Skip navigation

Mississippi Juvenile Court Representation Assessment-2007

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Mississippi
An Assessment
o f Acc e s s to Co u n s e l a n d
Q u a l i t y o f R e p r e s e n tat i o n
i n Y o u t h C o u r t Pr o c e e d i n g s

National Juvenile Defender Center
i n c o l l a b o r at i o n w i t h

Mississippi Youth Justice Project
Southern Poverty Law Center

Mississippi
An Assessment
o f Acc e s s to Co u n s e l a n d
Q u a l i t y o f R e p r e s e n tat i o n
i n Y o u t h C o u r t Pr o c e e d i n g s

written by

Patricia Puritz
Robin Walker
National Juvenile Defender Center
Jennifer Riley-Collins • Sheila A. Bedi
Mississippi Youth Justice Project
A Project of the Southern Poverty Law Center
fa l l 2 0 0 7

Acknowledgements
This assessment highlights the critical importance of and serious need for zealous advocacy on behalf
of Mississippi’s youth. It focuses on access to counsel and the quality of representation for indigent children in youth court proceedings; however, it should be noted that the problems discussed in this report
are often entangled with issues of race and socioeconomic status that are beyond the scope of this assessment. Our sincere hope is that this assessment will be a vehicle for improving the provision of justice to
all of Mississippi’s youth.
We are grateful to the juvenile defenders across Mississippi who took time out of their very busy
schedules to meet with our assessment team members and share the problems and issues that juvenile defenders face as they represent indigent children in youth courts. We would also like to thank
the judges, prosecutors, and youth court counselors who allowed us into their courtrooms, took part
in interviews, and offered candid remarks about their views of the state of juvenile indigent defense in
their counties.
We are honored to have had the support of the Supreme Court of Mississippi, and look forward to continuing to work with Chief Justice James W. Smith, Jr., Justice James Graves, and the other esteemed
members of the Supreme Court, as well as Chief Judge Leslie King of the Mississippi Court of Appeals.
Thank you for endorsing this assessment and for your willingness to explore these important issues.
We would also like to acknowledge Representative George Flaggs, Jr., Chairman of the House Juvenile
Justice Committee for his tireless efforts to improve Mississippi’s youth court process. He has been supported by the members of the House Juvenile Justice Committee including Representatives Kelvin Buck,
John Hines, Erik Flemming, Bryant Clark, and Carmel Wells-Smith. We would also like to acknowledge
Representative Ed Blackmon for his leadership in improving indigent defense services throughout the
state. Mississippi’s youth also have staunch advocates in the state senate including Judiciary B Chairman
Senator Gray Tollison, and Senators John Horhn, Willie Simmons, and Johnnie Walls.
We are very grateful for the comprehensive work of the assessment team members and advisory
board members who graciously donated their time and expertise as on-site interviewers and advisors. They include:
Derwyn Bunton, Juvenile Justice Project of Louisiana
Vanessa Carroll, Summer Intern for the Southern Poverty Law Center
Gabrielle Celeste, Alliance of Child-Caring Service Providers
Monique Dixon, Advancement Project
Kristin Henning, Juvenile Justice Clinic, Georgetown University Law Center
Damon Hewitt, NAACP Legal Defense and Educational Fund
Greta Locklear, Child Advocacy Committee, Mississippi Bar Association
David Miller, Mississippi Center for Justice
Laval Miller-Wilson, Juvenile Law Center
Christopher Northrup, Cumberland Legal Aid Clinic
Lourdes Rosado, Juvenile Law Center
Mary Ann Scali, National Juvenile Defender Center
Kim Brooks Tandy, Central Juvenile Defender Center and Children’s Law Center
Ranie Thompson, former Staff Attorney for the ACLU of Mississippi
Lisa Thurau-Gray, Juvenile Justice Center, Suffolk University Law School
Joseph Tulman, University of the District of Columbia, David A. Clarke School of Law
Eric Zogry, State of North Carolina Office of the Juvenile Defender

Contents

Acknowledgements	

5

Executive Summary	

7

Introduction	
chapter one

The Background for the Legal Representation of Youth	
chapter two

Role of Counsel in Delinquency Proceedings	
chapter three

Assessment Findings	
chapter four

The Impact of Hurricane Katrina on Youth Justice in Mississippi	
chapter five

11
16
19
28
50

Conclusion & Recommendations	

53

Endnotes	

56

Appendix One	

63

Appendix Two	

65

Appendix Three	

72

Appendix Four	

88

Executive Summary

In 1995, a national assessment of the legal representation of children in
delinquency proceedings was conducted by the American Bar Association’s Juvenile Justice Center, in collaboration with the Juvenile Law
Center and the Youth Law Center. The findings were published in A
Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings. The report was the first national
assessment of its kind and laid the foundation for a closer examination
of the juvenile indigent defense systems in each individual state.
The Mississippi assessment of access to counsel and quality of representation in youth
court proceedings is part of a national effort to
address deficiencies and highlight strengths in
juvenile indigent defense practices. Forty years
after the United States Supreme Court ruled in
In re Gault that children in the delinquency system have a right to counsel, the promise of this
decision remains largely unfulfilled. The goal of
this assessment is to evaluate juvenile defense
practices in Mississippi, reveal systemic obstacles that impede just and balanced outcomes
for children in Mississippi’s youth court system,
and offer recommendations for change.
The information in this report was collected from
a variety of sources. In April 2004, the Mississippi
Coalition for the Prevention of Schoolhouse to
Jailhouse, the Southern Poverty Law Center, the
Mississippi Center for Justice, and the National
Juvenile Defender Center began a thorough
assessment of Mississippi’s juvenile indigent
defense system. With the support of Chief Justice
James W. Smith, Jr., of the Supreme Court of Mississippi, a team of highly-trained local advocates
and national experts observed youth court proceedings and visited juvenile detention centers
in counties across Mississippi during the summer
of 2005, before the arrival of Hurricane Katrina.
The investigative assessment team of 18 members
conducted site visits and court observations in 15
representative counties across Mississippi. At

each site, investigators interviewed juvenile justice system stakeholders, observed juvenile court
proceedings, and gathered documentary evidence. The teams also visited detention centers
and interviewed detention center staff. The data
gathered from these observations and interviews
were supplemented by survey results received
from more than 150 youth court personnel across
the state. The National Juvenile Defender Center and its partners also reviewed research and
reports relevant to the Mississippi juvenile justice system.
I. Significant Findings

The assessment team investigators encountered
many devoted and talented lawyers for children
throughout Mississippi. Despite serious challenges, a few of these advocates were able to
provide remarkable legal services to children;
their professionalism, commitment, and dedication were unmistakable. But sadly, vigorous
representation was the exception, not the rule.
As discussed in greater detail in the pages that
follow, this assessment identifies serious shortcomings in the juvenile indigent defense system
that should be remedied as soon as possible.
While this report is comprehensive in its findings and recommendations concerning the
quality of indigent defense representation and
systemic barriers to effective representation,
some of the most significant findings include:

Mississippi • Fall 2007  7

Untimely Appointment of Counsel
Although Mississippi’s youth court statute
requires that, in juvenile cases, “the child shall
be represented by counsel at all critical stages”
of the proceedings,1 juvenile defense counsel is
often appointed too late in the process to have a
meaningful impact at critical stages of the case.
Many Mississippi youth courts do not appoint
counsel at important early stages of the proceedings, including interrogation, intake, and
even detention hearings. In many counties,
even when counsel is appointed at the detention hearing, the appointment comes too late.
The fact that counsel is appointed at the hearing, and not before the hearing, when counsel
might have time to adequately prepare, robs the
majority of youth of meaningful representation
at this very important stage. A detained child
faces serious consequences. In the short term, a
detained client cannot assist as well in preparing
for adjudication, and does not make as good an
impression on the court as a client who has been
released.2 In the long-term, studies show that
time spent in detention increases the likelihood
that a child will recidivate,3 in part because the
child is likely to make negative peer connections,4
and because positive, community-based relationships (in particular, with the child’s family) are
interrupted. The belated appointment of counsel
is effectively denying Mississippi’s children adequate access to counsel.
Excessive Caseloads and Inadequate Resources
The quality of youth court representation in
Mississippi is severely compromised by defenders’ staggering caseloads and sparse resources.
Mississippi’s court-appointed juvenile defenders struggle with high caseloads. One juvenile
defender reported having as many as 500 cases
each year, making it impossible for him to deliver
the individualized and zealous representation
each child deserves. Defenders also struggle with
inadequate resources, as illustrated by the uniform
lack of access to support staff, technology, investigators, social workers, and experts. In county after
county, Mississippi juvenile defenders contended
that they do not receive adequate compensation
for their critically important work. Judges, attorneys, and youth court personnel all agree that
low fees prevent court-appointed defenders from

investing the necessary time on youth court cases.
In addition, the courts have no system for tracking
the number of cases handled by each court-appointed defender, thereby depriving judges and
policy makers of an important measure of indigent defense systems—because court-appointed
defenders with limitless caseloads cannot provide
adequate representation.
Lack of Zealous Advocacy
Across the state, investigators observed that the
level of advocacy provided for indigent youth in
Mississippi was less than zealous. Investigators
saw few defenders meeting with their clients
before hearings, and in many hearings, defenders stood silent as their clients were detained,
adjudicated guilty, or sentenced to inappropriate
dispositions. There is little to no pre-adjudication advocacy, little to no appellate advocacy,
and very little investigation of youth’s cases.
While the assessment team did see some examples of dedicated and creative advocacy, such
advocacy was neither widespread nor common.
Confusion over the Role of Defense Counsel
Ethical standards mandate that the juvenile
defender’s duty is to represent the client’s legitimate expressed interests. Investigators found a
pervasive youth court culture in which juvenile
defenders are expected, and even pressured,
to adopt a “best interest” model of defense
representation. Most disturbingly, defenders
themselves are confused about their ethical
obligations. Defenders across the state reported
to investigators that their role was to safeguard
their clients’ best interests, and admitted to substituting their own judgment for their clients’
legitimate expressed interests.
Overflow of School Referrals
Mississippi youth courts are overrun with referrals
from local schools where children are arrested for
mostly minor offenses, like not wearing the school
uniform properly, disobeying the teacher, or schoolyard fights. These cases comprise a measurable
percentage of the juvenile justice docket. They drain
juvenile justice system resources, clog youth court
dockets, and fill detention center beds. The juvenile
justice system is simply no substitute for effective
school discipline practices.

8  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

II. Conclusions & Core Recommendations

The State Legislature should:
• Establish and fund an indigent defense system that can ensure caseloads within national
standards, adequate support systems, and
ongoing training for juvenile defenders.
• Increase the resources available to the
youth court defenders — including access
to independent experts, social workers, and
investigators.
• Fund a continuum of community-based
dispositions, so judges have meaningful alternatives to secure care.
• Prohibit secure detention for children
who are detained only because their parents/guardians are unable or unwilling to
care for them.
Bar associations should:
• Create standards for juvenile defenders
who represent children in youth court proceedings.
Mississippi Youth Court Judges should:
• Appoint attorneys at the earliest possible
stage in all juvenile cases — ideally as soon
as a child is determined indigent, but always
prior to initial hearings.
• Ensure that counsel has a meaningful
opportunity to meet with the client and prepare for the hearings.
• Ensure all youth fully understand their
rights, including their right to appeal, before
all proceedings.
• Provide private facilities at the courthouse
to defense counsel for client consultation,
and ensure that the physical arrangement of
the courtroom reinforces the roles and relationships of the parties, so that children are
seated next to and can consult freely with
their attorneys.
• Ensure attorneys are compensated for all
reasonable work including client meetings,
investigations, legal research, motions practice, dispositional planning, and appeals.
• Provide attorneys with meaningful access
to independent investigators, experts, and
other support when necessary.

• Provide leadership in working with school
officials and mental health providers to
ensure that youth court is not the dumping
ground for those systems.
Juvenile defenders should:
• Always represent the expressed legitimate
interests of their clients.
• Regularly meet with clients before the day
of court, investigate cases, actively represent youth at initial and detention hearings,
and have regular post-hearing debriefings to
ensure that clients understand the proceedings and their right to appeal.
• Ensure that effective representation happens at the earliest possible stage in juvenile
court proceedings and remains zealous
throughout the process.
• Develop expertise through ongoing training on juvenile justice related issues.
Mississippi law schools should:
• Provide increased opportunities for law
students’ involvement in youth court through
internships, clinics, and fellowships.
• Offer continuing legal education courses
to improve the quality of representation in
youth court.
Law enforcement should:
• Mandate training on developmental differences between youth and adults to help
officers understand adolescents’ decisionmaking abilities.
• Track juvenile arrest data according to race
to develop a baseline concerning the overrepresentation of African Americans in the
juvenile justice system.
Public schools should:
• Reduce the number of school-based referrals to the juvenile justice system by entering
into agreements with law enforcement, youth
courts, and mental health providers to specify objective criteria for school-based youth
court referrals and ensuring that school discipline policies are evidenced-based best
practices. k

Mississippi • Fall 2007  9

Introduction

This assessment of access to counsel and quality of representation
in youth court proceedings is part of a national effort to review juvenile indigent defense delivery systems throughout the country, and to
evaluate whether juvenile defenders are fulfilling their constitutional
and ethical obligations in representing their young clients. It aims
to provide information about the role of defense counsel, to identify
structural or systemic barriers to more effective representation of
youth who stand accused of offenses, and to make recommendations
for ways to improve the delivery of juvenile defender services in each
state across the nation.
The job of juvenile defense counsel is complex
and challenging. Juvenile defense attorneys
must have all the legal knowledge and courtroom skills of a criminal defense attorney
representing adult defendants. In addition, juvenile defenders must be aware of the strengths
and needs of their juvenile clients and of their
clients’ families, communities, and other social
structures. Juvenile defenders must be able to:
• Understand child and adolescent development
to communicate effectively with their clients;
• Evaluate the client’s level of maturity and
competency and its relevancy to the delinquency case;
• Have knowledge of and contacts at community-based programs to compose an individualized
disposition plan;
• Enlist the client’s parent or guardian as an ally
without compromising the attorney-client relationship;
• Know the intricacies of mental health and
special education law, as well as the network
of schools that may or may not be appropriate
placements for the client; and
• Communicate the long- and short-term collateral consequences of a juvenile adjudication,
including the possible impact on public housing,
school and job applications, eligibility for financial aid, and participation in the armed forces.

10  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

For all of these reasons and more, it is critical
that juvenile indigent defense systems be comprehensively assessed to ensure that resources
are allocated wisely and that children are
receiving the legal protections that they are
constitutionally guaranteed.
I. Due Process and the Juvenile Justice System

The first specialized juvenile court in the United
States was created on July 3, 1899, as part of an
Illinois legislative act establishing the juvenile court division of the circuit court for Cook
County.5 Supporters of this reform sought
to shield youth from the harsh conditions in
prisons, and to improve children’s chances at
becoming productive citizens.6 Because the
intent of the 1899 Illinois legislation aimed to
help youth rather than to punish them, the state
law required only cursory legal proceedings.7
There were no defense attorneys. Social workers and behavioral scientists assisted the court
in carrying out the most appropriate disposition
of the cases. Detained youths were separated
from adult offenders and placed in training and
industrial schools, as well as in private foster
homes and institutions.8 Probation officers were
hired to facilitate children’s adjustment. This
type of specialized juvenile court was quickly
duplicated in the larger cities of the East and

Mississippi • Fall 2007  11

Midwest, so that by 1925, some form of juvenile
court existed in all but two states.9
Until the 1960s, constitutional challenges to
juvenile court practices and procedures were
consistently overruled. Children were denied
the right to counsel. They did not have any
immunity against self-incrimination. They could be convicted on
hearsay testimony.10 They could
also be convicted by only a preponderance of the evidence.
Rulings found that juvenile proceedings were civil in nature and
that their purpose was to rehabilitate rather than punish.11 Research
on the juvenile justice system
had begun to show that juvenile
court judges often lacked legal
training;12 that probation officers
were undertrained and that their
heavy caseloads often prohibited
meaningful social intervention;
that children were still regularly
housed in jails; that juvenile correctional institutions were often,
in reality, little more than breeding grounds for further criminal
activity; and that juvenile recidivist rates were high.

Fourteenth Amendment. The Court expressed
concern that youth in juvenile court were getting “the worst of both worlds … neither the
protections accorded to adults nor the solicitous
care and regenerative treatment postulated for
children.”16 The Court continued: “[t]he probation officer cannot act as counsel for the child.

The Court concluded that no
matter how many court personnel
were charged with looking after
the accused child’s interests,
any child facing “the awesome
prospect of incarceration”
needed “the guiding hand of
counsel at every step in the
proceedings against him” for the
same reasons that adults facing
criminal charges need counsel.

In 1963, the United States Supreme
Court held that the Sixth Amendment requires
that indigent adults charged with a felony offense
be appointed an attorney at public expense. In
that landmark case, Gideon v. Wainwright,13 Justice Hugo Black wrote for a unanimous court
that “any person … too poor to hire a lawyer cannot be assured a fair adjudication unless counsel
is provided for him,” explaining that “lawyers in
criminal court are necessities, not luxuries.”14
In the wake of Gideon, in a series of cases starting in 1966, the Supreme Court extended this
and other bedrock elements of due process to
youth charged in delinquency proceedings.
Arguably the most important of these cases, In
re Gault15 held that juveniles facing delinquency
proceedings have the right to counsel under
the Due Process Clause of the United States
Constitution, applied to the states through the

His role … is as arresting officer and witness
against the child. Nor can the judge represent
the child.”17 The Court concluded that no matter
how many court personnel were charged with
looking after the accused child’s interests, any
child facing “the awesome prospect of incarceration” needed “the guiding hand of counsel at
every step in the proceedings against him” for
the same reasons that adults facing criminal
charges need counsel.18
The introduction of advocates to the juvenile
court system was meant to infuse the informal
juvenile court process with more of the zealously-guarded constitutional protections of adult
criminal court and their attendant adversarial
tenor. Noting that the “absence of substantive
standards has not necessarily meant that children
receive careful, compassionate, individualized

12  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

treatment,”19 the Court determined that a child’s
interests in delinquency proceedings are not
adequately protected without adherence to due
process principles. In addition to the right to
counsel, Gault also extended to youth the right
to notice of the charges against them, the privilege against self-incrimination,20 and the right to
confront and cross-examine adverse witnesses.21
In later cases, the Court held that a youth cannot be adjudicated delinquent unless the state
proves his guilt beyond a reasonable doubt,22
that a delinquency proceeding constitutes being
placed “in jeopardy” and bars future prosecution for the same allegations,23 and that youth
have the right to a formal hearing and an attorney before being transferred to adult court for
criminal prosecution.24 In each of these cases,
the Court reaffirmed, that “civil labels and good
intentions do not themselves obviate the need
for criminal due process safeguards in juvenile
court[.]”25 As the President’s 1967 Commission on
Law Enforcement and the Administration of Justice stated, “No single action holds more potential
for achieving procedural justice for the child in
juvenile court than the provision of counsel. The
presence of an independent legal representative
of the child, or his parent, is the keystone to the
whole structure of guarantees that a minimum
system of procedural justice requires.”26
Perhaps most importantly, through this line of
due process cases, juveniles accused of delinquent acts were to become participants, rather
than spectators, in their court proceedings. The
Court observed specifically that juvenile respondents needed defenders to enable them “to cope
with problems of law, to make skilled inquiry into
the facts, to insist upon regularity of the proceedings, and to ascertain whether [the client] has a
defense and to prepare and submit it.”27 By the
early 1980s, there was professional consensus
that defense attorneys owe their juvenile clients
the same duty of loyalty as adult clients.28 That
coextensive duty of loyalty requires defenders to
represent the legitimate “expressed interests” of
their juvenile clients, and not the “best interests”
as determined by the attorney.29
With its decisions in Gault and other cases, the
Court moved the treatment of youth in juvenile justice systems into the national spotlight.

In 1974, with a goal of protecting the rights of
children, Congress enacted the Juvenile Justice and Delinquency Prevention Act (JJDPA).30
The JJDPA created the National Advisory Committee for Juvenile Justice and Delinquency
Prevention, which was charged with developing national juvenile justice standards and
guidelines. The National Advisory Committee
standards, published in 1980, require that children be represented by counsel in delinquency
matters from the earliest stage of the process.31
At the same time, several non-governmental
organizations also recognized the necessity of
protections for youth in delinquency courts. Beginning in 1971, and continuing over a ten-year period,
the Institute of Judicial Administration (IJA) and
the American Bar Association (ABA) researched,
developed, and produced 23 volumes of comprehensive juvenile justice standards, annotated with
explicit policies and substantive commentary.32
The IJA/ABA Joint Commission on Juvenile Standards relied upon the work of approximately 300
dedicated professionals across the country with
expertise in many disciplines relevant to juvenile
justice practice, including the law, the judiciary,
social work, corrections, law enforcement, and
education. The Commission circulated draft standards to individuals and organizations throughout
the country for comments. The final standards,
which were adopted by the ABA by 1982, were
crafted to establish a model juvenile justice system, one that would not fluctuate in response to
transitory headlines or controversies.
Congress reauthorized the JJDPA in 1992, reaffirming the importance of the role of defense
counsel in delinquency proceedings, specifically noting the inadequacies of prosecutorial
and indigent defense delivery systems charged
with providing individualized justice. Recognizing the need for more information about the
functioning of delinquency courts across the
country, Congress asked the federal Office of
Juvenile Justice and Delinquency Prevention
(OJJDP) to address the issue.
One year later, in 1993, OJJDP responded to
Congress’ request by funding the Due Process
Advocacy Project, led by the ABA Juvenile Justice Center, together with the Youth Law Center

Mississippi • Fall 2007  13

and the Juvenile Law Center. The purpose of
the project was to build the capacity and effectiveness of the juvenile defense bar to ensure
that children have meaningful access to qualified counsel in delinquency proceedings. One
result of this collaboration was the 1995 release
of A Call for Justice: An Assessment of Access to
Counsel and Quality of Representation in Delinquency Proceedings, a national review of the
legal representation of children in delinquency
proceedings.33 The first systemic national assessment of its kind, the report laid the foundation
for a closer examination of access to counsel, the training and resource needs of juvenile
defenders, and the quality of legal representation provided by each state’s juvenile indigent
defense system. The report highlighted the gaps
in the quality of legal representation for indigent children across the country. While many
juvenile defenders represent their clients with
inspiring skill and zeal, the report reached the
disturbing conclusion that instances of model
advocacy are found few and far between, and
that effective juvenile representation is impeded
by insidious systemic barriers. Forty years after
Gault’s recognition of the importance of the
right to counsel for youth, the promise of effective delinquency representation remains elusive
for many poor children.
In the ten years since the publication of A Call
for Justice, several reports have indicated serious
problems with Mississippi’s juvenile indigent
defense system. In 1995, 1997, and 1998, the Mississippi Bar Association consistently found that
“funding for indigent defense in Mississippi is
totally inadequate,” and “results in poor quality
service and representation.”34 A 2000 study by
the Mississippi Administrative Office of Courts
documented a broken and vastly under-resourced system in which youth court-appointed
defenders almost never spoke to children or
witnesses prior to court appearances.35 Defenders rarely investigated alternative sanctions
and hardly ever spoke to family members. A
2003 report by the National Association for the
Advancement of Colored People Legal Defense
and Educational Fund found that “the state of
Mississippi ignores its constitutional obligation
to provide adequate counsel for the poor,” resulting in children as young as 14 years old being

held in adult jails, where they wait for months
to speak with an attorney.36 The report further
found that “[h]undreds of juvenile defendants in
youth court proceedings are represented by lawyers who never file motions, interview witnesses,
or challenge the state’s evidence in any way.”37
The deficiencies highlighted in A Call for Justice led to the founding, in 1998, of the National
Juvenile Defender Center, to provide a permanent capacity to support front-line juvenile
defenders across the country. Since 2005, the
National Juvenile Defender Center has been an
independent, non-partisan organization devoted
to ensuring excellence in juvenile defense and
promoting justice for all children.
The findings of A Call for Justice prompted an
outpouring of concern from judges and lawyers
across the country, and pointed to the need for
state-specific assessments to guide and inform
legislative reforms. In response, a methodology was developed to conduct comprehensive
assessments of access to counsel and quality of representation in individual states. Since
1995, state-specific juvenile defense assessments have been conducted in 15 states: Florida,
Georgia, Indiana, Illinois, Kentucky, Louisiana,
Maine, Maryland, Montana, North Carolina,
Ohio, Pennsylvania, Texas, Virginia, and Washington. Re-assessments have been conducted in
Kentucky and Louisiana. County-based assessments were conducted in Cook County, Illinois,
Marion County, Indiana and Caddo Parish, Louisiana. A new assessment is underway in West
Virginia, and the National Juvenile Defender
Center is continuously working with leaders in
states who are interested in conducting juvenile
indigent defense assessments.
II. This Assessment and Its Methodology

In April 2004, the Mississippi Coalition for the
Prevention of Schoolhouse to Jailhouse, the
Southern Poverty Law Center , and the Mississippi Center for Justice united with the National
Juvenile Defender Center to launch a thorough
assessment of Mississippi’s juvenile indigent
defense system. With the support of Chief Justice James W. Smith, Jr., of the Supreme Court
of Mississippi, a team of highly-trained local
advocates and national experts observed youth

14  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

The primary goal of this assessment is to encourage
excellence in juvenile defense and to promote justice
for youth in Mississippi’s juvenile justice system.
Assessments also provide policy makers and leaders
with accurate baseline data so that they can make
informed decisions as they proceed with reform efforts.

court proceedings and visited juvenile detention
centers in fifteen Mississippi counties during the
summer of 2005, before the arrival of Hurricane
Katrina. The primary goal of this assessment is to
encourage excellence in juvenile defense and to
promote justice for youth in Mississippi’s juvenile
justice system. Assessments also provide policy
makers and leaders with accurate baseline data
so that they can make informed decisions as they
proceed with reform efforts. The assessment evaluates whether Mississippi youth have meaningful
access to counsel in delinquency proceedings,
highlights the significant, systemic barriers to
quality representation, including resource allocation, funding, and other challenges, and provides
recommendations for improving Mississippi’s
juvenile indigent defense delivery system.
The information in this report was gleaned from
a variety of sources. An investigative assessment
team of 18 members conducted site visits and
court observations in 15 representative counties across Mississippi. These counties were
selected based on a comprehensive analysis
of state demographics, crime trends, and indigent defense delivery systems. The assessment
team included private practitioners, academics,
current and former public defenders, defender
managers, and juvenile justice advocates; all the
investigators were very familiar with the role of
defenders in youth court. Investigators visited
each site to conduct interviews, observe juvenile court proceedings, and gather documentary

evidence. Using interview protocols developed
by the American Bar Association Juvenile Justice Center and the National Juvenile Defender
Center, the team conducted extensive interviews
at each site with youth court judges, defenders,
prosecutors, counselors, parents, and court-involved youth. The teams also visited detention
centers and interviewed detention center staff.
Demonstrative and anecdotal data gathered from
these observations and interviews were supplemented by survey results received from more
than 150 youth court personnel across the state.
The National Juvenile Defender Center and its
partners also reviewed research and reports relevant to the Mississippi juvenile justice system.
Chapter One contains a discussion of the background for the legal representation of youth
in Mississippi. Chapter Two includes a review
of relevant Mississippi law. The data resulting
from the research and site visits are summarized
in Chapter Three, Assessment Findings, which
includes the findings regarding meaningful
access to counsel, ethical and role confusion, the
culture of juvenile court, and other barriers that
affect the quality of representation of Mississippi youth. Chapter Four contains a description
of the effect of Hurricane Katrina on Mississippi’s juvenile indigent defense delivery system.
Chapter Five includes recommendations to propel reform initiatives to improve the quality of
representation for indigent youth in Mississippi’s juvenile justice system. k

Mississippi • Fall 2007  15

chapter one

T h e B a c kg r o u n d f o r t h e
L e g a l R e p r e s e n tat i o n o f Yo u t h
I . P o v e r t y, D e l i n q u e n c y, a n d J u s t i c e S t a t i s t i c s

It is not easy to be a child in Mississippi. Abysmal rankings in overall
child well-being are common to all Deep South states, but Mississippi
has ranked as the worst of the worst since 1999. According to the Annie
E. Casey Foundation’s 2006 KIDS COUNT Data Book, the state of Mississippi holds the lowest rank in the country for percentage of low-weight
babies, percentage of children living in poverty, and infant mortality
rates.38 Mississippi ranks only slightly higher for child death rates,
teen death rates, teen pregnancies, and high
school dropout rates.39 Mississippi’s youth court
involved children, who are disproportionately
African American40 and desperate for mental
health services, are among the most vulnerable youth in the country. A study commissioned
by the state of Mississippi found that up to 80%
of incarcerated juveniles live with some form
of mental illness.41 Approximately 80% of the
children locked up in Mississippi are AfricanAmerican.42 Yet African Americans comprise
only 36% of Mississippi’s overall population.43
According to state data, Mississippi’s court-involved youth are also overwhelmingly non-violent
offenders. Mississippi law provides that serious
offenders over the age of 13 are tried as adults, 44
and if convicted, serve time in the Department
of Corrections.45 Children often find themselves
under youth court jurisdiction for school related
offenses: truancy, schoolyard fights, and disruptive
classroom behavior. 46 If adjudicated delinquent,
these children are ordered into the Department of
Human Services’ programs.
Experts agree that more community-based sanctions and fewer jail cells are the only proven
ways to reduce juvenile delinquency.47 Without

these community-based programs, youth with
behavioral, mental health, and substance abuse
problems who pose no threat to public safety
may end up behind bars. 48
The law related to Mississippi’s juvenile justice system has gained national attention. In
1979, the National Council of Juvenile and
Family Court Judges recognized the Mississippi youth court law as a national model for
juvenile justice legislation. And in May 2005,
the Center for Policy Alternatives named Representative George Flaggs, the architect of the
Juvenile Justice Reform Act of 2005, “Legislator of the Month” for his juvenile justice
reform efforts. Several recent lawsuits over
conditions in Mississippi’s juvenile facilities
and reports issued by the state and federal
governments indicate that Mississippi has
faced some profound challenges protecting
the rights of at-risk youth.49
II. The Impact of Hurricane Katrina

On August 28 and 29, 2005, Hurricane Katrina
cut a two-day path of destruction through Mississippi. Many of Mississippi’s coastal towns
were literally leveled overnight. Hurricaneforce winds reached coastal Mississippi by 2 a.m.

16  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  17

chapter two

Without these communitybased programs, youth with
behavioral, mental health, and
substance abuse problems
who pose no threat to public
safety may end up behind bars.
and lasted over 17 hours, producing 11 tornadoes50
and a 28-foot storm surge that flooded 6-12 miles
inland.51 The pictures of those who were unable to
evacuate, trapped on their rooftops, scrambling to
climb trees, or swimming through the flood waters
have been seared into the national consciousness.
Afterward, over 231 people died in Mississippi,52
and forty-nine counties were declared disaster
areas for federal assistance.53
Almost two years later, the extent of the devastation in Mississippi is still staggering. Approximately
61,400 homes and apartments sustained severe or
major damage from the storms.54 More than 3,300
businesses were damaged throughout the state.55
In a state of just 2.9 million residents, more than
one in six Mississippians have sought help.56 More
than 97,000 people are still living in FEMA trailers and mobile homes.57 Many neighborhoods are
still piled high with storm debris. For the poorest
Mississippians, the hurricane dealt a “disproportionate, catastrophic blow.”58
III. Structure of the Juvenile
Indigent Defense System

Mississippi has 82 counties. In some counties,
Chancery Courts exercise jurisdiction over delinquency proceedings. In other counties, youth court
divisions of county courts exercise delinquency
jurisdiction.59 There are also two municipal youth
courts. Chancery Courts are courts of general
jurisdiction. Youth court divisions of county courts
are limited jurisdiction courts.
Except for death penalty trials,60 death penalty post-conviction proceedings,61 and felony
appeals62 the state of Mississippi does not

fund a statewide indigent defense
system.63 Instead, each individual
county appropriates monies to support its indigent defense services.
Unfortunately, many counties place
a very low priority on their obligation to contribute to the defense
of their poor citizens.64 As of 2003,
only three Mississippi counties had
an office staffed by one or more
full-time public defenders.65 Most
counties either contract with parttime defenders who split their time
with private practice, or appoint
private attorneys to represent indigent defendants on an as-needed basis. The rates paid to
appointed counsel vary from county to county.
But as of 2003, only one state — North Dakota
— spends less on indigent defense.66 And, as
limited as resources for adult criminal defense
are, funds for juvenile indigent defense are
even more scarce.67

Nonetheless, there has been a groundswell
of support for a statewide indigent defense
system. In 1996 and again in 1999, two overworked public defenders sued the state and
their counties, on the grounds that insufficient funding and resources forced them to
provide constitutionally deficient representation.68 The Mississippi Bar Association has
consistently found that “funding for indigent
defense in Mississippi is totally inadequate,”
and “results in poor quality service and
representation.”69 In 1998, the Mississippi legislature passed the Statewide Public Defender
System Act, 70 but failed to allocate funds to
implement this legislation. In 1999, three
counties sued the state to force it to share
the cost of providing indigent defense services.71 In 2000, the Statewide Public Defender
System Act was repealed; legislators faulted
budget constraints.72 In 2001, the Mississippi
Supreme Court ruled that Quitman County
had made enough of a prima facie showing to
proceed to adjudication.73 In that case, several
district attorneys, the Mississippi Association
of Supervisors, and the sheriffs of 11 counties filed amicus briefs in support of Quitman
county, calling for reform of Mississippi’s
indigent defense delivery system.74 k

18  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Role of Counsel in
Delinquency Proceedings
I. Mississippi Youth Court’s Policy, Purpose, and Proceedings

The policy statement of Mississippi’s youth court statute promises
that children under youth court jurisdiction will receive “care, guidance and control, preferably in such child’s own home as is conducive
toward that end and is in the state’s and the child’s best interest” to
become “a responsible, accountable and productive citizen.” The
“public policy” of the state is that “the parents of each child shall be
primarily responsible for the care, support, education, and welfare of
[their] children[.]” When it is necessary that
a child be removed from the control of his or
her parents, the youth court is legally bound to
secure “proper care” for that child.75

establish sentencing restrictions and dispositional requirements meant to encourage more
community-based placements.

The youth court policy statement reveals three
foundational principals of Mississippi’s youth
court system. The first bedrock principle is
that children are fundamentally different than
adults. The second principle is that the primary
goal of every youth court is to mold each child
before it into “a responsible, accountable and
productive citizen.”76 The third fundamental
principle is a strong preference for community-based placements. Based on these principles,
the architects of the Mississippi Youth Court
Act designed a system in which the judge’s
role extends far beyond determining whether
or not a child has committed a “delinquent”
act.77 Mississippi youth court judges must also
explore the underlying causes of the child’s
behavior and ensure that the child receives the
“care, guidance and control” necessary to prevent similar conduct in the future.78 The intent
in the statute was reaffirmed with the passage
of the Juvenile Justice Reform Act of 2005
and the Mississippi Juvenile Delinquency Prevention Act of 2006, relatively new laws that

The youth court has exclusive jurisdiction in all
proceedings concerning a delinquent child except:
1) when the act attempted or committed by the
child would be punishable under state or federal
law by life imprisonment or death if committed by
an adult or 2) the act attempted or committed by
the child involved the use of a deadly weapon or
concealed weapon, and would constitute a felony
if committed by an adult. In those cases, original
jurisdiction will be in the circuit court.

II. Jurisdiction and Venue

When a child is expelled from school, the youth
court is notified of the expulsion and “the act
constituting the basis for expulsion.”79 This
reporting does not automatically mean that a case
is opened in youth court. Intake counselors have
great discretion in determining whether to initiate the youth court process against a suspended
student. In some courts, if a referral is made the
court requires the school district to act as a complainant. In other jurisdictions the youth court
counselor collects information about suspensions
and records it in the youth’s file. This information

Mississippi • Fall 2007  19

may then be used against the child in later proceedings (i.e. to support allegations of a probation
violation or contempt of court).
 
Jurisdiction over the child attaches at the time
of the offense and continues — for that offense
— until the child’s 20th birthday, unless jurisdiction is terminated by order of the youth court.
The youth court does not have jurisdiction over
felony offenses committed after the child’s 17th
birthday,80 or over any offenses committed after
the child’s 18th birthday.81 The minimum age of
prosecution in Mississippi is 13; in other words,
no child under the age of 13 can be held criminally responsible or be criminally prosecuted
for a misdemeanor or felony.82 But children
as young as 10 years old can be found delinquent and incarcerated in Mississippi’s training
schools and juvenile detention centers.83
Youth court judges are empowered to “issue
all writs and processes including injunctions
necessary to the exercise of jurisdiction and to
carrying out the purpose of this chapter.”84 Any
person who refuses to comply with an order of
the youth court is in contempt of court and may
be punished by a fine under $500 or imprisonment not to exceed 90 days.85
 
Delinquency proceedings should occur in
the county where any of the charged acts are
alleged to have occurred. But after adjudication,
the court may, in the best interests of the child,
transfer the case to the county where the child
lives or where a youth court has previously had
jurisdiction.86
In counties that do not have a youth court judge,
the presiding circuit court judge may appoint a
referee “who shall be [an attorney] at law and
[member] of the bar in good standing to act
in cases concerning children.” However, only
referees appointed after July 1, 1991 must be
attorneys.87 A referee “possess[es] all [the] powers and perform[s] all the duties of the youth
court judge.”88
III. Transfer of Jurisdiction
for Adjudication as Adult

A child may be transferred to the circuit court
for prosecution as an adult in two ways: 1) by

discretionary waiver89 or 2) by statutory exclusion from youth court when the child is charged
with an offense that falls “in the original circuit court jurisdiction” rather than youth court
jurisdiction.90 The minimum age for transfer in
Mississippi is 13 years old.91
Before a child can be transferred by discretionary
waiver, the court must hold a transfer hearing.
The judge may transfer jurisdiction upon finding:
1) probable cause to believe the youth committed
the alleged offense; and 2) clear and convincing
evidence that “there are no reasonable prospects of rehabilitation within the juvenile justice
system.”92 The child may waive the probable
cause phase of the transfer hearing.93 As for the
second inquiry, Mississippi law mandates that
the court consider several factors in deciding
whether reasonable prospects of rehabilitation
exist, including, but not limited to, the characteristics of the alleged offense, the child’s mental
health, family circumstances, social history, and
the dispositional options available in the juvenile
and adult criminal justice systems.94 The finding
that the child’s needs exceed the rehabilitative
capabilities of juvenile court must be supported
by clear and convincing evidence. By statute,
children must be represented by counsel in all
transfer hearings.95

court because he is accused of a crime punishable by life in prison or committed with a deadly
weapon, may ask the circuit court to move his
case to youth court. This “reverse transfer” provision allows the circuit court to transfer the
case to youth court upon finding that the transfer would be “in the best interest of such child
and in the interest of justice.”99
Once the child is transferred for prosecution as
an adult, the circuit court has exclusive jurisdiction over the offense alleged in the original
petition, as well as any lesser included offense.100
Once the child has been convicted as an adult, the
youth court permanently loses jurisdiction over
the child.101 The circuit court may not remand the
case of a child who has previously been convicted
as an adult, either for an excluded offense or following a waiver. If the juvenile is tried in adult
court but not convicted, the youth court has jurisdiction over subsequent non-felony offenses, but
the circuit court has automatic jurisdiction over
any subsequent felony cases.102
The circuit judge must sentence a child transferred from youth court as if that child were an
adult. The judge does not have the authority to
commit a child transferred from youth court to
the Division of Youth Services.103

A child is transferred by statutory exclusion if
the child is at least 13 years old and that child
commits or attempts to commit any one of a
number of excludable offenses. An excludable offense is defined as an act committed
with a deadly weapon, or an act which, if
committed by an adult, is punishable by life
imprisonment. Since the circuit court has
original jurisdiction of these crimes, the child
must be tried as an adult.96

IV. Juveniles’ Right to Counsel

A child not previously tried as an adult and
facing charges in adult court still has some
opportunity to have his case remanded to youth
court. If a youth court transfers a child to circuit court, the child may move for a circuit court
review of the transfer proceedings.97 The circuit
court must remand the case back to youth court
if there is no substantial evidence to support
the order of the youth court. 98 Similarly, a child
under the original jurisdiction of the circuit

The Mississippi Code provides that “[i]f indigent, the child shall have the right to have
counsel appointed for him by the youth court.”106
All children are presumed indigent, whether or
not their parents can afford to hire counsel.

20  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi’s Youth Court Code takes a strong
stance on children’s right to counsel, stating that,
in juvenile cases, “the child shall be represented
by counsel at all critical stages” of the proceedings “including, but not limited to, detention,
adjudicatory and disposition hearings and parole
or probation revocation proceedings.”104 By statute, children must be represented by counsel in
all transfer hearings. 105

The judge has a specific duty to inform children of their right to counsel.107 The judge must
inform a child of his right to counsel once the
child is in custody;108 as an important corollary,

when a child is taken into custody, the child must
be allowed to call his attorney.109 The judge must
also inform the child of his right to counsel at the
beginning of an adjudication hearing, as well as
determine if the child is represented by counsel.110
If the child is unrepresented, the court must make
sure that the child understands the right to counsel and the right to have counsel appointed if the
child cannot afford to hire an attorney.111
Enacted in April 2006, the Mississippi Juvenile
Delinquency Prevention Act of 2006 establishes
the framework for a model juvenile justice
system. The bill includes special provisions
specifying that a child’s legal rights must be
read to the child upon being taken into custody,
and focusing on providing Mississippi’s children
with well-trained defense counsel at every critical stage. In part, the bill:
•	 specifies that under existing law, parties have
the right to be represented by counsel at detention, adjudicatory, and disposition hearings;
•	 requires the youth court judge to appoint
a court-appointed attorney to represent an
indigent youth at all critical stages of the proceedings;
•	 requires all youth court appointed attorneys to receive juvenile justice training that
is approved by the Mississippi Judicial College and/or the Mississippi Bar Association,
and assigns both organizations the responsibility to determine the amount of juvenile justice
training and continuing education required of
juvenile attorneys;
•	 provides that a youth court appointed attorney will be disqualified to serve and will be
immediately removed from the office of youth
court appointed attorneys if he or she misses
two consecutive juvenile justice training sessions or fails to attend a continuing education
session within six months of his or designation
as a youth court appointed attorney; and
•	 provides that the Administrative Office of
Court must maintain a ledger of youth court
appointed attorneys and their training records.
V. The Nature of Youth Court Proceedings

Mississippi’s code characterizes youth court
proceedings as “entirely of a civil nature.”112 The
general public is excluded from youth court
hearings.113 All court records — including records

Mississippi • Fall 2007  21

created by children and retained by law enforcement — are confidential.114 However records are
not confidential for children convicted as adults
or children adjudicated delinquent for certain
sexual offenses, and certain violent offenses.115
All youth court hearings, even adjudications, are
conducted without a jury.116
Except for detention and shelter hearings, a
complete record of all evidence must be made.117
Accordingly, all parties in a youth court proceeding have the right at any hearing where
a report or investigation is admitted into evidence to 1) subpoena, confront and examine the
person who prepared or furnished data for the
report; and 2) introduce evidence to contest the
report.118 The court can consider only evidence
that has been formally admitted at the adjudicatory hearing.119 All testimony must be under oath
and may be in narrative form.120 An out of court
admission by the child, even if otherwise admissible, is insufficient to support an adjudication
of delinquency, unless the admission is corroborated by other competent evidence.121
VI. Custody and Detention

Where the youth court has jurisdiction, only the
youth court can issue an arrest warrant or custody order for the child.122 A detention hearing
must be held within 48 hours to determine if
continued custody is necessary.123 Custody will
be considered necessary: 1) when the child is in
danger or would endanger others; 2) to ensure
the child’s presence in court; or 3) when the parent or guardian is not available to provide for the
care and supervision of the child; and 4) when
there is no reasonable alternative to custody.124
All parties attending the detention hearing have
the right to present evidence and cross-examine
witnesses. The youth court statute presumes that
a child should be released. In fact, the youth court
must release the child to the custody of his or her
parents or guardian, unless the youth court finds
that there is probable cause that the youth court
has jurisdiction and that custody is necessary.125
 
A child in custody must be informed immediately of: the reasons he or she is in custody; his
right to counsel; the rules and regulations of
the custodial facility; the conditions of his custody; and the time and place of the detention

hearing. When a child is taken into custody, the
child must be able to call both his or her other
guardian and his or her counsel, and must be
allowed to telephone his or her guardian at reasonable intervals.126
 
“All juveniles in custody must undergo a health
screening within one hour of admission to any
juvenile detention center, or as soon thereafter
as reasonably possible.”127 If the screening indicates that a juvenile is in need of emergency
medical or mental health services, the detention staff must refer the youth to the appropriate
provider as soon as is reasonably possible.128 All
detention centers are legally obligated to provide, at a minimum, an educational program,
visitation, counseling, supervision, medical service, recreation and exercise programs, and
reading materials.129
VII. Petition, Summons, and Service

All delinquency cases begin with the filing of
a petition.130 Upon authorization of the youth
court, the youth court prosecutor will draft and
file the petition, unless the court has designated
some other person to draft and file the petition.131
While judges have discretion to determine
whether a formal petition is filed in youth court,
in practice they largely follow the recommendations of youth court counselors and prosecutors.
When a child is detained, the petition must be
filed within five days of the detention hearing.132 In non-custodial cases, the petition must
be filed within 10 days of the court order authorizing the filing of the petition.133 The court has
discretion to dismiss the case if the prosecution
fails to comply with these filing deadlines.134 The
petition must identify the child and his or her
parent or guardian. The petition must also provide a statement of the alleged facts that have
brought the child under the youth court’s jurisdiction, with the same particularity required in a
criminal indictment.135 It must also include, inter
alia, a citation to the law that the child is alleged
to have violated.136
 
When a petition has been filed and hearing date
set, the judge must order the youth court clerk
to issue a summons to the child, his or her parents or guardian, and any other person deemed
necessary to appear personally at hearing.137

22  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

The summons must include the date and time of
the hearing, and must inform the child of his or
her right to be represented by an attorney. The
summons must also state that if the child is indigent, the court will appoint an attorney.138 The
summons must be served personally. Generally, a
child is properly served in the same manner as an
adult.139 In addition, service on a child under the
age of 14 must be made with the child’s parent,
guardian, or guardian ad litem.140 The summons
must be served no fewer than three days before
the date of the adjudicatory hearing.141
VIII. Informal Adjustment

Informal adjustment is a voluntary, informal procedure in which the youth court staff interviews
the child and the child’s parent or guardian, and
makes appropriate referrals to public and private
agencies that provide services that may benefit
that child. While the informal adjustment process
is underway, no petition is filed.142 Such referrals
may include a temporary placement of the child,
or court supervision with the consent of the child
and the child’s parent or guardian.143 The informal
adjustment conference is conducted by an adjustment counselor who is appointed by the court
or the court’s designee. The child has the right
to be represented by counsel during the conference. During the conference, the parties discuss
and agree upon recommendations to correct the
child’s behavior. These recommendations are
reduced to a written agreement, which is signed
by all parties. An agreement reached at an informal adjustment conference can not last longer
than six months. Either the child or the counselor may chose to terminate the agreement and
have the matter revert back to the formal adjudication procedure.144
IX. Adjudication

For non-custodial cases, the adjudicatory hearing must be held within 90 days of the filing of
the petition. If the adjudicatory hearing is not
held within the 90 days, the petition must be dismissed with prejudice.145 If a child is detained,
an adjudicatory hearing should be held “as soon
as possible but not later than 21 days after the
child is first detained,” unless the hearing is
postponed “upon the motion of the child, where
process cannot be completed or upon a judicial
finding that a material witness is not presently

available.”146 If the hearing is postponed or not
held for some other reason, the child may be
released from detention.147
The adjudication hearing is analogous to an adult
criminal trial, with opening statements, presentation of evidence, and closing arguments. Juvenile
adjudications are tried before a judge; children in
Mississippi youth court proceedings have no right
to a jury trial. The same rules of evidence apply for
both juvenile adjudications and criminal trials. The
child’s involvement in the alleged offense must be
proven beyond a reasonable doubt, and the child
must have fair opportunity to introduce evidence
and cross-examine adverse witnesses.
While there is no plea bargaining in delinquency
proceedings,148 the accused child may appear
before the judge to admit the allegations in the
petition at any time after the petition has been
filed.149 The judge may accept the admission if the
judge finds that 1) the child making the admission
fully understands his or her rights and the consequences of the admission, 2) the child making
the admission is doing so voluntarily, intelligently, and knowingly, 3) the child making the
admission does not report facts that constitute a
defense during the allocution, and 4) the child is
“effectively represented by counsel.”150
At the beginning of the plea hearing, the youth
court must explain to the child that he or she has
the right to counsel, to remain silent, to subpoena
and cross examine witnesses, and to appeal.151 The
youth court must determine whether the child is
represented by counsel. 152 If the child is not represented, the court must determine whether he
or she understands the right to counsel and the
right to have counsel appointed if the child cannot afford an attorney.
 If the youth court finds beyond a reasonable doubt
that the child is a delinquent child, the youth court
must enter an order adjudicating the child delinquent.153 Upon adjudication, the youth court must
hold a hearing to determine the appropriate disposition, or sentence, for the child.154
X. Disposition

The disposition hearing is “separate, distinct
and subsequent to the adjudicatory hearing,”

Mississippi • Fall 2007  23

but it may be held immediately following the
adjudicatory hearing.155 If the child is taken
into custody, the disposition hearing must be
held within 14 days unless postponed for good
cause.156 In practice, the disposition hearing is
frequently held immediately after the adjudication hearing. But if a child is not detained,
the statute does not require the court to hold
a dispositional hearing within a specified time.
After the adjudication hearing, the court must
immediately set a time and place for the disposition hearing. Generally all disposition
hearings are held within 30 days of the adjudication hearing.
	
Before entering a disposition order, the youth
court must consider:
a) The nature of the offense;
b) The manner in which the offense was committed;
c) The nature and number of a child’s prior adjudicated offenses;
d) The child’s need for care and assistance;
e) The child’s current medical history, including
medication and diagnosis;
f ) The child’s mental health history, which may
include, but not be limited to, the Massachusetts
Youth Screening Instrument version 2 (MAYSI-2);
g) The child’s cumulative record from the last
school, including special education records, if
applicable;
h) Recommendation from the child’s school of
record based on areas of remediation needed;
i) Disciplinary records from the child’s school;
and,
j) Records of disciplinary actions outside of the
school setting.157
Upon written motion, the youth court must
make written findings of fact and conclusions
of law to document the findings underlying a
disposition order.158 If the court orders a child
to a state-supported training school, an admission packet must be prepared for the child that
contains the child’s medical, mental health, and
academic history.159 If the Department of Human
Services determines that a child is in need of
treatment for a mental illness, it must file an
affidavit with the youth court alleging such, and
the youth court must then refer the child to a

community mental health center for evaluation.
If the evaluation recommends residential care,
the youth court will proceed with civil commitment proceedings.160
 
When determining the appropriate disposition,
or sentence, for a delinquent child, the youth
court judge has several options:161
• release of the child without further action;
• placement of the child with parents, guardians,
a relative, or other people subject to the court’s
conditions;
• probation;
• supervision, including participation in educational, service or treatment programs;
• civil fine not to exceed $500;
• suspension of child’s driver’s license for not
more than 1 year;
• placement in DHS-run facility, wilderness
training program, or state-supported training
school;162
• placement in a public or private communitybased organization that assumes responsibility for
the education, care, and maintenance of child;
• placement in a juvenile detention center for
not more than 90 days;163
• placement in a work program;
• referral to an A-team for system of care services.164 An “A-team” is defined as a team of
specialists working together to provide “system of care” services for non-violent juvenile
offenders with serious behavioral or emotional
disorders. Each team is comprised of a school
counselor, a community mental health professional, a social services professional, a youth
court counselor (who will ensure that the youth
is appropriately supervised to protect public
safety), and a parent of the child in the juvenile
justice system.165
• Participation in the Adolescent Offender Program (AOP). The Mississippi Division of Youth
Services describes the AOP program as “a community-based partnership among the Mississippi
Department of Human Services/Division of
Youth Services, mental health agencies, community agencies and local multi-agency councils.
The AOP creates a mechanism within communities to coordinate services, share resources
and reduce the number of young offenders being
placed in state training schools. The program,
which focuses on the family, seeks to assist local

24  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Under the 2005 Reform Act, before the court can
send a child to a training school or place a child in
a juvenile detention center, the court must find the
placement a) is the least restrictive environment, b)
allows the child to be in reasonable proximity to the
child’s community, and c) can meet the child’s medical,
educational, vocational, and rehabilitative needs.

communities in coordinating and providing services to families at-risk.”166
Under the 2005 Reform Act, before the court
can send a child to a training school or place a
child in a juvenile detention center, the court
must find the placement a) is the least restrictive environment, b) allows the child to be in
reasonable proximity to the child’s community,
and c) can meet the child’s medical, educational,
vocational, and rehabilitative needs.167 The disposition order must further provide that the
court has considered the medical, educational,
vocational, and mental health needs of the child
when ordering placement in a training school or
juvenile detention center.168 The time period for
detention cannot exceed 90 days.169
No first time non-violent offender may be placed
in training school or in detention for a period of
90 days or more, unless the court has used all
other dispositional options and makes specific
findings of fact that training school commitment
is appropriate.
Any detention over 45 days must be reviewed by
the youth court no later than 45 days after the
entry of the order.170
XI. Motions for Rehearing, Motions to Modify Dispositions, and Appeals

An order issued by a youth court referee may

be reheard by a judge if any party files a written
motion within three days after notice of the referee’s order.171
On motion by a child or by the child’s parent
or guardian, the youth court has discretion
to conduct an informal hearing to review the
disposition order.172 If the court finds a material change of circumstances, the youth court
may modify the disposition order.173 Unless
the youth court’s jurisdiction has been terminated, disposition orders are reviewed by the
youth court judge or referee at least annually
to determine if continued placement, probation, or supervision is in the best interest of the
child and the public.174 In practice, the annual
reviews are simple file reviews conducted by
the judge, the youth court counselor, and the
clerk without notice to the parties.
Appeals from final orders in youth court may
be taken directly to the Supreme Court of Mississippi.175 A notice of appeal must be filed with
the youth court clerk within 10 days after the
final order is issued.176 Appeals from the youth
court are considered “preference cases” in
the Supreme Court.177 The appeals from youth
court are tracked on the same calendar as other
appeals and are not expedited. While these cases
are appealed directly to the Supreme Court, the
Court has discretion to refer specific cases to the
Mississippi Court of Appeals.178 k

Mississippi • Fall 2007  25

The Juvenile Court process

referral to public or private agency
temporary placement/supervision of
child by youth court counselor (with
consent of child)

the r
ig
shou ht to cou
ld at
nsel
ta
criti
cal s ch at thi
tage
s

formal
delinquency
proceeding

informal
adjustment

diversion

conference
and agreement

certain acts are automatically
under the jurisdiction of the
adult court

no appeal available
after admission

a child has a right to
have counsel present
intake

sc hoo l s

pa r e n t s

Referral
sources

tr

ess

oc
pr

l

ma

r
fo

ers
purpose is to produce
accountable, responsible
citizens

preliminary

trial

ess

disposition

oc
pr

admission

youth
court
system

wE
nt
nf o rc em e

ansf

al

rm

o
inf
La

arraignment

three options

diversion programs include
teen court and drug court

youth
involved
in event

adult
court
system

informal adjustment
agreements may be terminated
and the child’s case then
handled formally

advice to the child/parent

Sentencing

adjudication as
delinquent/chin
appeal

child taken
into custody

• review of
referee order
• to the
supreme court
prehearing
investigation

prehearing
Detention

hearing

disposition
intake

26  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  27

chapter three

Assessment Findings
Because each county is charged with funding its own juvenile indigent defense delivery system, youth court practice varies widely from
county to county in Mississippi. In some counties, assessment team
investigators encountered many devoted and talented lawyers who
provided exemplary legal services to children despite serious challenges. Other counties had juvenile defenders who were dedicated
advocates with the best of intentions, but, as the Supreme Court
held in In re Winship, their “good intentions”179
are simply not enough. This assessment reveals
gaps in the juvenile indigent defense system
that need to be addressed. Juvenile defenders
in Mississippi simply do not have the resources
or training to protect their young clients. As a
result, instances of vigorous representation in
Mississippi’s juvenile indigent defense system
are few and far between. As presently structured, the system is at best uneven; at worst,
inherently unfair. For too many Mississippi
youth, the promise of Gault remains empty.
I. Access to Counsel

As the gatekeepers for the administration of fair
and equal justice for juveniles, defense counsel
must be present at all stages of the youth court
process. But the mere presence of an attorney
does not satisfy constitutional and statutory
mandates. Juveniles are entitled to meaningful access to counsel — access that breathes life
into the presumption of innocence, the right to
confront adverse witnesses, the right to hold
the government to its burden of proof beyond
a reasonable doubt, and all other protections
that the Supreme Court has extended to juveniles. In order to provide their clients with these
protections, juvenile defenders must have the
resources and systemic assistance to be able

to spend time investigating their clients’ cases,
researching their clients’ legal issues, and identifying their clients’ special needs.
A. Determination of Indigence

Across Mississippi, indigence determinations
and legal fees were not observed to be a barrier
to access to counsel. Assessment team investigators reported that, in almost every county,
the youth court assigns counsel based upon the
child’s lack of income, regardless of the parent’s
income. There is no defender fee recoupment,
and there are no other orders for parents to pay
for their children’s attorneys. As one youth court
referee explained, “We treat kids as indigent
and no one checks their ability to pay.” This is
a commendable practice because most children
lack the means to hire lawyers. And parents,
who may have conflicting interests with their
children inside the court process, cannot be
required to pay for their children’s defense.
In a minority of jurisdictions, the intake officer
screens the child for indigence based on household
income. If a child or parent cannot afford to hire
an attorney, the court will appoint counsel for the
child. This screening, however, is conducted at the
same time the intake officer “counsels” the child.
During this counseling session, the child might be

28  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  29

forced to provide information about the alleged
delinquent act. A court official will also determine
what procedural track (diversion, informal adjustment, or formal proceeding) is appropriate for the
child. Because the court is making decisions and
gathering information that will affect the child’s
liberty interest, this counseling session is a critical
stage at which the child should at least be administered Miranda warnings.
The effect of Mississippi’s generally expansive definition of indigence is a mixed blessing.
On the one hand, Mississippi youth facing the
“awesome prospect of incarceration” are literally not standing alone at counsel table. As one
assessment team investigator observed, “All
indigent youth who come before the court are
represented by an attorney — usually a public
defender.” The virtue of this liberal assignation of counsel is its potential: Mississippi has
in place a system that truly intersects across all
of its communities, whether the child client is in
a rural county or an urban center.
On the other hand, because the quality of the
child’s representation depends on the vagaries
of the resources and training of each particular
defender, some children are still left figuratively
standing alone. Assessment team investigators observed hearings of all types in which
defenders were either passive participants, or
worse, active opponents to their clients’ interests. When asked how he views his role in the
juvenile justice process, one youth court public
defender’s reply was, “I have to be there. I don’t
really have an effect.” An assessment team investigator in another county noted, “Based upon
our observations, it is clear that this defense
attorney essentially does no preparation before
a hearing and in virtually every case provides no
meaningful representation.” When a defender
simply rubber stamps the government’s bureaucracy instead of truly testing the state’s case, the
defender is complicit in serious violations of his
clients’ constitutional rights.
B. Waiver of Counsel

Almost all the counties investigated in this
assessment prohibit the waiver of counsel at adjudication and disposition. As one youth court referee
explained, juvenile respondents “never waive coun-

sel. We don’t give them the option.” In addition,
parents are not permitted to waive the child’s right
to an attorney. With only one exception among the
counties investigated, Mississippi youth courts
ensure that children are appointed counsel to represent them at adjudication and disposition hearings.
In the single county visited that allows waiver of
counsel, assessment investigators documented a
formal waiver process that allowed youth in detention to waive counsel after a brief meeting with a
court-appointed defender at the child’s initial court
appearance. And, even in that county, a juvenile
charged with contempt of court or held on multiple charges cannot waive the services of a defense
attorney under any circumstances.
C. Systemic Barriers to Access to Counsel

Timing of Appointment of Counsel
Because of the importance of case investigation
and preparation, when counsel is appointed
is almost as important as whether counsel is
appointed at all. Although the right to be represented “at all critical stages” is codified in
Mississippi’s Youth Court Act,180 the meaning
of the phrase “critical stages” depends entirely
on the court. There is no mechanism to provide
counsel before the child’s court appearance.
Rarely — if ever — is counsel present for police
interrogation or meetings with a youth court
intake officer. Often irreversible decisions concerning the right to remain silent are made at
this early stage of the process — decisions that
should be made only with the guiding hand of
counsel. And, in one county, although children
are advised of their right to counsel during
intake with a youth court counselor before the
initial hearing, one youth court counselor stated
that she has observed only a very small number
of children request an attorney at intake — perhaps one or two in the four years of her tenure.
Mississippi’s system is so fractured, there is no
consensus on even the basic point of whether
the detention hearing is a critical stage of the
process at which defense counsel should be
present. Several counties appoint counsel at
detention hearings, while other jurisdictions
wait until a petition is filed. In one county, the
referee and the youth court counselor make the
detention decision without either the prosecutor or a defense attorney present. In a stark

30  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

In county after county, youth reported that
they met their attorneys for the first time in the
hallways of the courthouse or in the courtroom
“five minutes before court” and that attorneys
spent no more than five minutes with them.

violation of the U.S. Supreme Court’s holding in
Gault, this practice fails to consider the child’s
expressed interests. The referee in this county
did not see the detention hearing as a critical
juncture of the proceedings, and told investigators that children are not regularly advised of
their right to counsel at detention hearings. The
importance of the detention decision cannot be
overstated. Detaining a child adversely affects
the child’s ability to participate in his or her own
defense, and often increases the child’s chances
of recidivism.
In several counties, youth court administrators provide defenders with a list of cases just
moments before the beginning of the day’s hearings. This list is the first time defenders become
aware of whom they will be representing that
day. Defenders receiving this kind of last-minute list cannot possibly confer with these clients
before court. This practice makes it nearly
impossible for court-appointed defenders to
obtain the discovery evidence against their
clients, subpoena relevant information, and prepare an adequate defense.
Physical Configuration of the Courtroom
In some counties, the physical layout of the
courtroom impeded access to counsel. For
example, in one county, while court was in
session, the defense attorney, youth court counselor, and prosecutor sat side by side at two
tables that were pushed together. The child and
the child’s parent sat in chairs lined up against
the wall, a short distance from counsel table.
During the proceedings, the accused child could
not interact — not by speaking and not by writing — with the defense attorney. By contrast,

assessment team investigators observed a police
officer seated in the jury box actively assisting
the prosecutor during the cross-examination of
a defense witness. In another county, the set up
of the courtroom was typical — that is, with the
prosecutor’s table on one side and defender’s on
the other side, facing each other — except for
the position of the child, who was seated alone
in the center of the courtroom, facing the judge,
out of earshot and out of the reach of his attorney. In still another county, defense counsel sat
through his hearings across from the respondents, while the prosecutor sat next to the child
and his mother. The physical arrangement of the
courtroom must reinforce the roles and relationships of the parties, so that children are seated next
to and can consult freely with their attorneys.
II. Quality of Representation

Assessment findings show that many court-appointed defenders in Mississippi are unable to
provide adequate representation because the
juvenile indigent defense system lacks statewide uniformity and necessary resources.
Court-appointed defenders struggle with high
caseloads and do not receive adequate compensation for their critically important work.
A. Case Preparation and Client Contact

Consultation to Prepare for Court
Explaining the youth court process to youth and
their families is a critical defender function. A
child must assist in his or her own defense and
lawyers must “abide by a client’s decisions concerning the objectives of representation … and
shall consult with the client as to the means by
which they are to be pursued.”181 Children facing “the awesome prospect of incarceration”182

Mississippi • Fall 2007  31

cannot be active participants in a process they
find foreign and overwhelming. One parent
explained: “It was [our] first time in court and it
was scary. I didn’t know what was going on and
it felt like my child had no rights.”
Although Mississippi youth are generally represented at adjudication and disposition, most
court-appointed defenders are assigned their
cases just minutes before they appear in court
for initial hearings, where the detention decision is made. Given that serious limitation, case
preparation and client contact before initial hearings are minimal. In county after county, youth
reported that they met their attorneys for the first
time in the hallways of the courthouse or in the
courtroom “five minutes before court” and that
attorneys spent no more than five minutes with
them. Defenders admit that they rarely, if ever,
meet their clients before the initial hearing. One
defender stated that she has hardly any contact at
all with her clients prior to the initial hearing. An
assessment team investigator in another county
observed that the youth court public defender
did not meet with clients until minutes before the
actual detention hearing. Often, these meetings
were rushed and public, in the middle of busy
hallways, or in courtrooms while the prosecutor
and youth court counselor were still present.
Unfortunately, in many counties, this triage type
of minimal case preparation and client contact was not limited to initial hearings. In some
instances, defenders did not pick up or review
files that were available to them before the adjudicatory hearing. In one county, the youth court
counselor reported that “the public defender
rarely comes to get files before the court hearing, although she could get them if she wanted
them.” In another county, the defense attorney
admitted that she usually meets her client for
the first time the day of the adjudicatory hearing, without having appeared at the detention
hearing, without having discussed the case or
an investigative or legal strategy with her client,
and without having prepared for adjudication.
In another county, an assessment team investigator observed that “defense counsel does little
investigation to prepare for adjudicatory hearings.” That investigator observed that defender
in other types of hearings as well, noting, “There

is no detention hearing representation. He does
not contest disposition recommendations.”
In another county, assessment team investigators observed that “[t]he public defender did not
seem to have any files, books, or other materials
in court for the delinquency cases.” Regarding client contact and case preparation as optional has
a devastating impact on the legal representation
provided to Mississippi’s children. If an attorney
does not devote adequate time to building a trusting relationship with the client or investigating the
charges at issue, it is impossible to provide adequate representation.
Some counties attempt to mitigate the harsh
consequences of defenders failing to meet regularly with their clients. In a few jurisdictions,
judges respond to this situation by generously
granting continuances, essentially allowing the
defender to use court dates as client meetings. In
one county, a defender stated that she has hardly
any contact at all with clients prior to court, but
that she knows that she will be granted a continuance if she requests one. In another county,
a public defender who admitted to meeting her
client for the first time the day of the adjudicatory hearing, stated that if the client says that he
or she has witnesses, the defender will ask for,
and was certain that she would get, a continuance to interview the witnesses. Acknowledging
that this public defender generally did not meet
with her clients or interview any witnesses
before the first court date, the referee confirmed
that he was often lenient in granting her continuances. The referee said that he “doesn’t think
she has time before the fact” to prepare, and
that he “sympathizes with her.”
Other counties have institutionalized processes
to ensure that youth and their guardians meet
with the court-appointed defender before adjudication. In one county, the court schedules
“plea hearings” after the initial hearing. A plea
hearing is not really a hearing; it is a time when
the youth and parents are subpoenaed to court
to meet with the defense attorney and discuss
the case. Of course, the meeting is not before the
judge, though the youth can be arrested if he or
she does not attend. Usually, if the youth does
not attend, the youth is just re-served. Attorneys
are expected to review all of the youth’s rights

32  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

during that meeting, and decide case investigation and legal strategy with the client.
Another county has institutionalized a process
called “first call.” During first call, defense counsel meets with the client, discusses the facts of
the case, and explains the youth court process.
Only after this meeting does the attorney docket
the matter for an admission and disposition or for
a formal adjudicatory hearing. First call ensures
that court-appointed counsel spends time with
clients before appearing before the judge. Still,
assessment team investigators found that defenders in this county were no more likely to review a
social study or conduct an independent investigation than those defenders practicing in counties
that do not conduct first call.
Some court-appointed defenders inform their clients about the youth court process through a form
letter. This letter notifies the client and his or her
parents of counsel’s appointment and encourages them to set a time to meet with the attorney
before adjudication. One defender explained that
sending a letter is more effective than making
phone calls because many of her clients do not
have telephones. Although an initial letter may be
an important part of establishing the attorney-client relationship, a letter is no substitute for a face
to face meeting. Another risk of form letters is the
possibility that defenders may inadvertently shift
attorney functions to their clients. For example,
one attorney’s letter instructs juvenile clients to
“bring their witnesses” with them to court. But
without the advice of counsel, it is impossible for
any client, adult or juvenile, to determine what
witnesses are necessary. Witnesses help prove
factual or legal defenses — defenses that should
be identified by counsel with the child, not the
child alone.
Consultation after Court
Regardless of the demands of the courtroom
machinery, attorneys should speak with their clients after their court hearings, to ensure each
client has understood what happened in his or
her hearing, to answer any questions the client
might have, to review any court-ordered conditions with which the client must comply, and to
discuss with the client the next steps in the case.
Assessment team investigators did not observe any

post-hearing debriefings between juvenile defenders and their clients. This lapse was likely due to
the frequent combination of a single defender
on duty and a busy, multiple-case court calendar.
For example, in one county, assessment investigators saw that when each hearing finished, the
defense attorney would rush to locate the child
whose hearing was next on the docket, speak hurriedly with that child and the child’s parent, and
then rush back into the courtroom. Defenders
must ensure that their clients understand the particulars of their court hearings, especially release
conditions, no matter how fast-paced the youth
court’s schedule might be. For example, one young
man, a 14 year old, told an assessment investigator
before his hearing that he had no idea why he was
in court, as he had not spoken to his attorney, the
juvenile defender, since he was sentenced to probation at his last court date. The young man ended
up admitting to a probation violation. In another
instance, when asked after his hearing what the
defense attorney could do better, one 15 year old
client replied, “Everything!” and then added “He
could spend more time with the children.”
Consultation with Detained Clients
The Mississippi youth court statute requires that
all detention centers prominently post the rights
of children in custody — including the right to
contact and meet with a lawyer.183 But unless a
child has contact information for an attorney who
will respond to the child’s request for a meeting,
this right is meaningless. At one detention center, juvenile residents were informed, on their
“Juvenile Responsibilities Form,” that “You have
the responsibility to let staff know if you want
to contact your lawyer.” However, in that same
detention center, the local juvenile defender’s
number was not posted, and no literature was displayed or even available to help a detained youth
learn about the juvenile court process.
Detention center staff in several sites indicated
that court-appointed defenders rarely visit or otherwise communicate with their detained clients.
One county’s juvenile detention center administrator told assessment team investigators that
she has never heard of a lawyer, public or private,
visiting a detained juvenile client. She noted “It’s
very different from what I’ve seen on the [adult
side]. The lawyers for accused youth in [this

Mississippi • Fall 2007  33

county] don’t seem to be interested in proving
that their clients are innocent.” Detention facility administrators in another county estimated
that, based on their observations, a defense attorney may visit a client at the detention center once
every two or three months at most.
The problem of defense attorneys’ not visiting their detained clients has several serious
dimensions. First, like children who are
released into the community, detained children need to be informed of the progress of
their cases, consulted concerning investigation
strategies and witnesses, and prepared for testimony. Second, the difficulties that children
face in detention centers cannot be overstated.184 Detention for juveniles is at least as
frightening, disorienting, and potentially damaging as incarceration is for adults, if not more
so. Juvenile defenders have an ethical obligation to investigate and prepare their cases
and to zealously represent their clients. Juvenile defenders’ failure to meet with detained
clients, who are literally a captive audience,
underscores that common defender practice in
Mississippi youth court does not include even
minimal consultation with the client.
B. Detention Hearings

At a detention hearing, a child faces incarceration for up to 21 days. If a child is detained, he
or she will be removed from his home, and often
denied access to education and mental health
services. Given these severe consequences, Mississippi law allows detention only when “there
is probable cause to believe that … the child is
within the jurisdiction of the court and custody
is necessary.” 185 Custody is deemed necessary
when: i) the child is a danger to self or others; ii)
to ensure the child’s attendance at court; or iii)
when a parent or guardian is unavailable to care
for the child.186 The statute presumes release,
and explicitly states that youth have the right to
present evidence and cross-examine witnesses
at detention hearings.
Despite the well-documented fact that detaining
a juvenile has dire consequences, many Mississippi youth courts clearly do not consider the
detention hearing a critical stage in the youth
court process.187 With respect to the child’s case,

a detained client cannot assist as well in preparing for adjudication as a released client.188 With
respect to the child’s development, simply put,
detention can change a child. Studies show that
time spent in detention increases the likelihood
that the child will recidivate,189 in part because
the client is likely to make negative peer connections, and because positive, community-based
relationships (in particular, with the child’s
family) are interrupted.190 In fact, as a predictor
of future criminality, detention is more reliable than gang affiliation, weapons possession,
or family dysfunction.191 As one juvenile court
administrator stated, “A child in detention is not
the same as the child across the desk. In detention a normally mild-mannered child becomes
like a rat in a corner.” To the children whose liberty is at stake, the role of defense counsel at
detention hearings is crucial.
Lax Application of the Detention Statute
Investigators observed that judges applied a lax
interpretation of Mississippi’s detention statute. Children were often detained for reasons
outside the law’s clearly-delineated conditions. For example, in one county, if a detained
child was release-eligible, but reported poor
grades, the judge would allow the child to be
released only after the child had read, written
a report, and passed a quiz on a book chosen by
the judge. According to the public defender in
that county, most young people completed the
assignment by the end of the work day, and their
parents could pick them up by 5 p.m. However,
assessment team investigators learned that, in
some instances, youth were confined for days
because they failed to complete this assignment.
The public defender stated that she regularly
objected to this practice, but stopped objecting
when the judge continued to hold youth for this
illegal reason. In another county, a prosecutor
admitted that detention is often used as a deterrent, even though “that’s not [its] purpose.” He
continued, recognizing the “need to be strict in
the [application of the] detention standard,” but
acknowledging, “we’re not.”
No Presentation of Evidence
Across the state, defense advocacy at detention
hearings fell far short of the advocacy necessary to protect the rights of youth. For example,

34  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

although the law allows defenders to present
evidence and cross-examine witnesses in detention hearings, assessment team investigators
did not observe a single detention hearing during which evidence was presented on behalf of a
child. Detention decisions were frequently made
based on a cursory evaluation of the prongs of
the statute, without a meaningful measure of the
child or the child’s circumstances. One assessment team investigator observed 13 cases on a
single docket, all handled by the same public
defender. The first ten cases were set for detention hearings on the morning docket. Those
ten cases took less than an hour to complete,
or fewer than six minutes per child. In eight of
the ten cases, the defender did not argue at all.
In the two cases in which the defender spoke
— both cases in which the youth counselor was
already recommending release — the defender
merely commented that the state did not have
probable cause for the charge. One defender in
another county admitted he “does nothing” at
detention hearings. He said the substance of the
hearing is that “[t]he referee asks the parents
if they want to take the kid home and if they
don’t the referee sends them back to the detention center.” In another county, a 16 year old was
charged with shoplifting, and had already spent
6 days in detention at the time of the hearing.
Instead of making an argument on the young
man’s behalf, the defender publicly scolded the
youth, admonishing him that if the incident had
occurred just a month later, the youth would
have been in adult court.
No Probable Cause Arguments
Probable cause should be a critical component in
a court’s decision to detain a youth, but Mississippi defenders frequently do not challenge the
prosecution’s assertion of probable cause. In one
county, the public defender reported that there
is a probable cause portion of the hearing, but
he often waives it. In another county, in a case
in which a 13 year old was charged with automobile burglary, and the court found probable
cause based on the sheriff’s report, not only did
the public defender not challenge the probable
cause finding, the defender went so far as to state
that he was “satisfied” with the probable cause
determination. In a third county, assessment
team investigators did observe a defender note

on the record that there was no probable cause
in two detention hearings; however, the youth
court counselor was recommending release in
both those cases, so the probable cause determination was practically moot. Waiving probable
cause has a number of disadvantages. First and
most obviously, the probable cause determination is a hurdle — albeit, one often easily cleared
because of the low evidentiary threshold —
between the child and detention. Assuming that
the child’s expressed interest is to be released,
defenders have an ethical obligation to mount an
argument against probable cause unless there is
a compelling tactical reason to concede. Equally
important, arguing probable cause builds the
relationship between the defender and the client. Especially since most cases are resolved
with admissions, the probable cause hearing
may be the child’s only opportunity to see the
defender fight for the child’s interests, and feel
that someone in the courtroom is on the child’s
side. Waiving probable cause forfeits this critical
rapport-building opportunity.
Pre-hearing Consultation
Mississippi defenders consulted very little with
youth, their parents, and the youth court counselor to prepare for detention hearings. In one
county, the public defender typically met with
all her assigned detained clients in a group on
the morning of their detention hearings. As a
result, her cursory defense amounted to nothing more than general statements that she either
agreed with the recommendations of youth
counselors (if the recommendation was for
release) or disagreed (if the recommendation
was detention). Another defender in a different
county reported that, though he could receive
discovery for the cases of detained children a
day before their hearings, he usually got the list
and police reports 15-30 minutes before court,
when he did not have much time to look at the
information. In another county, assessment team
investigators observed that the public defender
did not meet with clients until moments before
the detention hearing, and then did not appear
at the hearing.
Role of the Youth Court Counselor
In too many counties, the court, the government,
and even the defense gave great deference to the

Mississippi • Fall 2007  35

youth court counselor’s detention recommendation. One public defender reported that — as
opposed to requesting discovery — he relied on
the youth court counselor to contact him and let
him know whether he should expect anything
unusual in the next day’s detention hearings. In
that defender’s county, the prosecutor does not
participate in detention hearings — the state is
represented by the youth court counselor, so the
youth counselor’s position, in many cases, was at
loggerheads with the position of the defender’s
client. In another county, the youth court referee
called the youth court counselor “the system gatekeeper” who “works closely with the referee on
difficult cases.” At the detention hearing, the referee and the youth court counselor decide whether
and where a child will be detained prior to adjudication. In this county, no attorneys are present at
detention hearings. In many other counties, of all
the courtroom actors, only defenders are not present at detention hearings. In stark contrast, there
were no counties in which the youth court counselor was absent from detention hearings.
C. Investigation and Discovery

Prompt and thorough investigation and diligent
pursuit of discovery materials in the custody of
the government are crucial to any case, whether
the case goes to adjudication or the child admits
to the offense. If the case goes to adjudication,
the advantage of speaking to adverse witnesses,
preparing defense witnesses, and subpoenaing
relevant documents is obvious. Less obvious but
just as important is the client’s understanding of
the strengths and weaknesses of his case relative
to the government’s — including a full review
of the evidence expected to presented at adjudication — is integral to the client’s making an
informed decision about whether to admit. Also,
investigation provides an important opportunity
to allow the child to take charge of his case, as
the attorney consults the child about witnesses
and investigation tactics. Indeed, conducting a
prompt and thorough investigation is one of the
defense attorney’s most important duties.192
Unfortunately, defense investigation and discovery litigation are not part of the culture of
Mississippi’s youth court practice. No court-appointed defender interviewed by assessment
investigators requested educational evaluations,

mental health evaluations, or social histories as a
matter of practice. One defender indicated that he
“goes in cold” to hearings because he believes only
5% of the cases he handles “really require mental
gymnastics.” Youth and their parents understandably find this frustrating. According to one mother,
“the public defender could have just listened and
done some investigation. He wouldn’t even look at
the materials I collected for him.”
This failure to conduct regular, prompt and
thorough investigations stems, in part, from
an utter lack of resources. For juvenile defenders, the Mississippi youth court county-based
system provides no investigators, or funds for
investigations. So, while prosecutors in many
counties enjoy a good relationship with local law
enforcement and can request investigation into
a matter, defense attorneys must either do their
own investigation, enlist the client to do the
investigation, or forego investigation altogether.
In one county, the prosecutor acknowledged
that defense attorneys in his jurisdiction do not
regularly conduct investigations.
Allowing the client to do the investigation has
several notable drawbacks. In one county, a
defender instructs the child and the parent to
“bring their witnesses” with them to the adjudication in an introductory letter inviting the
family to meet with him prior to the day of adjudication. Of course, the child is not an attorney.
So, it is highly unlikely that a child can: discern
a theory of defense, assess which witnesses support the child’s defense, or access the search tools
necessary to locate potential witnesses. In short,
the child cannot do the attorney’s job. Assessment team observations support this conclusion:
in response to this attorney’s request, with only
one exception during the period that the team
observed court, no child or family actually
brought witnesses with them on the day of the
adjudication.193 A defender in another county uses
a similar stopgap when she meets her client for
the first time, usually the day of the adjudication.
If the client says that the client has witnesses, the
defender will ask for, and, in her experience, usually get, a continuance to go out to interview the
witnesses. This tactic places a detained child at
a distinct disadvantage, since a detained child is
not as easily able to communicate with and con-

36  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

vince witnesses to come to court and testify on
his or her behalf. This tactic also elongates the
youth court process for the child, so that the
child lives for a longer time both with the anxiety of the prospect of incarceration, and under
the court’s pre-adjudication conditions.
No doubt many Mississippi defenders rely on
their counties’ open file policies, a fourth possible solution to the dearth of defense investigation
resources. In county after county, attorneys
expressed that the parties adhere to an open file
policy, where all youth court personnel share
access to and work from the same file. In one
county, the prosecutor told assessment team
investigators that there is no discovery motion
practice because “the public defender can have
anything she wants.” In another jurisdiction,
assessment investigators observed the defense
attorney reviewing the court file with the youth
and the parents. Open file policies do not relieve
defenders of their independent ethical obligation
to conduct a prompt and thorough investigation into their clients’ cases.194 At the most, such
open discovery policies help to give the defender
a full and fair picture of the government’s case.
Until the 2007 Legislation, defenders were only
allowed to inspect the records. The legislature amended the statute, now giving defenders
authority to copy the entire file.195 Investigation
remains central to the defense attorney’s duty to
test the government’s evidence.
Even in jurisdictions with open file policies,
defenders often do not receive discovery materials in time to make meaningful use of them.
For example, in one county, petitions are not
given to defense counsel until within 7-10 days
prior to the adjudicatory hearing. In another
county, the public defender told assessment
team investigators that the defense attorney “normally receives the petition the day of
[adjudication].” In another county, the defense
attorney revealed that she normally receives the
police reports, statements, and other discovery material a few days before the adjudicatory
hearing, and the petition the day of the adjudicatory hearing. Defense counsel should receive
materials in time to pursue leads revealed in the
government’s discovery and to prepare for adjudication, despite open file policies.

D. Motions Practice

Motions for discovery, to suppress inadmissible evidence, and to request continuances
are often critical components of an adequate
defense. Unfortunately, motions practice is
very limited across Mississippi. Most defenders
reported that they do not routinely file any sort
of motions, whether oral or written. Motions
practice, when it is undertaken, largely takes
the form of oral motions made in open court
on the day of the adjudicatory hearing. Written
motions are even more infrequent.
Defenders’ reasons for the uniformly non-existent motions practice across the state varied.
One defender offered that, because of her large
caseload, she does not have the time to file
written evidentiary or other pre-adjudication motions, and that, even if she did have the
time, she does not receive discovery paperwork
in enough time to file them. Some defenders
expressed the opinion that it is futile to file
motions in youth court because there is little
recourse if the youth court judge does not want
to engage in motions practice. For example, one
defender commented that he had, in the past,
made oral motions to suppress evidence. He
ceased this practice when the judge consistently
ruled against him. Another defender explained
that since the judge he appeared before did
not observe strict evidentiary rules, and allows
everything in, it would be a “waste of time” to
argue motions.
Other defenders believed that, given the informal nature of youth court practice, most motions
are unnecessary. The juvenile defender in one
county reported that he had never seen a written motion filed in youth court. He asked, “What
would be the need?” In most counties, defenders reported that motions for discovery were of
little use because either the court administrator
would provide counsel with a copy of the file or
there was an open file system.
One dedicated and effective court-appointed
defender reported that she filed a motion
for discovery in each case after she met with
her client, the prosecutor, and youth court
counselors. According to this defender, this
practice prevented prosecutors from introduc-

Mississippi • Fall 2007  37

ing evidence during the hearing that was not
previously identified. In one county, the youth
court judge reported that “it’s not a rarity” for
her to handle written motions, that she received
perhaps one written motion per week, and that
she heard oral motions “all the time.” However,
the prosecutor in that same jurisdiction estimated that there had been three or four written
motions to suppress in the previous three years,
and, during the assessment observation period,
the defense attorney did not litigate any pre-adjudication motions, written or oral.
E. Adjudication

The youth court statute specifies that the child has
the right to subpoena and cross-examine witnesses.
However, the vast majority of cases are disposed
of with admissions; juvenile justice professionals
across the state reported that adjudications after
a full evidentiary hearing happened very rarely
in Mississippi youth court. Or, as one prosecutor
summed it up, “Adjudications [hearings] don’t happen often.” One defender, who reported carrying
a caseload of approximately 500 cases, estimated
that he tries 1-2 cases in youth court each month.
He attributed the low number to the prosecutor’s
willingness to dismiss charges if they are not wellfounded. The few adjudicatory hearings that were
observed were so brief that they were almost perfunctory. One youth court referee reported that
“Most cases last 30 minutes; some are much shorter.
There are no juries and rarely more than 1 or 2 witnesses for each side.”
Several juvenile justice professionals expressed
the opinion that youth court adjudications simply are not difficult. As one prosecutor explained,
“Most cases have uncomplicated facts, allowing for
quick resolution.” A defender in a different county
explained that only a few cases each week “really
require mental gymnastics.” This feeling was further demonstrated by some defenders’ practices.
For example, the defender in one county, where
detention facility administrators told investigators
that the defense attorney comes to the detention
center at most once every two or three months,
demonstrates conclusively that the defense
attorney does not prioritize preparation for the
adjudication. This defender, instead, meets with
his clients approximately five to fifteen minutes
before the adjudication hearing begins.

Despite the common perception, Mississippi’s
youth court adjudications are no less complex
than adult criminal proceedings. Children and
adults are often charged with the same offenses.
The elements of the crimes are the same, the
evidentiary burden the government bears is the
same, and the government is similiarly motivated for a conviction. The only real difference
between juvenile delinquency adjudications
and adult criminal proceedings are the length
of sentences. Put another way, practitioners may
believe that youth court cases are not as difficult
because there seems to be less at stake — juvenile clients face at most several months in a state
operated training school. However, as countless studies show, the effects of detention and
involvement in the juvenile justice system have
long-lasting collateral consequences.196
Even in the face of the serious consequences of
juvenile incarceration, investigators noted a lack
of defense advocacy during the few adjudication
proceedings observed. Assessment investigators
noted only one adjudicatory hearing during which
the youth presented defense witnesses other than
the client. Some youth took the stand in their own
defense — often to their own detriment. In one
county, a young man was charged with resisting
arrest after he called police because his father was
physically abusive. When the police arrived at the
young man’s home, they were physically aggressive with him. The child resisted and the police
attempted to arrest him. The child resisted further. When the child recounted these events in
court, his testimony proved the prosecution’s case
and he was adjudicated delinquent. In a different
adjudication in which the respondent was accused
of causing a disturbance in a public library, on
cross examination of the librarian, the defense
attorney asked mostly open-ended questions, and
elicited testimony that either reinforced the librarian’s direct examination testimony, or that elicited
additional bad behavior that the prosecutor highlighted on redirect examination. Most shockingly,
the defense attorney did not have the petition or
any paperwork in front of her during any of her
examinations.
F. Admissions

Even though the Mississippi youth court statute bars plea bargaining,197 the vast majority

38  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Public safety suffers when lawyers are not
equipped to ensure their clients receive appropriate
sanctions, in which discipline and accountability
are supplemented by educational, vocational, and
mental health programs designed to help youth
become responsible and productive adults.

of adjudicatory hearings are resolved through
admissions. The judge may accept a child’s
admission if the judge finds that 1) the child
making the admission fully understands his
or her rights and the consequences of the
admission; 2) the child making the admission is doing so voluntarily, intelligently, and
knowingly.198 By statute, at the beginning of
the adjudication hearing, the youth court
must explain to the child that he or she has
the right to counsel, the right to remain silent,
the rights to subpoena and cross examine witnesses, and the right to appeal.
Though a small number of judges were careful to advise youth of their rights, many judges
failed to make sure that admissions were made
knowingly and voluntarily. In one county, the
youth court judge accepted a child’s admission
without any colloquy concerning the child’s
understanding of his rights. According to an
assessment team observer, instead, the judge
asked the child “a few sarcastic questions”
about the details of the offense and the child’s
educational background, accepted the child’s
admission, and advised the child to return
for disposition. The observer noted that, considering the impact of an admission and the
long-range consequences of an admission on
the child’s life, the entire proceeding was completed “fairly quickly.” In another county, the
court took a plea in a case involving two 14 year
olds accused of fighting in school. The entire
admission, allocution, and disposition were
resolved in six minutes; they were both placed
on six months probation with conditions.

There was no discussion of rights or long-range
consequences. The defender let the boys’ parents explain the details. In another county, the
defense attorney, not the judge, assumes the
task of advising the youth of the rights he is
relinquishing by admitting. The defense attorney meets privately with the youth, and then
announces in the hearing room that the youth
wants to make an admission. There is no colloquy in court.
A youth in another county revealed to assessment
team investigators that instead of testing the prosecutor’s ability to establish elements of the offense,
the defense attorney encouraged him to admit
every time he was charged with an offense. That
same defender was observed counseling clients
moments before adjudication. In a rushed conversation squeezed between cases on what is usually a
busy docket, this defender asks the child to tell him
what happened during the incident that led to the
charges or to the revocation action. According to
assessment team investigators, “the defense attorney spen[t] little or no time exploring the facts and
asking follow-up questions geared toward developing defense theories.” Instead, after the child
presents “what happened,” the defense attorney
zeroes in on the bottom-line question of whether
the child is going to admit the charge (or admit the
violation of release conditions) or whether, in the
alternative, the child wants a hearing.
Several investigators documented youth confessing the details of the delinquent act upon
the encouragement of their defender, in spite
of the child’s expressed interests and with-

Mississippi • Fall 2007  39

The right sanction can help a youth turn away from
a life of involvement in the juvenile and criminal
justice systems; but the wrong placement can actually
increase the chance that a youth will re-offend.

out a full discussion of the consequences. In
another example, assessment team investigators watched as a defender pushed his client
to admit at her initial hearing, even though she
repeatedly asserted her innocence. The girl
was arrested for public disorder and underage
drunkenness when she called the police to get
drunk young people out of her mother’s yard
and house and was allegedly found drunk herself. The conversation between the defender,
the young woman, and her mother is disquieting considering the defender’s insistence that
the young woman admit:
Defender: Why don’t you just admit to the

claims, they did find you drunk.
Girl: But I was the one who called the police to
ask them to get the kids out of the yard.
Defender: But you were drunk, too.
Girl: Not really, I was not. I just feel like no one
is fighting for me.
Defender: Well then you should admit to the charge.
Girl’s Mother: Why? She is telling you she called
the police for help and she got arrested. It just
don’t seem fair to take it out on her. … I don’t
want this on her record. Why is she the only kid
being held accountable?
Defender: That’s not my call, but I think you
need to tell me if you want to admit to the
charges. It’ll be sealed once she turns 18. …
Girl’s Mother: This doesn’t seem fair. The court
is not giving us what they promised.
Girl: I don’t get it, why am I the one in trouble?
Defender: (Silent.)
Girl’s Mother: I guess we’ll admit since being on
probation has helped her. Is there any other
way we could do this?
Defender: No ma’am.

G. Disposition

Disposition is perhaps the most important
stage of the youth court process, the “heart of
the juvenile justice system.”199 The Mississippi
youth court statute requires that, during a disposition hearing, the court consider a host of
factors — including the child’s family and home
environment, as well as the child’s educational, medical, and social history200 to fashion
an individualized dispositional plan. Public
safety suffers when lawyers are not equipped
to ensure their clients receive appropriate sanctions, in which discipline and accountability are
supplemented by educational, vocational,  and
mental health programs designed to help youth
become responsible and productive adults. The
right sanction can help a youth turn away from
a life of involvement in the juvenile and criminal
justice systems; but the wrong placement can
actually increase the chance that a youth will reoffend. In Mississippi, the placement can range
from no action to probation to commitment to a
detention center or training school.
Unfortunately, assessment team investigators
found dispositional advocacy in Mississippi to
be routinely inadequate. For example, the statute allows youth to present evidence and call
witnesses during a disposition hearing. Ideally,
defenders should call witnesses at a disposition
hearing, including teachers, family members, and
mental health experts, who could testify regarding an appropriate sanction for the youth. In the
absence of live witnesses, defenders should offer
into evidence school and mental health records
to prove the existence of specific needs. However,
although one defender told assessment observers
that he would “occasionally put witnesses on to

40  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

contest a recommendation,” not a single courtappointed defender was observed presenting
evidence during a disposition hearing.
Assessment team investigators found that,
perhaps because defenders’ resources for dispositional investigation and preparation are
scarce, defenders rely heavily on the youth
court counselor’s recommendations at disposition. In one representative county, assessment
team investigators noted that, during the
entire observation period, the defender did
not contest the youth court counselor’s disposition recommendations even once. In another
county, the youth court public defender flat out
admitted that he does not try to persuade the
court regarding any dispositional alternatives,
nor does he feel it is his duty to try to propose
another alternative. He explained, “That’s the
counselor’s job — I am not aware of anything
else, she keeps up with that.” Juvenile defenders have an obligation “to consult with clients
and, independent from court or probation staff,
to actively seek out and advocate for treatment
and placement alternatives that best serve the
unique needs and dispositional requests of each
child,”201 even if they have a sense that the youth
court counselor is doing an adequate job. The
youth court counselor’s ethical obligation, to
serve the child’s best interest, of course, is not
necessarily congruous with the defender’s obligation, to serve the child’s expressed interest.
The divergence of these interests is often most
stark at disposition.
It is no surprise then that, in the absence of
contrary representations, most judges defer to
the recommendations of the youth court counselor. In many courtrooms, the judge relies on
the youth court counselors to gather personal
histories of children and issue dispositional recommendations, instead of the defender. In two
counties, the prosecution does not even participate in the disposition hearings; the youth
court counselor effectively represents the government’s interests. One youth court counselor
explained that “the judge will follow [her] recommended dispositional plan about 99% of the
time.” She stated the defense lawyers will sometimes ask her what she will be recommending,
but that is the extent of their input.

Unfortunately, the nuanced and responsive disposition hearings contemplated in the youth
court statute remain aspirational. The reality
is that disposition hearings in most counties
were observed to be brief and perfunctory,
held immediately after adjudication, without
pause for consideration or even investigation.
Across the state, assessment team investigators
observed that disposition hearings — perhaps
the most complex stage of the youth court process — rarely lasted longer than ten minutes. In
addition, although the Mississippi youth court
statute charges the youth court counselor with
providing the court with a social summary that
investigates the youth’s court history, behavior and performance at home and at school, as
well as key family relationships, in many counties, Mississippi defenders are in the practice of
waiving the pre-disposition report. And, in many
counties, in cases where the social summary was
prepared, it was not provided to defense counsel until minutes before the disposition hearing,
so counsel could not make effective use of the
information in the summary.
H. Post-Disposition

Representation does not end at disposition.
Juveniles may need the assistance of counsel after disposition for direct appeals of issues
arising during the pre-trial process or adjudication hearings, periodic reviews of dispositions,
collateral reviews of adjudications, obtaining
particular services such as drug or mental health
treatment, or challenging dangerous or unlawful conditions of confinement. The youth court
statute provides an opportunity to modify a disposition order, review the decision of a referee,
and appeal any youth court order directly to the
Mississippi Supreme Court.
It is clear that instances of appellate advocacy
are few and far between. Of all the defenders
interviewed across the state, only one defender
recalled filing an appeal or motion to modify.
One prosecutor recalled that, in the last eight
years, only three or four appeals had been filed.
Court-appointed defenders revealed several
reasons for not filing post-disposition motions
or appeals, including lack of appellate expertise, belief that the time and process of filing
an appeal would render the case moot prior to

Mississippi • Fall 2007  41

being heard, and lack of compensation to file
an appeal. Many attorneys incorrectly believe
that their contract with the county explicitly
prohibits post-disposition representation. Not
surprisingly, most have never visited either of
the two state-run training schools or even the
local detention center. This lack of post-dispositional representation not only deprives
Mississippi’s court-involved youth of their right
to appeal, it also inhibits Mississippi’s higher
courts from interpreting and applying Mississippi’s Youth Court Act.
Attorneys should treat appellate practice as an
important part of juvenile defense. Felony adjudications have long-term consequences, especially
for such crimes as sex offenses, and may have
important implications for plea bargaining or sentencing if the youth gets in trouble in the future,
either in juvenile court or adult criminal court. In
addition, as states move to longer terms of commitment, there is more time to perfect appeals,
and there are also more compelling reasons to
challenge adjudications and dispositions. The IJA/
ABA Standards provide that counsel should file
appropriate notices of appeal and represent clients, or arrange for representation on appeals.202
Attorneys must explain potential appellate issues
to juvenile clients, as well as the factors the client
should consider in deciding whether to appeal and
should file legally sound appeals whenever their
clients want them to do so.
III. Systemic Barriers to
Effective Representation
A. Ethical and Role Confusion

Juvenile defenders are a critical counterweight
in an adversarial system that can lead to harmful outcomes for young clients. The IJA/ABA
Standards are clear that defenders have an ethical obligation to zealously advocate for the
expressed legitimate interests of each juvenile
client, even when the child’s expressed legitimate interest conflicts with the defender’s sound
legal advice or with the defender’s own personal
judgment about what might be in the child’s best
interests.203 These standards apply regardless of
the child’s age, education level, and perceived or
measured intelligence level, so long as the child
is “capable of considered judgment on his or her
own behalf.”204 Unless the defender assumes

this adversarial role, the defender becomes, as
one team investigator reported, “a gatekeeper,
someone necessary to move the docket, not to
safeguard the rights of youth and families.”
Many juvenile defenders believe, however, that
their role is to protect the “best interests” of the
child, not to assume an adversarial role in which
they protect the legal interests of their clients.
For example, one contract public defender
explained that she plays three roles: attorney,
counselor, and social worker. She stated that
as the juvenile defender, you “can’t just deal
with the child, [but] … everything concerning
the child.” She “believe[s] that the disposition
phase is the most important stage of [her] representation of clients because the focus is on
what is in the best interest of the child,” even
though the IJA/ABA Standards are unequivocal
that the defender must zealously represent the
child’s expressed interests. Another defender
explained that “I don’t always listen to what
[the clients] say.” She further explained, “Mine
is not the role of the typical defense attorney;
I must consider what is best for the child, and
I do not take the position that I must ‘get the
child off at all costs.’” In one county, the courtappointed defender informed the court in a
post-adjudication hearing that detention would
be in her client’s best interest — despite the fact
that her client asked the court to explore other
placement options.
Not surprisingly, other courtroom actors share
defenders’ erroneous perception of their role.
A youth counselor in one county complained
that, though she is supposed to work on behalf
of the child’s best interest, “juvenile defense
attorneys do not do the same,” and she has had
to work with some public defenders “who just
want to get the child off.” She believes that it is
not always “good to have a child to walk out on
the street and get in trouble again.” One juvenile court administrator stated that he knows
that “the defense attorney is the child’s attorney, not the parent’s attorney,” but “children
don’t know what’s in their best interest, and the
attorney should base the defense on the client’s
ability to make decisions.” He concluded, “Strict
protection of rights can lead to a bad message to
children, and potentially to recidivism.”

42  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Prosecutors were similarly confused about
defense counsel’s role. One prosecutor
explained that he has a good relationship
with the newest juvenile defender because
“she understands that the main question is
how do we help the child, and she knows that
the only way the child can get help is through
adjudication.” In another county, a prosecutor
requested a meeting with the chancery court
judge, the defense attorney, and the referee
to talk about the defender’s adversarial advocacy. As that prosecutor explained, “I don’t
think it should be adversarial, we’re all here
for the youth.” A prosecutor in a third county
conflated the best interest and expressed
interest standards when he described that
“defense counsel’s role is to defend the client,” and defense counsel must do what the
client says, but “the biggest role is to explain
to the child and the child’s parents or guardians what’s going on — is to be an information
liaison. Attorneys should counsel their clients
as well as defend them; it should not always
be ‘fight, fight, fight.’” He added that defense
counsel should consult with the juvenile client with the parent present.
Most dismaying, judges do not seem to understand defense counsel’s role. One representative
youth court judge complained “Some attorneys fight too hard to get their clients off; they
don’t realize [youth court] is the best place for
the child.” This judge understood that public
defenders in youth court should be strong advocates for their clients “while not losing sight of
youth court’s overall philosophy.”
Parents also often expect defenders to act in
their child’s best interest. This tension can create complicated situations, particularly with
respect to the decision whether to plead, which
is the child’s alone, but which is, more often
than not, made by the parents. One defender
told assessment team investigators: “I get
here early, check files to see if the kid has been
served, review petitions, advise kids, and invite
them to admit or deny. I throw it into their laps
and usually the parents make the decision.” In
another instance, the defender let his clients’
parents explain, as part of the plea allocution,
the details of a fistfight which was the basis of

the assault charges that the boys, not their parents, were admitting. In another jurisdiction,
during the two-day period that the assessment
team investigators were observing, the defense
attorney’s brief pre-trial conversations always
included both the child and the parent.
The expectation to serve the child’s best interest,
instead of the child’s expressed interest, creates
an enormous amount of pressure on defenders
to be team players, at the expense of safeguarding their client’s interests. For example, one
prosecutor stated that the public defender told
him that she knew her client was guilty, but the
client wanted to go to adjudication. Telling the
prosecutor her own opinion that her client was
guilty undermined her and her client’s position
on several occasions. Defenders have a duty to
ensure that children are not in youth court simply because other institutional players think
particular children need services.
B. Impact of Attorney Compensation
and Excessive Caseloads

Compensation rates for lawyers serving as youth
court defenders range from an hourly rate of
$65.00, which does not include expenses such
as transportation costs, postage, phone calls, and
other support expenses, to as low as a flat fee of
$500.00 per month regardless of the number of
cases the attorney handles. One attorney stated
that his compensation of $750.00 per month was
for his dual role as both defender and the guardian ad litem.
Because court-appointed defenders are paid so
little, almost all must practice outside of youth
court and cannot afford to specialize in delinquency representation. One attorney, who is
one of two contract juvenile defenders in his
county, is paid $26,000 per year without benefits, and spends only 15-20% of his time on youth
court cases. When asked what percentage of her
time she spends on her youth court cases, one
attorney who receives a flat rate each month
to represent youth in delinquency and protective proceedings replied, “Not enough.” Judges,
attorneys, and youth court personnel all agree
that low fees prevent court-appointed defenders from investing the necessary time on youth
court cases.

Mississippi • Fall 2007  43

The problem of poverty is intrinsically woven into
all aspects of Mississippi’s juvenile justice system:
Mississippi is a resource-starved state struggling
for funds to protect the rights of poor children.

Despite limited funding, court-appointed defenders have virtually unlimited caseloads. The
American Bar Association Standards for Criminal
Justice recommend that full-time public defenders be assigned no more than 250 juvenile cases
per year.205 Although Mississippi fails to track the
number of cases assigned to each court-appointed
defender, defenders confirm that they carry exceedingly high case loads. One attorney currently has
150-200 active juvenile delinquency cases, meaning cases that have not yet gone to disposition;
post-disposition cases, like probation revocations
or contempt cases, are not included in this number. One defender estimated that he has between
500-600 open cases. Other attorneys noted that
they do not keep statistics on the number of cases
they handle because they “just handle whatever is
on the docket today. It does not matter if it is one
or twenty.” The failure to track the number of cases
handled by each court-appointed defender deprives
judges and policy makers of an important measure
of indigent defense systems — because court-appointed defenders with limitless caseloads cannot
provide adequate representation.
C. Lack of Juvenile Training and Standards

Even though national standards recognize that
juvenile defense is a specialty that requires ongoing training and support,206 until the passage of the
Mississippi Delinquency Prevention Act of 2006,
Mississippi youth court law required training for
youth court judges, prosecutors, and guardians ad
litem, but not for court-appointed defenders.
Lawyers interviewed for the assessment agreed
that they need training specific to juvenile

defense. They reported that there is no annual
juvenile court training available in the state
except the guardian ad litem training and the
Juvenile Justice Symposium. Neither of these
seminars provides training on delinquency matters. Court-appointed defenders throughout the
state suggested replicating the guardian ad litem
training model for court-appointed defenders.
As one attorney said, “It would be helpful to
have a statewide conference for defense counsel
to meet and exchange ideas.” Fifty-seven percent
of youth court personnel — including defenders — strongly support legislation that would
require public defenders to receive the equivalent training and continuing legal education that
youth court prosecutors must receive.207
D. Deficient Resources

General
The problem of poverty is intrinsically woven
into all aspects of Mississippi’s juvenile justice
system: Mississippi is a resource-starved state
struggling for funds to protect the rights of poor
children. Assessment contributors offered the
reality of scarce resources as an explanation
for the state of Mississippi’s juvenile indigent defense services. A judge in one county
explained that “Healthy counties have money to
support the court system; poor counties don’t.”
A former juvenile defender in another county
put it succinctly, “The biggest problem is we
have nothing and nobody to put up money to
help kids.” A judge in another county described
the poverty of the children who come before
him by telling a story of taking a group of children from the local school to a pizza restaurant

44  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

to teach them how to order from a menu. He
related another incident in which he brought
popsicles to a class, and some of the students, so
impacted by that small act, were still thanking
him a year later. Hurricane Katrina exacerbated
an already dire situation: The Center for Budget
and Policy Priorities points out that, before the
hurricane, Mississippi was the poorest state in
the nation, and “of the 5.8 million individuals in
these states who lived in the areas struck hardest by the hurricane, more than one million lived
in poverty prior to the hurricane’s onset.”208
Despite the importance of a strong juvenile indigent defense delivery system, juveniles often get
short shrift in the division of resources between
the defense of adults and the defense of juveniles. One judge summed it up: “Legislators
think that youth court is the foster child of the
system.” Indeed, the legislature did amend the
public defender system to resemble the district attorney system, but never funded it. The
only state-funded defender offices handle capital trial and post-conviction proceedings, and
felony appeals for the indigent. The adult system gets the lion’s share of resources, from
salaries to training. Attorneys who represent
criminal defendants are better-compensated.
One defender who represents both juveniles
and adults related that the pay for representing adult criminal defenders is so much better
that she would take more adult criminal cases
if the criminal preliminary hearing days did not
conflict with the days she has to be present in
youth court. Attorneys in the criminal system
are also better-trained. Another defender went
so far as to state that she is often happy when
cases are transferred to adult court because the
cases have a better chance of getting thrown out
because the adult court prosecutors know the
law better. As one prosecutor stated, “Juvenile
justice in this state is the red-headed stepchild
of the system.”
Inadequate Facilities and Meeting Space
Representation by juvenile defenders across the
state is hampered by a serious lack of facilities,
both in personal offices, and at court. Though
one defender reported that the youth court in
her county provides the public defender with
an amply-furnished office, most defenders had

to obtain their own office space and supplies. In
one county, the defender stated that he and the
prosecutor share the same telephone line and
voicemail. The defender claimed that this is not
a problem because the prosecutor doesn’t know
how to use the voicemail, but it is not difficult
to imagine problematic instances in which, for
example, a defense witness calls to speak with
the defender, the prosecutor answers the call,
and so the witness has revealed his or her existence to the prosecutor.
Though one county’s courthouse had several
locations where the public defender could meet
privately with clients, in most youth courts,
defenders have no designated office or private
space to confer with their young clients. In
these counties, the juvenile defender meets with
clients in the hallway or in the courtroom for a
few minutes prior to a hearing, often while the
prosecutor and youth court counselor are in the
courtroom and in earshot. The lack of facilities
designated for use by the defender severely limits the youth’s contact with defense counsel. In
contrast, youth court prosecutors almost always
have an office in the court building where they
can prepare witnesses in private.
Non-legal Support Staff
Mississippi juvenile defenders are especially
under-resourced in an indigent defense delivery
system that is already under-funded and overburdened. Almost uniformly, youth court defenders
lack the tools needed to adequately represent
young clients — including access to support staff,
investigators, experts, and training. Many defenders do not have administrative assistants or other
support staff to assist with appointments, phone
calls, and research. Not one juvenile defender
interviewed for the assessment reported hiring independent social workers, investigators,
experts or law clerks to assist them in preparing
for juvenile cases. In addition, most youth courts
lack the resources to pay for defense experts.
One youth court referee related that in theory,
a defense attorney could apply to the chancery
court judge to obtain money for investigators or
expert witnesses, but no defense attorney has
ever actually applied. He noted that the chancery
court could order the county to pay, but doubted
that the chancery court judge would issue such

Mississippi • Fall 2007  45

an order because she is an elected official. In
another county, the judge indicated that she
would be willing to pay for experts and investigators if lawyers would be more assertive and file
motions requesting access to these resources.
IV. Systemic Barriers to Just
and Balanced Outcomes
A. Youth Court Culture

Many counties used informal facilities as their
actual courtrooms. For example, in one county,
where the youth court referee admits that a “more
formal setting might work better,” the courtroom
is used as a waiting area on
youth court days, while the
actual hearings are held in a
back conference room off to
the right of the judge’s bench.
Unlike the actual courtroom,
which contains a traditional
configuration of furniture for
the judge’s bench and tables
for defense counsel and the
government, that room contains only a long conference
table and multiple chairs. In
another county, some juvenile proceedings are held in
the courtroom, which is a
room with an elevated platform where the judge sits,
and some proceedings are held in the referee’s
chambers, an office next door to the courtroom.
An assessment team investigator described the referee’s chambers as an “airless vault” about 16 x 18
feet in size and “cramped.” There are filing cabinets around the room and one desk behind which
the referee sits with someone else’s name plate displayed. The defender, sheriff’s deputy, and youth
court counselor stand; the stenographer, parents,
and youth can sit. The informality of these settings
is problematic because the physical appearance of a
delinquency court makes a statement to youth, families, and participants about the significance of the
proceedings. Even if the respondents are children,
juvenile court must still be court — especially since
the dangers of juvenile detention are so real and
so far-ranging. As the National Council of Juvenile
and Family Court Judges has advised, delinquency
judges should “explain and maintain strict courtroom decorum and behavioral expectations for all

participants … [and] ensure that the juvenile delinquency court is a place where all … participants are
treated with respect, dignity, and courtesy.”209
The pall of informality also creeps into the tone of
youth court proceedings. In county after county,
defenders and prosecutors talked favorably about
how juvenile court is not adversarial. In one county,
the prosecutor was of the belief that “[youth court]
should not be adversarial,” since “we’re all here
for the youth.” In another county, the juvenile
defender told assessment team investigators that
he and the prosecutor “try not to make it adversar-

Delinquency judges should “explain
and maintain strict courtroom decorum
and behavioral expectations for all
participants … [and] ensure that the
juvenile delinquency court is a place
where all … participants are treated
with respect, dignity, and courtesy.”
ial.” A prosecutor in another county compared the
pace of youth court and adult criminal adjudications, stating, “Youth court is not as adversarial as
Circuit Court.” A youth court counselor remarked
that “youth court is a real informal kind of thing.”
However, the addition of juvenile defense attorneys to the youth court process was meant to
infuse youth court with more of the adversarial
nature that attends criminal proceedings.
The most dangerous symptom of youth court’s
laxity is frequent violations of respondents’
due process rights. For example, in one county,
the public defender asked for drug screens for
a young man whose case was done for the day
after a subsequent youth stated on the record
that the first young man had given the second
young man marijuana that the two young men
smoked together. The earlier young man had
long since left the courtroom, and was there-

46  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

fore unable to mount a defense against these
new, unforeseen allegations, when the defender
requested this increase in his release conditions.
In another county, a youth court public defender
went on to explain that “there are no strict evidentiary rules in youth court,” and “the judge
allows everything in,” so “it would be a waste of
time to make objections or argue motions.”
B. Overdependence on Youth
Court Counselors

In many counties, youth court counselors dominated the proceedings. As one representative
youth court judge described, “The youth court
counselors are the most reliable source of information about the child and the child’s family.”
In another county, the youth court counselor
told team investigators that she insists on a policy of sending a child to detention if the child
is alleged to have violated his probation with a
new arrest or with a suspension from school,
and the referee goes along, even though the
referee’s inclination is to adjudicate the new
allegations before sending the child to detention.
The youth court counselor in another county literally runs the courtroom, scheduling matters,
ensuring parties are present, making detention
recommendations, and preparing and presenting
disposition recommendations. The pay scale in
another county offers the most conclusive proof
of who has the most sway in the courtroom: the
defender is paid a flat fee of $500 per month, the
prosecutor is paid a flat fee of $750 per month,
and the youth court counselor receives $25,000
— over $2,000 per month — for starting pay and
mileage. Arguably, more than anything else, this
overdependence on youth court counselors rigs
the system in favor of a “best interest” system,
instead of a system in which the due process
rights of children who face the “awesome prospect of incarceration” are zealously protected.
C. School Discipline

Professionals across the state complained that
the juvenile justice system is being overrun with
school referrals to youth court. These school
referrals clog the courts, and position the juvenile
justice system as the schools’ disciplinarian. As
one juvenile court administrator stated, “We get
too many referrals from the school system.” One
intake officer said, “Schools are killing us with

their referrals.” The problem is so severe that in
some counties, if a child is suspended from school
while they are under the youth court’s jurisdiction, they serve their suspension in the county’s
detention center. School police bring the child
directly to detention as a result of the violation.
Based on assessment team observations, the number of school referrals comprises a significant
percentage of the juvenile justice docket. In one
county, assessment team investigators observed
25 cases on the delinquency docket in a single day.
Of those 25 cases, at least half stemmed, in some
part, from the school system: one case involved a
girl who was expelled from school for an incident
involving a box cutter; another case involved nine
respondents alleged to have assaulted a young man
during some type of field day at a local high school;
another case involved a boy who was already on
probation for a previous assault at school who
was accused of causing a disturbance in the public library. In another county, two of the five cases
heard on a single day involved school-related incidents. In the first, an eighth grader with no prior
record was charged with fighting in school. In the
second, two 14-year-olds were alleged to have been
involved in a school fight.
The school incidents that become juvenile court
cases range in seriousness, but can be described
as mostly minor offenses. One school referred
a student for not wearing her school uniform
properly. One defender in another county stated
that the most common type of case she has
is children accused of fighting at school. The
admissions sheet at one county’s detention center showed that the majority of admissions were
for school-based thefts and simple assaults. One
youth court referee in a different county also
remarked on the number of school fights he sees
in his courtroom, as well as “a large number of
kids charged with disobeying their teachers.”
Another defender stated that the most common
charges he encounters involve children alleged
to have weapons at school; the catch, though,
is that “the judge [in that county] thinks everything is a weapon.” A former juvenile defender
commented on the weapons charges as well,
stating, “There is a lot of hysteria in the schools
about violence, [but] the schools don’t see a lot
of weapons — mostly nail files.”

Mississippi • Fall 2007  47

“Schools are using fist fights to get rid of ‘bad egg’
kids. The goal of the schools is to get rid of the kids
before the testing and they send them to an alternative
school which is basically a detention center. [The
schools] do no discipline, just send the police to arrest
the kids. The whole thing is a joke.” Once children
who are struggling in class are removed, they can no
longer drag down the school’s standardized test scores.
Since these cases are a measurable percentage of the juvenile justice docket, they place
a noticeable strain on system resources. One
youth court referee stated that youth court days
during the school year can be quite heavy, and
sometimes do not end until 9:00 at night. He
said, in contrast, the summer docket is much
easier to manage because school is out. A judge
in another county stated that there is an influx
of school matters at the beginning of the year,
but the referrals stabilize by second semester.
The judge added that “every principal wants
the child locked up,” but “we are not intended to
take up [the schools’] role.” Similarly, a juvenile
detention center administrator reported that
detention center admissions decrease dramatically when school is not in session.
This increased reliance by schools on the court
system was attributed to several factors. One
defender believed that a state law that requires
the school to report all fights to the police was
causing the increased number of referrals. A
juvenile court administrator in another county
opined that the schools are afraid of litigation. A
former juvenile defender offered the more insidious reason that “Schools are using fist fights to
get rid of ‘bad egg’ kids. The goal of the schools
is to get rid of the kids before the testing and
they send them to an alternative school which is
basically a detention center.” Once children who
are struggling in class are removed, they can no
longer drag down the school’s standardized test
scores. The defender added with disgust, “[The

schools] do no discipline, just send the police to
arrest the kids. The whole thing is a joke.”
D. Criminalization of Mentally Ill
Youth As Delinquents

A study commissioned by the Mississippi
Department of Public Safety and the Mississippi
Department of Mental Health found that 66%
to 85% of incarcerated juveniles in Mississippi
suffer from at least one diagnosable mental disorder, compared to only 14% to 20% of youth in
the general population.210 One intake coordinator
reported that she often sees youth with significant mental health issues in the juvenile system.
One defender estimated that 30% of her clients
have mental health issues. One detention center administrator put the number of children in
his facility with mental health issues as high as
50%. These numbers are consistent with national
research estimating that a majority of children in
detention have mental health issues.211
There is a dire need for more emergency placements and treatment programs to address the needs
of children with mental health diagnoses. Unfortunately, the way the system is presently structured,
a child almost must be involved in the juvenile justice system to receive mental health treatment. For
example, a prosecutor reported that, in the entire
state, there are only two facilities that take youth
who are both delinquent and are mentally ill or
mentally retarded, and both facilities have a significant waiting list. He also indicated that he has
often dismissed cases regarding youth with these

48  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

issues, because there is a civil commitment process
that can be initiated. A defender in another county
complained that, even though there is a paucity of
mental health facilities and programs in the state,
the court will generally not send a youth out of
state for mental health treatment because of the
costs. It is also noted that there is a severe lack of
treatment programs for girls.
E. Conflicts of Interest

Many counties reported a potential conflict of interest in the local court’s hiring and firing policies. In
one county, the judge technically hires and fires the
public defenders: the judge delegates the hiring
and firing to the court administrator, but the judge
is also the court administrator’s supervisor. Similarly, in another county, the public defenders are
hired and fired directly by the youth court judge,
because the youth court judge is also the administrative judge and thus oversees the management
of service contracts between the youth court and
public defenders. Of course, lawyers may be hesitant to challenge these judges for fear of losing their
contracts. This contractual relationship has the
potential of compromising the legal representation
provided to youth by their attorneys.
Several counties also place juvenile defenders in
roles where various potential conflicts of interest can arise. For example, in one county, defense
counsel is also the guardian ad litem. This dual
role creates the possibility that defense counsel
might represent a single child in two completely
different kinds of hearings — delinquency and
dependency — that demand different ethical obligations — advocating for the child’s expressed
interests, versus advocating for the child’s best
interests. During the 2007 Legislative session,
the Mississippi Legislature amended the law to
ensure that no one attorney will perform the role
of both guardian ad litem and defender. Even if
defense counsel does not represent a single child
in both a dependency and a delinquency case,
she might represent the child’s sibling, and in
that way be bound to act in a way that is contrary
to her delinquency client’s interests. In another
county, the defender serves as a judge in a different county, and as a prosecutor in an adjacent
county. All these positions at some point will
probably conflict with his role as the youth court
public defender. In fact, this attorney described

a case on the youth court docket that day, and
explained that he sat as judge in a related matter
the day before.
F. Race and Class

Assessment team investigators noted that that the
overwhelming majority of children in the delinquency system are African American and poor. In
one county, of the 11 children presented in court,
ten were African American, and one was Caucasian. Nine were male and two were female. Another
defender described the situation in his county with
“the racism is pronounced.” The assessment team
investigators saw no evidence suggesting that any
incarcerated children in the county come from middle income or wealthy families.
Juvenile justice professionals offered several
reasons for the disproportionate minority contact in the state. The prosecutor in one county
explained that, although the youth court also
has jurisdiction of cases from surrounding cities
which have predominantly white populations,
he very rarely prosecutes white youth. That
prosecutor blamed law enforcement, stating
that the low number of prosecutions of white
youth exists because sheriff’s deputies are sending white youthful offenders home, but arresting
African American youth. One youth court counselor blamed the school system: “We have one
of the worst school systems in the state. It is the
poorest run school system I have ever seen.”
Defense counsel in another county attributed
the disproportionality to over-patrolling of the
black neighborhoods, which are very clearly
defined, on the part of law enforcement.
Youth court professionals discerned a difference between the way private defense counsel
and public defense counsel were treated. In
one county, the judge often discusses cases in
an informal meeting in chambers. The private
defense and prosecution attorney attend the
private meetings, but the public defense attorney never gets these types of hearing. The youth
court counselor reported that she has a problem
with this practice, and that “all of us recognize
the noticeable difference.” However, no one has
made their feelings known to the judge. When
asked why, the counselor gave a knowing look,
which seemed to signal fear of retaliation. k

Mississippi • Fall 2007  49

chapter four

T h e I m p a c t o f H u r r i c a n e Ka t r i n a
o n Yo u t h J u s t i c e i n M i s s i s s i p p i
A .T h e

F u n c t i o n i n g

o f

Y o u t h

C o u r t

Hurricane Katrina generated a profound loss and instability on the
Mississippi Gulf Coast. Conversations with youth court stakeholders, including judges, prosecutors, public defenders, detention center
administrators, and youth court support staff from Mississippi’s coastal
counties revealed a tremendous amount of concern about the storm’s
affect on already vulnerable children and families. Youth court workers collectively described an extremely fragile youth court system that
is severely under-resourced. Youth courts in
the affected counties have barely enough staff
to keep the courts functioning. Important positions, such as youth court judge, prosecutor, and
public defender are maintained as part-time,
while they often demand a full-time commitment. An absence of basic clerical staff requires
youth court workers to double up on responsibilities. And two counties do not even have a
public defender — they must scramble to find
one for every child that is brought into court.
B. Scarcity of Community-Based Services

Youth court workers spoke about the profound
need for community-based options for adjudicated children. A paucity of resources has made
already spare options for community-based
and other rehabilitative services extremely
scarce. When deciding upon a disposition for a
child, judges usually have only three unpromising choices: detention, probation, or one of
the state’s training schools. One county used to
have access to ankle bracelet monitoring, a program that allowed more children to stay at home
rather than in detention. However, after the hurricane, that county could no longer afford to pay
for the service. Consequently, children whose
parents cannot afford to pay for the monitor-

ing service are forced to stay in detention, while
wealthier children have the privilege of returning home.
In particular, substance abuse treatment and
mental health services, two things that everyone
agrees the youth of Mississippi desperately need,
are scarcely available to the children affected by
Katrina. It is nearly impossible to obtain in-patient mental health care for adolescents. One
county’s mental health clinic does not have a
single licensed worker, and it usually takes three
months to get an appointment. Parents are often
forced to pay for mental health evaluations
and counseling on their own in private clinics
because there are no public resources.
Unfortunately, the need for support services
became dire exactly when funding for support
services was most unavailable. As the trauma
of the hurricane began to set in on children and
families, the need for support services rose dramatically. But the destruction caused by the
hurricane caused youth court support services
to be reshuffled to the bottom of community
funding priorities. Augmenting funding woes,
the hurricane destroyed much of the tourism
tax base for the coastal counties. The lack of

50  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  51

chapter five
tourism dollars presents a major obstacle to the
rebuilding phase for these counties.
C. Displacement of Detained Children

The storm had a uniquely wrenching effect
on detained children and their families. Many
detention centers had to evacuate as the hurricane was approaching. Though detention center
staff tried to locate parents to come and get their
children, they were unsuccessful in their efforts
for many of them. The massive displacement
that followed the hurricane traumatized children held in these detention centers.
D. FEMA Communities

Youth court workers also expressed concern
about the profound sense of loss experienced
by children and families along the coast. Those
who lost their homes to the hurricane have been
cramped into FEMA trailers, where they must
bear tense, over-crowded conditions that inevitably place a great strain on entire communities. The
FEMA trailer parks are also known for attracting
high levels of crime, drug use and violence.
The youth court system along the coast is beginning to see the consequences of these living
arrangements. One coastal county has noticed a
50% increase in the number of children brought
into youth court; and every public defender who
was interviewed commented on an expansion
of their already excessive case loads. Heightened stress levels in that county have led to an
increase in domestic abuse cases and reports
of child abuse and neglect. Another county
noticed a 50% increase in domestic violence
cases, along with an increase in property crimes.
Truancy has also risen dramatically, and one
public defender attributed this change to children’s feeling pressure to find work to support
their families during such a difficult time. There
has been such an increase in truancy that some
counties have instituted informal procedures
to deal with these cases. There has also been a
noticeable increase in drug offenses, as people
turn to drugs and alcohol to cope with the stress
of the hurricane.
Studies conducted by the National Child Traumatic Stress Network suggest that an alarming
number of children are likely to suffer post-trau-

matic stress disorder as a result of Katrina; and
a report from the Children’s Health Fund noted
a significant increase in anxiety and behavior problems among children.212 Youth court
workers from the coast have noticed a definite increase in mental health symptoms and
behavioral problems with youth involved in
the system. A youth court worker in one county
noted that judges have been ordering more psychological evaluations than before; and the
youth court counselors have observed increased
behavioral problems with children housed at
the detention center. Schools are also reporting
more fights. Children need mental health services to deal with the stress and loss caused by
Katrina.213 Unfortunately, since the hurricane,
the mental health providers along the coast have
fewer staff, and fewer services to offer.
E. Need for Preventive Services

Nearly everyone interviewed agreed that their
county needs more community-based preventive and rehabilitative services. They need
options that would hold children accountable —
something between probation and the training
schools — in order to divert at-risk youth from
further involvement with the youth court, and
future involvement with the criminal justice
system. All of the coastal counties desperately
need mentoring programs, recreation centers,
and after-school programs — just something
to keep kids safe and occupied. Schools also
need more resources in order to address disruptive behavior problems without contacting
law enforcement for relatively minor incidents.
Many youth court workers agreed that this
practice unnecessarily drags children into the
youth court system.
The counties along the coast also need basic
preventive mental health services, especially
now that so many children need help working
through the stress and trauma of the hurricane.
One youth court worker recommended funding
for mental health outreach programs for children and families, and making mental health
services available through the schools. One individual commented that most simple assaults are
against parents and teachers, demonstrating an
important need for prevention and treatment
services. k

52  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Co n c lu s i o n & R e co m m e n dat i o n s
In county after county, assessment team investigators encountered
juvenile justice professionals who share the goal of improving the juvenile indigent defense system, so that Mississippi’s system-involved
youth have a chance to lead law-abiding, fulfilling, successful lives
without regard to race or class. The youth court system is made better
each day by the efforts of these dedicated and caring professionals.
Among these professionals, ensuring effective
assistance of juvenile defense counsel is critically important. Mississippi is constitutionally
and statutorily obligated to ensure that every
child who sets foot in a courtroom has meaningful access to effective assistance of counsel
at all stages of the juvenile justice process.
Without well-trained, well-resourced defenders, due process remains out of these children’s
reach, and youths in the juvenile justice system
are bystanders instead of participants. However, youths are not the only ones who benefit
from a strong juvenile defense bar; all of Mississippi’s citizens have an interest in ensuring
just and balanced outcomes for its children.
Not only must public defense-oriented organizations rededicate themselves to the fair
administration of justice for Mississippi’s
youth, but all branches of government, at the
state and local level, should take up this cause.
I. Core Recommendations

1. Access to counsel: Although most Mississippi youth courts prohibit waiver of counsel,
many courts do not appoint counsel early
enough in the youth court process. Some children go unrepresented at important stages
of the proceedings, including interrogation,
intake, and detention hearings. A defender
should be appointed as soon as a child is found
indigent — ideally before interrogation, and

always before any procedural determinations
are reached.
2. Attorney compensation and caseloads:
The quality of youth court representation
should be improved through reduced defender
caseloads, additional attorney training, and
adequate supervision and monitoring of cases
in youth court. Court-appointed defenders
struggle with high caseloads and do not receive
adequate compensation for their critically
important work. Judges, attorneys, and youth
court personnel all agree that low fees prevent
court-appointed defenders from investing the
necessary time on youth court cases. The failure to track the number of cases handled by
each court-appointed defender deprives judges
and policy makers of an important measure of
indigent defense systems — because court-appointed defenders with limitless caseloads
cannot provide adequate representation.
3. Lack of juvenile defender training: Juvenile
defenders should have regular access to comprehensive, on-going trainings on juvenile-specific
issues, including special education, competency,
and adolescent development.
4. Deficient youth court resources: State legislators and local policymakers should increase
the resources that are available to improve delin-

Mississippi • Fall 2007  53

quency representation in juvenile court. Even
when compared to the uniformly underfunded
and overburdened adult indigent defense system, the juvenile indigent defense system stands
out as particularly starved for resources. These
resources should provide for legal and non-legal support, including investigators, experts, and
social workers.
5. Lack of youth court uniformity: State and
local policymakers should reconsider establishment of a state-funded indigent defense system
that can ensure caseloads within national and
state standards, adequate support and technology systems, and ongoing support and training
for juvenile defenders. The lack of uniformity
in Mississippi’s youth court system erects an
additional barrier to effective representation by
court-appointed defenders for youth.
6. Informed admissions: Judges should ensure
that colloquies with youth who admit are thorough, comprehensive, and administered in
age-appropriate language. Judges should take
special care to ascertain a youth’s understanding
of the immediate and long-term consequences
of an admission.
7. Overflow of school referrals: State and local
policymakers should work with local school
districts to refine school policies concerning
referrals of children with discipline issues to the
youth court system so that only the most serious
cases reach the courthouse, while the rest of the
cases remain in the schoolhouse.
II. Implementation Strategies

The State Legislature should:
• Establish and fund an indigent defense system
that can ensure caseloads within national standards, adequate support systems, and ongoing
training for juvenile defenders.
• Increase the resources available to the youth
court defenders — including access to independent experts, social workers, and investigators.
• Fund a continuum of community-based dispositions, so judges have meaningful alternatives
to secure care.
• Prohibit secure detention for children who
are detained only because their parents/guardians are unable or unwilling to care for them.

Bar associations should:
• Create standards for juvenile defenders who
represent children in youth court proceedings.
Mississippi Youth Court Judges should:
• Appoint attorneys at the earliest possible stage
in all juvenile cases — ideally as soon as a child
is determined indigent, but always prior to initial hearings.
• Ensure that counsel has a meaningful opportunity to meet with the client and prepare for
the hearings.
• Ensure all youth fully understand their rights,
including their right to appeal, before all proceedings.
• Provide private facilities at the courthouse
to defense counsel for client consultation, and
ensure that the physical arrangement of the
courtroom reinforces the roles and relationships
of the parties, so that children are seated next to
and can consult freely with their attorneys.
• Ensure attorneys are compensated for all
reasonable work including client meetings,
investigations, legal research, motions practice,
dispositional planning, and appeals.
• Provide attorneys with meaningful access to
independent investigators, experts, and other
support when necessary.
• Provide leadership in working with school
officials and mental health providers to ensure
that youth court is not the dumping ground for
those systems.

dents’ involvement in youth court through
internships, clinics, and fellowships.
• Offer continuing legal education courses to
improve the quality of representation in youth
court.
Law enforcement should:
• Mandate training on developmental differences
between youth and adults to help officers understand adolescents’ decision-making abilities.
• Track juvenile arrest data according to race to
develop a baseline concerning the overrepresentation of African Americans in the juvenile
justice system.
Public schools should:
• Reduce the number of school-based referrals
to the juvenile justice system by entering into
agreements with law enforcement, youth courts,
and mental health providers to specify objective
criteria for school-based youth court referrals
and ensuring that school discipline policies are
evidenced-based best practices. k

Juvenile defenders should:
• Always represent the expressed legitimate
interests of their clients.
• Regularly meet with clients before the day of
court, investigate cases, actively represent youth
at initial and detention hearings, and have regular post-hearing debriefings to ensure that
clients understand the proceedings and their
right to appeal.
• Ensure that effective representation happens
at the earliest possible stage in juvenile court
proceedings and remains zealous throughout
the process.
• Develop expertise through ongoing training on
juvenile justice related issues.
Mississippi law schools should:
• Provide increased opportunities for law stu-

54  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  55

Endnotes
1	Miss. Code Ann. § 43-21-201(1).
2	National Juvenile Defender Center, Legal Strategies to Reduce the Unnecessary Detention of Children (2004), 3.
3	Justice Policy Institute, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, 4 (November 2006); see also Coalition for Juvenile Justice, Unlocking
the Future: Detention Reform in the Juvenile Justice System, Annual Report, 25 (2003).
4	Justice Policy Institute, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, 5 (November 2006).
5	U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and Victims: 2006 National Report, 94, 95 (2006).
6	Id.; see also In re Gault, 387 U.S. 1, 15 (1967).
7	U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and Victims: 2006 National Report, 95 (2006).
8	Id. at 95-96.
9	Id. at 94.
10	Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv.
L.Rev. 775, 794-95 (1966), cited in In re Gault, 387 U.S. 1, 11 (1967).
11	In re Gault, 387 U.S. 1, 17 (1967).
12	Id. at 15 fn. 14.
13	372 U.S. 335 (1963).
14	Gideon, 372 U.S. at 344.
15	387 U.S. 1 (1967).
16	Gault, 387 U.S. at 19 n.23 (internal quotations and citation omitted).
17	Gault, 387 U.S. at 36.
18	In re Gault, 387 U.S. 1, 36 (1967).
19	Gault, 387 U.S. at 18.
20	Gault, 387 U.S. at 55.
21	Gault, 387 U.S. at 56-7.
22	In re Winship, 397 U.S. 358 (1970).
23	Breed v. Jones, 421 U.S. 519 (1975).
24	Kent v. United States, 383 U.S. 541 (1966).
25	In re Winship, 397 U.S. 358, 365-66 (1970)
26	The President’s Commission of Law Enforcement and the Administration of Justice: “The Challenge of Crime on a Free Society,” p. 87 (1967), cited in Gault at footnote 6.
27	In re Gault, 387 U.S. 1, 36 (1967).
28	Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of
Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245, 255-56 (2005).
29	Id.
30	Pub. L. 93-415 (1974).
31	National Advisory Committee for Juvenile Justice and Delinquency Prevention, Standards for the Administration of Juvenile Justice §3.132 Representation by Counsel — For the Juvenile (1980).
32	For a description of the project, see IJA/ABA Juvenile Justice Standards Annotated: A Balanced Approach xvi-xviii (Robert E. Shepherd, ed., 1996).
33	ABA Juvenile Justice Center, Juvenile Law Center & Youth Law Center, A Call for Justice: An Assessment of Access to
Counsel and Quality of Representation in Delinquency Proceedings (1995), available at www.njdc.info/pdf/cfjfull.pdf.
34	NAACP Legal and Educational Defense Fund, Assembly Line Justice: Mississippi’s Indigent Defense Crisis at 6 (February 2003);
see also The Spangenberg Group, Indigent Defense in Mississippi, prepared for the Mississippi Bar Association, Subcommittee
on Indigent Defense (January 1995). This publication has been updated twice. Update: The State of Indigent Defense Services in

56  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi in Fiscal Year 1998, prepared for the Mississippi State Public Defender Commission on behalf of the American Bar Association Bar information Program (December 1998) and Update: The State of Indigent Defense Services in Mississippi, prepared for
the Mississippi Indigent Defense Committee on behalf of the American Bar Association, Bar Information Program (January 1997).
35	Mississippi Administrative Office of the Courts Survey, August 2000, on file with the authors, and available upon request from the Supreme Court of Mississippi’s Administrative Office of Courts.
36	NAACP LDF Press Release, “Indigent Defense Crisis in Mississippi,” March 11, 2003.
37	Id.
38	Annie E. Casey Foundation, KIDS COUNT Data Book, 105 (2006), available at www.aecf.org/kidscount/sld/databook.jsp.
39	Id.
40	According to the 2000 census, 55% of Mississippi’s total youth population is white, while 45% is African American. However, of 11, 916 total juvenile delinquency arrests in that same year, 4,445, or 37%, or youth arrested were
white, while 7,471, or 63%, were African American. See W. Haywood Burns Institute, Mississippi State Disproportionate Minority Confinement Data, available at www.burnsinstitute.org/dmc/ms/MS_Stats_Graphs.pdf.
41	Mississippi Juvenile Justice: Hearing before the House Juvenile Justice Committee 175th Legis. Reg. Sess. (March
2004)( Statement of Jane Boykin and Kate McMillan, from the Mississippi Forum on Children and Families)(stating that abused and neglected children are disproportionately represented in the juvenile justice system); Angela
Robertson & Jonelle Husain, Miss. State Univ., Prevalence of Mental Illness & Substance Abuse Disorders Among Incarcerated Juveniles at 2 & 27 (July 2001) (stating that 66% to 85% of incarcerated juveniles in Mississippi suffer from
at least one diagnosable mental disorder, compared to only 14% to 20% of youth in the general population).
42	2005 Annual Report, Mississippi Department of Human Services, Division of Youth Services. P. 6-7. Joint Committee on Performance, Evaluation and Expenditure Review (“PEER Committee”), Memorandum to Representative
George Flaggs, Jr. (Oct. 25, 2005). David M. Osher; Mary Magee Quinn, Jeffery M. Poirier, Robert B. Rutherford.
Deconstructing the pipeline: using efficacy, effectiveness and cost-benefit data to reduce minority youth incarceration.,
New Directions for Youth Development, No. 99. Fall 2003. ([“Youth of color] are disproportionately removed from
family, school and community through a variety of unproven, ineffective or harmful interventions.”)
43	U. S. Census Bureau, 2000 Census of Population and Housing.
44	Miss Code Ann § 43-21-151.
45	Miss. Code Ann. § 43-21-159 (4).
46	2005 Annual Report, Mississippi Department of Human Services, Division of Youth Services, p. 10 (stating that 3,798 children were referred to youth court for disorderly conduct; 2,113 for malicious mischief).
47	Richard A. Mendel, Less Cost, More Safety: Guiding Lights for Reform in Juvenile Justice. American Youth Policy Forum,
p. 15-20. (Non-residential treatment and/or youth development services — aggressive intervention programs to resolve
behavior problem in young peoples natural environment . . .cost far less than training schools with better results”).
48	Richard A. Mendel, Small is Beautiful: The Missouri Division of Youth Services, 5 Advocacy 1, 29-38 (Spring
2003) (“Training school confinement is often justified as a necessary step to protect the public. Yet only 27%
of incarcerated youth nationwide have been found guilty of a violent felony. Most have committed only
property or drug crimes or disorderly conduct, sometimes only misdemeanors. . . “)
49	In December 2003, the U.S. Department of Justice (DOJ) filed a lawsuit against the state of Mississippi on the grounds that the
conditions in its two juvenile training schools, Oakley Training School in Raymond and Columbia Training School in Columbia, violated the civil rights of the children housed there. According to a DOJ report, youths at state training schools were chained to poles,
hogtied, and forced to eat their vomit. The findings were based on interviews of students and employees in 2002. Mississippi has
also defended several lawsuits filed by children committed to the training schools: Morgan v. Sproat, 432 F. Supp 1130 (S.D. Miss.
1977); K.L.W. v. James, No. 2:04-CV-149 (S.D. Miss. April 13, 2004); J.A. v. Barbour, No: 3:07-CV-394 (S.D. Miss. July 11, 20070.
In 2005, 2006 and 2007, Juvenile Justice and Appropriations Committees in both chambers of the state legislature undertook significant system improvement: The Mississippi Juvenile Justice Reform Act of
2005 (Senate Bill 2894); The Mississippi Juvenile Delinquency Prevention Act of 2006 (House Bill 199);
A Bill to Fund Youth Court Support Services; (Senate Bill 2477—2007 session) .
50	Gary Tuchman, Transcript of “Anderson Cooper 360 Degrees” (August 29, 2006) 19:00
ET, CNN, CNN.com, available on the web at CNN-ACooper082906.
51	Anne Rochell Konigsmark, “New Orleans ‘ Recovery Slow and Slippery Process; Rebuild-

Mississippi • Fall 2007  57

ing underway but in the same flood-prone places,” USA Today, August 23, 2006.
52	Associated Press, “Around the State,” Memphis Commercial Appeal, December 13, 2005.
53	Editorial, “Ya gotta have a plan to get from here to there,” Sun Herald, September 24, 2006.
54	Amy Liu, A Review of the Federal Response to Rebuilding Mississippi: One Year After Hurricane Katrina, part of
The Initiative for Regional and Community Transformation, A Report of the Mississippi State Conference of the
National Association for the Advancement of Colored People, Envisioning a Better Mississippi: Hurricane Katrina
and Mississippi — One Year Later (2006), available at www.naacp.org/news/press/Mississippi.pdf.
55	Id.
56	Website of Speaker of the House Nancy Pelosi, Six Months After Katrina: An Overview, Tens of Thousands of Katrina Survivors Are
Still Suffering And the Future of the Gulf Coast Remains Unclear, available at www.speaker.gov/30something/docs/katrinasix.doc.
57	Id.
58	Emily Wagster Pettus, “NAACP: Low-Income People Disproportionately Hurt in Katrina Aftermath,” Sun Herald, Aug 23, 2006.
59	Mississippi has a various levels of courts exercising jurisdiction over delinquency proceedings.
There are two municipal youth courts, 19 County courts, and sixty two Chancery Courts (most of
which utilize referees as judges) exercising jurisdiction over delinquency proceedings.
60	Miss. Code Ann. § 99-18-3 (2000) (creating the Office of Capital Defense Counsel).
61	Miss. Code Ann. § 99-39-103 (2000) (creating the Office of Capital Post Conviction Counsel).
62	Miss. Code Ann. § 99-40-1 (2000) (creating the Office of Indigent Appeals).
63	During the 2007 Legislative Session, the legislature created and funded a training division in the Office of Indigent
Appeals that will provide training to all indigent defenders—including youth court defenders. (House Bill 1498).
64	NAACP Legal and Educational Defense Fund, Assembly Line Justice: Mississippi’s Indigent Defense Crisis, 6 (February 2003).
65	Id.
66	Id.
67	Id. at 14.
68	Id. at 6; see also J.B. Van Slyke v. State of Mississippi, No. 00-0013-GN-D (Chancery Court, Forrest County 1999)(voluntarily withdrawn by plaintiff when he resigned his position as public defender);
In re Jones County Public Defender, No. 93-CA-1273 (Jones County Circuit Court 1996).
69	Assembly Line Justice, supra at n. 57 at 6; see also The Spangenberg Group, Indigent Defense in Mississippi, prepared for the Mississippi Bar Association, Subcommittee on Indigent Defense (January 1995). This publication has been
updated twice. Update: The State of Indigent Defense Services in Mississippi in Fiscal Year 1998, prepared for the Mississippi State Public Defender Commission on behalf of the American Bar Association Bar information Program
(December 1998) and Update: The State of Indigent Defense Services in Mississippi, prepared for the Mississippi Indigent Defense Committee on behalf of the American Bar Association, Bar Information Program (January 1997).
70	Miss. Code Ann. § 99-15-15.
71	Quitman County v. State of Mississippi, No. 99-0126 (Chancery Court, Quitman County 1999); Noxubee County v. State of Mississippi, No. 99-0136 (Circuit Court, Noxubee County 1999); Jefferson
County v. State of Mississippi, No. 99-0169 (Circuit Court, Jefferson County 1999).
72	Assembly Line Justice, supra at 7.
73	Id.
74	Id. at n. 13-14.
75	Miss. Code Ann. § 43-21-103.
76	Miss. Code § 43-21-103.
77	A “child” is defined as a person who has not yet reached his or her eighteenth birthday, is not on active duty
for the armed services, and is not married. Miss. Code Ann. § 43-21-105 (d). A “delinquent child” is defined
as a child over the age of 10, who has committed a delinquent act. Miss. Code Ann. § 43-21-105(i). A “delinquent act” is any act that, if committed by an adult, would be considered a crime under local, state or federal
law, except for offenses punishable by life imprisonment or death. Miss. Code Ann. § 43-21-105(j).
78	Miss. Code Ann. § 43-21-103.
79	Miss. Code Ann. § 43-21-151(1).
80	Miss. Code Ann. § 43-21-151(2).

58  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

81	Id.
82	Miss. Code Ann. § 43-21-151(3).
83	Miss. Code. Ann. § 43-21-105(i)
84	Miss. Code Ann. § 43-21-153(1).
85	Miss. Code Ann. § 43-21-153(2).
86	Miss. Code Ann. § 43-21-155(1).
87	Miss. Code Ann. § 43-21-111 (1).
88	Miss. Code Ann. § 43-21-111 (4).
89	Miss. Code Ann. § 43-21-157 (1).
90	Miss. Code Ann. § 43-21-157(8).
91	Miss. Code Ann. § 43-21-157(1).
92	Miss. Code Ann. § 43-21-157(4).
93	Miss. Code Ann. § 43-21-157(3).
94	Miss. Code Ann. § 43-21-157(5) states:
The factors which shall be considered by the youth court in determining the reasonable
prospects of rehabilitation within the juvenile justice system are:
a) Whether or not the alleged offense constituted a substantial danger to the public;
b) The seriousness of the alleged offense;
c) Whether or not the transfer is required to protect the community;
d) Whether or not the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
e) Whether the alleged offense was against persons or against property, greater weight being
given to the offense against persons, especially if personal injury resulted;
f) The sophistication, maturity and educational background of the child;
g) The child’s home situation, emotional condition and life-style;
h) The history of the child, including experience with the juvenile justice system, other courts, probation, commitments to juvenile institutions or other placements;
i) Whether or not the child can be retained in the juvenile justice system long enough for effective treatment or rehabilitation;
j) The dispositional resources available to the juvenile justice system;
k) Dispositional resources available to the adult correctional system for the child if treated as an adult;
l ) Whether the alleged offense was committed on school property, public or private, or at any
school-sponsored event, and constituted a substantial danger to other students;
m) Any other factors deemed relevant by the youth court….
n) Nothing in this subsection shall prohibit the transfer of jurisdiction of an alleged offense and a child if that
child, at the time of the transfer hearing, previously has not been placed in a juvenile institution.
95	Miss. Code Ann. § 43-21-157(1).
96	Miss. Code Ann. § 43-21-157(8).
97	Id.
98	Id.
99	Miss. Code Ann. § 43-21-159(4).
100	Id.
101	Miss. Code Ann.§ 43-21-157(8).
102	Miss. Code Ann. § 43-21-159(4).
103	Miss. Code Ann. § 43-21-159(4).
104	Miss. Code Ann. § 43-21-201(1) (This Mississippi Delinquency Prevention Act of 2006 inserted this language into the Mississippi code).
105	Miss. Code Ann. § 43-21-157 (1).
106	Miss. Code Ann. § 43-21-201(1)
107	Miss. Code Ann. § 43-21-201(2).
108	Miss. Code Ann. § 43-21-311(1).
109	Miss. Code Ann. § 43-21-311(2).

Mississippi • Fall 2007  59

110	Miss. Code Ann. § 43-21-557(1), (2).
111	Miss. Code Ann. § 43-21-557(2).
112	Miss. Code Ann. § 43-21-203(5).
113	Miss. Code Ann. § 43-21-203 (6).
114	Miss. Code Ann § 43-21-255(1).
115	Miss. Code Ann § 43-21-255(5); Miss. Code Ann § 43-21-261(8); Miss. Code Ann § 43-21-261(9)
116	Miss. Code Ann. § 43-21-203(3).
117	Miss. Code Ann. § 43-21-203(7).
118	Miss. Code Ann. § 43-21-203 (7), (9).
119	Miss. Code Ann. § 43-21-559(1).
120	Id.
121	Miss. Code Ann. § 43-21-559(2).
122	Miss. Code Ann. § 43-21-301(1), (2), (3)(a) — (3)(c).
123	Miss. Code Ann. §§ 43-21-307; 43-21-309.
124	Miss. Code Ann §§ 43-21-309; 43-21-301(3)(b).
125	Miss. Code Ann. § 43-21-309(4)(a).
126	Miss. Code Ann. § 43-21-311(1)-(4).
127	Miss. Code Ann. § 43-21-321 (1).
128	Miss. Code Ann. § 43-21-321(2).
129	Miss. Code Ann. § 43-21-321(5).
130	Miss. Code Ann. § 43-21-451.
131	Id.
132	Id.
133	Id.
134	Id.
135	Miss. Code Ann. § 43-21-455(4).
136	Miss. Code Ann. § 43-21-455(1)(d).
137	Miss. Code Ann. § 43-21-501.
138	Miss. Code Ann. § 43-21-503.
139	Miss. Code Ann. § 43-21-505(1).
140	Miss. Code Ann. § 43-21-505(2).
141	Miss. Code Ann. § 43-21-507.
142	Miss. Code Ann. § 43-21-405(3)(c).
143	Miss. Code Ann. § 43-21-401, 405, and 407 all discuss informal adjustment.
144	Miss. Code Ann. § 43-21-401, 405 and 407.
145	Miss. Code Ann. § 43-21-551(1).
146	Miss. Code Ann. § 43-21-551(2)(a)-(c).
147	Miss. Code Ann. § 43-21-551(2)(c).
148	Miss. Code Ann. § 43-21-555.
149	Miss. Code Ann. § 43-21-553.
150	Miss. Code Ann. § 43-21-553(a)-(d).
151	Miss. Code Ann. § 43-21-557(1)(e)(i)-(v).
152	Miss. Code Ann. § 43-21-557(1), (2).
153	Miss. Code Ann. § 43-21-561(1).
154	Miss. Code Ann. § 43-21-601(1).
155	Id.
156	Miss. Code Ann. § 43-21-601(2).
157	Miss. Code Ann. § 43-21-603(3).
158	Miss. Code Ann. § 43-21-603 (8).
159	Id. at (a)-(e).

60  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

160	Miss. Code Ann. § 43-21-603(9).
161	Miss. Code Ann. § 43-21-605 contains a complete list of the court’s disposition options.
162	Miss. Code Ann. § 43-21-605(g)(iii). The Oakley and Columbia Training Schools are state-supported juvenile facilities that run
“paramilitary style” programs. Oakley is for boys; Columbia is for girls. Girls at Columbia are housed in “cottages.” Cottages
have the capacity to house 24-32 youth each in open rooms that resemble military barracks. At Oakley, youth who have been
to training school 1-2 times live in “cottages.” Youth who have already been to training school twice or more live in jail cells. The
superintendent of a state training school may parole a child at any time he deems it in the best interest and welfare of the child.
163	Miss. Code Ann. § 43-21-605(k). Although detention is generally defined as a temporary holding facility for youth who have
not yet been adjudicated, Mississippi’s youth court judges can also use detention as a post-adjudication disposition for up to
90 days. Any detention exceeding 45 days must be reviewed by the court no later than 45 days after entry of the order.
164	Miss. Code Ann. § 43-21-605(1)(k) (iii)(1).
165	Miss. Code Ann. §§ 43-14-1; 43-21-605.
166	Miss. Code Ann. § 43-27-201(4). At the moment, only 37 of Mississippi’s 82 counties have AOPs. By the year 2010, all 82 counties will have access to an AOP.
167	Miss. Code Ann. § 43-21-605(g)(iii).
168	Miss. Code Ann. § 43-21-605(1)(k)(iii).
169	Miss. Code Ann. § 43-21-605(1)(k).
170	Miss. Code Ann. § 43-21-605(1)0(k).
171	Miss. Code Ann. § 43-21-111(5).
172	Miss. Code Ann. § 43-21-613(2).
173	Id.
174	Miss. Code Ann. § 43-21-613(3)(a).
175	Miss. Code Ann. § 43-21-651(1).
176	Id.
177	Miss. Code Ann. § 43-21-651(3).
178	Mississippi Rules of Appellate Procedure, Rule 16(b)
179	In re Winship, 397 U.S. 358, 365-66 (1970)
180	Miss. Code Ann. § 43-21-201 (“the child shall be represented by counsel at all critical stages.”) (emphasis added).
181	Mississippi Rules of Professional Conduct 1.2
182	In re Gault, 387 U.S. 1, 36 (1967).
183	Miss. Code Ann. § 43-21-311.
184	See fn. 185, infra.
185	Miss. Code Ann. 43-21-301 (3).
186	Id.
187	See generally Justice Policy Institute, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, p. 4 (November 2006).
188	National Juvenile Defender Center, Legal Strategies to Reduce the Unnecessary Detention of Children (2004), p. 3.
189	Coalition for Juvenile Justice, Unlocking the Future: Detention Reform in the Juvenile Justice System, Annual Report, 25 (2003).
190	Id.
191	Bart Lubow, 11 Juvenile Justice Update 1, 2, Reducing Inappropriate Detention: A Focus on the Role of Defense Attorneys (Aug/Sep 2005).
192	IJA/ABA Juvenile Justice Standards, Standards Relating to Counsel for Private Parties, Standard 4.3.
193	In that case, the parties and witnesses had participated in a previous adjudication, in a different court, concerning the same incident.
The respondents, therefore, were prepared to bring those witnesses with them to the subsequent proceeding in the juvenile court.
194	IJA/ABA Juvenile Justice Standards, Standards Relating to Counsel for Private Parties, Standard 4.3.
195	Miss. Code Ann. § 43-21-261(4).
196	See generally Justice Policy Institute, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, 4 (November 2006). This is particularly true in Mississippi, where state operated
training schools have continually failed to meet the needs of youth in state custody. See FN 49 supra.
197	Miss. Code Ann. § 43-21-555

Mississippi • Fall 2007  61

198	Miss. Code Ann. § 43-21-553(a)-(d).
199	National Council of Juvenile and Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases 135 (2005).
200	Miss Code Ann. 43-21-603.
201	American Council of Chief Defenders & National Juvenile Defender Center, Ten Core Principles for Providing Quality Delinquency
Representation Through Indigent Defense Delivery Systems (2005), Principle 8A, available at www.njdc.info/pdf/10_Principles.pdf.
202	Id. at 10.3(b).
203	See footnote 3, supra.
204	Institute for Judicial Administration/American Bar Association, Juvenile Justice Standards, Standard 3.1 (1996).
205	ABA Standards for Criminal Justice, Providing Defense Services (3rd ed. 1993).
206	American Council of Chief Defenders & National Juvenile Defender Center, Ten Core Principles for Providing Quality Delinquency Representation Through Indigent Defense Delivery Systems (2005), Principle 7.
207	Survey of Mississippi Youth Court and Department of Youth Services Personnel conducted during the Juvenile Justice Symposium August 2005 at the Isle of Capri.
208	Center for Budget and Policy Priorities, Essential Facts about the Victims of Hurricane Katrina, available at www.cbpp.org/9-19-05pov.htm.
209	National Council of Juvenile and Family Court Judges, Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases 123 (2005).
210	Angela Robertson & Jonelle Husain, Mississippi State University, Prevalence of Mental Illness & Substance Abuse Disorders Among Incarcerated Juveniles (July 2001).
211	Ravindra Gupta, Kelly J. Kelleher, et al., Delinquency Youth in Corrections: Medicaid and Reentry into the Community, Vol. 115 PEDIATRICS No. 4, pp. 1077-1083 (April 2005) (stating that “It is reported that as many as 60% of youth in
detention meet the criteria for conduct disorder, 20% for a major depressive disorder, and 18% for attention-deficit/hyperactivity disorder. This compares with 37% of youth in the community reported to have at least 1 psychiatric disorder”).
212	Press Release, The Children’s Health Fund & Columbia Univ. Mailman Sch. of Pub. Health, Miss. Families Displaced by Hurricane Katrina Still Face Dire Health and Economic Woes, as Help Barely Reaches Those in Most Need (February 7, 2007),
http://www.childrenshealthfund.org/media/MediaArticlesPDFs/MCAFHReleaseFinal.pdf (last visited October 16, 2007).
213	Press Release, The Nat’l Child Traumatic Stress Network, Hurricane Katrina Still Leaves a Wake in Schools:
Children’s Traumatic Stress Impairs Academic Performance (August 31, 2006), http://www.nctsnet.org/nctsn_
assets/pdfs/press_releases/New_Orleans_Schools_8-31-06.pdf (last visited October 16, 2007).

62  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Appendix One

Letter of Support from the Chief Justice

Mississippi • Fall 2007  63

Appendix Two
American Council of Chief Defenders
National Juvenile Defender Center
january 2005

TEN CORE PRINCIPLES
FOR PROVIDING QUALITY DELINQUENCY REPRESENTATION
THROUGH INDIGENT DEFENSE DELIVERY SYSTEMS

The American Council of Chief Defenders (ACCD), a section of the National Legal Aid & Defender
Association, is dedicated to promoting fair justice systems by advocating sound public policies and
ensuring quality legal representation to people who are facing a loss of liberty or accused of a crime
who cannot afford an attorney. For more information, see www.nlada.org or call (202) 452-0620.
The National Juvenile Defender Center (NJDC) is committed to ensuring excellence in juvenile defense
and promoting justice for all children. For more information, see www.njdc.info or call (202) 452-0010.
Preamble 1
A. Goal of These Principles

The Ten Core Principles for Providing Quality Delinquency Representation through Indigent
Defense Delivery Systems are developed to provide criteria by which an indigent defense system
may fully implement the holding of In Re: Gault.2 Counsel’s paramount responsibilities to children
charged with delinquency offenses are to zealously defend them from the charges leveled against
them and to protect their due process rights. The Principles also serve to offer greater guidance to
the leadership of indigent defense providers as to the role of public defenders, contract attorneys or
assigned counsel in delivering zealous, comprehensive and quality legal representation on behalf of
children in delinquency proceedings as well as those prosecuted in adult court.3
While the goal of the juvenile court has shifted in the past decade toward a more punitive model of
client accountability and public safety, juvenile defender organizations should reaffirm the fundamental purposes of juvenile court: (1) to provide a fair and reliable forum for adjudication; and (2) to
provide appropriate support, resources, opportunities and treatment to assure the rehabilitation and
development of competencies of children found delinquent. Delinquency cases are complex, and their
consequences have significant implications for children and their families. Therefore, it is of paramount
importance that children have ready access to highly qualified, well-resourced defense counsel.
Defender organizations should further reject attempts by courts or by state legislatures to criminalize juvenile behavior in order to obtain necessary services for children. Indigent defense counsel
should play a strong role in determining this and other juvenile justice related policies.

64  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  65

In 1995, the American Bar Association’s Juvenile Justice Center published A Call for Justice: An
Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, a
national study that revealed major failings in juvenile defense across the nation. The report spurred
the creation of the National Juvenile Defender Center and nine regional defender centers around the
country. The National Juvenile Defender Center conducts state and county assessments of juvenile
indigent defense systems that focus on access to counsel and measure the quality of representation.4
B. The Representation of Children and Adolescents is a Specialty

The Indigent Defense Delivery System must recognize that children and adolescents are at a crucial
stage of development and that skilled juvenile delinquency defense advocacy will positively impact
the course of clients’ lives through holistic and zealous representation.
The Indigent Defense Delivery System must provide training regarding the stages of child and adolescent development and the advances in brain research that confirm that children and young adults
do not possess the same cognitive, emotional, decision-making or behavioral capacities as adults.
Expectations, at any stage of the court process, of children accused of crimes must be individually
defined according to scientific, evidence-based practice.
The Indigent Defense Delivery System must emphasize that it is the obligation of juvenile defense
counsel to maximize each client’s participation in his or her own case in order to ensure that the
client understands the court process and to facilitate the most informed decision making by the client. The client’s minority status does not negate counsel’s obligation to appropriately litigate factual
and legal issues that require judicial determination and to obtain the necessary trial skills to present these issues in the courtroom.
C. Indigent Defense Delivery Systems Must Pay Particular Attention to the Most Vulnerable and Over-Represented Groups of Children in the Delinquency System

Nationally, children of color are severely over-represented at every stage of the juvenile justice
process. Research has demonstrated that involvement in the juvenile court system increases the
likelihood that a child will subsequently be convicted and incarcerated as an adult. Defenders must
work to increase awareness of issues such as disparities in race and class, and they must zealously
advocate for the elimination of the disproportionate representation of minority youth in juvenile
courts and detention facilities.
Children with mental health and developmental disabilities are also overrepresented in the juvenile
justice system. Defenders must recognize mental illness and developmental impairments, legally
address these needs and secure appropriate assistance for these clients as an essential component
of quality legal representation.
Drug- and alcohol-dependent juveniles and those dually diagnosed with addiction and mental
health disorders are more likely to become involved with the juvenile justice system. Defenders
must recognize, understand and advocate for appropriate treatment services for these clients.
Research shows that the population of girls in the delinquency system is increasing, and juvenile justice system personnel are now beginning to acknowledge that girls’ issues are distinct from boys’.
Gender-based interventions and the programmatic needs of girls, who have frequently suffered from
abuse and neglect, must be assessed and appropriate genderbased services developed and funded.

1.

The indigent defense delivery system upholds juveniles’ right to
counsel throughout the delinquency process and recognizes the need
for zealous representation to protect children.
A. The indigent defense delivery system should ensure that children do not waive appointment of
counsel. The indigent defense delivery system should ensure that defense counsel are assigned at
the earliest possible stage of the delinquency proceedings.5
B. The indigent defense delivery system recognizes that the delinquency process is adversarial and
should provide children with continuous legal representation throughout the delinquency process
including, but not limited to, detention, pre-trial motions or hearings, adjudication, disposition,
post-disposition, probation, appeal, expungement and sealing of records.
C. The indigent defense delivery system should include the active participation of the private bar or
conflict office whenever a conflict of interest arises for the primary defender service provider.6

2.

The indigent defense delivery system recognizes that legal representation of children is a specialized area of the law.
A. The indigent defense delivery system recognizes that representing children in delinquency proceedings is a complex specialty in the law and that it is different from, but equally as important as,
the legal representation of adults. The indigent defense delivery system further acknowledges the
specialized nature of representing juveniles processed as adults in transfer/waiver proceedings.7
B. The indigent defense delivery system leadership demonstrates that it respects its juvenile defense
team members and that it values the provision of quality, zealous and comprehensive delinquency
representation services.
C. The indigent defense delivery system leadership recognizes that delinquency representation is
not a training assignment for new attorneys or future adult court advocates, and it encourages experienced attorneys to provide delinquency representation.

3.

The indigent defense delivery system supports quality juvenile
delinquency representation through personnel and resource parity. 8
A. The indigent defense delivery system encourages juvenile representation specialization without
limiting attorney and support staff’s access to promotional progression, financial advancement or
personnel benefits.
B. The indigent defense delivery system provides a professional work environment and adequate
operational resources such as office space, furnishings, technology, confidential client interview
areas9 and current legal research tools. The system includes juvenile representation resources in
budgetary planning to ensure parity in the allocation of equipment and resources.

In addition, awareness and unique advocacy are needed for the special issues presented by lesbian,
gay, bisexual and transgender youth.

66  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  67

4.

7.

A. The indigent defense delivery system supports requests for essential expert services throughout the delinquency process and whenever individual juvenile case representation requires these
services for effective and quality representation. These services include, but are not limited to, evaluation by and testimony of mental health professionals, education specialists, forensic evidence
examiners, DNA experts, ballistics analysis and accident reconstruction experts.

A. The indigent defense delivery system supports and encourages juvenile defense team members through internal and external comprehensive training13 on topics including, but not limited
to, detention advocacy, litigation and trial skills, dispositional planning, post-dispositional practice,
educational rights, appellate advocacy and administrative hearing representation.

The indigent defense delivery system utilizes expert and ancillary services to provide quality juvenile defense services.

B. The indigent defense delivery system ensures the provision of all litigation support services necessary for the delivery of quality services, including, but not limited to, interpreters, court reporters,
social workers, investigators, paralegals and other support staff.

5.

The indigent defense delivery system supervises attorneys and
staff and monitors work and caseloads.
A. The leadership of the indigent defense delivery system monitors defense counsel’s caseload to permit
the rendering of quality representation. The workload of indigent defenders, including appointed and
other work, should never be so large as to interfere with the rendering of zealous advocacy or continuing client contact nor should it lead to the breach of ethical obligations.10 The concept of workload may
be adjusted by factors such as case complexity and available support services.
B. Whenever it is deemed appropriate, the leadership of the indigent defense delivery system, in
consultation with staff, may adjust attorney case assignments and resources to guarantee the continued delivery of quality juvenile defense services.

6.

The indigent defense delivery system supervises and systematically reviews juvenile defense team staff for quality according to
national, state and/or local performance guidelines or standards.

A. The indigent defense delivery system provides supervision and management direction for attorneys and all team members who provide defense representation services to children.11

B. The leadership of the indigent defense delivery system adopts guidelines and clearly defines the
organization’s vision as well as expectations for the delivery of quality legal representation. These
guidelines should be consistent with national, state and/or local performance standards, measures
or rules.12
C. The indigent defense delivery system provides administrative monitoring, coaching and systematic reviews for all attorneys and staff representing juveniles, whether contract defenders, assigned
counsel or employees of defender offices.

The indigent defense system provides and supports comprehensive, ongoing training and education for all attorneys and support staff
involved in the representation of children.

B. The indigent defense delivery system recognizes juvenile delinquency defense as a specialty that
requires continuous training in unique areas of the law.14 In addition to understanding the juvenile
court process and systems, juvenile team members should be competent in juvenile law, the collateral consequences of adjudication and conviction, and other disciplines that uniquely impact
juvenile cases, such as, but not limited to:
1. Administrative appeals
2. Child welfare and entitlements
3. Child and adolescent development
4. Communicating and building attorney-client relationships with children and adolescents
5. Community-based treatment resources and programs
6. Competency and capacity
7. Counsel’s role in treatment and problem solving courts15
8. Dependency court/abuse and neglect court process
9. Diversionary programs
10. Drug addiction and substance abuse
11. Ethical issues and considerations
12. Gender-specific programming
13. Immigration
14. Mental health, physical health and treatment
15. Racial, ethnic and cultural understanding
16. Role of parents/guardians
17. Sexual orientation and gender identity awareness
18. Special education
19. Transfer to adult court and waiver hearings
20. Zero tolerance, school suspension and expulsion policies

8.

The indigent defense delivery system has an obligation to present
independent treatment and disposition alternatives to the court.
A. Indigent defense delivery system counsel have an obligation to consult with clients and, independent from court or probation staff, to actively seek out and advocate for treatment and placement
alternatives that best serve the unique needs and dispositional requests of each child.
B. The leadership and staff of the indigent defense delivery system work in partnership with other
juvenile justice agencies and community leaders to minimize custodial detention and the incarceration of children and to support the creation of a continuum of community-based, culturally sensitive
and gender-specific treatment alternatives.

68  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  69

C. The indigent defense delivery system provides independent postconviction monitoring of each
child’s treatment, placement or program to ensure that rehabilitative needs are met. If clients’
expressed needs are not effectively addressed, attorneys are responsible for intervention and advocacy before the appropriate authority.

9.

The indigent defense delivery system advocates for the educational needs of clients.
A. The indigent defense delivery system recognizes that access to education and to an appropriate
educational curriculum is of paramount importance to juveniles facing delinquency adjudication
and disposition.
B. The indigent defense delivery system advocates, either through direct representation or through
collaborations with community-based partners, for the appropriate provision of the individualized
educational needs of clients.
C. The leadership and staff of the indigent defense delivery system work with community leaders
and relevant agencies to advocate for and support an educational system that recognizes the behavioral manifestations and unique needs of special education students.
D. The leadership and staff of the indigent defense delivery system work with juvenile court personnel, school officials and others to find alternatives to prosecutions based on zero tolerance or
school-related incidents.

10.

The indigent defense delivery system must promote fairness
and equity for children.
A. The indigent defense delivery system should demonstrate strong support for the right to counsel
and due process in delinquency courts to safeguard a juvenile justice system that is fair, non-discriminatory and rehabilitative.
B. The leadership of the indigent defense delivery system should advocate for positive change
through legal advocacy, legislative improvements and systems reform on behalf of the children
whom they serve.
C. The leadership and staff of the indigent defense delivery system are active participants in the
community to improve school, mental health and other treatment services and opportunities available to children and families involved in the juvenile justice system.

notes for the ten core principles
1 These principles were developed over a one-year period through a joint collaboration between the National Juvenile Defender Center and the American
Council of Chief Defenders, a section of the National Legal Aid and Defender Association (NLADA), which officially adopted them on December 4, 2004.
2 387 U.S. 1 (1967). According to the IJA/ABA Juvenile Justice Standard Relating to Counsel for Private Parties 3.1 (1996), “the lawyer’s principal duty is
the representation of the client’s legitimate interests” as distinct and different from the best interest standard applied in neglect and abuse cases. The Commentary goes on to state that “counsel’s principal responsibility lies in full and conscientious representation” and that “no lesser obligation exists when youthful
clients or juvenile court proceedings are involved.”
3 For purposes of these Principles, the term “delinquency proceeding” denotes all proceedings in juvenile court as well as any proceeding lodged against an
alleged status offender, such as for truancy, running away, incorrigibility, etc.
4 Common findings among these assessments include, among other barriers to adequate representation, a lack of access to competent counsel, inadequate
time and resources for defenders to prepare for hearings or trials, a juvenile court culture that encourages pleas to move cases quickly, a lack of pretrial
and dispositional advocacy and an over-reliance on probation. For more information, see Selling Justice Short: Juvenile Indigent Defense in Texas (2000);
The Children Left Behind: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Louisiana (2001); Georgia: An
Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2001); Virginia: An Assessment of Access to Counsel and Quality
of Representation in Delinquency Proceedings (2002); An Assessment of Counsel and Quality of Representation in Delinquency Proceedings in Ohio (2003);
Maine: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2003); Maryland: An Assessment of Access to Counsel
and Quality of Representation in Delinquency Proceedings (2003); Montana: An Assessment of Access to Counsel and Quality of Representation in Delinquency
Proceedings (2003); North Carolina: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2003); Pennsylvania: An
Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2003); Washington: An Assessment of Access to Counsel and
Quality of Representation in Juvenile Offender Matters (2003).
5 American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 3.
6 A conflict of interest includes both codefendants and intra-family conflicts, among other potential conflicts that may arise. See also American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 2.
7 For purposes of this Principle, the term “transfer/waiver proceedings” refers to any proceedings related to prosecuting youth in adult court, including those
known in some jurisdictions as certification, bind-over, decline, remand, direct file, or youthful offenders.
8 American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 8.
9 American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 4.
10 See National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976), 5.1, 5.3; American Bar Association, Standards for Criminal Justice, Providing Defense Services (3rd ed., 1992), 5-5.3; American Bar Association, Standards for Criminal Justice: Prosecution
Function and Defense Function (3rd ed., 1993), 4-1.3(e); National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on
Courts, Chapter 13, “The Defense” (1973), 13.12; National Legal Aid and Defender Association and American Bar Association, Guidelines for Negotiating and
Awarding Contracts for Criminal Defense Services (NLADA, 1984; ABA, 1985), III-6, III-12; National Legal Aid and Defender Association, Standards for the
Administration of Assigned Counsel Systems (1989), 4.1,4.1.2; ABA Model Code of Professional Responsibility DR 6-101; American Bar Association Ten Principles
of a Public Defense Delivery System (2002), Principle 5.
11 American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principles 6 and 10.
12 For example, Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards (1979); National Advisory Commission on Criminal
Justice Standards and Goals, Report of the Task Force on Courts, Chapter 13, “The Defense” (1973); National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976); American Bar Association, Standards for Criminal Justice, Providing Defense Services (3rd ed.,
1992); American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function (3rd ed., 1993); Standards and Evaluation Design for
Appellate Defender Offices (NLADA, 1980); Performance Guidelines for Criminal Defense Representation (NLADA, 1995).
13 American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 9; National Legal Aid and Defender Association, Training and
Development Standards (1997), Standards 1 to 9.
14 National Legal Aid and Defender Association, Training and Development Standards (1997), Standard 7.2, footnote 2.
15 American Council of Chief Defenders, Ten Tenets of Fair and Effective Problem Solving Courts (2002).

70  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

Mississippi • Fall 2007  71

Appendix Three

IJA-ABA Juvenile
justice Standards
Relating to Counsel for Private Parties

ing or of any other rights of the client under the law.
Standard 1.5. Punctuality.
A lawyer should be prompt in all dealings with the court, including attendance, submissions of
motions, briefs and other papers, and in dealings with clients and other interested persons. It is
unprofessional conduct for counsel intentionally to use procedural devices for which there is no
legitimate basis, to misrepresent facts to the court or to accept conflicting responsibilities for the
purpose of delaying court proceedings. The lawyer should also emphasize the importance of punctuality in attendance in court to the client and to witnesses to be called, and, to the extent feasible,
facilitate their prompt attendance.
Standard 1.6. Public Statements.
a) The lawyer representing a client before the juvenile court should avoid personal publicity connected with the case, both during trial and thereafter.

Part one • General Standards
Standard 1.1. Counsel in Juvenile Proceedings, Generally.
The participation of counsel on behalf of all parties subject to juvenile and family court proceedings is essential to the administration of justice and to the fair and accurate resolution of issues at
all stages of those proceedings.
Standard 1.2. Standards in Juvenile Proceedings, Generally.
a) As a member of the bar, a lawyer involved in juvenile court matters is bound to know and is subject to standards of professional conduct set forth in statutes, rules, decisions of courts, and codes,
canons or other standards of professional conduct. Counsel has no duty to exercise any directive of
the client that is	. inconsistent with law or these standards. Counsel may, however, challenge standards that he or she believes limit unconstitutionally or otherwise improperly representation of
clients subject to juvenile court proceedings.
b) As used in these standards, the term “unprofessional conduct” denotes conduct which is now or
should be subject to disciplinary sanction. Where other terms are used, the standard is intended as a
guide to honorable and competent professional conduct or as a model for institutional organization.
Standard 1.3. Misrepresentation of Factual Propositions or Legal Authority.
It is unprofessional conduct for counsel intentionally to misrepresent factual propositions or legal
authority to the court or to opposing counsel and probation personnel in the course of discussions
concerning entrance of a plea, early disposition or any other matter related to the juvenile court
proceeding. Entrance of a plea concerning the client’s responsibility in law for alleged misconduct
or concerning the existence in law of an alleged status offense is a statement of the party’s posture
with respect to the proceeding and is not a representation of fact or of legal authority.
Standard 1.4. Relations with Probation and Social Work Personnel.
A lawyer engaged in juvenile court practice typically deals with social work and probation department personnel throughout the course of handling a case. In general, the lawyer should coopera;:e
with these agencies and should instruct the client to do so, except to’the extent such cooperation is
or will likely become inconsistent with protection of the client’s legitimate interests in the proceed-

72  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

b) Counsel should comply with statutory and court rules governing dissemination of information
concerning juvenile and family court matters and, to the extent consistent with those rules, with
the ABA Standards, Relating to Fair Trial and Free Press.
Standard 1.7. Improvement in The Juvenile Justice System.
In each jurisdiction, lawyers practicing before the juvenile court should actively seek improvement
in the administration of juvenile justice and the provision of resources for the treatment of persons
subject to the jurisdiction of the juvenile court.

Part two • Provisions and Organization of Legal Services
Standard 2.1. General Principles.
a) Responsibility for provision of legal services.
Provision of satisfactory legal representation in juvenile and family court cases is the proper concern of all segments of the legal community. It is, accordingly, the responsibility of courts, defender
agencies, legal professional groups, individual practitioners and educational institutions to ensure
that competent counsel and adequate supporting services are available for representation of all persons with business before juvenile and family courts.
i) Lawyers active in practice should be encouraged to qualify themselves for participation in
juvenile and family court cases through formal training, association with experienced juvenile
counsel or by other means. To this end, law firms should encourage members to represent parties involved in such matters.
ii) Suitable undergraduate and postgraduate educational curricula concerning legal and nonlegal
subjects relevant to representation in juvenile and family courts should regularly be available.
iii) Careful and candid evaluation of representation in cases involving children should be undertaken by judicial and professional groups, including the organized bar, particularly but not solely
where assigned counsel-whether public or private-appears.
b) Compensation for services.
i) Lawyers participating in juvenile court matters, whether retained or appointed, are entitled
to reasonable compensation for time-and-services performed according to prevailing professional standards. In determining fees for their services, lawyers should take into account the
time and labor actually required, the skill required to perform the legal service properly, the
likelihood that acceptance of the case will preclude other employment for the lawyer, the fee

Mississippi • Fall 2007  73

customarily charged in the locality for similar legal services, the possible consequences of the
proceedings, and the experience, reputation and ability of the lawyer or lawyers performing the
services. In setting fees lawyers should also consider the performance of services incident to full
representation in cases involving juveniles, including counseling and activities related to locating or evaluating appropriate community services for a client or a client’s family.
ii) Lawyers should also take into account in determining fees the capacity of a client to pay the
fee. The resources of parents who agree to pay for representation of their children in juvenile
court proceedings may be considered if there is no adversity of interest as defined in Standard
3.2, infra, and if the parents understand that a lawyer’s entire loyalty is to the child and that the
parents have no control over the case. Where adversity of interests or desires between parent and
child becomes apparent during the course of representation, a lawyer should be ready to reconsider the fee taking into account the child’s resources alone.
iii) As in all other cases of representation, it is unprofessional conduct for a lawyer to overreach
the client or the client’s parents in setting a fee, to imply that compensation is for anything other
than professional services rendered by the lawyer or by others for him or her, to divide the fee
with a layman, or to undertake representation in cases where no financial award may result on the
understanding that payment of the fee is contingent in any way on the outcome of the case.
iv) Lawyers employed in a legal aid or public defender office should be compensated on a basis equivalent to that paid other government attorneys of similar qualification, experience and responsibility.
c) Supporting services.
Competent representation cannot be assured unless adequate supporting services are available.
Representation in cases involving juveniles typically requires investigatory, expert and other nonlegal services. These should be available to lawyers and to their clients at all stages of juvenile and
family court proceedings.
i) Where lawyers are assigned, they should have regular access to all reasonably necessary supporting services.
ii) Where a defender system is involved, adequate supporting services should be available within
the organization itself.
d) Independence.
Any plan for providing counsel to private parties in juvenile court proceedings must be designed to guarantee the professional independence of counsel and the integrity of the lawyer-client relationship.
Standard 2.2. Organization of Services.
a) In general.
Counsel should be provided in a systematic manner and in accordance with a widely publicized
plan. Where possible, a coordinated plan for representation which combines defender and assigned
counsel systems should be adopted.
b) Defender systems.
i) Application of general defender standards.
A defender system responsible for representation in some or all juvenile court proceedings generally should apply to staff and offices engaged in juvenile court matters its usual standards for
selection, supervision, assignment and tenure of lawyers, restrictions on private practice, provision of facilities and other organizational procedures.
ii) Facilities.
If local circumstances require, the defender system should maintain a separate office for juvenile

74  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

court legal and supporting staff, located in a place convenient to the courts and equipped with
adequate library, interviewing and other facilities. A supervising attorney experienced in juvenile
court representation should be assigned to and responsible for the operation of that office.
iii) Specialization.
While rotation of defender staff from one duty to another is an appropriate training device, there
should be opportunity for staff to specialize in juvenile court representation to the extent local
circumstances permit.
iv) Caseload.
It is the responsibility of every defender office to ensure that its personnel can offer prompt, full
and effective counseling and representation to each client. A defender office should not accept
more assignments than its staff can adequately discharge.
c) Assigned counsel systems.
i) An assigned counsel plan should have available to it an adequate pool of competent attorneys
experienced in juvenile court matters and an adequate plan for all necessary legal and supporting services.
ii) Appointments through an assigned counsel system should be made, as nearly as possible,
according to some rational and systematic sequence. Where the nature of the action or other circumstances require, a lawyer may be selected because of his or her special qualifications to serve
in the case, without regard to the established sequence.
Standard 2.3. Types of Proceedings.
a) Delinquency and in need of supervision proceedings.
i) Counsel should be provided for any juvenile subject to delinquency or in need of supervision
proceedings.
ii) Legal representation should also be provided the juvenile in all proceedings arising from or
related to a delinquency or in need of supervision action, including mental competency, transfer, postdisposition, probation revocation, and classification, institutional transfer, disciplinary
or other administrative proceedings related to the treatment process which may substantially
affect the juvenile’s custody, status or course of treatment. The nature of the forum and the formal classification of the proceeding is irrelevant for this purpose.
b) Child protective, custody and adoption proceedings.
Counsel should be available to the respondent parents, including the father of an illegitimate child,
or other guardian or legal custodian in a neglect or dependency proceeding. Independent counsel
should also be provided for the juvenile who is the subject of proceedings affecting his or her status
or custody. Counsel should be available at all stages of such proceedings and in all proceedings collateral to neglect and dependency matters, except where temporary emergency action is involved
and immediate participation of counsel is not practicable.
Standard 2.4. Stages of Proceedings.
a) Initial provision of counsel.
i) When a juvenile is taken into custody, placed in detention or made subject to an intake process,
the authorities taking such action have the responsibility promptly to notify the juvenile’s lawyer,
if there is one, ‘or advise the juvenile with respect to the availability of legal counsel:
ii) In administrative or judicial postdispositional proceedings which may affect the juvenile’s
custody, status or course of treatment, counsel should be available at the earliest stage of the
decisional process, whether the respondent is present or not. Notification of counsel and, where
necessary, provision of counsel in such proceedings is the responsibility of the judicial or administrative agency.

Mississippi • Fall 2007  75

b) Duration of representation and withdrawal of counsel.
i) Lawyers initially retained or appointed should continue their representation through all stages
of the proceeding, unless geographical or other compelling factors make continued participation
impracticable.
ii) Once appointed or retained, counsel should not request leave to withdraw unless compelled
by serious illness or other incapacity, or unless contemporaneous or announced future conduct of
the client is such as seriously to compromise the lawyer’s professional integrity. Counsel should
not seek to withdraw on the belief that the contentions of the client lack merit, but should present for consideration such points as the client desires to be raised provided counsel can do so
without violating standards of professional ethics.
iii) If leave to withdraw is granted, or if the client justifiably asks that counsel be replaced, successor counsel should be available.

Part three • The Lawyer Client Relationship
Standard 3.1. The Nature Of The Relationship.
a) Client’s interests paramount.
However engaged, the lawyer’s principal duty. is the representation of the client’s legitimate interests. Considerations of personal and professional advantage or convenience should not influence
counsel’s advice or performance.
b) Determination of client’s interests.
i) Generally.
In general, determination of the client’s interests in the proceedings, and hence the plea to be
entered, is ultimately the responsibility of the client after full consultation with the attorney.
ii) Counsel for the juvenile.
a] Counsel for the respondent in a delinquency or in need of supervision proceeding should
ordinarily be bound by the client’s definition of his or her interests with respect to admission
or denial of the facts or conditions alleged. It is appropriate and desirable for counsel to advise
the client concerning the probable success and consequences of adopting any posture with
respect to those proceedings.
b] Where counsel is appointed to represent a juvenile subject to child protective proceedings,
and the juvenile is capable of considered judgment on his or her own behalf, determination
of the client’s interest in the proceeding should ultimately remain the client’s responsibility,
after full consultation with counsel.
c] In delinquency and in need of supervision proceedings, where it is locally permissible to so
adjudicate very young persons, and in child protective proceedings, the respondent may be
incapable of considered judgment in his or her own behalf.
1] Where a guardian ad litem has been appointed, primary responsibility for determination
of the posture of the case rests with the guardian and the juvenile.
2] Where a guardian ad litem has not been appointed, the attorney should ask that one be
appointed.
3] Where a guardian ad litem has not been appointed and, for some reason, it appears that
independent advice to the juvenile will not otherwise be available, counsel should inquire
thoroughly into all circumstances that a careful and competent person in the juvenile’s position should consider in determining the juvenile’s interests with respect to the proceeding.
After consultation with the juvenile, the parents (where their interests do not appear to conflict with the juvenile’s), and any other family members or interested persons, the attorney
may remain neutral concerning the proceeding, limiting participation to presentation and

76  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

examination of material evidence or, if necessary, the attorney may adopt the position requiring the least intrusive intervention justified by the juvenile’s circumstances.
iii) Counsel for the parent.
It is appropriate and desirable for an attorney to consider all circumstances, including the apparent interests of the juvenile, when counseling and advising a parent who is charged in a child
protective proceeding or who is seeking representation during a delinquency or in need of supervision proceeding. The posture to be adopted with respect to the facts and conditions alleged in
the proceeding, however, remains ultimately the responsibility of the client.
Standard 3.2 Adversity of Interests.
a) Adversity of interests defined.
For purposes of these standards, adversity of interests exists when a lawyer or lawyers associated
in practice:
i) Formally represent more than one client in a proceeding and have a duty to contend in behalf
of one client that which their duty to another requires them to oppose.
ii) Formally represent more than one client and it is their duty to contend in behalf of one client
that which may prejudice the other client’s interests at any point in the proceeding.
iii) Formally represent one client but are required by some third person or institution, including
their employer, to accommodate their representation of that client to factors unrelated to the client’s legitimate interests.
b) Resolution of adversity.
At the earliest feasible opportunity, counsel should disclose to the client any interest in or connection with the case or any other matter that might be relevant to the client’s selection of a lawyer.
Counsel should at the same time seek to determine whether adversity of interests potentially exists
and, if so, should immediately seek to withdraw from representation of the client who will be least
prejudiced by such withdrawal.
Standard 3.3. Confidentiality.
a) Establishment of confidential relationship.
Counsel should seek from the outset to establish a relationship of trust and confidence with the
client. The lawyer should explain that full disclosure to counsel of all facts known to the client is
necessary for effective representation, and at the same time explain that the lawyer’s obligation of
confidentiality makes privileged the client’s disclosures relating to the case.
b) Preservation of client’s confidences and secrets.
i) Except as permitted by3.3(d), below, an attorrieIr Should not ’knowingly reveal a confidence or
secret of a client to another, including the parent of a juvenile client.
ii) Except as permitted by 3.3(d), below, an attorney should not knowingly use a confidence or
secret of a client to the disadvantage of the client or, unless the attorney has secured the consent
of the client after full disclosure, for the attorney’s own advantage or that of a third person.
c) Preservation of secrets of a juvenile client’s parent or guardian.
The attorney should not reveal information gained from or concerning the parent or guardian of a
juvenile client in the course of representation with respect to a delinquency or in need of supervision proceeding against the client, where 1) the parent or guardian has requested the information
be held inviolate, or 2) disclosure of the information would likely be embarrassing or detrimental to
the parent or guardian and 3) preservation would not conflict with the attorney’s primary responsibility to the interests of the client.

Mississippi • Fall 2007  77

i) The attorney should not encourage secret communications when it is apparent that the parent or guardian believes those communications to be confidential or privileged and disclosure
may become necessary to full and effective representation of the client.
ii) Except as permitted by 3.3(d), below, an attorney should not knowingly reveal the parent’s
secret communication to others or use a secret communication to the parent’s disadvantage or
to the advantage of the attorney or of a third person, unless 1) the parent competently consents
to such revelation or use after full disclosure or 2) such disclosure or use is necessary to the
discharge of the attorney’s primary responsibility to the client.
d) Disclosure of confidential communications.
In addition to circumstances specifically mentioned above, a lawyer may reveal:
i) Confidences or secrets with the informed and competent consent of the client or clients
affected, but only after full disclosure of all relevant circumstances to them. If the client is a juvenile incapable of considered judgment with respect to disclosure of a secret or confidence, a
lawyer may reveal such communications if such disclosure 1) will not disadvantage the juvenile
and 2) will further rendition of counseling, advice or other service to the client.
ii) Confidences or secrets when permitted under disciplinary rules of the ABA Code of Professional Responsibility or as required by law or court order. 	
iii) The intention of a client to commit a crime or an act which if done by an adult would constitute a crime, or acts that constitute neglect or abuse of a child, together with any information
necessary to prevent such conduct. A lawyer must reveal such intention if the conduct would
seriously endanger the life or safety of any person or corrupt the processes of the courts and
the lawyer believes disclosure is necessary to prevent the harm. If feasible, the lawyer should
first inform the client of the duty to make such revelation and seek to persuade the client to
abandon the plan.
iv) Confidences or secrets material to an action to collect a fee or to defend himself or herself
or any employees or associates against an accusation of wrongful conduct.
Standard 3.4. Advice and Service with Respect to Anticipated Unlawful Conduct.
It is unprofessional conduct for a lawyer to assist a client to engage in conduct the lawyer believes
to be illegal or fraudulent, except as part of a bona fide effort to determine the validity, scope, meaning or application of a law.
Standard 3.5. Duty to Keep Client Informed.
The lawyer has a duty to keep the client informed of the developments in the case, and of the lawyer’s efforts and progress with respect to all phases of representation. This duty may extend, in the
case of a juvenile client, to a parent or guardian whose interests are not adverse to the juvenile’s,
subject to the requirements of confidentiality set forth in 3.3, above.

Part four • Initial Stages of Representation
Standard 4.1. Prompt Action to Protect the Client.
Many important rights of clients involved in juvenile court proceedings can be protected only by
prompt advice and action. The lawyers should immediately inform clients of their rights and pursue
any investigatory or procedural steps necessary to protection of their clients’ interests.
Standard 4.2. Interviewing the Client.
a) The lawyer should confer with a client without delay and as often as necessary to ascertain all
relevant facts and matters of defense known to the client.
b) In interviewing a client, it is proper for the lawyer to question the credibility of the client’s

78  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

statements or those of any other witness. The lawyer may not, however, suggest expressly or by
implication that the client or any other witness prepare or give, on oath or to the lawyer, a version
of the facts which is in any respect untruthful, nor may the lawyer intimate that the client should
be less than candid in revealing material facts to the attorney.
Standard 4.3. Investigation and Preparation.
a) It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and
to explore all avenues leading to facts concerning responsibility for the acts or conditions alleged
and social or legal dispositional alternatives. The investigation should always include efforts to
secure information in the possession of prosecution, law enforcement, education, probation and
social welfare authorities. The duty to investigate exists regardless of the client’s admissions or
statements of facts establishing responsibility for the alleged facts and conditions or of any stated
desire by the client to admit responsibility for those acts and conditions.
b) Where circumstances appear to warrant it, the lawyer should also investigate resources and services available in the community and, if appropriate, recommend them to the client and the client’s
family. The lawyer’s responsibility in this regard is independent of the posture taken with respect
to any proceeding in which the client is involved.
c) It is unprofessional conduct for a lawyer to use illegal means to obtain evidence or information
or to employ, instruct or encourage others to do so.
Standard 4.4. Relations with Prospective Witnesses.
The ethical and legal rules concerning counsel’s relations with lay and expert witnesses generally
govern lawyers engaged in juvenile court representation.

Part five • Advising and Counseling the Client
Standard 5.1. Advising the Client Concerning the Case.
a) After counsel is fully informed on the facts and the law, he or she should with complete candor
advise the client involved in juvenile court proceedings concerning all aspects of the case, including
counsel’s frank estimate of the probable outcome. It is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case in order unduly or
improperly to influence the client’s determination of his or her posture in the matter.
b) The lawyer should caution the client to avoid communication about the case with witnesses
where such communication would constitute, apparently or in reality, improper activity. Where the
right to jury trial exists and has been exercised, the lawyer should further caution the client with
regard to communication with prospective or selected jurors.
Standard 5.2. Control and Direction of the Case.
a) Certain decisions relating to the conduct of the case are in most cases ultimately for the client
and others are ultimately for the lawyer. The client, after full consultation with counsel, is ordinarily responsible for determining:
i) the plea to be entered at adjudication;
ii) whether to cooperate in consent judgment or early disposition plans;
iii) whether to be tried as a juvenile or an adult, where the client has that choice;
iv) whether to waive jury trial;
v) whether to testify on his or her own behalf.

Mississippi • Fall 2007  79

(b) Decisions concerning what witnesses to call, whether and how to conduct cross-examination,
what jurors to accept and strike, what trial motions should be made, and any other strategic and
tactical decisions not inconsistent with determinations ultimately the responsibility of and made by
the client, are the exclusive province of the lawyer after full consultation with the client.
(c) If a disagreement on significant matters of tactics or strategy arises between the lawyer and the
client, the -lawyer should make a record of the circumstances, his or her advice and reasons, and
the conclusion reached-. - This record should be made in a manner which protects the confidentiality of the lawyer-client relationship.
Standard 5.3. Counseling.
A lawyer engaged in juvenile court representation often has occasion to counsel the client and, in
some cases, the client’s family with respect to nonlegal matters. This responsibility is generally
appropriate to the lawyer’s role and should be discharged, as any other, to the best of the lawyer’s
training and ability.

Part six • Intake, Early Disposition and Detention
Standard 6.1. Intake and Early Disposition Generally.
Whenever the nature and circumstances of the case permit, counsel should explore the possibility of early diversion from the formal juvenile court process through subjudicial agencies and other
community resources. Participation in pre- or nonjudicial stages of the juvenile court process may
be critical to such diversion, as well as to protection of the client’s rights.
Standard 6.2. Intake Hearings.
a) In jurisdictions where intake hearings are held prior to reference of a juvenile court matter for
judicial proceedings, the lawyer should be familiar with and explain to the client and, if the client is
a minor, to the client’s parents, the nature of the hearing, the procedures to be followed, the several
dispositions available and their probable consequences. The lawyer should further advise the client
of his or her rights at the intake hearing, including the privilege against self-incrimination where
appropriate, and of the use that may be made of the client’s statements.
b) The lawyer should be prepared to make to the intake hearing officer arguments concerning the
jurisdictional sufficiency of the allegations made and to present facts and circumstances relating to
the occurrence of and the client’s responsibility for the acts or conditions charged or to the necessity for official treatment of the matter.
Standard 6.3. Early Disposition.
a) When the client admits the acts or conditions alleged in the juvenile court proceeding and, after
investigation, the lawyer is satisfied that the admission is factually supported and that the court
would have jurisdiction to act, the lawyer should, with the client’s consent, consider developing or
cooperating in the development of a plan for informal or voluntary adjustment of the case.
b) A lawyer should not participate in an admission of responsibility by the client for purposes of
securing informal or early disposition when the client denies responsibility for the acts or conditions alleged.
Standard 6.4. Detention.
a) If the client is detained or the client’s child is held in shelter care, the lawyer should immediately

80  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

consider all steps that may in good faith be taken to secure the child’s release from custody.
b) Where the intake department has initial responsibility for custodial decisions, the lawyer should
promptly seek to discover the grounds for removal from the home and may present facts and arguments for release at the intake hearing or earlier. If a judicial detention hearing will be held, the
attorney should be prepared, where circumstances warrant, to present facts and arguments relating
to the jurisdictional sufficiency of the allegations, the appropriateness of the place of and criteria
used for detention, and any noncompliance with procedures for referral to court or for detention.
The attorney should also be prepared to present evidence with regard to the necessity for detention
and a plan for pretrial release of the juvenile.
c) The lawyer should not personally guarantee the attendance or behavior of the client or any other
person, whether as surety on a bail bond or otherwise.

Part seven • Adjudication
Standard 7.1. Adjudication without Trial.
a) Counsel may conclude, after full investigation and preparation, that under the evidence and the
law the charges involving the client will probably be sustained. Counsel should so advise the client
and, if negotiated pleas are allowed under prevailing law, may seek the client’s consent to engage
in plea discussions with the prosecuting agency. Where the client denies guilt, the lawyer cannot
properly participate in submitting a plea of involvement when the prevailing law requires that such
a plea be supported by an admission of responsibility in fact.
b) The lawyer should keep the client advised of all developments during plea discussions with the
prosecuting agency and should communicate to the client all proposals made by the prosecuting
agency. Where it appears that the client’s participation in a psychiatric, medical, social or other
diagnostic or treatment regime would be significant in obtaining a desired result, the lawyer should
so advise the client and, when circumstances warrant, seek the client’s consent to participation in
such a program.
Standard 7.2. Formality, In General.
While the traditional formality and procedure of criminal trials may not in every respect be necessary to the proper conduct of juvenile court proceedings, it is the lawyer’s duty to make all motions,
objections or requests necessary to protection of the client’s rights in such form and at such time as
will best serve the client’s legitimate interests at trial or on appeal.
Standard 7.3. Discovery and Motion Practice.
a) Discovery.
i) Counsel should promptly seek disclosure of any documents, exhibits or other information
potentially material to representation of clients in juvenile court proceedings. If such disclosure is not readily available through informal processes, counsel should diligently pursue formal
methods of discovery including, where appropriate, the filing of motions for bills of particulars,
for discovery and inspection of exhibits, documents and photographs, for production of statements by and evidence favorable to the respondent, for production of a list of witnesses, and for
the taking of depositions.
ii) In seeking discovery, the lawyer may find that rules specifically applicable to juvenile court
proceedings do not exist in a particular jurisdiction or that they improperly or unconstitutionally
limit disclosure. In order to make possible adequate representation of the client, counsel should

Mississippi • Fall 2007  81

in such cases investigate the appropriateness and feasibility of employing discovery techniques
available in criminal or civil proceedings in the jurisdiction.
b) Other motions.
Where the circumstances warrant, counsel should promptly make any motions material to the protection and vindication of the client’s rights, such as motions to dismiss the petition, to suppress
evidence, for mental examination, or appointment of an investigator or expert witness, for severance, or to disqualify a judge. Such motions should ordinarily be made in writing when that would
be required for similar motions in civil or criminal proceedings in the jurisdiction. If a hearing on
the motion is required, it should be scheduled at some time prior to the adjudication hearing if
there is any likelihood that consolidation will work to the client’s disadvantage.
Standard 7.4. Compliance with Orders.
a) Control of proceedings is principally the responsibility of the court, and the lawyer should comply
promptly with all rules, orders and decisions of the judge. Counsel has the right to make respectful
requests for reconsideration of adverse rulings and has the duty to set forth on the record adverse
rulings or judicial conduct which counsel considers prejudicial to the client’s legitimate interests.
b) The lawyer should be prepared to object to the introduction of any evidence damaging to the client’s interest if counsel has any legitimate doubt concerning its admissibility under constitutional
or local rules of evidence.
Standard 7.5. Relations with Court and Participants.
a) The lawyer should at all times support the authority of the court by preserving professional decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel,
witnesses and jurors.
i) When court is in session, the lawyer should address the court and not the prosecutor directly
on any matter relating to the case unless the person acting as prosecutor is giving evidence in
the proceeding.
ii) It is unprofessional conduct for a lawyer to engage in behavior or tactics purposely calculated
to irritate or annoy the court, the prosecutor or probation department personnel.
b) When in the company of clients or clients’ parents, the attorney should maintain a professional
demeanor in all associations with opposing counsel and with court or probation personnel.
Standard 7.7. Presentation of Evidence.
It is unprofessional conduct for a lawyer knowingly to offer false evidence or to bring inadmissible evidence to the attention of the trier of fact, to ask questions or display demonstrative evidence
known to be improper or inadmissible, or intentionally to make impermissible comments or arguments in the presence of the trier of fact. When a jury is empaneled, if the lawyer has substantial
doubt concerning the admissibility of evidence, he or she should tender it by an offer of proof and
obtain a ruling on its admissibility prior to presentation.
Standard 7.8. Examination of Witnesses.
a) The lawyer in juvenile court proceedings should be prepared to examine fully any witness whose
testimony is damaging to the client’s interests. It is unprofessional conduct for counsel knowingly
to forego or limit examination of a witness when it is obvious that failure to examine fully will prejudice the client’s legitimate interests.
b) The lawyer’s knowledge that a witness is telling the truth does not preclude cross-examination in

82  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

all circumstances, but may affect the method and scope of cross-examination. Counsel should not
misuse the power of cross-examination or impeachment by employing it to discredit the honesty or
general character of a witness known to be testifying truthfully.
c) The examination of all witnesses should be conducted fairly and with due regard for the dignity
and, to the extent allowed by the circumstances of the case, the privacy of the witness. In general,
and particularly when a youthful witness is testifying, the lawyer should avoid unnecessary intimidation or humiliation of the witness.
d) A lawyer should not knowingly call as a witness one who will claim a valid privilege not to testify
for the sole purpose of impressing that claim on the fact-finder. In some instances, as defined in the
ABA Code of Professional Responsibility, doing so will constitute unprofessional conduct.
e) It is unprofessional conduct to ask a question that implies the existence of a factual predicate
which the examiner knows cannot be supported by evidence.
Standard 7.9. Testimony by-the Respondent.
a) It is the lawyer’s duty to protect the client’s privilege against self- incrimination in juvenile court
proceedings. When the client has elected not to testify, the lawyer should be alert to invoke the
privilege and should insist on its recognition unless the client competently decides that invocation
should not be continued.
b) If the respondent has admitted to counsel facts which establish his or her responsibility for the
acts or conditions alleged and if the lawyer, after independent investigation, is satisfied that those
admissions are true, and the respondent insists on exercising the right to testify at the adjudication
hearing, the lawyer must advise the client against taking the stand to testify falsely and, if necessary,
take appropriate steps to avoid lending aid to perjury.
i) If, before adjudication, the respondent insists on taking the stand to testify falsely, the lawyer
must withdraw from the case if that is feasible and should seek the leave of the court to do so if
necessary.
ii) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation
arises during adjudication without notice, it is unprofessional conduct for the lawyer to lend aid
to perjury or to use the perjured testimony. Before the respondent takes the stand in these circumstances the lawyer should, if possible, make a record of the fact that respondent is taking the
stand against the advice of counsel without revealing that fact to the court. Counsel’s examination should be confined to identifying the witness as the respondent and permitting the witness
to make his or her statement to the trier of fact. Counsel may not engage in direct examination
of the respondent in the conventional manner and may not recite or- rely on the false testimony
in argument.
Standard 7.10. Argument.
The lawyer in juvenile court representation should comply with the rules generally governing argument in civil and criminal proceedings.

Part eight • Transfer Proceedings
Standard 8.1. In General.
A proceeding to transfer a respondent from the jurisdiction of the juvenile court to a criminal court

Mississippi • Fall 2007  83

is a critical stage in both juvenile and criminal justice processes. Competent representation by counsel is essential to the protection of the juvenile’s rights in such a proceeding.
Standard 8.2. Investigation and Preparation.
a) In any case where transfer is likely, counsel should seek to discover at. the earliest opportunity
whether transfer will be sought and, if so, the procedure and criteria according to which that determination will be made.
b) The lawyer should promptly investigate all circumstances of the case bearing on the appropriateness of transfer and should seek disclosure of any reports or other evidence that will be submitted to
or may be considered by the court in the course of transfer proceedings. Where circumstances warrant, counsel should promptly move for appointment of an investigator or expert witness to aid in the
preparation of the defense and for any other order necessary to protection of the client’s rights.
Standard 8.3. Advising and Counseling the Client Concerning Transfer.
Upon learning that transfer will be sought or may be elected, counsel should fully explain the nature
of the proceeding and, the consequences of transfer to the client and the client’s parents. In so
doing, counsel may further advise the client concerning participation in diagnostic and treatment
programs which may provide information material to the transfer decision.
Standard 8.4. Transfer Hearings.
If a transfer hearing is held, the rules set forth in Part VII of these standards shall generally apply
to counsel’s conduct of that hearing.
Standard 8.5. Post-Hearing Remedies.
If transfer for criminal prosecution is ordered, the lawyer should act promptly to preserve an appeal
from that order and should be prepared to make any appropriate motions for post-transfer relief.

Part nine • Disposition
Standard 9.1. In General.
The active participation of counsel at disposition is often essential to protection of clients’ rights
and to furtherance of their legitimate interests. In many cases the lawyer’s most valuable service to
clients will be rendered at this stage of the proceeding.
Standard 9.2. Investigation and Preparation.
a) Counsel should be familiar with the dispositional alternatives available to the court, with its procedures and practices at the disposition stage, and with community services that might be useful in
the formation of a dispositional plan appropriate to the client’s circumstances.
b) The lawyer should promptly investigate all sources of evidence including any reports or other
information that will be brought to the court’s attention and interview all witnesses material to the
disposition decision.
i) If access to social investigation, psychological, psychiatric or other reports or information is
not provided voluntarily or promptly, counsel should be prepared to seek their disclosure and
time to study them through formal measures.
ii) Whether or not social and other reports are readily available, the lawyer has a duty independently to investigate the client’s circumstances, including such factors as previous history, family

84  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

relations, economic condition and any other information relevant to disposition.
c) The lawyer should seek to secure the assistance of psychiatric, psychological, medical or other
expert personnel needed for purposes of evaluation, consultation or testimony with respect to formation of a dispositional plan.
Standard 9.3. Counseling Prior to Disposition.
a) The lawyer should explain to the client the nature of the disposition hearing, the issues involved
and the alternatives open to the court. The lawyer should also explain fully and candidly the nature,
obligations and consequences of any proposed dispositional plan, including the meaning of conditions of probation, the characteristics of any institution to which commitment is possible, and the
probable duration of the client’s responsibilities under the proposed dispositional plan. Ordinarily;
the lawyer should not make or agree to a specific dispositional recommendation without the client’s consent.
b) When psychological or psychiatric evaluations are ordered by the court or arranged by counsel
prior to disposition, the lawyer should explain the nature of the procedure to the client and encourage the client’s cooperation with the person or persons administering the diagnostic procedure.
c) The lawyer must exercise discretion in revealing or discussing the contents of psychiatric,
psychological, medical and social reports, tests or evaluations bearing on the client’s history or
condition or, if the client is a juvenile, the history or condition of the client’s parents. In general,
the lawyer should not disclose data or conclusions contained in such reports to the extent that, in
the lawyer’s judgment based on knowledge of the client and the client’s family, revelation would be
likely to affect adversely the client’s well-being or relationships within the family and disclosure is
not necessary to protect the client’s interests in the proceeding.
Standard 9.4. Disposition Hearing.
a) It is the lawyer’s duty to insist that proper procedure be followed throughout the disposition
stage and that orders entered be based on adequate reliable evidence.
i) Where the dispositional hearing is not separate from adjudication or where the court does not
have before it all evidence required by statute, rules of court or the circumstances of the case, the
lawyer should seek a continuance until such’eviderite can be presented-if to do so would serve
the client’s interests.
(ii) The lawyer at disposition should be free to examine fully and to impeach any witness whose
evidence is damaging to the client’s interests and to challenge the accuracy, credibility and
weight of any reports, written statements or other evidence before the court. The lawyer should
not knowingly limit or forego examination or contradiction by proof of any witness, including a
social worker or probation department officer, when failure to examine fully will prejudice the
client’s interests. Counsel may seek to compel the presence of witnesses whose statements of fact
or opinion are before the court or the production of other evidence on which conclusions of fact
presented at disposition are based.
b) The lawyer may, during disposition, ask that the client be excused during presentation of evidence when, in counsel’s judgment, exposure to a particular item of evidence would adversely affect
the well-being of the client or the client’s relationship with his or her family, and the client’s presence is not necessary to protecting his or her interests in the proceeding.
Standard 9.5. Counseling After Disposition.
When a dispositional decision has been reached, it is the lawyer’s duty to explain the nature, obli-

Mississippi • Fall 2007  85

gations and consequences of the disposition to the client and his or her family and to urge upon the
client the need for accepting and cooperating with the dispositional order. If appeal from either the
adjudicative or dispositional decree is contemplated, the client should be advised of that possibility,
but the attorney must counsel compliance with the court’s decision during the interim.

Part ten • Representation after Disposition
Standard 10.1. Relations with the Client After Disposition.
a) The lawyer’s responsibility to the client does not necessarily end with dismissal of the charges
or entry of a final dispositional order. The attorney should be prepared to counsel and render or
assist in securing appropriate legal services for the client in matters arising from the original proceeding.
i) If the client has been found to be within the juvenile court’s jurisdiction, the lawyer should
maintain contact with both the client and the agency or institution involved in the disposition
plan in order to ensure that the client’s rights are respected and, where necessary, to counsel the
client and the client’s family concerning the dispositional plan.
ii) Whether or not the charges against the client have been dismissed, where the lawyer is aware
that the client or the client’s family needs and desires community or other medical, psychiatric,
psychological, social or legal services, he or she should render all possible assistance in arranging for such services.
b) The decision to pursue an available claim for postdispositional relief from judicial and correctional or other administrative determinations related to juvenile court proceedings, including
appeal, habeas corpus or an action to protect the client’s right to treatment, is ordinarily the client’s
responsibility after full consultation with counsel.
Standard 10.2. Post-Dispositional Hearings Before the Juvenile Court.
a) The lawyer who represents a client during initial juvenile court proceedings should ordinarily
be prepared to represent the client with respect to proceedings to review or modify adjudicative or
dispositional orders made during earlier hearings or to pursue any affirmative remedies that may
be available to the client under local juvenile court law.
b) The lawyer should advise the client of the pendency or availability of a postdispositional hearing
or proceeding and of its nature, issues and potential consequences. Counsel should urge and, if necessary, seek to facilitate the prompt attendance at any such hearing of the client and of any material
witnesses who may be called.
Standard 10.3. Counsel on Appeal.
a) Trial counsel, whether retained or appointed by the court, should conduct the appeal unless new
counsel is substituted by the client or by the appropriate court. Where there exists an adequate pool
of competent counsel available for assigmnent to appeals from juvenile court orders and substitution will not work substantial disadvantage to the client’s interests, new counsel may be appointed
in place of trial counsel.
b) Whether or not trial counsel expects to conduct the appeal, he or she should promptly inform the
client, and where the client is a minor and the parents’ interests are not adverse, the client’s parents
of the right to appeal and take all steps necessary to protect that right until appellate counsel is substituted or the client decides not to exercise this privilege.

86  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

c) Counsel on appeal, after reviewing the record below and undertaking any other appropriate
investigation, should candidly inform the client as to whether there are meritorious grounds for
appeal and the probable results of any such appeal, and should further explain the potential advantages and disadvantages associated with appeal. However, appellate counsel should not seek to
withdraw from a case solely because his or her own analysis indicates that the appeal lacks merit.
Standard 10.4. Conduct of the Appeal.
The rules generally governing conduct of appeals in criminal and civil cases govern conduct of
appeals in juvenile court matters.
Standard 10.5. Post-Dispositional Remedies: Protection of the Client’s Right to
Treatment.
a) A lawyer who has represented a client through trial and/or appellate proceedings should be
prepared to continue representation when post-dispositional action, whether affirmative or
defensive, is sought, unless new counsel is appointed at the request of the client or continued
representation would, because of geographical considerations or other factors, work unreasonable hardship.
b) Counsel representing a client in post-dispositional matters should promptly undertake any
factual or legal investigation in order to determine whether grounds exist for relief from juvenile
court or administrative actiort. If there is reasonable prospect of a favorable result, the lawyer
should advise the client and, if their interests are not adverse, the client’s parents of the nature,
consequences, probable outcome and advantages or disadvantages associated with such proceedings.
c) The lawyer engaged in post-dispositional representation should conduct those proceedings according to the principles generally governing representation in juvenile court matters.
Standard 10.6. Probation Revocation; Parole Revocation.
a) Trial counsel should be prepared to continue representation if revocation of the client’s probation or parole is sought, unless new counsel is appointed or continued representation would,
because of geographical or other factors, work unreasonable hardship.
b) Where proceedings to revoke conditional liberty are conducted in substantially the same manner
as original petitions alleging delinquency or need for supervision, the standards governing representation in juvenile court generally apply. Where special procedures are used in such matters,
counsel should advise the client concerning those procedures and be prepared to participate in the
revocation proceedings at the earliest stage.
Standard 10.7. Challenges to the Effectiveness of Counsel.
a) A lawyer appointed or retained to represent a client previously represented by other counsel has
a good faith duty to examine prior counsel’s actions and strategy.” If, after investigation, the new
attorney is satisfied that prior counsel did not provide effective assistance, the client should be so
advised and any appropriate relief for the client on that ground should be vigorously pursued.
b) A lawyer whose conduct of a juvenile court case is drawn into question may testify in judicial,
administrative or investigatory proceedings concerning the matters charged, even though in so
doing the lawyer must reveal information which was given by the client in confidence.

Mississippi • Fall 2007  87

Appendix Four

Indigent Defense
Task Force Legislation
authorizing a study of indigent defense
in Mississippi youth courts

REPORT OF CONFERENCE COMMITTEE
MR. SPEAKER AND MADAM PRESIDENT:
We, the undersigned conferees, have had under consideration the amendments to the following entitled BILL:
H. B. No. 1498: Criminal assessment; provide for funding of
public defender training.
We, therefore, respectfully submit the following report and recommendation:
1. That the Senate recede from its Amendment No. 1.
2. That the House and Senate adopt the following amendment:
Amend by striking all after the enacting clause and inserting
in lieu thereof the following:
16
17
18
19
20
21
22
23
24
25
26
27
28
29

	 SECTION 1. Section 25-32-71, Mississippi Code of 1972, as
amended by House Bill No. 770, 2007 Regular Session, is amended as
follows:
	 25-32-71. (1) There is created the Mississippi Public
Defender Task Force which shall be composed of thirteen (13)
members as follows:
	 (a) The President of the Mississippi Public Defender
Association, or his designee;
	 (b) The President of the Mississippi Prosecutors
Association, or his designee;
	 (c) A representative of the Administrative Office of
Courts;
	 (d) A representative of the Mississippi Supreme Court;
	 (e) A representative of the Conference of Circuit

88  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80

Judges;
	 (f) A representative of the Mississippi Attorney
General’s Office;
	 (g) A representative of the Mississippi Association of
Supervisors;
	 (h) A representative of The Mississippi Bar;
	 (i) A representative of the Magnolia Bar Association;
	 (j) The Chairman of the Senate Judiciary Committee,
Division B, or his designee;
	 (k) The Chairman of the Senate Appropriations
Committee, or his designee;
	 (l) The Chairman of the House Judiciary En Banc
Committee, or his designee;
	 (m) The Chairman of the House Appropriations Committee,
or his designee.
(2) At its first meeting, the task force shall elect a
chairman and vice chairman from its membership and shall adopt
rules for transacting its business and keeping records. Members
of the task force shall receive a per diem in the amount provided
in Section 25-3-69 for each day engaged in the business of the
task force. Members of the task force other than the legislative
members shall receive reimbursement for travel expenses incurred
while engaged in official business of the task force in accordance
with Section 25-3-41 and the legislative members of the task force
shall receive the expense allowance provided for in Section
5-1-47.
(3) The duties of the task force shall be to:
	 (a) Make a comprehensive study of the needs by circuit
court districts for state-supported indigent defense counsel to
examine existing public defender programs, including indigent
defense provided in the youth courts. Reports shall be provided
to the Legislature each year at least one (1) month before the
convening of the regular session.
	 (b) Examine and study approaches taken by other states
in the implementation and costs of state-supported indigent
criminal and delinquency cases.
	 (c) To study the relationship between presiding circuit
and youth court judges and the appointment of criminal and
delinquency indigent defense counsel.
(4) This section shall stand repealed on July 1, 2011.
	 SECTION 2. Section 99-40-1, Mississippi Code of 1972, is
amended as follows:
	 99-40-1. (1) There is created the Mississippi Office of
Indigent Appeals. This office shall consist of six (6) attorneys,
two (2) secretaries/paralegals and one (1) financial assistant.
One (1) of the attorneys shall serve as director of the office.
The director shall be appointed by the Governor and shall serve
for a term of four (4) years. The remaining attorneys and other
staff shall be appointed by the director and shall serve at the
will and pleasure of the director. The director and all other
attorneys in the office shall either be active members of The

Mississippi • Fall 2007  89

81 Mississippi Bar, or, if a member in good standing of the bar of
82 another jurisdiction, must apply to and secure admission to The
83 Mississippi Bar within twelve (12) months of the commencement of
84 the person’s employment by the office. The attorneys in the
85 office shall practice law exclusively for the office and shall not
86 engage in any other practice. The office shall not engage in any
87 litigation other than that related to the office. The salary for
88 the director shall be equivalent to the salary of district
89 attorneys and the salary of the other attorneys in the office
90 shall be equivalent to the salary of an assistant district
91 attorney.
92 	 (2) The office shall provide representation on appeal for
93 indigent persons convicted of felonies but not under sentences of
94 death. Representation shall be provided by staff attorneys, or,
95 in the case of conflict or excessive workload, by attorneys
96 selected, employed and compensated by the office on a contract
97 basis. All fees charged by contract counsel and expenses incurred
98 by attorneys in the office and contract counsel must be approved
99 by the court. At the sole discretion of the director, the office
100 may also represent indigent juveniles adjudicated delinquent on
101 appeals from a county court or chancery court to the Mississippi
102 Supreme Court and/or the Mississippi Court of Appeals. The office
103 shall provide advice, education and support to attorneys
104 representing persons under felony charges in the trial courts.
105 	(3) There is created in the State Treasury a special fund to
106 be known as the Indigent Appeals Fund. The purpose of the fund
107 shall be to provide funding for the Mississippi Office of Indigent
108 Appeals. Monies from the funds derived from assessments under
109 Section 99-19-73 shall be distributed by the State Treasurer upon
110 warrants issued by the Mississippi Office of Indigent Appeals.
111 The fund shall be a continuing fund, not subject to fiscal-year
112 limitations, and shall consist of:
113 		 (a) Monies appropriated by the Legislature for the
114 purposes of funding the Office of Indigent Appeals;
115 		 (b) The interest accruing to the fund;
116 		 (c) Monies received under the provisions of Section
117 99-19-73;
118 		 (d) Monies received from the federal government;
119 		 (e) Donations; and
120 		 (f) Monies received from such other sources as may be
121 provided by law.
122 	(4) There is created in the Office of Indigent Appeals the
123 Division of Public Defender Training. The division shall be
124 staffed by any necessary personnel as determined and hired by the
125 director. The mission of the division shall be to work closely
126 with the Mississippi Public Defenders Association to provide
127 training and services to public defenders practicing in all state,
128 county and municipal courts. These services shall include, but
129 not be limited to, continuing legal education, case updates and
130 legal research. The division shall provide (a) education and
131 training for public defenders practicing in all state, county,

90  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182

municipal and youth courts; (b) technical assistance for public
defenders practicing in all state, county, municipal and youth
courts; and (c) current and accurate information for the
Legislature pertaining to the needs of public defenders practicing
in all state, county, municipal and youth courts.
	(5) There is created in the State Treasury a special fund to
be known as the Public Defenders Education Fund. The purpose of
the fund shall be to provide funding for the training of public
defenders. Monies from the funds derived from assessments under
Section 99-19-73 shall be distributed by the State Treasurer upon
warrants issued by the Office of Indigent Appeals. The fund shall
be a continuing fund, not subject to fiscal-year limitations, and
shall consist of:
		 (a) Monies appropriated by the Legislature for the
purposes of public defender training;
		 (b) The interest accruing to the fund;
		 (c) Monies received under the provisions of Section
99-19-73;
		 (d) Monies received from the federal government;
		 (e) Donations; and
		 (f) Monies received from such other sources as may be
provided by law.
	SECTION 3. Section 99-19-73, Mississippi Code of 1972, as
amended by Senate Bill No. 2686, 2007 Regular Session, and House
Bill No. 665, 2007 Regular Session, is amended as follows:
	99-19-73. (1) Traffic violations. In addition to any
monetary penalties and any other penalties imposed by law, there
shall be imposed and collected the following state assessment from
each person upon whom a court imposes a fine or other penalty for
any violation in Title 63, Mississippi Code of 1972, except
offenses relating to the Mississippi Implied Consent Law (Section
63-11-1 et seq.) and offenses relating to vehicular parking or
registration:
FUND....................................................... AMOUNT
State Court Education Fund................................. $ 1.50
State Prosecutor Education Fund.............................. 1.00
Vulnerable Adults Training,
		 Investigation and Prosecution Trust Fund................... .50
Child Support Prosecution Trust Fund......................... .50
Driver Training Penalty Assessment Fund...................... 7.00
Law Enforcement Officers Training Fund....................... 5.00
Spinal Cord and Head Injury Trust Fund
		 (for all moving violations)............................... 6.00
Emergency Medical Services Operating Fund................... 15.00
Mississippi Leadership Council on Aging Fund................ 1.00
Law Enforcement Officers and Fire Fighters Death
		 Benefits Trust Fund........................................ .50
Law Enforcement Officers and Fire Fighters
		 Disability Benefits Trust Fund............................ 1.00
State Prosecutor Compensation Fund for the purpose
		 of providing additional compensation for legal

Mississippi • Fall 2007  91

183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233

		 assistants to district attorneys......................... 1.50
Crisis Intervention Mental Health Fund..................... 10.00
Drug Court Fund............................................ 10.00
Capital Defense Counsel Fund................................ 2.89
Indigent Appeals Fund....................................... 2.29
Capital Post-Conviction Counsel Fund........................ 2.33
Victims of Domestic Violence Fund............................ .49
Public Defenders Education Fund............................. 1.00
TOTAL STATE ASSESSMENT................................... $ 69.50
	(2) Implied Consent Law violations. In addition to any
monetary penalties and any other penalties imposed by law, there
shall be imposed and collected the following state assessment from
each person upon whom a court imposes a fine or any other penalty
for any violation of the Mississippi Implied Consent Law (Section
63-11-1 et seq.):
FUND....................................................... AMOUNT
Crime Victims’ Compensation Fund......................... $ 10.00
State Court Education Fund.................................. 1.50
State Prosecutor Education Fund............................. 1.00
Vulnerable Adults Training,
		 Investigation and Prosecution Trust Fund.................. .50
Child Support Prosecution Trust Fund......................... .50
Driver Training Penalty Assessment Fund.................... 22.00
Law Enforcement Officers Training Fund...................... 11.00
Emergency Medical Services Operating Fund.................. 15.00
Mississippi Alcohol Safety Education Program Fund........... 5.00
Federal-State Alcohol Program Fund......................... 10.00
Mississippi Crime Laboratory
		 Implied Consent Law Fund................................ 25.00
Spinal Cord and Head Injury Trust Fund..................... 25.00
Capital Defense Counsel Fund................................ 2.89
Indigent Appeals Fund....................................... 2.29
Capital Post-Conviction Counsel Fund........................ 2.33
Victims of Domestic Violence Fund............................ .49
State General Fund......................................... 35.00
Law Enforcement Officers and Fire Fighters Death
		 Benefits Trust Fund........................................ .50
Law Enforcement Officers and Fire Fighters Disability
		 Benefits Trust Fund....................................... 1.00
State Prosecutor Compensation Fund for the purpose
		 of providing additional compensation for legal
		 assistants to district attorneys......................... 1.50
Crisis Intervention Mental Health Fund..................... 10.00
Drug Court Fund............................................ 10.00
Statewide Victims’ Information and Notification
System Fund................................................. 6.00
Public Defenders Education Fund............................. 1.00
TOTAL STATE ASSESSMENT................................... $199.50
	(3) Game and Fish Law violations. In addition to any
monetary penalties and any other penalties imposed by law, there
shall be imposed and collected the following state assessment from

92  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284

each person upon whom a court imposes a fine or other penalty for
any violation of the game and fish statutes or regulations of this
state:
FUND....................................................... AMOUNT
State Court Education Fund................................ $ 1.50
State Prosecutor Education Fund............................. 1.00
Law Enforcement Officers Training Fund....................... 5.00
Hunter Education and Training Program Fund.................. 5.00
State General Fund......................................... 30.00
Law Enforcement Officers and Fire Fighters Death
		 Benefits Trust Fund........................................ .50
Law Enforcement Officers and Fire Fighters Disability
		 Benefits Trust Fund....................................... 1.00
State Prosecutor Compensation Fund for the purpose
		 of providing additional compensation for legal
		 assistants to district attorneys......................... 1.00
Crisis Intervention Mental Health Fund..................... 10.00
Drug Court Fund............................................ 10.00
Capital Defense Counsel Fund................................ 2.89
Indigent Appeals Fund....................................... 2.29
Capital Post-Conviction Counsel Fund........................ 2.33
Victims of Domestic Violence Fund............................ .49
Public Defenders Education Fund............................. 1.00
TOTAL STATE ASSESSMENT................................... $ 74.00
	(4) Litter Law violations. In addition to any monetary
penalties and any other penalties imposed by law, there shall be
imposed and collected the following state assessment from each
person upon whom a court imposes a fine or other penalty for any
violation of Section 97-15-29 or 97-15-30:
FUND....................................................... AMOUNT
Statewide Litter Prevention Fund......................... $ 25.00
TOTAL STATE ASSESSMENT................................... $ 25.00
	(5) Other misdemeanors. In addition to any monetary
penalties and any other penalties imposed by law, there shall be
imposed and collected the following state assessment from each
person upon whom a court imposes a fine or other penalty for any
misdemeanor violation not specified in subsection (1), (2) or (3)
of this section, except offenses relating to vehicular parking or
registration:
FUND....................................................... AMOUNT
Crime Victims’ Compensation Fund......................... $ 10.00
State Court Education Fund.................................. 1.50
State Prosecutor Education Fund............................. 1.00
Vulnerable Adults Training,
		 Investigation and Prosecution Trust Fund.................. .50
Child Support Prosecution Trust Fund......................... .50
Law Enforcement Officers Training Fund....................... 5.00
Capital Defense Counsel Fund................................ 2.89
Indigent Appeals Fund....................................... 2.29
Capital Post-Conviction Counsel Fund........................ 2.33
Victims of Domestic Violence Fund............................ .49

Mississippi • Fall 2007  93

285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335

State General Fund......................................... 30.00
State Crime Stoppers Fund.................................... 1.50
Law Enforcement Officers and Fire Fighters Death
		 Benefits Trust Fund........................................ .50
Law Enforcement Officers and Fire Fighters Disability
		 Benefits Trust Fund....................................... 1.00
State Prosecutor Compensation Fund for the purpose
		 of providing additional compensation for legal
		 assistants to district attorneys......................... 1.50
Crisis Intervention Mental Health Fund..................... 10.00
Drug Court Fund............................................. 8.00
Judicial Performance Fund................................... 2.00
Statewide Victims’ Information and Notification
System Fund................................................. 6.00
Public Defenders Education Fund............................. 1.00
TOTAL STATE ASSESSMENT................................... $ 88.00
	(6) Other felonies. In addition to any monetary penalties
and any other penalties imposed by law, there shall be imposed and
collected the following state assessment from each person upon
whom a court imposes a fine or other penalty for any felony
violation not specified in subsection (1), (2) or (3) of this
section:
FUND ...................................................... AMOUNT
Crime Victims’ Compensation Fund.......................... $ 10.00
State Court Education Fund.................................. 1.50
State Prosecutor Education Fund............................. 1.00
Vulnerable Adults Training,
		 Investigation and Prosecution Trust Fund.................. .50
Child Support Prosecution Trust Fund......................... .50
Law Enforcement Officers Training Fund....................... 5.00
Capital Defense Counsel Fund................................ 2.89
Indigent Appeals Fund....................................... 2.29
Capital Post-Conviction Counsel Fund........................ 2.33
Victims of Domestic Violence Fund............................ .49
State General Fund......................................... 60.00
Criminal Justice Fund...................................... 50.00
Law Enforcement Officers and Fire Fighters Death
		 Benefits Trust Fund........................................ .50
Law Enforcement Officers and Fire Fighters Disability
		 Benefits Trust Fund....................................... 1.00
State Prosecutor Compensation Fund for the purpose
		 of providing additional compensation for legal
		 assistants to district attorneys......................... 1.50
Crisis Intervention Mental Health Fund..................... 10.00
Drug Court Fund............................................ 10.00
Statewide Victims’ Information and Notification
		 System Fund.............................................. 6.00
Public Defenders Education Fund............................. 1.00
TOTAL STATE ASSESSMENT................................... $166.50
	(7) If a fine or other penalty imposed is suspended, in
whole or in part, such suspension shall not affect the state

94  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385

assessment under this section. No state assessment imposed under
the provisions of this section may be suspended or reduced by the
court.
	(8) After a determination by the court of the amount due, it
shall be the duty of the clerk of the court to promptly collect
all state assessments imposed under the provisions of this
section. The state assessments imposed under the provisions of
this section may not be paid by personal check. It shall be the
duty of the chancery clerk of each county to deposit all such
state assessments collected in the circuit, county and justice
courts in such county on a monthly basis with the State Treasurer
pursuant to appropriate procedures established by the State
Auditor. The chancery clerk shall make a monthly lump-sum deposit
of the total state assessments collected in the circuit, county
and justice courts in such county under this section, and shall
report to the Department of Finance and Administration the total
number of violations under each subsection for which state
assessments were collected in the circuit, county and justice
courts in such county during such month. It shall be the duty of
the municipal clerk of each municipality to deposit all such state
assessments collected in the municipal court in such municipality
on a monthly basis with the State Treasurer pursuant to
appropriate procedures established by the State Auditor. The
municipal clerk shall make a monthly lump-sum deposit of the total
state assessments collected in the municipal court in such
municipality under this section, and shall report to the
Department of Finance and Administration the total number of
violations under each subsection for which state assessments were
collected in the municipal court in such municipality during such
month.
	(9) It shall be the duty of the Department of Finance and
Administration to deposit on a monthly basis all such state
assessments into the proper special fund in the State Treasury.
The monthly deposit shall be based upon the number of violations
reported under each subsection and the pro rata amount of such
assessment due to the appropriate special fund. The Department of
Finance and Administration shall issue regulations providing for
the proper allocation of these special funds.
(10) The State Auditor shall establish by regulation
procedures for refunds of state assessments, including refunds
associated with assessments imposed before July 1, 1990, and
refunds after appeals in which the defendant’s conviction is
reversed. The Auditor shall provide in such regulations for
certification of eligibility for refunds and may require the
defendant seeking a refund to submit a verified copy of a court
order or abstract by which such defendant is entitled to a refund.
All refunds of state assessments shall be made in accordance with
the procedures established by the Auditor.
	SECTION 4. This act shall take effect and be in force from
and after July 1, 2007.

Mississippi • Fall 2007  95

Further, amend by striking the title in its entirety and
inserting in lieu thereof the following:
1 AN ACT TO AMEND SECTION 25-32-71, MISSISSIPPI CODE OF 1972,
2 AS AMENDED BY HOUSE BILL NO. 770, 2007 REGULAR SESSION, TO DELETE
3 THE REPEALER ON THE PUBLIC DEFENDERS TASK FORCE AND REVISE THE
4 MEMBERSHIP AND MISSION OF THE TASK FORCE; TO AMEND SECTION
5 99-40-1, MISSISSIPPI CODE OF 1972, TO CREATE THE DIVISION OF
6 PUBLIC DEFENDER TRAINING IN THE OFFICE OF INDIGENT APPEALS AND TO
7 PROVIDE FOR THE MISSION AND DUTIES OF THE DIVISION; TO CREATE THE
8 PUBLIC DEFENDERS EDUCATION FUND IN THE STATE TREASURY AND TO
9 PROVIDE FOR THE ADMINISTRATION AND USE OF THE FUND; TO AMEND
10 SECTION 99-19-73, MISSISSIPPI CODE OF 1972, AS AMENDED BY SENATE
11 BILL NO. 2686, 2007 REGULAR SESSION, AND HOUSE BILL NO. 665, 2007
12 REGULAR SESSION, TO PROVIDE FOR A CRIMINAL ASSESSMENT ON CERTAIN
13 CRIMES TO FUND THE PUBLIC DEFENDERS TRAINING FUND; AND FOR RELATED
14 PURPOSES.
CONFEREES FOR THE HOUSE 	

CONFEREES FOR THE SENATE

X (SIGNED) 	
Blackmon 	

X (SIGNED)
Tollison

X (SIGNED) 	
Simpson 	

X (SIGNED)
Turner

X (SIGNED) 	
Coleman (29th) 	

X (SIGNED)
Gordon

96  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

National Juvenile Defender Center
i n c o l l a b o r at i o n w i t h

Mississippi Youth Justice Project
Southern Poverty Law Center

98  Assessment of Access to Counsel & Quality of Representation in Youth Court Proceedings

 

 

Federal Prison Handbook - Side
Advertise Here 2nd Ad
Prisoner Education Guide side