For Attorneys

"[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone."

In re Gault, 387 U.S. 1 (1967)

For those who do not regularly practice in the juvenile court system, it can seem like a foreign country, because juvenile courts have their own language, their own rules, and their own customs and practices. We hope the information, motions, and sample briefs offered here will prove helpful to even the most seasoned juvenile court practitioner.

Pre-Trial

Right to Counsel

Nearly fifty years ago, the U.S. Supreme Court recognized that a child “requires the guiding hand of counsel at every step in the proceedings against him.” In re Gault, 387 U.S. 1, 18, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Ohio has long ensured the right to counsel for Ohio’s children through R.C. 2151.352 and Juv.R. 4(A). But, despite these assurances, a 2003 study of Ohio’s juvenile courts revealed that up to 85% of children held in the Department of Youth Services waived their right to counsel. In 2007, the Supreme Court of Ohio clarified the process for accepting a child’s waiver of counsel in juvenile court, instituting protections to ensure that children’s waivers of counsel are valid and to make waivers far less common. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919. In 2012, Juv.R. 3 was amended to ensure that Ohio’s children “have meaningful access to counsel and are able to make informed decisions about their legal representation.”

“The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.
In re Gault, 387 U.S. 1, 35, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Competency

Competency refers “to a child’s ability to understand the nature and objectives of a proceeding against the child and to assist in the child's defense.” R.C. 2152.51. To recognize the critical role that due process plays in competency proceedings, the Ohio legislature enacted, for the first time, specific competency procedures for children, in R.C. 2152.51-2152.59 (effective Sept. 30, 2011). These statutes set forth time periods for evaluations and hearings, qualifications for evaluators, access to police reports and other evaluations, contents of evaluation reports, hearing requirements, and competency determination procedures.

“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.
Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

Discovery

In Ohio, discovery in juvenile delinquency cases is governed by Juv.R. 24, which provides that upon written request in delinquency and unruly child proceedings, “the prosecuting attorney shall disclose to respondent’s counsel all evidence, known or that may become known to the prosecuting attorney, favorable to the respondent and material either to guilt or punishment.” Juv.R. 24(A)(6). The Supreme Court of Ohio has held that Juv.R. 24 applies to bindover hearings, and that the prosecuting attorney has a duty under the Due Process Clauses of the U.S. and Ohio Constitutions, as well as Juv.R. 24(A)(6), to disclose to a juvenile all evidence in the State’s possession that is favorable to the juvenile and material to guilt, innocence, or punishment. In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 16; see also State v. Iacona, 93 Ohio St.3d 83, 2001-Ohio-1292, 752 N.E.2d 937.

Discovery is only one avenue to gather information to defend your juvenile client. Attorneys must also investigate using methods outside the formal discovery rules, including speaking with your client regarding the offense; visiting the scene of the alleged offense; photographing and preserving any physical evidence; speaking with all witnesses identified in the police reports, by the prosecuting attorney, and by your client; and identifying and hiring experts.

Shackling

The Juvenile Department strongly opposes the routine shackling of children in court. Despite the fact that most children who appear in juvenile court are charged with misdemeanor offenses or non-violent felony-level offenses, most juvenile courts in Ohio routinely handcuff and shackle these youth. Shackling may include handcuffs, leg irons, and belly chains. And shackling children occurs regardless of the child’s age, height, weight, gender, health, offense, risk of flight, or threat to self or public safety. The practice of shackling children can cause physical, emotional, and psychological harm and is, in most cases, unjustified.

Many children who appear in juvenile court are already faced with serious issues that range from being the victim of physical, sexual, or emotional abuse; drug and alcohol abuse; mental health diagnoses; developmental or mental retardation issues; and special education needs. The clear message that is being sent is that these children, as a group, are dangerous and deserving of humiliation. The routine practice of shackling children is not only an inhumane treatment of youth, but an affront to the dignity of the courtroom.

Youth in Confinement

A report released by Human Rights Watch and the ACLU calls for a ban on placing youth in solitary confinement, calling the practice cruel, harmful, and unnecessary.



Trial / Adjudication

Trial / Adjudication

At trial, in order to satisfy due process, the State must prove all elements of a crime beyond a reasonable doubt, or the child must be acquitted or adjudicated delinquent of a lesser-included offense. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Human Trafficking

In 2012, HB 262 created a Safe Harbor provision for victims of human trafficking. Codified as Ohio. Rev. Code 2152.021(f), the law allows children who are victims of human trafficking and consequently arrested to have their charges diverted. Children are then able to receive the therapeutic services they need, instead of punishment that may exacerbate their trauma.



Disposition

Confinement Credit

Every child committed to the Department of Youth Services is entitled to credit for the time he was confined in connection with his case. A child is confined if he is “not free to come and go as he wishes.” In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio- 3847, ¶ 5, citing State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001). This means the child should get credit for the time he was held in his county juvenile detention center, county jail, community correctional facility, or any other treatment facility, between arrest and being sent to DYS, on the underlying felony and any related probation violations. A child is not entitled to credit for time spent on electronic monitoring, on house arrest, or in a halfway house. Below is a list of facilities for which children have received confinement credit:

  • Abraxas
  • Belmont Pines
  • Butler County Juvenile Rehabilitation Center (CCF)
  • Carrington Youth Academy
  • Central Ohio Youth Center
  • Cleveland Christian Home
  • Foundations for Living
  • Hillcrest
  • Multi-County Juvenile Attention System (CCF)
  • Oakview Juvenile Residential Center (CCF)
  • Ohio Guidestone
  • Paint Creek Youth Center
  • Residential Center of Northwest Ohio (CCF)

License Suspension

A court may declare the forfeiture of a person’s driver's license if the child has been issued a citation for (or charged with) specific violations of traffic law, motor vehicle crimes, or other laws involving the suspension of a license or licensing of motor vehicles and he either failed to appear in court or failed to pay the fine imposed within the required time. R.C. 2935.27(D); 4510.22(A).

Sex Offender Classification & Registration

If you have a client facing sex offender classification, please call our office at (614) 466-5394. A juvenile attorney can provide you with helpful objections for your case.

Human Rights Watch


Post-Disposition

Judicial Release

Judicial release allows youth to request to be released by the court that committed them to DYS. Judicial release may be requested before or after the youth completes his minimum sentence, provided the youth has served any statutorily required specification/mandatory time.

Sealing & Expungement

To seal a juvenile record means to “remove a record from the main file . . . and secure it in a separate file.” R.C. 2151.355(B). A juvenile court shall consider sealing a juvenile’s records upon the court’s own motion or upon the application of the juvenile if: 1) the juvenile has been adjudicated a delinquent child for committing an act other than aggravated murder, murder, or rape; and 2) at the time of the motion or application, the juvenile “is not under the jurisdiction of the court in relation to a complaint alleging the person to be a delinquent child.” R.C. 2151.356(C)(1).

There is no fee to seal a juvenile record.

To expunge a juvenile record “means to destroy, delete, and erase a record, as appropriate for the record’s physical or electronic form or characteristic, so that the record is permanently irretrievable.” R.C. 2151.355(A). Once a child’s record is sealed, the juvenile court shall automatically expunge his record five years later or upon his 23rd birthday, whichever occurs earlier. R.C. 2151.358(A). However, a child may also apply to expunge his records before that time. R.C. 2151.358(B). Upon the filing of an application, the court may investigate to determine if the applicant “has been rehabilitated to a satisfactory degree.” R.C. 2151.358(B)(2).



Kids in Adult Prison

Bindover and Transfer

The juvenile court has “exclusive original jurisdiction over delinquent minors.” State ex rel. Schwartz v. Haines, 172 Ohio St. 572, 573, 179 N.E.2d 46 (1962); R.C. 2151.23. Mandatory and discretionary transfers are two exceptions to that jurisdiction. R.C. 2152.10. “Mandatory transfer removes discretion from judges in the transfer decision in certain situations.” State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 10, quoting State v. Hanning, 89 Ohio St.3d 86, 90, 2000-Ohio-436, 728 N.E.2d 1059.

If a child is not eligible for mandatory transfer, “[d]iscretionary transfer * * * allows judges to transfer or bindover to adult court certain juveniles who do not appear to be amenable to care or rehabilitation within the juvenile system or appear to be a threat to public safety.” D.W. at ¶ 10, quoting Hanning at 90. Before the juvenile court can make a discretionary transfer determination, it must conduct a full investigation, which includes a mental evaluation and a hearing. Juv.R. 30(C); R.C. 2152.12(C); D.W. at ¶ 11-12.

If you have a client facing bindover, please call our office at (614) 466-5394. A juvenile attorney can provide you with helpful objections for your case.

Juvenile Life Without Parole (JLWOP)

Through Ohio’s transfer or “bindover” processes, children as young as fourteen can be transferred to adult court for prosecution as an adult. And, for children who commit certain offenses at age sixteen or seventeen, transfer is mandatory. That means that there are hundreds of people serving adult prison sentences for acts they committed as children. There is a growing body of U.S. Supreme Court and Ohio-specific precedent that governs these cases. The information provided here is designed to provide support and resources for attorneys practicing in this specialized area of law.

In 2005, the U.S. Supreme Court instituted a categorical bar against imposing the death penalty on those who were under 18 at the time of their offenses. Roper v. Simmons, 543 U.S. 551 (2005). Since then, the Court has repeatedly emphasized that a case that carries the possibility of a Life without Parole (LWOP) sentence is the equivalent of a capital proceeding for an adult. Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama __ U.S. __, 132 S. Ct. 2455 (2012). This means that mitigation becomes a critical stage of the proceedings for any child facing the possibility of LWOP, or even a long adult sentence in adult court. This section is designed to provide resources and information for attorneys representing children in these cases.



Other Resources

OFFICE OF THE OHIO PUBLIC DEFENDER

  250 EAST BROAD STREET
SUITE 1400
COLUMBUS, OHIO 43215
(614) 466-5394
(800) 686-1573