Report: In Kansas, Kids Who Face Criminal Charges Aren't Getting The Defense They Need
Most of Wichita attorney Trent Wetta’s clients fall between the ages of 14 and 17, but they can be as young as 10. They typically face misdemeanor charges, such as possession of marijuana or theft, or minor felony charges, like burglary.
It can prove tricky guiding a child through a criminal justice system made by adults with law degrees.
Because their brains are still developing, Wetta’s clients are more susceptible to peer pressure and risky behaviors. He said they often don’t understand how a court case can affect them later in life. Some don’t know the difference between pleading guilty, not guilty and no contest.
"There are many times where it is difficult to get a child to understand, really, what’s going on," Wetta said. "Kids are not good at evaluating consequences of actions."
A new report from the National Juvenile Defender Center, an organization that studies justice systems and educates attorneys, found that Kansas is one of only four states without a statewide agency that coordinates juvenile public defenders.
Instead, the report says, Kansas relies on a patchwork system where counties assign juvenile defense attorneys who are poorly compensated and rarely get enough cases to build expertise in the subject, and where children don’t get to see a lawyer until after they’ve already been interrogated by the police.
"By and large, what we saw across the state is not what you would want if it were your child in the court system," said Mary Ann Scali, executive director of the National Juvenile Defender Center.
The report studied 11 counties across Kansas. Researchers attended court proceedings and interviewed defense attorneys, judges, prosecutors, probation officers and other staff involved in the juvenile justice system. The center declined to name the counties it visited, but report authors said they chose the locations based on their geographic and demographic diversity.
The biggest problem, the report contends, is the absence of a statewide authority to educate attorneys in juvenile defense, assign them earlier in a child’s case and enforce fair, consistent standards for the treatment of children when they’re prosecuted.
"The complete lack of state standards and oversight led to largely low-quality representation," report author Amy Borror said in an interview.
Kansas requires either a parent or an attorney to be present while a child is being interrogated by the police. But there is no system for assigning an attorney to a child at that point in the criminal process. And parents who are present for a police interrogation may encourage children to make incriminating statements, Scali said.
Sometimes, a family may have the resources to find and hire a private defense attorney for an interrogation. But often, defenders are assigned when the child makes his or her first appearance in court. By then, the child and family may already be confused or misinformed about the legal process.
The report found that some Kansas counties may even charge families fees to use an assigned defender, even if the family can’t afford it.
"One county ... passed the entire thing, their hourly bill, over to the family and just waited to see if the family complained about it," said the center’s special counsel, Tim Curry, who worked on the report. "Even though all these families had already been found not to be able to afford lawyers." The report recommended that Kansas address racial inequalities in the juvenile justice system — Black, Native American and Latino children are more likely to be put in jail than white children in the state. The report also calls for the elimination of shackling children in courtrooms. Unlike several other states, Kansas has no statewide laws banning this practice, and report contributors observed it frequently in courtrooms.
Low pay, little support
Wetta, the defense attorney in Wichita, says Sedgwick County pays juvenile defenders a flat rate of $210 for most cases, with the intent of covering three hours of work. For more serious charges or cases that end up in a trial, lawyers get $70 per hour, with a cap at $1,400 for 20 hours.
That’s not even close to what most private lawyers would charge as an hourly rate in Sedgwick County, Wetta said. He also works as a probate attorney, handling wills and estates for between $200 and $250 an hour. Private defense attorneys, he said, often charge $10,000 retainers for cases that go to trial.
Wetta doesn’t track the hours he spends on each juvenile defense case. Even the simplest of cases take about six hours to complete. Cases with video footage and higher-level crimes can take much longer.
"Things can get much more complicated very quickly," he said. "That’s just dealing with a plea. We’re not even talking about preparing for trial."
It’s common for attorneys who practice juvenile defense to do it part time, and to perform other legal work or defend adults on the side. That means attorneys defending children might not know the juvenile criminal laws as well as they do the adult criminal code, said Melanie DeRousse, an associate professor at the University of Kansas School of Law and the director of the school’s legal clinic.
"There is no standardization or structure supporting our work,” she said. "Most attorneys are kind of learning it as they go."
Other types of legal specialities, like guardian working with foster children, require regular training, DeRousse said. But for juvenile defense, there are no statewide training requirements. There are also no conferences for juvenile defenders in Kansas.
Working with children can present unique challenges, said DeRousse, who teaches law students how to defend juveniles in the clinic. She has represented young defendants who don’t understand the difference between the defense and the prosecution. Many kids have also been assigned other lawyers and advocates due to involvement in the foster care system, and are often confused about the role of a defense attorney.
Parental involvement can also complicate things. Some have been involved in the justice system and don’t trust lawyers. Others want to be involved in their child’s defense to the point where it violates attorney-client privilege.
"We have a responsibility to make sure that our communications with our clients are confidential," DeRousse said. "We need to make sure that our kids independently understand what’s going on and are making their own choices without pressure from their parents."
Nomin Ujiyediin reports on criminal justice and social welfare for the Kansas News Service. You can email her at nomin (at) kcur (dot) org and follow her on Twitter @NominUJ.
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