COMMENTARY

Children need lawyers in Ohio's juvenile justice system

3/29/2012

In Toledo, some children who enter the juvenile justice system do so without the benefit of a lawyer. All across Ohio, children are waiving their right to legal counsel.

State law requires only that a child must speak to a parent or guardian before waiving that right. Parents love their children, but often have little understanding of what they are giving up or the consequences of doing so.

The Ohio Supreme Court wants to change that. Justices are proposing a new rule, Juvenile Rule 3, that would ensure a child at least consults an attorney before he or she gives up the right to legal representation in court.

The General Assembly will decide the fate of Juvenile Rule 3. The rule enjoys wide public support, but is opposed by some powerful interests, including the Ohio Prosecuting Attorneys Association.

That isn't surprising. Our justice system operates on the principle that prosecutors focus on efficiency and public safety, while defense attorneys look out for the interests of accused people.

Though their focus and goals are often different, we need both sides. We don't always like this fact or face it willingly, but we have known for centuries that the only way to ensure due process is to give both the accused and accuser their own advocate in court.

This seems obvious, until you consider that Ohio's current juvenile rules essentially give the accuser the job of looking out for the best interests of the accused. Prosecutors and judges often care greatly about the juveniles who come before courts. But relying on them alone to determine what's best for a child creates cracks in the system that are so big, it becomes hard not to fall through.

Imagine a system so overworked and log-jammed that it begins, ever so subtly, to suggest to children that waiving their right to counsel will speed things up a bit -- that it will ease some of the pressure. Imagine parents so utterly overwhelmed and unaware of how an attorney could help their child that they barely need to be convinced not to ask for one.

We don't have to imagine; we only have to look around. Many juvenile defendants who waive their right to counsel are indigent. They spend more time in detention than kids who had lawyers. This extra time teaches them even more efficient ways to become a statistic -- one more of the nearly 2.27 million adult prison inmates in this country.

This long, slow descent doesn't require corruption or even bad intentions. It's the natural result of a criminal justice system that runs without adequate checks and balances.

Many states, including "tough on crime" ones such as Texas, do not allow juveniles to waive counsel under any circumstances. If they enter the Texas system, they have a lawyer.

Other states, such as Florida, Virginia, and Maryland, have enacted rules similar to the rule proposed for Ohio. These states have found that these rules are not overly burdensome.

In Florida, legislative analysts note, any additional costs created by the rule are offset by the smaller number of cases reversed on appeal because of lack of counsel. In Maryland, many court districts have lower juvenile caseloads now than they did before the rule was enacted.

Every day, our society acknowledges that children are unique and need to be protected. We base much of our social order on this fundamental principle.

At the heart of the parent-child relationship is the notion that children often need help to understand what's in their own best interest. Similarly, entire government agencies operate on the premise that some families are unable, unwilling, or simply unfit to look out for their children's well-being.

Ohioans don't need to be convinced of anything. All we need to do is remember what we already know: Children don't ever stop needing or deserving help.

When we remember that, it becomes clear that all children deserve the same rights we would want for our own children if they were facing a court of law.

Christine Link is executive director of the Ohio chapter of the American Civil Liberties Union.