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Missouri children are waiving their right to legal counsel. That's a problem, some lawmakers say.

St. Louis Post-Dispatch - 2/27/2019

Feb. 26-- Feb. 26--JEFFERSON CITY -- Courts across Missouri are pushing juvenile offenders to forgo legal representation, the Missouri public defender's office and criminal justice reform advocates said Tuesday -- a practice, they said, that denies children their constitutional right to representation and leads to worse outcomes for the state.

"Most people don't realize that this is happening to our juveniles," state Rep. Ingrid Burnett, D-Kansas City, told the House Children and Families Committee. She has sponsored legislation that would make it more difficult for children to waive counsel.

Advocates said that the state's punishment should fit a juvenile's crime -- and that by forgoing legal representation, which can extend the legal process, too many juveniles are unnecessarily being incarcerated rather than entering community-based services.

A 2013 report by the National Juvenile Defender Center said that in Missouri, "with the exception of a few counties that rigorously defend the right to counsel for juveniles, youth are discouraged from and systematically denied counsel throughout the state."

The U.S. Department of Justice said in 2015 that "little has changed" in St. Louis County since the 2013 report, and the federal government entered into a four-year agreement with St. Louis County to address rights violations and racial disparities.

Under Burnett's House Bill 42, if a child waives his or her right to counsel, such a decision would be made in open court and recorded in writing.

"We don't know how many of those children waived because juvenile proceedings are closed proceedings, and there's no way to track what children are waiving counsel," said Sarah Johnson, director of juvenile defense and policy for the public defender's office.

"Most recently I came across a 10-year-old child who was placed in the detention center after a couple of days," she told the committee. "He was put in front of the court and the court asked his mother to interrogate him based on the charges. After that, the court then asked the mother and the child if they would like to have counsel. You know, they had already gone through the proceeding, they were already in court, and a 10-year-old child does not understand what counsel is. So they waive counsel."

Under the legislation, a juvenile would have to "knowingly, intelligently, and voluntarily" waive their right to representation for the decision to be legitimate.

If a child does waive his or her right, the waiver would apply to only that court proceeding, not the defendant's entire case. And during certain proceedings, a juvenile would not be able to waive representation at all.

"Children, and particularly children who get into trouble, don't exercise good judgment," said Burnett, who has worked as a school counselor. "And so, expecting them to exercise good judgment when it comes to waiving their rights I think is a stretch."

"People are terrified of the court process," said Rep. Jim Neely, R-Cameron. "They're uninformed, they're scared, they're worried, and that's part of our job here, to make the situation better."

Michael Barrett, the director of Missouri's public defender system, said there was a higher recidivism rate for those who enter the Department of Corrections than for offenders who are kept under the control of the Division of Youth Services. Lawyers help persuade judges to keep children in the juvenile system.

Children with representation are more likely to have their records sealed than children without representation, the public defender's office said. The office said unsealed records could harm a juvenile's job and education prospects into adulthood.

Even if Burnett's legislation is signed into law, the Missouri public defender is chronically underfunded. The office is currently without a juvenile unit in both St. Louis and Kansas City.

Lawmakers voted last year to fund juvenile resources within the public defender's office with a $450,000 appropriation, but Gov. Mike Parson vetoed the line item last summer.

Barrett said it would cost about $1 million per year to fund the juvenile units in St. Louis and Kansas City.

Parson has proposed keeping overall funding for the public defender constant next year, at about $50 million. But that, Barrett said, means the office would still be underfunded by about $30 million.

The lack of adequate funding ultimately leads to more juveniles and adults being incarcerated rather than returning to their communities, Barrett said.

At the same time, legislative leaders and Parson have championed criminal justice reform this year.

The Legislature is considering proposals that would free some geriatric inmates, reform mandatory minimum sentencing and expunge certain marijuana-related offenses.

The Department of Corrections also plans to close the Crossroads Correctional Center in western Missouri. After years of growth, the state's prison population is falling, officials have said.

The main reason, department spokeswoman Karen Pojmann said, is a change to the state's criminal code in 2017 that is leading to more people receiving probation.

"Criminal justice reform is an important conversation to have," said Rep. Kip Kendrick of Columbia, the ranking Democrat on the House Budget Committee. "I think it's a conversation that can't be had without adequately funding the public defenders."

The legislation is House Bill 42.

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