ The Court held that, in any case in which the child’s freedom could be curtailed, the Due Process Clause of the Fourteenth Amendment guaranteed the right to counsel.³⁷

Despite the importance of extending the right to counsel to children, scholars have lamented the shortcomings of Gault. First, Gault restricted the right to counsel for children to the adjudication phase of the case,³⁸ making it narrower in scope than the right for adults.³⁹ Second, Gault failed to provide a right to the transcript of proceedings or a right to appeal,⁴⁰ making an IAC claim an even less sufficient remedy than it is in adult court.⁴¹ Third, the Court failed to define “[t]he [a]mbiguous [r]ole of [p]arents,” who often have conflicts of interests with their children.⁴² Most importantly for this Note, the Court stopped short of holding that the vulnerabilities of children demand a more expansive right to counsel. While the Court did acknowledge that a child is an “easy victim of the law . . . and needs [counsel] on whom to lean lest the overpowering presence of the law, as he knows it, crush him,”⁴³ the Court “failed to consider . . . how [children’s] cognitive and psychosocial underdevelopment would affect their ability to exercise their newly granted rights.”⁴⁴

Gault’s limitations have yielded unacceptable outcomes for children. Though there are countless examples of highly effective youth defenders,⁴⁵ a recent meta-analysis found that, overall, children with lawyers are more likely to be sent to institutional placement than those who waive the right to counsel.⁴⁶ This meta-analysis should not be used to undercut the argument that every child should be appointed a lawyer for the entire duration of their case, as children with well-resourced and specialized defenders experience dramatic benefits.⁴⁷ Furthermore, children facing charges with a greater risk of out-of-home placement are more likely to have counsel appointed, and the attorney penalty observed in this meta-analysis could therefore be attributed to a failure to control for the severity of offense in many of these studies.⁴⁸ However, the fact that there is doubt about the utility of the average youth defender is deeply concerning.

Several structural obstacles contribute to the frequent ineffectiveness of youth counsel. First, juvenile court attorneys often have high caseloads and limited experience.⁴⁹ Historically, scholars have argued that this can lead many youth defenders to neglect tasks essential to representation.⁵⁰ Recent assessments suggest that, due to systemic problems, the average youth defender continues to fail to communicate with clients outside of court,⁵¹ investigate facts,⁵² file preadjudication and discovery motions,⁵³ obtain experts,⁵⁴ and prepare for disposition hearings.⁵⁵ Second, attorneys may not understand whom they represent and be co-opted by a parent or feel “discouraged from acting in an adversarial manner, [and] instead coalesce” with the prosecutor or judge who wants the child institutionalized.⁵⁶ Third, only seven states statutorily require youth-specific training.⁵⁷ This leaves lawyers ill-equipped to handle the idiosyncrasies of representing children, including bench-trial litigation⁵⁸ and the challenges of communicating with children given their cognitive level and reluctance to trust adults.⁵⁹

Children who receive deficient defense face severe consequences.⁶⁰ Some may downplay the repercussions of poor representation in the juvenile context⁶¹ since children are confined in places with euphemistic names like “Youth Development Center,”⁶² and confinement typically cannot exceed the age of twenty-one.⁶³ However, all fifty states allow children to be transferred to adult court under certain circumstances, subjecting children to adult sentences and often adult facilities.⁶⁴ Furthermore, youth prisons have often been found to have high rates of sexual and physical abuse as well as neglectful solitary confinement.⁶⁵ Children who enter the juvenile court system have astronomical rates of trauma exposure,⁶⁶ changing the architecture of the brain⁶⁷ and making them more likely to engage in risky behaviors.⁶⁸ Instead of receiving proper treatment in their communities, children with substandard representation are often sent to facilities in which they incur additional trauma, making lifelong criminal legal system involvement more likely.⁶⁹ Studies have shown that just one night in detention makes a child more likely to recidivate than a child not detained for the same charge.⁷⁰

Finally, poor representation can expose children to collateral consequences.⁷¹ Juvenile courts fail to fulfill their promise to “hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.”⁷² Instead, adjudications can have profound effects on children’s futures. Children with adjudications can be suspended and expelled from school, asked about their record on college and employment applications, and barred from public housing.⁷³ They can also be exposed to immigration consequences, lifetime sex offender registration, and more severe sentences in the adult system as a result of juvenile records.⁷⁴

Deficient representation has particularly devastating effects for Black, Latine, and Native children, who are overrepresented in juvenile court⁷⁵ and are more likely to be detained,⁷⁶ formally petitioned,⁷⁷ transferred to adult court,⁷⁸ and removed from their community.⁷⁹

II. EXTENDING THE EIGHTH AMENDMENT CHILDREN-ARE-DIFFERENT DOCTRINE

In a series of Eighth Amendment cases over the past two decades, the Supreme Court declared that “children are constitutionally different from adults for purposes of sentencing.”⁸⁰ Starting with Roper v. Simmons,⁸¹ the Court held that the Eighth Amendment bars capital punishment for children.⁸² In Graham v. Florida,⁸³ the Court precluded the sentencing of children to life without parole (“LWOP”) for nonhomicide offenses.⁸⁴ Then, in Miller v. Alabama,⁸⁵ the Court banned all mandatory LWOP sentences for children under eighteen,⁸⁶ holding that LWOP can only be imposed in rare circumstances in which the court considers the child’s “youth and attendant characteristics”⁸⁷ and still finds that the child is “irreparable.”⁸⁸

In these cases, the Court articulated three main “gaps between juveniles and adults” based on both “common sense” and newly emerging social science and neuroscience.⁸⁹ While these three distinct characteristics of children were announced in the context of sentencing, they also justify additional protections for children in the context of the right to effective counsel.

This Part is split into two sections. The first describes these three differences and briefly proposes changes to youth representation that must be made to account for these differences. The second section addresses skepticism that will likely be raised about applying the Miller cases to the right to counsel.

A. The “Gaps Between Juveniles and Adults” and Their Relevance to Youth Defense

First, the Miller cases recognized that children have a “lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.”⁹⁰ This immaturity requires that youth defenders obtain specialized training and supervision in how to communicate at the cognitive and psychosocial level of children in order to provide effective assistance. Otherwise, children cannot understand their lawyer’s advice and act accordingly. Part III.A will further explore the patchwork structure of youth defense systems, how this prevents youth defense specialization, and why dedicated youth defender’s offices are needed so that lawyers can be trained and supervised to effectively counsel immature clients.

Second, the Court recognized that children “are more vulnerable . . . to negative influences and outside pressures, including from their family and peers.”⁹¹ The Court further noted that children “have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings.”⁹² Due to children’s lack of control and vulnerability to influence, an effective lawyer for children must make sure that they are representing the child and not being influenced by these outside pressures, such as a family member who may not have the child’s best interests in mind. Part III.B will further discuss changes that must be made to minimize these dangerous conflicts of interest.

The “limited control” that children experience also demands more holistic representation.⁹³ The Court recognized that children are often made more susceptible to delinquent behavior by “crime-producing settings.”⁹⁴ While adults, who have more control over their environment, can choose to make changes in their life, children have more limited options.⁹⁵ Consequently, a holistic defense team with an imbedded social worker is essential.⁹⁶ The social worker can help children and their families cope with their difficult environment.⁹⁷ They can help them navigate psychological, interpersonal, and societal obstacles to the resources children need to rehabilitate in a community setting instead of in custody.⁹⁸ Part III.E will further explore the holistic model and its importance for making counsel for children effective.

Third, the Court recognized that a child’s character is “less fixed” than that of an adult “and his actions less likely to be evidence of irretrievabl[e] deprav[ity].”⁹⁹ This greater capacity for change among children requires that counsel engage in vigorous postdisposition advocacy. If juvenile court is meant to be rehabilitative, and the Supreme Court has recognized that sentences should allow parole for children who demonstrate change, lawyers must meet with their clients after disposition to monitor such change. Further, they must petition the court if the state is failing to provide rehabilitative programming or if the child has successfully rehabilitated and deserves early release or termination of supervision. Part III.D will explore how the less-fixed nature of a child’s character necessitates a right to postdisposition counsel.

The Court further explained that these “three significant gaps between juveniles and adults” based on “science and social science” research “lessen[] a child’s ‘moral culpability’.”¹⁰⁰ While this revelation has potentially profound consequences for sentencing children, it does little if a child does not have counsel who engages in mitigation to demonstrate to the court how a child’s immaturity, lack of control, and less-fixed character renders him less culpable. Part III.C will explore the reasons that mitigation is essential to effective counsel for children.

B. Addressing the Skeptics

Some may argue that the Court is unlikely to expand the childrenare-different doctrine to the right-to-counsel context given that Miller was a 5-4 decision with a majority comprised of the four liberal justices and the swing vote of Justice Anthony Kennedy, who has since retired.¹⁰¹ This skepticism is bolstered by the Court’s recent decision in Jones v. Mississippi.¹⁰² In Jones, the Court held that, in exercising its discretion to impose juvenile life without parole (“JLWOP”), the sentencing court is not required to make a separate factual finding of permanent incorrigibility or state on the record the reasons for an implicit finding of permanent incorrigibility.¹⁰³ This procedural change, empowering judicial discretion to impose JLWOP without explicit justification, has been deemed the “quiet burial of the Miller trilogy.”¹⁰⁴

While Jones indeed limits Miller and shows the Court trending away from an expansive interpretation of the children-are-different doctrine, the Court’s reasoning actually strengthens the argument that a more robust right to counsel is needed for children. The defendant in Jones argued that a sentencing court fails its obligations under Miller to consider youth when sentencing a child to JLWOP if it does not provide an on-the-record sentencing explanation of a finding of incorrigibility.¹⁰⁵ However, the Court rejected this claim, holding that “an on-the-record sentencing explanation is not necessary to ensure that a sentencer considers a defendant’s youth,” emphasizing that judges will still consider youth, “especially if defense counsel advances an argument based on the defendant’s youth.”¹⁰⁶ Furthermore, the Court explained,

If defense counsel fails to make the sentencer aware of the defendant’s youth . . . . the defendant may have a potential [IAC] claim, not a Miller claim—just as defense counsel’s failure to raise relevant mitigating circumstances in a death penalty sentencing proceeding can constitute a potential ineffective-assistance-ofcounsel problem . . . .¹⁰⁷

Thus, by putting the responsibility on counsel to demonstrate why a defendant’s “youth and attendant characteristics” should mitigate his sentence,¹⁰⁸ the Court may have weakened Miller, but it also indicated that youth matters in defining the right to effective counsel.

Additionally, even if the U.S. Supreme Court is trending away from the children-are-different doctrine, state courts have continued to expand it.¹⁰⁹ The U.S. Supreme Court “create[s] a floor, but not a ceiling,” and state courts can define their state constitutional amendments to be more expansive than the federal amendments.¹¹⁰ In recent years, some states have held that the Eighth Amendment bar on mandatory JLWOP extends to defendants who are eighteen¹¹¹ or as old as twenty.¹¹² Some states have held that the Eighth Amendment prohibits mandatory de facto JLWOP sentences in which there is technically a possibility of parole but not until the child becomes geriatric or statistically likely to be dead.¹¹³ Other states have held that the Eighth Amendment not only bars mandatory JLWOP but all JLWOP sentences.¹¹⁴ Iowa even held that mandatory sentences for children were unconstitutional across the board.¹¹⁵ Thus, even if the Court is walking back children-are-different jurisprudence, state courts could be the vanguard of expanding the doctrine to new frontiers such as the right to counsel.

Other skeptics may argue that expanding the children-aredifferent doctrine to the right to effective counsel is too big a stretch since the doctrine is confined to Eighth Amendment sentencing cases.¹¹⁶ However, there is already precedent of children-are-different analysis in the context of more procedural constitutional rights. For example, Miller relied heavily on J.D.B. v. North Carolina,¹¹⁷ which held that children are also different in the context of the Fifth Amendment.¹¹⁸ In J.D.B., a thirteen-year-old boy moved to suppress a confession that he made after he was removed from his classroom and questioned by school administrators and police about a burglary.¹¹⁹ The boy was not informed of his rights pursuant to Miranda v. Arizona,¹²⁰ nor was he informed that he was free to leave.¹²¹ The child argued that a reasonable person of his age would not know he was free to leave and that therefore a Miranda warning was necessary.¹²² The North Carolina Supreme Court declined to extend the Miranda custody analysis to include consideration of the suspect’s age.¹²³ Citing Roper and Graham’s articulation of how children are different throughout the opinion, the U.S. Supreme Court reversed, holding that “children will often feel bound to submit to police questioning when an adult . . . would feel free to leave.”¹²⁴ Therefore, children’s “vulnerab[ility] and susceptib[ility] to . . . outside pressures,”¹²⁵ made them different, not just for the Eighth Amendment but also for Fifth Amendment custody analysis.¹²⁶ Both before and after J.D.B., several states used similar reasoning to expand the doctrine further to set forth a “reasonable child standard” for Fourth Amendment seizure analysis.¹²⁷

J.D.B. and these state Fourth Amendment cases are not outliers that transplant the children-are-different doctrine far afield from its home in Eighth Amendment jurisprudence. In fact, J.D.B. stands on the shoulders of criminal procedure cases from half a century before the children-are-different doctrine was applied to sentencing. Both J.D.B. and the Miller cases cited Haley v. Ohio¹²⁸ in which the Court considered a fifteen-year-old defendant’s youth in determining that his confession was coerced.¹²⁹ In Gallegos v. Colorado,¹³⁰ the Court considered whether a fourteen-year-old’s confession, which was signed after the child had been in custody for five days, violated due process.¹³¹ While the police said that they informed him of his right to counsel, he did not consult with counsel or his family.¹³² The Court held that, even though he was informed of his right to counsel, his age precluded him from “know[ing] how to protect his own interests or how to get the benefits of his constitutional rights.”¹³³

Together, Haley and Gallegos not only show that the children-aredifferent analysis is not confined to Eighth Amendment jurisprudence. They also underscore that the right to counsel is particularly important to children. As “easy victim[s] of the law,” the Court emphasized that children “need[] [counsel] on whom to lean lest the overpowering presence of the law . . . crush [them].”¹³⁴ Ironically, In re Gault also quoted this line from Haley to show the importance of extending the right to counsel to children,¹³⁵ but it failed to spell out how counsel needed to be different to protect the heightened vulnerability of children.

If any doubt remains that the children-are-different doctrine can be expanded from its recent focus on the Eighth Amendment, Miller itself acknowledges that taking youth into account when defining legal rights and liabilities is not an “oddity in the law.”¹³⁶ “To the contrary,” the Court explained, “‘[o]ur history is replete with laws and judicial recognition’ that children cannot be viewed simply as miniature adults.”¹³⁷ “Indeed,” the Court in Miller explained, “it is the odd legal rule that does not have some form of exception for children.”¹³⁸ Miller acknowledged that children have long been treated differently in the context of criminal law,¹³⁹ property,¹⁴⁰ contracts,¹⁴¹ and torts.¹⁴² Thus, expanding the idea that children are different to sentencing was not a radical concept—it was a long overdue step to bring sentencing in line with other areas of the law. Now is the time to do the same for the right to effective counsel.

III. SPECIFIC RECOMMENDATIONS FOR MAKING COUNSEL FOR CHILDREN EFFECTIVE

Reimagining a right to effective counsel for children that better accounts for their unique vulnerabilities is a daunting task. This Part proposes constitutional and policy reforms on the federal, state, and local levels—some more immediately feasible and others more aspirational. It recalls the barriers to effective counsel that Chris faced and uses the Miller cases’ articulation of how children are different to justify tangible changes to how children are represented.

A. Require Each Jurisdiction To Have a Dedicated Youth Defender

Chris needed someone who could defend him from a transfer to adult court and lifetime sex registration. Yet there was no public defender in Chris’s county. Instead, Chris was appointed a private attorney who contracted with the state on a case-by-case basis. He had no training, supervision, or passion specific to public defense, let alone the defense of children.

Sadly, Chris’s experience is not unusual. Gault left the decision of how to provide counsel to indigent children to the states, which further delegated those decisions to counties and sometimes to individual courts.¹⁴³ This “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” they face charges.¹⁴⁴ While some states and counties have organized public defender offices, most indigent children are represented by contract counsel rather than public defenders.¹⁴⁵ These (often solo) practitioners “do not benefit from the structure, management, oversight, training, mentorship, or support of a salaried public defender system.”¹⁴⁶ Of course, “talented lawyers practice in each type of defense system.”¹⁴⁷ However, empirical comparisons, some focusing on the juvenile context, have found that people represented by contract attorneys suffer worse legal outcomes.¹⁴⁸

The lack of specialized training and support for contract counsel is especially problematic in the juvenile context. The Miller cases identified a “lack of maturity and an underdeveloped sense of responsibility” as the first difference between children and adults.¹⁴⁹ This cognitive and psychosocial immaturity means lawyers need to have the skills and devote the time to explain to children their legal situations and how to adjust their behavior. Unfortunately, lawyers often do not have these skills,¹⁵⁰ nor do they devote the time to explain.¹⁵¹ State assessments of youth representation have noted that children often “have no idea what [is] happening or how it [is] going to affect [them]” because the “defenders’ abilities to communicate well with youth clients varies greatly.”¹⁵² Recall Chris and his perseveration on his new puppy. The research shows that there are many children like him whose attorneys fail to adequately communicate with them, leaving them “confused by the court process and upset by [the] results.”¹⁵³

Furthermore, the “special difficulties encountered by counsel in juvenile representation” are not limited to the challenges of communicating at the right cognitive level.¹⁵⁴ In Graham, the Court identified that, due to their developmental stage, children are “reluctan[t] to trust defense counsel” and “less likely . . . to work effectively with their lawyers to aid in their defense.”¹⁵⁵ Thus, a youth defender not only needs to know how to explain complex legal situations with words that children understand but also how to overcome the distrust that adolescents, especially those with trauma,¹⁵⁶ have toward adults. Without lawyers who have received specialized training to develop both skills, children will remain confused about the proceedings against them and how to collaborate with counsel.

Leaving kids in this state of confusion and distress is not only wrong, but it can also contribute to worse legal outcomes, such as being held in contempt or having probation extended or revoked for inappropriate behavior in detention, court, or while on community supervision. For Chris, it was crucial that his social worker was there to fill the void left by the contract counsel, who never visited or communicated with him outside of court. Chris’s acceptance to an alternative treatment program and the judge’s approval of it was dependent on Chris’s behavior in detention and his agreement to go to treatment and take it seriously. Only someone experienced in working with children with trauma could assist Chris in adjusting his behaviors to avoid prison time and sex registration. Chris’s nonspecialized lawyer lacked this experience.

While the ultimate goal should be to establish dedicated youth defenders in every jurisdiction, there are other more incremental steps that can be taken in the meantime. There are a variety of contractcounsel-system structures that provide a range of oversight.¹⁵⁷ On one end of the spectrum are states with alternative defense agencies, which manage contracts and appointments.¹⁵⁸ These centralized offices generally provide the most support and oversight for non–public defenders.¹⁵⁹ On the other end of the spectrum are discretionary judicial appointment systems in which there are no formal contracts or minimum qualifications.¹⁶⁰ Even within decentralized structures, the Gault Center (formerly the National Juvenile Defender Center (“NJDC”)) argues that “changes can be made to improve management and oversight,” such as requiring that contract counsel attain “[s]pecialized knowledge of juvenile court” and “ongoing continuing legal education [about] . . . the science of adolescent development, educational issues impacting delinquency cases, and adolescent mental health issues.”¹⁶¹ In the long run, however, states should opt for the greater oversight afforded by the statewide alternative defense agencies as they work towards establishing a dedicated juvenile defender’s office in every county.

The Department of Justice (“DOJ”) can also play a role in pushing states to move toward youth defense systems with more specialized training, support, and oversight. Recognizing that the 1994 Crime Bill would thrust more children into the court system and exacerbate already staggering racial disparities, Congress passed 34 U.S.C. § 12601.¹⁶² This statute empowers the attorney general to sue “any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles” for the “pattern or practice” of depriving children of their constitutional rights.¹⁶³ Since its enactment, the DOJ has initiated three suits under this statute and intervened in nine private suits.¹⁶⁴ Despite such limited use, the DOJ has achieved meaningful results in disputes ranging from conditions of confinement to the inadequacy of youth representation.¹⁶⁵ In N.P. v. Georgia,¹⁶⁶ the DOJ filed a statement of interest in a class action against a county defender and helped secure a settlement to increase staffing, establish a youth-specific division, and require specialized training on how to effectively represent youth.¹⁶⁷ Advocates in areas without dedicated youth defender’s offices should collaborate with the DOJ to bring suits that can call for specialization and state oversight.

Youth defenders are particularly vulnerable to conflicts of interest, and children need additional protections to ensure that their lawyer is truly representing them and not an adult family member. The duty of loyalty is an essential component of the right to effective counsel—so much so that, in the adult context, a conflict of interest triggers a “rigid rule of presumed prejudice” under Strickland v. Washington.¹⁶⁸ Yet, despite the dangers that conflicts pose, Gault failed to require youth defenders to avoid the common conflicts that arise in juvenile court, namely those with parents.¹⁶⁹ The lower court in Gault argued that children generally do not need lawyers because parents and probation officers can look out for their best interests.¹⁷⁰ However, the lower court noted that situations in which there is a “conflict between the child and his parents” may call for the court to appoint a lawyer, implying that such conflicts render children particularly vulnerable.¹⁷¹ When the Supreme Court held that access to counsel could not be discretionary, it failed to acknowledge this potential conflict and to put limits on the role of parents, instead giving them significant power to control their children’s representation.¹⁷²

The conflicts stemming from the ill-defined role of parents in youth representation take many forms. On a basic level, what parents consider to be in their child’s best interest may conflict with the child’s expressed interest.¹⁷³ For example, parents may believe that a child should receive a harsh consequence to teach their kid a lesson or get them out of their home.¹⁷⁴ In other situations, parents may have a more direct conflict in which they are witnesses or victims in the case against their child.¹⁷⁵ Parents may even be a potential codefendant and direct their child’s representation in a way that minimizes the parent’s legal exposure.¹⁷⁶ Recognizing these conflicts, scholars and youth-defense training groups have endorsed expressed-interest representation to minimize the influence of parents and court actors with conflicting interests.¹⁷⁷

These conflicts are exacerbated by the common practice of making parents pay for their indigent child’s representation.¹⁷⁸ Consider how Chris’s grandmother felt. She was already deeply conflicted about engaging with her grandson’s lawyer since her grandson was charged with raping her granddaughter. Her ambivalent engagement with the lawyer was magnified when she learned that she, a minimum-wage worker supporting four kids, would pay an hourly rate. Research shows that this financial burden posed on already indigent families causes parents to encourage less vigorous defenses, often avoiding trial or other types of intensive legal advocacy.¹⁷⁹ Sometimes these financial burdens cause parents to waive the right to counsel altogether.¹⁸⁰ In adult court, safeguards are put into place to prevent third-party payers from directing representation.¹⁸¹ Yet such safeguards do not appear to exist in juvenile court, where the payment scheme makes conflicts of interest particularly likely.¹⁸²

As discussed in the Miller cases, children “are more vulnerable . . . to negative influences and outside pressures, including from their family and peers . . . [and] have limited control over their own environment.”¹⁸³ Consequently, in order to be effective, attorneys must not become overly influenced by the same outside pressures as their clients and must restore a sense of control to children in directing their representation. To this end, states should presume indigency¹⁸⁴ and ban requirements that indigent parents pay for representation due to the conflicts that so frequently arise. States should mandate training and supervision on expressed-interest practice. Finally, courts should join those who mandate that a youth defender’s “singular loyalty [must be] to the defense of the juvenile” to meet the standard for effective counsel.¹⁸⁵

C. Make Mitigation Mandatory

The purported purpose of juvenile court is to focus on the underlying causes of a child’s behavior.¹⁸⁶ However, the prosecutor, court counselor, and judge did not know about nor seek to learn about Chris’s trauma history. Neither did Chris’s lawyer. If a social worker had not been there to help the court connect the dots between Chris’s own sexual trauma and the rape of his cousin, thirteen-year-old Chris could have been imprisoned in a juvenile facility until he was twenty one or even transferred to adult court and put on a lifetime sex offender registry.

The children-are-different doctrine requires lawyers to engage in mitigation¹⁸⁷ because the doctrine is not just about youth; it is about how trauma and youth interact. Like Chris’s lawyer, the trial lawyers in Roper and Graham also failed to present mitigation evidence.¹⁸⁸ However, the Supreme Court focused on the youth defendants’ trauma histories¹⁸⁹ in vacating their sentences and holding that children’s “lack of maturity,” diminished “control over their own environment,” and “less fixed” traits make them overall less “moral[ly] culpab[le]” than adults.¹⁹⁰ Furthermore, the Court in Miller made clear that “youth is more than a chronological fact” and that sentencing courts must consider not only the “offender’s age” but also “the wealth of characteristics and circumstances attendant to it.” ¹⁹¹ These circumstances include trauma histories such as whether the child is from a “stable household” or a “chaotic and abusive one.”¹⁹² In other words, “[j]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in assessing his culpability.”¹⁹³

Yet how can a court consider trauma history if there is no lawyer who raises it? Several scholars have argued that effective representation for children should include mitigation in JLWOP cases and other circumstances in which children are tried as adults.¹⁹⁴ These arguments analogize to the requirement that lawyers must engage in mitigation in death penalty cases.¹⁹⁵ Some may argue that “death is different” and that this requirement cannot be extended to noncapital cases.¹⁹⁶ However, the same argument was made in response to the idea of extending Eighth Amendment protection to JLWOP in Miller. But there, the Court responded that “children are different too.”¹⁹⁷ Furthermore, some lawyers have successfully argued for requiring mitigation for effective assistance in three-strikes cases.¹⁹⁸ Finally, as discussed in Part II, the Jones Court suggested that attorneys may have a responsibility to present the mitigating circumstances of youth.¹⁹⁹ In justifying its holding that courts do not need to make a factual finding of “incorrigibility,” the majority stated that a lawyer who fails to mitigate should face an IAC claim “just as defense counsel’s failure to raise relevant mitigating circumstances in a death penalty sentencing proceeding can constitute a potential [IAC] problem.”²⁰⁰

Admittedly, the Court may hesitate to extend the mitigation requirement beyond JLWOP to cases in juvenile court based on the belief that juvenile court proceedings are not sufficiently serious to merit this requirement. However, the immense collateral consequences of juvenile court involvement and exposure to juvenile jails and prisons, which are often rife with abuse and neglectful solitary confinement, are serious,²⁰¹ especially considering that children are still developing and especially susceptible to further psychological damage.²⁰² Furthermore, Strickland specified that ABA standards “are guides to determining what is reasonable” under the first prong of the IAC standard,²⁰³ and the cases that required mitigation in the deathpenalty context relied on the ABA standards for capital defense.²⁰⁴ For decades, the ABA²⁰⁵ and the Gault Center²⁰⁶ have both promulgated standards for youth defense that require mitigation, just as they are required in the death-penalty context. Finally, because juvenile court was created to consider what has happened to children in making decisions about how to help them,²⁰⁷ one could argue that requiring mitigation makes particular sense in the juvenile-court context.

D. Guarantee the Right to Postdisposition Representation

If Chris’s team had not negotiated a mitigated disposition and Chris had been sent to juvenile prison instead of treatment, he likely would have never spoken with an attorney during his lengthy period of incarceration. The reality is that “an overwhelming majority of youth in the delinquency system lack access to quality representation during [the postdisposition] phase,” which is often the “longest and most critical phase of the delinquency process.”²⁰⁸

The differences between children and adults articulated by the Miller cases make the lack of postdisposition representation in juvenile court particularly troubling. First, because children “lack . . . maturity,” are more “impulsiv[e],” and “more vulnerable . . . to negative influences and outside pressures” than adults,²⁰⁹ they are more likely to falsely confess.²¹⁰ This makes access to the appeals process especially important in order to serve as a backstop for the frequent mistakes made in adjudications.²¹¹ Yet studies estimate that less than 1 percent of juvenile cases are appealed,²¹² one eleventh of the rate of appeals in adult cases.²¹³

Second, because a child’s character is “less fixed”²¹⁴ and the juvenile system is designed to rehabilitate, lawyers are needed during the postdisposition stage to ensure that rehabilitative goals are being met. This is particularly important for children who are incarcerated or committed to another facility. Due to the lack of postdisposition representation, conditions of confinement have little oversight.²¹⁵ As one youth defender put it: “Juvenile facilities are surrounded by a legal moat, and the drawbridge is totally up. . . . How many children are lost, beaten, bullied, and abused? If public defenders were allowed to do regular post-disposition advocacy, these injustices would come to light.”²¹⁶ Thus, no one is there to make sure educational and therapeutic programing is in place as ordered by the disposition²¹⁷ or to blow the whistle if the child is experiencing abusive or neglectful treatment that impedes rehabilitation.²¹⁸ Furthermore, if the child makes progress, no one is there to argue for early release.²¹⁹ This is especially troublesome considering that juvenile sentences are often indeterminate and are supposed to end when the state deems a child rehabilitated.²²⁰

Despite the overall dearth of such representation, some youth defenders and law school clinics are engaging in innovative postdisposition work.²²¹ Instead of abandoning children during their lengthy and often traumatic disposition period, these innovative offices advocate for more rehabilitative conditions of confinement, the educational and therapeutic services that children were promised, and early release with tailored reentry plans for those that have demonstrated rehabilitation.²²² This postdisposition work is essential for lawyers to effectively represent children. Otherwise, courts will continue to ignore children’s “less fixed” nature and effectively subject them to punitive, fixed-length sentences designed for adults instead of rehabilitative dispositions that take a child’s “capacity for change” into account.²²³

E. Move Toward Holistic Representation

Lawyers representing children encounter unique complications when engaging in mitigation and reentry planning because, as the Miller cases emphasize, children have limited “contro[l] over their own environment[s].”²²⁴ While an adult defendant can more easily help their attorney negotiate a mitigated sentence or reentry plan by making changes in their lives such as signing themselves up for community service or therapy,²²⁵ a child is often constrained. Consider Chris’s situation. He could not simply enroll himself in a residential treatment program to avoid a lengthy prison sentence and possible transfer to adult court. He needed his grandmother’s help. She had her own mental health issues, a low literacy level, and expressed conflicting feelings about whether and how to advocate for her grandson. Fortunately, Chris had a therapist trained in holistic defense to assist his grandmother in navigating her feelings and the treatment facility’s enrollment process, which involved an extensive back and forth with Medicaid, the facility, and the Department of Juvenile Justice, all of which needed to sign off on the plan.

Research shows that, at each stage in the process—from pretrial detention to decisions about diversion to adjudication and disposition—juvenile courts often judge a child’s need for court involvement not solely by their behavior but also by environmental factors such as their need for services.²²⁶ As a result, a growing number of defenders utilize a holistic-defense model because they recognize that providing effective counsel for children requires engagement with the child’s environment.²²⁷ These offices have social workers, youth advocates, investigators, and civil attorneys embedded on the defense team to assist defenders in better understanding and advocating for the needs of the whole child, both in and out of the courtroom.²²⁸ These interdisciplinary teams work with the child and their family to connect them to mental health treatment, employment or job training, educational accommodations, housing, financial benefits, and more.²²⁹ By helping children modify their environments, holistic teams can convince judges that children can be rehabilitated in their own communities and also help children, as Miller puts it, “extricate themselves from horrific, crime producing settings”²³⁰ and avoid recidivism.

Skeptics may argue that juvenile probation officers provide these services, and thus there is no need for extralegal support on the defense team. Indeed, probation officers have long been heralded as caring supporters for children in juvenile court, able to connect them and the family to resources.²³¹ But Gault expressly rejected the contention that probation officers can effectively represent the child’s interests because they are also charged with testifying against them.²³² While probation is often thought of as “the ideal alternative to detention,” recent scholarship has illustrated how probation often functions as a “driver of incarceration,” especially for youth of color.²³³ Many youth probation officers have benevolent intentions, but the “inordinate discretionary power”²³⁴ that the profession wields causes several thousand children to be incarcerated every year due to technical violations of probation.²³⁵ Thus, probation officers cannot gain the trust of children to the same extent as a social worker on their defense team.

One could argue that requiring specialization, free counsel, mitigation, and postdisposition advocacy is already too expensive and that adding an interdisciplinary team is a fiscal fantasy. This is shortsighted. While empirical evaluation of holistic defense remains limited, recent studies in both the adult and youth contexts have found that defendants who received holistic defense spent less time incarcerated, required fewer appearances in court, and may be less likely to recidivate.²³⁶ Thus, though expensive, such interventions could reduce the strain on the courts, public defender caseloads, and the costs of incarceration and future crime.

F. Adopt a Youth-Specific Standard for IAC Claims

Finally, to ensure that effective assistance of counsel for children is provided, there must be a proper remedy for IAC. In the adult context, the test from Strickland v. Washington requires that a defendant appealing a conviction on the basis of IAC demonstrate that (1) “counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”²³⁷ This is a notoriously difficult standard to meet for two reasons. First, the appellate court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”²³⁸ Second, proving prejudice is especially challenging because criminal defendants are in a “logical bind.”²³⁹ How can they show that they were prejudiced by counsel’s lack of investigation if they do not know what such investigation would have uncovered?²⁴⁰

Some scholars have argued that the unique vulnerabilities of children and juvenile court’s rehabilitative purpose requires an IAC standard that is more protective of children.²⁴¹ One suggestion is to adopt the ABA Standards as a constitutional benchmark for defining the activities that a lawyer must engage in to avoid deficient performance under Strickland’s first prong.²⁴² As discussed in Part III.C, the ABA guidelines were highly influential in defining the requirements of effective assistance in death penalty cases. Since the ABA also states that mitigation is essential in the juvenile context,²⁴³ the guidelines could be used to mandate mitigation among other activities in juvenile court too. In their statement of interest in a civil pattern and practice suit against a county defender in Georgia, the DOJ articulated their own youth-specific competency standards, citing the Gault Center’s standards.²⁴⁴ Adopting the ABA or Gault Center’s standards as a constitutional benchmark would ensure that the first prong of the Strickland standard has more specific and higher requirements in the juvenile context.

While there has not been widespread adoption of a youth-specific IAC standard with a more demanding first prong, Montana has rejected Strickland in juvenile cases, holding that the “highly deferential standard is insufficient.”²⁴⁵ The Montana Supreme Court further explained that juvenile cases, which affect “the development and fundamental liberty interests of youth . . . involve special considerations and present special challenges to effective representation not present in adult criminal proceedings.”²⁴⁶ While the court refrained from ruling on what the youth-specific standard would look like, since the parties had not briefed the issue, the court suggested that counsel for children “must have specialized knowledge, skills, and experience in the areas of youth court procedure, substantive youth court law, and in communicating with and counselling the youth.”²⁴⁷ Finally, the court acknowledged that “youth court defendants often present with particular disabilities and traumas,” indicating a potential requirement for additional specialized training and skills in counselling children with mental health issues.²⁴⁸

Scholars have also argued for eliminating the prejudice prong in juvenile court.²⁴⁹ Unlike calls to eliminate the prejudice requirement in adult court, which have focused on “hindsight bias” and how the prong effectively requires defendants to prove actual innocence, Professor Barbara Fedders argues that the rehabilitative purpose of juvenile court requires a different conception of what it means to be prejudiced.²⁵⁰ The Gault Court held that due process for children required assistance of counsel, not only to protect the innocent but also to provide guilty children with a perception of fairness.²⁵¹ As the Court explained, “[u]nless appropriate due process of law [including representation by effective counsel] is followed, even the juvenile who has violated the law may not feel that he is being fairly treated and may therefore resist the rehabilitative efforts of [juvenile] court.”²⁵² Therefore, “[e]ven if the deficient representation did not affect the factual finding of guilt or innocence, if it thwarted the juvenile’s rehabilitation, it may nevertheless have been constitutionally ineffective.”²⁵³

This proposition is made more plausible by recent cases that have held that prejudice can occur without demonstrating that, but for counsel’s deficiency, a convicted defendant would have been proven innocent. In Missouri v. Frye,²⁵⁴ the Court held that failure to adequately communicate with a client about a plea bargain can prejudice a client and amount to IAC.²⁵⁵ The Court further broadened the prejudice prong in Lee v. United States,²⁵⁶ holding that a defendant can show prejudice if his lawyer failed to explain the collateral consequences of conviction, causing him to accept a plea, even if he would almost certainly have lost at trial.²⁵⁷ The Court reasoned that incompetence can be prejudicial if it curtails “defendant’s decisionmaking [about how to proceed], which may not turn solely on the likelihood of conviction.”²⁵⁸

Finally, the Miller cases’ focus on children’s “capacity for change”²⁵⁹ provides further justification for an IAC standard that considers how a child’s rehabilitation is undermined by deficient representation. If the Court truly believes that a child’s character is “less fixed,” that a child can be rehabilitated,²⁶⁰ and that a denial of effective representation can cause a child to “resist the rehabilitative efforts of [juvenile] court,”²⁶¹ deficient assistance denies children what they are due even if competent representation would not have necessarily proven them innocent.

CONCLUSION

The time has come to recognize that children require more for counsel to be effective. For centuries almost every area of the law has accounted for youth.²⁶² More recently, the Court extended the obvious truth—that children are different—to the context of sentencing.²⁶³ The Court’s articulation in the Miller cases of the specific ways that children are different provides a blueprint for what counsel must do to account for their client’s vulnerabilities.

Children’s “lack of maturity and . . . underdeveloped sense of responsibility”²⁶⁴ requires their attorneys to receive specialized training and supervision on how to communicate complex legal issues at the child’s cognitive and developmental level, how to gain their trust, and how to counsel them to adjust their behaviors. Children’s susceptibility to “outside pressures” and “limited ‘contro[l] over their own environment’”²⁶⁵ requires counsel to avoid common conflicts of interest with parents and to engage in holistic representation, which assists children in navigating their environment. Children’s “less fixed”²⁶⁶ nature and “greater capacity for change”²⁶⁷ requires postdisposition advocacy to blow the whistle if rehabilitative programming is not being provided or to advocate for a less restrictive environment if the child has already rehabilitated. Finally, since these differences outlined by the Miller cases converge to make children “less culpable than adults,”²⁶⁸ their attorneys must engage in mitigation to show how their “youth and attendant characteristics”²⁶⁹ make them less deserving of punishment. These changes will not be easy, but there are examples of defenders across the country already leading the way. Let us follow them. It is what our society’s most vulnerable need and deserve.