Access to Post-Disposition Counsel at DOC

Indiana must look to develop a more robust access to counsel system for children who are placed at the Indiana Department of Correction, Division of Youth Services.  This action would help resolve the underutilization of appellate scrutiny in juvenile cases — if key cases are not appealed, the Indiana Court of Appeals and the Indiana Supreme Court cannot review the case to ensure that it was handled properly and give guidance to the legal community.

Indiana should consider the Ohio model operated by the Office of the Ohio Public Defender, where paralegals are assigned to interview every child as the enter the DOC system.  Every child is given materials on appellate and post-conviction deadlines and procedures, and interviewed.  This personal contact helps ensure that children who were too overwhelmed at the time of the disposition hearing have another opportunity to hear about the appellate procedures before the deadlines elapse.  In Ohio State PD Office, there are six attorneys assigned to handle the juvenile cases.  In 2012, this focus on juvenile work has resulted in contact with 1,017 cases, of which 279 were interview only with no further action.

Currently, in Indiana, if there was a trial-level attorney, that attorney can assist the child with filing the necessary legal documents to begin the appeal before the thirty-day deadline.  If there was not a trial-level attorney, the child must draft and file the necessary paperwork to initiate the appeal and to request appellate pauper counsel.  DOC is granted wardship over dozens of children each year who have never had trial-leval counsel.  The Indiana State Public Defender’s Office also has one or more attorneys available for Trial Rule 60 motions (similar to post-conviction relief in criminal cases), but to access the services, the child must send in a pro se petition about their case.

A quick review of the appellate cases each year demonstrates how few cases are being appealed.  According to data from Prof. Joel Schumm, between 2010 and October 2012, there were 159 JD appeals from 23 counties.  69 counties had no appeals at all.  The Indiana Supreme Court 2011-2012 Annual Report (the last available) does not distinguish juvenile appeals from criminal appeals, as they are both given “CR” cause numbers.  Anecdotally, there are less and less cases being handled by the State PD Office.  The Indiana Supreme Court 2011-2012 Annual Report does not note any juvenile cases being handled by the State PD Office, and none are noted as significant cases for the year.

Indiana can do better.

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