Bill that would ensure legal representation for juveniles stalls

A bill ensuring that juveniles appearing before the court would have legal representation stalled on general file April 12.

Sen. Patty Pansing Brooks
Sen. Patty Pansing Brooks

Under LB158, introduced by Lincoln Sen. Patty Pansing Brooks, legal counsel would be appointed each time a juvenile court petition is filed. The juvenile and his or her parent or guardian would be informed of the right to retain such counsel as needed.

The bill also would require any legal counsel representing a juvenile to continue representation through post-dispositional proceedings unless the juvenile requests new counsel.

Senators passed legislation in 2016 ensuring that juveniles in counties with more than 150,000 people would be guaranteed access to counsel. Today there still exists a wide gap in juveniles’ access to counsel in the rest of the state, Pansing Brooks said. Some counties provide no access to counsel, placing juveniles in greater Nebraska at a distinct disadvantage.

“This amounts to justice by geography,” she said. “Why should a child in one part of the state have less protection than another child in a different part of the state?”

A pending Judiciary Committee amendment would clarify that a juvenile who waives right to counsel could rescind the waiver at any time. It also would clarify that counsel need not be appointed for a juvenile who participates in a pre-trial diversion program.

Pansing Brooks introduced an amendment that would provide grants to counties to cover the cost of providing legal counsel to indigent juveniles. The Juvenile Indigent Defense Fund would be funded by a transfer of $400,000 from the state Supreme Court Automation Fund.

Omaha Sen. Justin Wayne supported the bill. As a defense attorney who practices in juvenile court, he said, many families assume kids will leave with a slap on the wrist or probation at worst. But no one should attend a court proceeding without legal counsel, Wayne said, especially a juvenile who may not understand the long-term ramifications of a guilty plea.

“No matter where you live, you should have the same fundamental rights,” he said. “We should not distinguish fundamental rights by geographical location or size of your county.”

Opposing the measure was North Platte Sen. Mike Groene. He said the bill would take crucial decision making away from parents who know what is best for their child. Forcing a juvenile to accept legal counsel also would violate a constitutionally protected right, Groene said.

“The Constitution says you have a right to an attorney, but it also says you have the right to deny counsel,” he said. “We’re taking away that right to deny in LB158.”

Sen. Mike Hilgers of Lincoln supported the bill, saying a lack of access to counsel may not be an issue in some counties, but that is no reason to withhold counsel across the state.

“I believe it is our constitutional obligation to provide counsel to juveniles,” Hilgers said. “It is not a sound policy decision to say that because some [juveniles] don’t need it, no one needs it.”

Sen. Steve Halloran of Hastings also opposed the bill, saying judges should be trusted to make sure that any juvenile who needs counsel is provided with representation.

“We have judges we do have confidence in. … We have to trust their judgment at some level,” he said.

The amendment to provide funding failed on a 23-12 vote. Omaha Sen. Bob Krist filed a motion to reconsider the vote, which was adopted 27-10.

Krist acknowledged that the state Supreme Court does not support the bill’s funding mechanism, but said it was a way of ensuring access to counsel without further burdening taxpayers. He vowed to work with opponents of the bill between general and select file to find a source of funding that was amenable to all.

Venango Sen. Dan Hughes then offered a motion to bracket the bill until June 2, saying the 90 counties in the state without juvenile justice court systems are handling cases appropriately and effectively without a state mandate.

The bracket motion was pending when senators adjourned for the day before taking action on the bill.

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