The Right to a Good Defense: Investigating the Influence of Attorney Type Across Urban Counties for Juveniles in Criminal Court

• Date: 01 March 2021
• DOI: 10.1177/0887403420903376
• Published date: 01 March 2021
• Author: Brandon C. Welsh,Steven N. Zane,Simon I. Singer
• Subject Matter: Articles

https://doi.org/10.1177/0887403420903376

Criminal Justice Policy Review

2021, Vol. 32(2) 162 –192

© The Author(s) 2020

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0887403420903376

journals.sagepub.com/home/cjp

Article

The Right to a Good Defense:

Investigating the Influence of

Attorney Type Across Urban

Counties for Juveniles in

Criminal Court

Steven N. Zane1, Simon I. Singer2,

and Brandon C. Welsh2

Abstract

Juvenile defendants in criminal court represent an especially vulnerable group

for whom quality legal representation is critical. While some juvenile defendants

are able to obtain private counsel, indigent defendants are provided an attorney

by the government. One long-standing concern is that these court-appointed

attorneys are less effective. Using data on juveniles in criminal court across 37

large, urban counties, the present study examines conviction and sentencing

outcomes by comparing private counsel, public defenders, and assigned counsel.

Results indicate that defendants with public defenders were less likely to be

convicted, less likely to be incarcerated in prison, and served shorter prison

sentences compared to defendants with assigned counsel. Contrary to hypotheses,

however, the effect of attorney type was not conditioned by court urbanism. The

findings suggest that public defenders provide effective legal representation for

juveniles in criminal court. Research is needed to determine whether this holds

across different contexts (e.g., rural).

Keywords

juvenile transfers, sentencing, criminal court, criminal justice policy

1Florida State University, Tallahassee, USA

2Northeastern University, Boston, MA, USA

Corresponding Author:

Steven N. Zane, College of Criminology & Criminal Justice, Florida State University, 112 S. Copeland

Street, Tallahassee, FL, USA, 32306.

Email: szane@fsu.edu

903376CJPXXX10.1177/0887403420903376Criminal Justice Policy ReviewZane et al.

research-article2020

Zane et al. 163

Introduction

The Sixth Amendment to the U.S. Constitution provides

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been committed

. . . and to have the Assistance of Counsel for his defence.

For more than a century, this last clause was interpreted to mean that the federal gov-

ernment (and later states) could not prevent a criminal defendant from obtaining legal

representation.1 It was not until 1932 that the Sixth Amendment was interpreted to

mean that indigent defendants must be provided legal representation in capital cases

(Powell v. Alabama, 1932). Shortly thereafter, this right to counsel for indigent defen-

dants extended to all federal felony cases (Johnson v. Zerbst, 1938) and then to state

felony cases (Gideon v. Wainwright, 1963) and misdemeanor cases (Argersinger v.

Hamlin, 1972). Today, the right to counsel for those who cannot afford legal represen-

tation is a cornerstone of the U.S. criminal justice system.

In a series of landmark decisions, the Supreme Court extended this right to coun-

sel to juveniles as well. For much of the juvenile court’s history, the right to counsel

was absent. Due to its special role as parens patriae, the juvenile court was guided

by a paternalistic philosophy where the court determined the child’s best interests in

a nonadversarial setting (Tanenhaus, 2004). This approach lasted almost 70 years,

but came under attack by the 1960s. Three years after Gideon, in its Kent v. United

States (1966) decision, the Court held that juvenile defendants had the right to coun-

sel at waiver hearings because the decision to transfer youth to criminal court was

too important to leave up to the juvenile court judge’s discretion in a nonadversarial

setting. Kent narrowly focused on the waiver hearing, but only one year later the

Court held that certain due process rights, including the Sixth Amendment right to

counsel, extended to all juvenile court proceedings (In re Gault, 1967). In this his-

toric “constitutional domestication” of the juvenile court (Gault, p. 22), the Court in

Gault observed that, “The child requires the guiding hand of counsel at every step of

the legal proceeding against him” (p. 36).

This “guiding hand of counsel” is no less important for juveniles who are trans-

ferred to criminal court. Since its inception, the juvenile court has determined that

some juvenile offenders should be handled in adult court because of their dangerous-

ness to other juveniles or to the public (Tanenhaus, 2004). Toward the end of the 20th

century, however, the number of youth eligible for criminal court processing expanded

dramatically—what has been called the “criminalization” of modern juvenile justice

(Feld, 2017). This expansion—likely due to an increasing concern about violent juve-

nile crime and the moral panic regarding “super predators” (Bernard & Kurlychek,

2010, p. 157)—peaked with 13,000 judicially waived cases in 1994 (Hockenberry &

Puzzanchera, 2015). Guided by the idea of juvenile offenders as “hardened criminals”

as opposed to children (Bernard & Kurlychek, 2010, p. 5), prosecutorial and legisla-

tive waiver also became more prominent, transforming the practice of transfer from a