November CBA Report

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By Angela Chang and Silvia Arieira
Fifty years ago, the United States Supreme Court in In re
Gault, 387 U.S. 1 (1967) recognized that children, too,
must be afforded Due Process protections promised by
the Constitution, including the right to counsel. The principle
expounded in In re Gault, 387 U.S. 1 (1967) is ever significant
today. Over the course of the past decade, the Supreme Court has
recognized scientific research that supports the common sense
knowledge that children are not miniature adults.1 The court
acknowledged in its holdings that, due to the unique develop-
mental stage of adolescents, they are less capable of sound decision
making, less culpable, and possess a greater capacity for change.
Accordingly, the Ohio Supreme Court has also relied upon this
accepted research in its own recent holdings with respect to Ohio
law.2 Given this jurisprudence, it is crucial that attorneys who have
specialized training in representing children are present in juve-
nile courtrooms.
Right to Counsel for Children in Ohio
Ohio Revised Code § 2151.352 establishes a child’s right to
counsel in Ohio. Ohio Juvenile Rule 3 provides guidelines to
ensure that Ohio children receive meaningful access to counsel
and make informed decisions regarding legal representation. Rule
3, however, is limited in scope. Under Rule 3, Ohio courts are only
required to advise a child of the dangers of self-representation
when the child faces potential confinement, but not to any child
facing legal consequences, such as paying restitution. Further, a
child is only required to consult with an attorney prior to waiver
if that child is charged with a felony, but not if facing a misde-
meanor charge. With these minimal requirements, many children
go through juvenile court without the benefit of legal counsel.
The current Ohio Juvenile Rule stands today as a product
of efforts to strengthen the right to counsel for children by the
Children’s Law Center Inc., the American Civil Liberties Union
(ACLU) Nationwide and ACLU of Ohio, and the Office of the
Ohio Public Defender (OPD) in 2006.3 Together, these organiza-
tions submitted a proposed amendment to the Supreme Court of
Ohio, which went through almost six years of debate and modi-
fications. Under the prior rule, only children facing mandatory
or discretionary transfer to adult court were prevented from
waiving counsel. Pursuant to the 2012 amendments, waiver was
also prohibited when the child is charged as a serious youthful
offender.4 The amendments also provided guidelines for the juve-
nile court to consider when ensuring that any waiver of counsel
is knowing, intelligent, and voluntary. While the amended rules
created greater protections for more children, the existing rule
could be further strengthened to better ensure more children have
the benefit of counsel.
The Rate of Waiver in Ohio
In 2016, the Children’s Law Center, with data collected from
the Supreme Court of Ohio and OPD, estimated the rate of waiver
of counsel in Ohio juvenile courts.5 Due to the lack of a uniform
data collection system across Ohio juvenile courts and the varied
public defense system, it was not possible to calculate the exact
number of children who waived counsel.
The available numbers tell enough of a story to know that,
Juvenile Right to Counsel:
Fighting for a Child’s “Last Best Chance”
“The brain will never again be as plastic as it is during adolescence. We cannot afford
to squander this second opportunity to help young people be happier, healthier,
and more successful. Adolescence is our last best chance to make a difference.”
– Dr. Laurence Steinberg, Age of Opportunity (2014).
6 l November 2017 CBA REPORT
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