Children accused of crimes have a constitutional right to an attorney, just like adults. Each of Ohio’s 88 counties gets to choose whether to provide public defenders, use nonprofit lawyers or appoint private attorneys for individuals unable to afford an attorney. The courts can also provide attorneys in child abuse and neglect cases.
State and local governments share the costs, with the state reimbursing counties for most of what’s spent.
Ohio also sets rules on how courts are supposed to fairly pick private attorneys to handle cases and make sure they are qualified.
The state’s most recent budget includes $366 million to pay for public defenders, private attorneys and their costs for representing both children and adults for a two-year period.
Why do children have the same rights as adults?
In 1963, the U.S. Supreme Court decided in a case called Gideon vs. Wainwright that the right to legal counsel was fundamental to ensuring a fair trial. Four years later, the court extended that right to children and ruled that police who picked up a child had to contact their parents.
Courts have to follow rules when they pick private attorneys to represent clients. How does it work in Cuyahoga County?
The process of picking private attorneys is supposed to be “free from influence” by judges, elected officials or the prosecution. Each court must set rules to ensure cases are widely distributed to approved, qualified attorneys. Only on a “rare occasion” should a court select a specific attorney for a case or client, according to state rules.
Courts also must:
- Have a written process to review attorney qualifications and maintain lists of appointed counsel
- Maintain a record of all appointments, qualifications and refusals to accept appointments
- Regularly review the assignment process for equity
To represent children in Cuyahoga County, six juvenile court judges decide whether to assign the public defender’s office or appoint private counsel.
Judges must rotate assignments through an alphabetical list of qualified attorneys, according to rules posted on the court’s website. About 90 attorneys are on the court’s list. In unique circumstances, or to “facilitate the expeditious management of the docket,” judges can choose any attorney from the list, according to the court’s rules.
Last year, the juvenile court agreed to assign public defenders to represent more children accused of crimes. What happened?
In recent years, judges have assigned county public defenders to represent children accused of crimes in about a third of cases, according to data from the public defender’s office and the juvenile court.
In 2023, Cuyahoga County Public Defender Cullen Sweeney prodded the court to assign more cases to public defenders. Following the process used in adult criminal cases, Administrative Judge Thomas F. O’Malley agreed to assign public defenders on cases ending in 1, 3, 5, and 7, except when there is a conflict. For example, the public defender’s office can’t represent multiple children involved in the same case because some could be witnesses against their co-defendants. The office also can’t represent a child charged with victimizing a current client.
Other large Ohio counties — Franklin, Hamilton, Montgomery and Summit — automatically assign public defenders to represent children in delinquency cases.
The Public Defender’s office has argued it could do a better job representing kids facing transfer to adult court because it has a bindover team. The team includes a social worker and an investigator who can gather information from schools, family members and the child to paint a clearer picture of the child’s life and make a stronger argument to the court that they can be rehabilitated. The team can also continue to represent a child who is transferred to adult court.
The team has handled 102 cases since early 2022. Of the 65 cases that have been resolved, about 65% percent have remained in juvenile court, according to the Public Defender’s office. The largest impact has been in discretionary bindover cases, where a judge decides on the transfer after hearing evidence. In those cases, 90% of children have remained in juvenile court.
How often does the court appoint private attorneys?
Judges can appoint attorneys for several roles in juvenile cases: to represent children accused of crimes or violating court orders in “delinquency” cases; to represent children or parents in abuse, dependency and neglect cases; and as guardians ad litem, on behalf of protecting the best interests of children in legal matters.
Between 2021 and May 2023, Cuyahoga County Juvenile Court judges issued 12,421 assignments for private counsel. Some cases involved multiple appointments.
In that period, the Ohio Public Defender’s Office reimbursed the county about $5.5 million for 70 attorneys assigned to juvenile cases. The median annual reimbursement was $43,909, though eight top-earning lawyers each made more than $200,000.
There were:
- 6,001 guardian ad litem appointments reimbursed at $2,870,936 ($478 average);
- 3,902 abuse, dependency and neglect appointments reimbursed at $1,633,584 ($419 average);
- 2,518 delinquency appointments reimbursed at $1,027,676 ($408 average).
Private attorneys have to meet certain standards to get paid for representing children.
Private attorneys appointed to represent children must meet certain requirements, including ongoing legal training and experience handling juvenile cases.
Many courts, including the Cuyahoga County court that handles adult felonies, require defense attorneys provide documents showing they have met the training and trial experience requirements.
Cuyahoga County Juvenile Court allows attorneys to self-certify that they are qualified. The application states: “You are not required to submit these sections with your application.” The court can request documentation.
How much are private attorneys paid for juvenile court cases?
The state reimburses counties up to $75 per hour for attorneys appointed to juvenile cases, That’s the rate Cuyahoga County pays for delinquency cases. The county pays less — $60 per hour — for attorneys appointed as guardians ad litem.
The state sets caps for what it will pay in each type of case. Counties can set their own rates higher or lower. For example, an attorney representing a child charged in a felonious assault case could be reimbursed up to $6,750 in Cuyahoga County. The state maximum for that charge would be $5,000. The state office gets an average of 13,000 bills from Ohio counties each month for appointed counsel reimbursement.
In the 2023 fiscal year, the state approved $15.7 million in reimbursements in Cuyahoga County for appointed attorneys, including $4.1 million for “youth defense.” The state also reimburses public defender offices, based on monthly reports they submit. In the 2023 fiscal year, the state reimbursed the Cuyahoga County Public Defender’s office $14 million total for its representation of adult and child clients.
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This article was first published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Instagram, TikTok, Reddit and Facebook. This article was published in partnership with Signal Cleveland.
