Right to Counsel
Under the ICJ Rules, a state is not specifically obligated to provide counsel in circumstances of retaking or revocation. Nonetheless, in the case of a requisition hearing to affect the non-voluntary return of an absconder, escapee or accused delinquent, a court has the discretion to appoint counsel or guardian ad litem. See ICJ Rule 6-103(A)(6) (Interstate Comm’n for Juveniles 2022). However, particularly with regard to proceedings which may result in the revocation of parole or probation, a state should consider providing counsel to a juvenile if he or she may have difficulty in presenting their version of disputed facts, cross-examining witnesses, or presenting complicated documentary evidence. Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973); see generally In re Gault, 387 U.S. 1 (1967); see also Silbert v. Cohen, 29 N.Y.S.2d 12 (1971); People ex rel. Arthur F. v. Hill, 29 N.Y.S.2d 17 (1971).
Presumptively, counsel should be provided where, after being informed of his right, the probationer or parolee requests counsel based on a timely and colorable claim that he or she has not committed the alleged violation or, if the violation is a matter of public record or uncontested, there are substantial reasons in justification or mitigation that make revocation inappropriate. See generally Gagnon, 411 U.S. 778. Providing counsel for proceedings in the receiving state may be warranted where the sending state intends to use the juvenile’s violations as a basis for revoking conditional release. In the revocation context, officials in the receiving state are not only evaluating any alleged violations but are also creating a record for possible use in subsequent proceedings in the sending state. The requirement to provide counsel would generally not be required in the context where the juvenile is being retaken and the sending state does not intend to revoke conditional release based on violations that occurred in the receiving state. In this latter context, no liberty interest is at stake because the juvenile has no right to be supervised in another state.
The provision of the Morrissey and Gagnon decisions governing revocation hearings and appointment of counsel have been read by some courts to apply only after the defendant is incarcerated. E.g., State v. Ellefson, 334 N.W.2d 56, 57 (S.D. 1983). However, the law in this area is unsettled. At least one case provides insight into the Supreme Court’s jurisprudence with regard to the right to counsel in non-traditional criminal sentencing proceedings. See, e.g., Alabama v. Shelton, 535 U.S. 654, 662 (2002) (Sixth Amendment does not permit activation of a suspended sentence upon an indigent defendant’s violation of the terms of his probation where the state did not provide counsel during the prosecution of the offense for which he is imprisoned). In Shelton, the Court reasoned that once a prison term is triggered, the defendant is incarcerated for the underlying offense, not for the probation violation. The uncounseled conviction at that point results in imprisonment and ends up in the actual deprivation of a person’s liberty. The Court also noted that Gagnon does not stand for the broad proposition that sequential proceedings must be analyzed separately for Sixth Amendment purposes, with the right to state-appointed counsel triggered only in circumstances where proceedings result in immediate actual imprisonment. The dispositive factor in Gagnon and Nichols v. United States, 511 U.S. 738 (1994), was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony for which he was imprisoned. Revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, not for a felony conviction for which the right to counsel is questioned.
Similarly, returning a defendant to a sending state on allegations that they violated the terms of their probation and thus are now subject to incarceration or detention may give rise to due process concerns. Because Shelton was limited to actual trial proceedings (distinguished from post-trial proceedings), its direct application to retaking proceedings may be of limited value. However, the decision does provide insight into the gravity the Supreme Court attaches to the opportunity to be heard and the assistance of counsel if liberty interests are at stake. The age, experience, and intellectual ability of the juvenile can also be critical factors in determining the degree to which a juvenile can understand the nature of the proceedings as well as the consequences of waiving any constitutional protections. See also People v. Lucas, 992 P.2d 617 (Colo. Ct. App. 1999); Gesicki v. Oswald, 336 F. Supp. 371 (1971).