Defining the Role of Counsel in the Sentencing Phase of a Juvenile Delinquency Case

Abstract

What is the role of counsel in a juvenile delinquency case? This question has vexed and divided scholars and practitioners in the forty-plus years since the Supreme Court first granted the right to counsel to juveniles. The early scholarly view in favor of best-interest representation has now been supplanted by one that supports expressed-interest lawyering. The scholarly near-consensus has not always reached juvenile defenders on the ground, however. While commentators have previously explored the reasons for the gulf between theory and practice in juvenile court with respect to role of counsel, this article is the first to focus on the sentencing phase. Because juvenile sentences have grown more punitive over time, such a focus is necessary and timely. Youth should be able to fully confide in their lawyers and know what to expect from them in return. At the same time, lawyers need clear and consistent guidance on this important ethical issue.

After providing a brief introduction to the features and changed purposes of juvenile sentencing, the Article provides relevant rules, standards, statutes, and appellate cases on the role of counsel, nearly all of which support expressed-interest lawyering at sentencing. After providing a descriptive account of the ways in which lawyers in fact practice at sentencing, the Article argues that lawyers must allow their clients to direct representation throughout the case. The Article concludes with recommendations for policy changes that will enhance the likelihood that attorneys will fulfill the role here described.