A report released Tuesday about Oregon’s juvenile justice system found that access to justice varies widely across the state.
Among multiple recommendations, a national organization is urging Oregon to standardize rules and procedures and eliminate all fees and costs related to juvenile court to create equal access to justice statewide.
While conducting the assessment in Oregon, investigators with the National Juvenile Defender Center say they saw some youth enter into court agreements without having ever spoken to an attorney. Others said in some places youth who are charged with misdemeanors are routinely not accessing attorneys. This was the same in specific types of hearings like probation violations.
“We believe that even for the most seemingly insignificant charges, zealous representation, well-resourced representation, having a meaningful relationship with someone a young person identifies as their attorney, can really make a difference in a young person’s life,” NJDC’s juvenile defense consultant and primary author of the assessment Amanda Powell said.
Another key finding NJDC’s assessment revealed was a racial and ethnic disparity in Oregon’s juvenile court system.
“Oregon’s current system reflects a very troubling overrepresentation of Black, Native and Latin youth at every decision point of juvenile court involvement,” Powell said. “In Oregon, Black youth are more than 2.5 times more likely and Native youth more than 1.5 times more likely to be referred to the juvenile department than white youth.”
Because most of Oregon’s population is white, Powell said, there’s a perception that youth of color “sort of just don’t exist … and that’s not true.”
“If you want to find Oregon’s youth of color, if you want to find Oregon’s Black youth, Oregon’s Latin youth, Oregon’s Native youth, you need look no further than the juvenile court,” she said.
Also troubling, Powell said, was that while data exists to show these racial disparities, attorneys representing young people don’t routinely access that data. She said there may have been only one attorney in the hundreds that NJDC spoke to whoever used that data in their representation of youth.
NJDC began its assessment of Oregon in late 2018. After coordinating with leaders in the state’s justice system, NJDC sent a team to 10 Oregon counties to sit in on court hearings and conduct interviews with prosecutors, judges, defenders, probation officers and others in the juvenile justice system.
The center is keeping the counties it selected confidential but chose them based on differing population size, locations and racial diversity to get a snapshot of the state as a whole.
“What we saw was that, despite strong advocacy in some places, a young person’s ability to be defended strongly really depended on where they lived,” Mary Ann Scali, NJDC’s executive director, said.
Scali said many of the counties NJDC’s investigative teams visited had reduced or even nearly eliminated fees and fines related to the juvenile court system, while others required in-depth analysis of the youth’s or their family’s ability to pay, causing a delay in the appointment of an attorney.
Oregon does have national and statewide performance standards for attorneys working on juvenile defense cases, Powell said. But, not all attorneys adhere to those standards or are even fully aware of them.
Generally, according to NJDC, the Oregon Public Defense Services Commission requires appointed attorneys to fulfill state and national standards of performance including those of the Oregon State Bar and American Bar Association. Those standards include terms such as providing “competent representation to each client” and not accepting caseloads that could interfere with providing competent representation.
In addition, for lawyers who represent youth, Oregon Bar standards recognize that work requires specialized knowledge and skills, but the state does not uniformly enforce those standards or offer oversight, NJDC’s assessment states.
“The problem on the ground is that, in many places, attorneys themselves were not aware that they are required to adhere to these standards of representation,” Powell said. “Many attorneys that represent youth in juvenile court every day told investigators that there are no standards, that they’re not bound by any standards.”
She continued: “When attorneys are representing youth without guidance and adherence to national and statewide standards and are not receiving delinquency-specific training, practice suffers.”
NJDC’s assessment also noted that Oregon is one of eight states in the nation that does not have “uniform rules of procedure” for juvenile delinquency court cases.
“While very limited aspects of delinquency proceedings in Oregon are governed by Oregon’s juvenile code, the Oregon Rules of Criminal Procedure, Oregon’s Uniform Trial Court Rules, and a few local court rules, there is no comprehensive guidance given to juvenile delinquency courts to ensure due process and uniform procedure for all children,” the assessment states.
Those rules of procedure could include the timing in which youth must have an attorney appointed to them, the time that they get to spend with their attorney before they’re in the courtroom and the assurance that youth are represented by an attorney throughout their entire experience in the juvenile court system, Powell said.
“At a time when we know that the nation and the state of Oregon are really reckoning with our history of injustice, we know that it’s more critical than ever that we focus on the importance of young people having access to quality counsel when they face the legal system,” Scali said.
NJDC has given nearly 20 recommendations to the state including that it automatically appoint an attorney to all youth clients, abolish all fees related to juvenile court — including those associated with accessing a publicly funded attorney — enact rules of procedure for youth delinquency court matters, and work to eliminate racial disparities in the juvenile court system.
Many of the people working within Oregon’s justice system agreed with NJDC’s assessment and say they plan to move forward with many of the recommendations.
In a statement, Oregon Chief Justice Martha Walters said she agreed with the findings in the report and Oregon needs to take steps to ensure justice for children.
“If we are fair and consistent in how we treat children, we will be better able to set them on the right course early in their lives, and we will improve their chances of becoming responsible and productive participants in their communities when they become adults,” Walters said. “The Judicial Branch’s two-year Strategic Campaign, issued in January 2020, includes a commitment to address many of the concerns noted in the report, and we intend to work with the legislature to accomplish our mutual goals.”
Keren Farkas, manager of the Oregon Office of Public Defense Services’ Parent Child Representation Program called NJDC’s assessment “a detailed roadmap” for how the state can work toward improving meaningful access to attorneys for all youth.
Farkas said the Parent Child Representation Program “ensures early attorney engagement, caseload caps, enhanced oversight, specialized technical assistance and social work case managers who connect youths to social services.”
The program is operational in six Oregon counties — Columbia, Coos, Lincoln, Linn, Yamhill and Multnomah.
“However, we know much more work is needed and we need additional funding to ensure that youth across the state can access high-quality counsel at all stages of the case,” Farkas said in a statement. “We recognize that all public defense attorneys working with youth need specialized training, oversight and access to the resources they need to provide vigorous courtroom advocacy and seek alternative service plans that keep youth in their communities.”
Farkas acknowledged that no one agency can resolve this issue alone, and she said the Office of Public Defense Services plans to work with legislators to make policy changes.
Anjana Kumar, staff attorney with the Youth Legal Clinic at Lewis & Clark Law School’s Criminal Justice Reform Clinic, said she was not surprised about NJDC’s findings.
“Quite disturbing to me were the racial discrepancies at every stage of our youths’ interaction with the system, the lack of representation at numerous legal proceedings, and the insufficient resources available to defense attorneys to adequately represent their clients,” Kumar said in a statement. “We are failing Oregon’s youth.”