Plea Problems and Diversion Dilemmas: Protecting Juvenile Rights Through Pragmatic Means

13 Ark. J. Soc. Change & Pub. Serv. (forthcoming)

Jackson A. Lanier[1]

I.      Introduction

A.    Setting the Stage

Pretend, just for a moment, that you are fourteen years old and in the ninth grade; yesterday, you were detained on suspicion of battery for hitting a fellow high school classmate.[2] You, with your mother, are being questioned by the Juvenile Court Counselor who is determining whether to file a juvenile petition against you.[3] Prior to the meeting, you and your mother were presented with a document entitled “Advisement of Rights for Juvenile Hearing.”[4] Both you and your mother signed the document, but it was never explained to you and  you were never asked if you wanted to request counsel.[5]

Ultimately, the Juvenile Court Counselor filed a juvenile petition against you and your case was referred to the district attorney’s office. While meeting with the deputy prosecutor, you, your mother, and the deputy prosecutor signed an “Agreement of Admission” where you admitted to all the allegations, agreed to be placed on probation, agreed to receive a suspended sentence,[6] and to participate in Teen Court.[7] No one explained the consequences of your decision nor were you asked if you wished to waive your right to counsel[8] or any other rights.

B.    The Issue

If you’ve been following the footnotes, you’ll recognize that the aforementioned scenario is not a mere hypothetical; it is drawn from a real case – A.S. v. State.[9] This case, originating in the Indiana Court of Appeals, underscores the crucial role played by court staff and district attorneys in ensuring defendants are adequately informed of their rights, particularly in the context of plea bargains and diversion contracts.

The argument made before the Indiana Court of Appeals was that the juvenile, “A.S.”, was deprived of her right to counsel guaranteed under the Sixth and Fourteenth Amendments of the United States Constitution.[10] The Indiana Court of Appeals agreed with A.S. and voided her plea bargain.[11]

Comprehending and learning from the errors made in A.S. v. State is of paramount importance. The mistakes made in the case have the potential to erode confidence in both the criminal justice system and diversion programs.

C.    Why It’s Important

i.       Plea Bargains

Plea bargaining stands as a monumental cornerstone in the tapestry of the modern American criminal justice system. An astonishing statistic reveals its pervasive influence: nearly 97% of federal criminal cases and a formidable 94% of state criminal trials find their resolution through this intricate dance of negotiation known as plea bargains.[12] One must acknowledge that the American criminal justice system, for better or worse, is only able to perform thanks to plea agreements, rendering it a realm where ‘bargains’ often eclipse ‘trials.’[13]

Although the United States Supreme Court has upheld the constitutionality of plea bargaining and encouraged the practice,[14] a defendant has no right to a plea bargain.[15] It is within the discretion of the prosecutor to offer the defendant a plea bargain or go to trial.[16]

Though, plea bargains offer a range of benefits to the defendant, prosecutor, judge, and public.

The defendant avoids extended pretrial incarceration and anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks imposed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.[17]

There are numerous factors that come into play when determining whether a plea bargain is valid. However, the simplest way to view plea bargains is to view them like a contract.[18] Under such a view, the decision by a defendant to accept a plea bargain must be made voluntarily, knowingly, and intelligently;[19] meaning, “the defendant actually does understand the significance and consequences of [the plea bargain and the rights that will be waived] and whether the decision is uncoerced.”[20] This becomes an issues with juveniles because “[p]arental consent is not required in order for a minor to plead guilty.”[21] So, it is the juvenile who has to voluntarily, knowingly, and intelligently make the decision to plead guilty or not.

ii.     Diversion Programs

Like with plea bargains, diversion programs wield significant influence in the juvenile justice system; curbing recidivism, particularly among juvenile offenders. According to a study published by the International Association for Correctional and Forensic Psychology, juveniles who engaged in diversion programs exhibited a noteworthy recidivism rate of 31.5%, as opposed to 41.3% for their counterparts processed through the conventional justice system.[22]

Within North Carolina, the impact of diversion programs on juvenile recidivism rates is even more remarkable. In the fiscal year 2009-2010, the North Carolina Division of Juvenile Justice reported an impressively low 24% recidivism rate for first-time juvenile offenders who participated in diversion programs. [23]

The majority[24] of juveniles participating in diversion programs participate in Teen Court. Since 1983,[25] Teen Court programs have been adopted across the United States.[26]

a.     Teen Court[27]

Teen court, also known as youth court, operates as a distinctive diversion program in the realm of juvenile justice. What sets it apart is its unique structure, where young individuals take on pivotal roles in the administration of justice. Teen court proceedings are notably peer-led, with a jury and attorneys typically composed of teenagers. This approach aims to create a justice system with a focus on understanding and empathy.

The scope of teen court is primarily concentrated on nonviolent offenses, often committed by first-time juvenile offenders. These may encompass actions such as shoplifting, vandalism, or curfew violations. Teen court operates on the principle that these youthful transgressions can be addressed more constructively through an alternative process.

Crucially, participation in teen court is typically voluntary. This means that juvenile offenders have the option to choose this alternative approach instead of navigating the traditional juvenile court system. This voluntary aspect underscores the program’s core commitment to providing a second chance to young individuals who may have made mistakes. By involving peers in the justice process and emphasizing rehabilitation over punishment, teen court strives to offer a positive and transformative experience for young offenders.

iii.   The Crux of the Issue

Participating in diversion programs, such as teen court, can be seen as a kind of quasi-plea bargain within the realm of juvenile court. When a Juvenile Court Counselor receives a complaint about a juvenile’s delinquent behavior that they deem “sufficiently serious to warrant court action,”[28] the counselor has a choice: either file a petition for court action[29] or engage in a diversion contract with the juvenile.[30] However, akin to a plea bargain, most diversion program contracts require the juvenile to admit guilt for the offense.[31]

This sets the stage for the central issue raised in the case of A.S. v. State: diversion programs like teen court, which mandate that juveniles admit their guilt as a condition of participation, can be viewed as quasi-plea bargains and, in effect, as waivers of the juveniles’ constitutional rights. Consequently, contracts for participation in diversion programs, such as teen court, should be treated in a manner akin to plea bargains to ensure the protection of juvenile constitutional rights.

II.   How to Avoid the Issues from A.S. v. State

A.    Know the Rights at Issue[32]

i.       Right to Counsel

Embedded within the Sixth and Fourteenth Amendments of the United States Constitution lies a cornerstone of the legal landscape—a defendant’s unequivocal right to counsel.[33] This right extends its protection not only to the trial itself but to every juncture leading up to it, including the intricate process of plea bargaining.[34] But what does this right truly entail? At its core, it “means that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him.”[35] This guarantee ensures that a defendant can be represented by a qualified attorney, either of their own choosing[36] or one appointed by the court.[37] The purpose underlying this right is nothing short of profound: it equips defendants with the necessary skills and knowledge to navigate the “science of law” and to mount a defense that stands as a paragon of adequacy.[38] It’s a principle underscored by the assertion that “lawyers in criminal cases are necessities, not luxuries.”[39]

a.     The Timing of Requesting Counsel

Yet, an essential question looms – precisely when is a defendant supposed to assert their right to counsel? Should it be at the moment of arrest? During questioning? Perhaps, in the meetings with the prosecutor or Juvenile Court Counselor? Or more simply, when does the failure to request counsel constitute a waiver? The answer, in this regard, is unequivocal: “the mere failure to request counsel will not be deemed a waiver.”[40]

This was why the plea bargain in A.S. v. State was voided. The crux of the matter did not revolve around whether the defendant was aware of her right to counsel; it hinged on whether the defendant explicitly expressed a desire to proceed without representation.[41] The lesson here is a straightforward one: anytime a decision arises that would affect the defendant’s right to a fair trial, it should prompt a fundamental query; namely, does the defendant wish to invoke their right to counsel or opt for self-representation?[42] The desire to proceed pro se or to request counsel must be stated; silence is not a waiver.[43]

ii.     Right Against Self-Incrimination

There are other Constitutional rights at issue when a juvenile is presented with a plea bargain or diversion contract.[44] “The two rights that are most implicated are the defendant’s Fifth Amendment privilege against compelled self-incrimination, and his Sixth Amendment right to a jury trial.”[45] When a defendant accepts a plea bargain or enters into a diversion contract, they effectively plead guilty and, in the process, waive these critical rights.[46]

The Fifth Amendment provides that no person shall be compelled to bear witness against themselves in a criminal case.[47] Just like with other rights, it is imperative that the defendant is informed about their right against self-incrimination.[48] However, it’s crucial to note that merely having the “right to remain silent”[49] and being informed that any statement can be used against them doesn’t constitute an automatic invocation of this right.[50] Silence alone does not signal the defendant’s desire to invoke their Fifth Amendment protection; the protection is only conferred when explicitly invoked by the defendant.[51]

The linchpin in preserving this fundamental right lies in the defendant’s understanding of their right to counsel. With legal representation, defendants can receive guidance on the strategic decisions related to waiving or invoking specific rights.[52] However, in cases where the defendant voluntarily, knowingly, and intelligently waives their right to counsel, the state may find it easier to argue that the defendant also waived their right against self-incrimination.

iii.   Ensuring a Voluntary, Knowing, and Intelligent Decision[53]

Whether a defendant is choosing to waive their right, accept a plea bargain, or sign a diversion contract, one pivotal factor remains constant—the decision must be grounded in voluntariness, knowledge, and intelligence.[54] This means that the accused must possess a comprehensive understanding of the decision they are making, ensuring that their choice is made with full awareness and intention.[55]

a.     Voluntariness

For a plea to be deemed voluntary, it must not have been extracted through the use of physical harm or by overpowering the defendant’s will with mental coercion.[56] It’s crucial to note that when a defendant accepts a plea bargain as a means to secure a reduced sentence instead of risking a longer one at trial, it does not constitute coercion.[57] In other words, “a plea of guilty is not invalid merely because [it was] entered to avoid the possibility of a [more severe sentence].”[58]

b.     Knowing and Intelligent

To be both knowing and intelligent, the defendant must be fully informed about the nature and elements of the charges or decision they are pleading guilty to or making.[59] This implies comprehension by the defendant of the charge or decision itself.[60] Failing to make the defendant aware of the charge or decision and its potential consequences constitutes a violation of due process.[61] The decision must be an intelligent act, undertaken with a profound awareness of the pertinent circumstances and the likely consequences.[62] It’s important to note that just because the defendant made what turned out, in retrospect, to be a poor decision, a plea’s validity may not be collaterally attacked.[63]

iv.   The Case of In re S.W.N.

The imperativeness of guaranteeing that every juncture in the plea bargaining or diversionary program process involves decisions made voluntarily, knowingly, and intelligently finds its stark illustration in the case of In re S.W.N.[64] In this case, “S.W.N.”, a juvenile, was the defendant and was adjudicated a delinquent for criminal sexual behavior.[65]

a.     The Initial Encounter

During an interview with police, S.W.N. was duly apprised of his Miranda Rights.[66] It’s important to note that S.W.N. had prior experience with the legal system through his participation in teen court as part of a prior diversion contract.[67] However, the officer conducting the interview raised a crucial concern; he observed that S.W.N. exhibited “somewhat of [a] diminished cognitive function.”[68] Despite this observation, the officer did not take proactive measures to ensure that S.W.N. comprehended his Miranda Rights, the purpose of the interview, his right to counsel, or the gravity of the situation.[69]

b.     The Trial Court’s Perspective

The trial court, perhaps influenced by a presumption that S.W.N. possessed a degree of “street smarts” due to his prior encounters with law enforcement and his involvement in teen court, dismissed concerns regarding S.W.N.’s understanding.[70] The trial court essentially concluded that S.W.N. should have grasped the meaning of his Miranda Warnings when being interrogated by the police based on his previous encounters with them and teen court.[71]

c.      The Appellate Court’s Reckoning

In a contrasting viewpoint, the appellate court rightly challenged the trial court’s stance.[72] The mere fact that S.W.N. had encountered Miranda Warnings previously, whether from prior law enforcement encounters or teen court, did not inherently signify that he comprehended the content.[73] The onus was on the officer conducting the interview to ensure that S.W.N. truly understood his rights, especially in light of the evident special needs exhibited by S.W.N.[74]

d.     Voluntary Yet Uninformed

Ultimately, while S.W.N.’s choice to undergo the interview may have been voluntary, the critical facet of knowingly and intelligently waiving his rights was absent. The case of S.W.N. serves as a poignant reminder that even though the defendant’s decision was voluntary,[75] it does not mean he has knowingly and intelligently waived his rights.[76] Ensuring that each step in the process involves an informed and voluntary decision is not only a legal imperative but also a moral one, upholding the principles of justice and fairness.

B.    Avoiding the Issues

i.       The Simple but Wrong Solution

In the quest to protect juveniles from potential violations of their constitutional rights during the plea bargaining or diversion contract process, a potential immediate answer emerges: providing court-appointed counsel as a standard practice. This could manifest in various forms, such as automatically offering counsel during the police interview, akin to the situation in In Re S.W.N., or during the plea bargaining/diversion contract meetings, mirroring the scenario in A.S. v. State. The underlying goal would be to empower juveniles to navigate “the science of law” and make knowledgeable and intelligent decisions voluntarily to mount their defense.[77]

a.     Balancing Rights and Agency

On the surface, this solution appears to be a safeguard for juveniles’ constitutional rights. However, it can be a double-edged sword, as it may inadvertently undermine the very agency it seeks to protect. The delicate balance is evident; on one hand, a defendant has the right to counsel if they so choose, while on the other hand, the defendant retains the right to represent themselves.[78] “The constitution does not force a lawyer upon a defendant.”[79]

Nevertheless, in cases like In Re S.W.N. and A.S. v. State, neither defendant explicitly requested nor waived their right to counsel. This created a precarious situation where the defendants found themselves in a constitutional limbo under the Sixth and Fourteenth Amendments, with no clear resolution favorable to the state.[80] The simplest way to circumvent this legal quagmire would have been for the state to automatically provide juvenile defendants with legal counsel. While the federal constitution does not mandate legal representation for defendants, “whether the Constitution forbids a State from forcing a lawyer upon a defendant is a different question.”[81] While the Supreme Court does not explicitly prohibit states from compelling legal representation, it emphasizes that defendants maintain the right to self-representation, which must be respected if invoked.[82]

The Court further notes that only one court in the annals of American and British jurisprudence, the Star Chamber in England,[83] resorted to requiring counsel for defendants.[84] This infamous court, which operated during the late 15th through early 17th centuries, was originally established to ensure the fair enforcement of laws against socially and politically powerful people when ordinary courts might hesitate to convict them.[85] Defendants in the Star Chamber were prohibited from responding to indictments unless their counsel signed the response.[86] If counsel refused, the defendant’s response was invalidated, and the defendant was deemed to have confessed to the charged crime.[87] The forcing of counsel on the defendant by the Star Chamber rendered the defendant’s counsel master of the defendant and his defense as opposed to his assistant.[88]

The lessons from the Star Chamber were foremost in the minds of the drafters of the Sixth Amendment.

The language and spirit of the Sixth Amendment indicate that counsel, like other defense tools guaranteed by the Amendment, should serve as an aid to a willing defendant, not as an organ of the state interposed between an unwilling defendant and their right to personally defend themselves. Forcing counsel upon the accused against their considered wish runs counter to the Amendment’s underlying logic.[89]

b.     Practical Challenges and Considerations

Leaving aside the crucial importance of a defendant’s constitutionally protected choice regarding counsel, the practicality of mandating the state to automatically provide counsel to juveniles poses significant challenges. Notably, the California Supreme Court, when interpreting the U.S. Supreme Court’s decision in Boykin, established a sliding scale rule to determine the level of scrutiny a court must employ to ascertain the voluntariness, intelligence, and knowledge behind a defendant’s acceptance of a plea deal or waiver of counsel.[90] The opinion noted that a defendant facing the death penalty and a defendant facing a traffic violation both merit the same constitutional safeguards.[91] However, the opinion acknowledges that it would be an “idle and time-wasting ritual” for the court to perform the same voluntarily, knowingly, and intelligent analysis for a defendant facing a traffic violation as a defendant facing a death sentence.[92] Instead, the court states that the spirit of the Sixth Amendment must be balanced with the severity of charged offense and the convenience to the defendant, state, and court.[93]

The path to protecting juveniles’ rights remains fraught with complexity, requiring a careful weighing of legal principles, practicality, and individual agency.

ii.     The Difficult but Right Solution

In the realm of juvenile justice, flexibility is crucial when assessing the voluntariness, intelligence, and knowledgeability of a juvenile defendant’s decision. Inspired by Mills v. Mun. Court, San Diego Judicial Dist., courts, prosecutors, and Juvenile Court Counselors should adapt their evaluations based on the specific circumstances. “There is no particular formula or script that must be read to defendant. The information that must be given will depend on a range of case-specific factors, including defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.”[94]

a.     Law Enforcement Officers

Law Enforcement Officers, particularly School Resource Officers, play a pivotal role as the primary source of juvenile complaints.[95] Given their crucial position, these officers bear the responsibility of ensuring that their interactions with juveniles and the information they gather are conducted with due regard for the juvenile’s voluntary, knowledgeable, and intelligent participation.

While officers must inform juveniles of their Miranda Rights,[96] North Carolina law imposes additional obligations when dealing with juveniles under the age of 16. Notably, “no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile’s parent, guardian, custodian, or attorney.”[97] It’s important to stress that the parent, guardian, or custodian cannot waive any rights on behalf of the juvenile; only the juvenile can do so.[98] Even if the juvenile decides to waive their rights, the court must ensure that this waiver was done knowingly, willingly, and understandingly.[99] This necessitates an “evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of  his [rights], and the consequences of waiving those rights.”[100]

However, it’s essential to recognize that not all cases require extensive efforts to ensure that defendants understand their rights. In 2016, 39% of juvenile complaints resulted in diversion or automatic closure.[101] Moreover, a substantial 72% of all juvenile complaints were for minor[102] or status[103] offenses, often suitable for diversion or plea bargains. Therefore, officers should not be burdened with investing significant time and resources to ensure that the average defendant fully comprehends their rights.[104]

The pivotal point is that officers should practically only consider expending additional efforts in cases similar to In re S.W.N.,[105] or they can make a note for the Juvenile Court Counselor when it becomes apparent that a juvenile may not fully grasp their rights. This nuanced approach not only streamlines the process but also ensures that each case receives the attention it warrants, striking a balance between preserving juvenile rights and practicality.

b.     Juvenile Court Counselors and Prosecutors

Once a complaint is lodged against a juvenile, the responsibility falls on the juvenile court counselor[106] (and occasionally, the prosecutor[107]) to determine whether to proceed with filing a petition for juvenile court.[108] Initially, the counselor reviews the complaint, making a preliminary assessment of its legal sufficiency.[109] If the facts are deemed legally sufficient, the process advances to the evaluation phase.

During the evaluation phase, the juvenile court counselor embarks on a critical journey, involving interviews with various parties, most notably the juvenile and their parent, guardian, or custodian. This phase’s significance cannot be overstated; it’s the very stage where errors, as witnessed in A.S. v. State, can occur, but it’s also the phase where such mistakes can be rectified.

In the case of A.S. v. State, the prosecutor merely apprised A.S. of her rights without inquiring about her willingness to waive them.[110] The state’s argument that A.S. implicitly waived her rights by subsequently pleading guilty after being informed did not hold water.[111] While such an argument might hold in an adult court,[112] it failed to consider critical factors like “the juvenile’s age, experience, education, background, and intelligence, and evaluation into whether [she had] the capacity to understand the warnings given.”[113]

This case underlines the vital responsibility that rests on the juvenile court counselor to ensure that the juvenile comprehends their rights and to inquire whether they wish to exercise them. Juveniles should be informed that they have a right to an attorney at no cost[114] and that “once waived, the Sixth Amendment right to counsel is no longer absolute.”[115] Even if they decide to waive their right, it should be unquestionable that the juvenile made the decision voluntarily, knowledgably, and intelligently, because the court “will indulge in every reasonable presumption against waiver.”[116]

As suggested by Mills v. Mun. Court, San Diego Judicial Dist., the degree of scrutiny applied to the voluntariness, knowledgeability, and intelligence of a juvenile’s decision varies on a sliding scale. Cases designated for trial should face a higher level of scrutiny in this regard. However, those earmarked for diversion should undergo less stringent or intermediate scrutiny.

In addition to the “the juvenile’s age, experience, education, background, and intelligence”[117] another factor should be the juvenile’s risk level. The calculation of risk level considers numerous factors, including their home environment, age, the nature of the offense, and whether it occurred at school, among others.[118] The risk level is significant because if a juvenile fails to complete the diversion program or breaches the contract by committing another offense, a petition can still be filed for the initial alleged crime.[119] Hence, a lower risk level reduces the likelihood of the case proceeding to court.

In essence, this approach allows juvenile court coordinators and prosecutors to dispense with this “idle and time-wasting ritual” when less necessary while maintaining the spirit of the constitutional mandate and streamlining the process as a whole.[120]

III.    Conclusion

The errors that occurred in A.S. v. State were entirely avoidable. All the deputy prosecutor and the juvenile court counselor had to do was inquire as to whether A.S. understood her rights and if she wished to invoke her right to counsel. Had A.S. been asked those two simple questions, it is likely that her plea bargain would have been valid.[121]

As A.S. v. State and In Re S.W.N. highlight, law enforcement, court staff, and prosecutors need to ensure whether defendants wish to invoke their constitutional rights and as to whether they fully comprehend their rights. Of course, given the heavy dockets of today’s court system, it is not always practicable to ensure that every defendant comprehends their rights.

In order to be efficient with state and court resources, a sliding scale methodology should be adopted. Cases in which the defendant risks deprivations to their liberties should be afforded a thorough understanding of their constitutional rights. On the other end of the scale, defendants who risk little or no deprivation to their liberties should have lower priority in certifying their understanding of their rights. This sliding scale approach is not just about individual cases; it’s a fundamental shift in how the system operates. It acknowledges that not all cases are equal and that prioritizing the safeguarding of rights based on the potential deprivation of liberties is a pragmatic way to navigate the vast caseloads while still respecting constitutional rights.

Moreover, this approach emphasizes the importance of adapting legal procedures to meet the unique needs and capacities of juvenile defendants. By addressing these concerns, this paper contributes to the ongoing discussion on how to best ensure justice in the juvenile system and the protection of individual rights. It has implications for policy-making, legal practice, and the broader conversation about criminal justice reform, particularly in the realm of juvenile justice. This pragmatic and rights-centered approach is not only necessary for the efficient functioning of the system but also crucial for upholding the principles of justice and constitutional protection.

[1] J.D. Candidate, North Carolina Central University School of Law, 2024; B.A., University of North Carolina at Chapel Hill Hussman School of Journalism and Media, 2021.

[2] See A.S. v. State, 929 N.E.2d 881, 884 (Ind. Ct. App. 2010).

[3] Id. .

[4] Id. at 885.

[5] Id. .

[6] Id.

[7] A.S., 929 N.E.2d at 884 n.2

[8] A.S. v. State, 923 N.E.2d 486, 488 (Ind. Ct. App. 2010).

[9] A.S., 929 N.E.2d 881; A.S. v. State, 923 N.E.2d 486 (Ind. Ct. App. 2010). A quick note, A.S. v. State, 929 N.E.2d 884 (Ind. Ct. App. 2010) and A.S. v. State, 923 N.E.2d 486 (Ind. Ct. App. 2010) are dealing with the same case, same issues, and sets of facts. The case, 929 N.E.2d 881, was a rehearing of 923 N.E.2d 486.

[10] A.S., 929 N.E.2d at 886. Although not relevant to this article, that right is also guaranteed under Ind. Const. art. I, § 13.

[11] A.S., 929 N.E.2d at 887

[12] Missouri v. Frye, 566 U.S. 133, 143 (2012) (citing statistics from the U.S. Department of Justice’s Bureau of Justice Statistics).

[13] Id. (The U.S. criminal justice system is “for the most part a system of pleas, not a system of trials.”)

[14] Santobello v. New York, 404 U.S. 257, 272 (1971).

[15] Weatherford v. Bursey, 429 U.S. 545, 561 (1977)

[16] Id.

[17] Blackledge v. Allison, 431 U.S. 63, 71 (1977).

[18] Puckett v. United States, 556 U.S. 129, 137 (2009)

[19] Brady v. United States, 397 U.S. 742, 748 (1970)

[20] Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)

[21] Ford v. Lockhart, 904 F.2d 458, 463 (8th Cir. 1990)

[22] Holly A. Wilson & Robert D. Hodge, The Effect of Youth Diversion Programs on Recidivism, 40 Criminal Justice and Behavior 497, 504 (2013). Available at

[23] Megan Q. Howell & Jessica Bullock, Juvenile Diversion in North Carolina, Division of Juvenile Justice, 11 (2013). Available at

[24] At least in North Carolina. Supra, note 23 at 4.

[25] Robert Atkinson, Teen Court, North Carolina Center for the Prevention of School Violence, 3 (1995). Available at

[26] The first Teen Court program in North Carolina was started in Cumberland County in 1993. Teen Court, Cumberland County Dispute Resolution Center (2023),,to%20the%20Juvenile%20Justice%20System  (last visited Oct 22, 2023). Presently, there are thirty-five teen court programs serving 37 counties in North Carolina. Programs, North Carolina Teen Court Association (2021), (last visited Oct 22, 2023).

[27] For more information, see, generally, Home, North Carolina Teen Court Association (2021) (last visited Oct 22, 2023); Jackson A. Lanier, Lanier’s North Carolina Teen Court Handbook (2023). Available at

[28] N.C.G.S. § 7B-1700

[29] N.C.G.S. § 7B-1703(b)

[30] N.C.G.S. § 7B-1706(b)

[31] It depends on the program and jurisdiction. Most Teen Court programs require the juvenile to admit their guilt prior to participating in the program. See, supra, note 25; Teen Court Continuity Book, Wayne and Lenoir County Teen Court Program, 15 (2018). Available at

[32] There are, of course, other rights implicated during the plea-bargaining process. See Godinez, 509 U.S. at 397 n.7 (“A criminal defendant waives three constitutional rights when he pleads guilty: the privilege against self-incrimination, the right to a jury trial, and the right to confront one’s accusers.”) Though, these were not issues in A.S., 929 N.E.2d at 890. In North Carolina, juveniles do not have a right to a jury trial. N.C.G.S. § 7B-2405(6).

[33] U.S. Const. amend. VI; U.S. Const. amend. XIV

[34] Lafler v. Cooper, 566 U.S. 156, 162 (2012)

[35] Maine v. Moulton, 474 U.S. 159, 161 (1985)

[36] United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006)

[37] Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Under N.C.G.S. § 7B-2000, all juvenile defendants are considered to be indigent and have the right to a court appointed counsel.

[38] Id. at 345.

[39] United States v. Cronic, 466 U.S. 648, 653 (1984)

[40] Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)

[41] A.S., 923 N.E.2d at 491-92 (“Although [A.S. and her mother] signed the Advisement, which explained their rights, including the right to be represented by an attorney, nowhere in the record do they state affirmatively that they intended and wished to proceed without representation.”)

[42] Hopper, 957 N.E.2d at 616

[43] Boykin v. Ala., 395 U.S. 238, 242 (1969)

[44] See, generally G. Nicholas Herman & Zachary C. Bolitho, Plea Bargaining, § 3:01 (2020).

[45] See, supra, note 43; citing Boykin v. Alabama, 395 U.S. 238 (1969); United States v. Jackson, 390 U.S. 570 (1968) Again, in North Carolina, juveniles do not have a right to a jury trial. N.C.G.S. § 7B-2405(6). As such, this right will not be discussed.

[46] See Brady, 397 U.S. at 748 (waiving the right against self-incrimination); Barker v. Wingo, 407 U.S. 514, 529 (1972) (waiving the right to a jury trial).

[47] Salinas v. Texas, 570 U.S. 178, 181 (2013); see U.S. Const. amend. V.

[48] N.C.G.S. § 7B-2101(a); see, generally, Miranda v. Arizona, 384 U.S. 436 (1966).

[49] Id.

[50] Salinas, 570 U.S. at 187

[51] Salinas, 570 U.S. at 183

[52] Gonzalez v. United States, 553 U.S. 242, 248-49 (2008)

[53] Any decision also requires that the defendant be competent when he or she makes it, but that is its own separate messy issue that will not be discussed. For a quick summation of the competency requirement, see Godinez, 509 U.S. at 396-99.

[54] Id. at 400

[55] Patterson v. Illinois., 487 U.S. 285, 292 (1988) (“In other words, the accused must know what he is doing so that his choice is made with eyes open.”)

[56] Brady, 397 U.S. at 750

[57] Brady, 397 U.S. at 751

[58] Brady, 397 U.S. at 743

[59] Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)

[60] United States v. LaCombe, 191 F. Supp. 2d 217, 219 (D. Me. 2002)

[61] Henderson v. Morgan, 426 U.S. 637, 644 (1976)

[62] McMann v. Richardson, 397 U.S. 759, 766 (1970)

[63] Bradshaw, 545 U.S. at 186

[64] In re S.W.N., 2016 IL App (3d) 160080, 405 Ill. Dec. 616, 618, 58 N.E.3d 877, 879

[65] In re S.W.N., 2016 IL App (3d) 160080, ¶ 1, 405 Ill. Dec. 616, 618, 58 N.E.3d 877, 879

[66] In re S.W.N., 2016 IL App (3d) 160080, ¶ 5, 405 Ill. Dec. 616, 619, 58 N.E.3d 877, 880

[67] In re S.W.N., 2016 IL App (3d) 160080, ¶ 9, 405 Ill. Dec. 616, 620, 58 N.E.3d 877, 881

[68] In re S.W.N., 2016 IL App (3d) 160080, ¶¶ 12-14, 405 Ill. Dec. 616, 620-21, 58 N.E.3d 877, 881-82

[69] Id.

[70] In re S.W.N., 2016 IL App (3d) 160080, ¶ 47, 405 Ill. Dec. 616, 627, 58 N.E.3d 877, 888

[71] Id.

[72] See In re S.W.N., 2016 IL App (3d) 160080, ¶ 85, 405 Ill. Dec. 616, 635, 58 N.E.3d 877, 896 (internal citations omitted)

[73] Id.

[74] In re S.W.N., 2016 IL App (3d) 160080, ¶ 86, 405 Ill. Dec. 616, 635, 58 N.E.3d 877, 896

[75] In re S.W.N., 2016 IL App (3d) 160080, ¶ 43, 405 Ill. Dec. 616, 626, 58 N.E.3d 877, 887

[76] In re S.W.N., 2016 IL App (3d) 160080, ¶ 86, 405 Ill. Dec. 616, 635, 58 N.E.3d 877, 896

[77] See Gideon, 372 U.S. at 345.

[78] Faretta v. California., 422 U.S. 806, 819-20 (1975) (“Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the [Sixth] Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”)

[79] Faretta, 422 U.S. at 814-15

[80] Boykin, 395 U.S. at 242

[81] Faretta, 422 U.S. at 815

[82] Faretta, 422 U.S. at 820-21

[83] The Star Chamber left an infamous mark on British and American jurisprudence. This notorious court was indirectly the motivation behind the Fifth, Sixth, and Eighth Amendments to the U.S. Constitution; its legacy continues to linger in the corner of Constitutional debates. The Star Chamber’s infamy and impact cannot be properly summarized in this article. For more information: see, generally, Nathaniel A. Earle, This Court Doth Keep All England in Quiet”: Star Chamber and Public Expression in Prerevolutionary England, 1625–1641, 2018 All Theses 2950 (2018). Available at ; Frank Riebli, The Spectre of Star Chamber: The Role of an Ancient English Tribunal in the Supreme Court’s Self-Incrimination Jurisprudence, 29 Hastings Const. L.Q. 807 (2002); John A. Kemp, The Background of the Fifth Amendment in English Law: A Study of Its Historical Implications, 1 Wm. & Mary L. Rev. 247 (1958); Historical background on right to a public trial, Constitution Annotated, (last visited Oct 22, 2023); Court of Star Chamber records 1485-1642, The National Archives of the United Kingdom, (last visited Oct 22, 2023).

[84] Faretta, 422 U.S. at 821

[85] Faretta, 422 U.S. at 821; Frederic William Maitland, The Constitutional History of England, 263 (1911). Available at

[86] Faretta, 422 U.S. at 821

[87] Id.

[88] Faretta, 422 U.S. at 820

[89] Id.

[90] Mills v. Mun. Court for the San Diego Judicial Dist., 10 Cal. 3d 288, 292 (1973)

[91] Mills, 10 Cal. 3d at 303

[92] Mills, 10 Cal. 3d at 303

[93] Mills, 10 Cal. 3d at 303

[94] Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011) (internal citations omitted)

[95] In 2016, 42% of all juvenile complaints in North Carolina came from School Resource Officers. William L. Lassiter, 2016 Juvenile Justice Annual Report, North Carolina Department of Public Safety, 12 (2016). Available at

[96] See, generally, Miranda v. Arizona, 384 U.S. 436 (1966).

[97] N.C.G.S. § 7B-2101(b)

[98] Id.

[99] N.C.G.S. § 7B-2101(d)

[100] State v. Benitez, 283 N.C. App. 40, 53, 872 S.E.2d 160, 167 (2022)

[101] Supra, note 95 at 14.

[102] Offenses such as simple assault, larceny, simple affray, communicating threats, disorderly conduct, et cetera. Supra, note 95 at 9.

[103] Offenses such as truancy. Supra, note 95 at 9.

[104] Provided that they follow N.C.G.S. § 7B-2101.

[105] See In re S.W.N., 2016 IL App (3d) 160080, ¶ 85, 405 Ill. Dec. 616, 635, 58 N.E.3d 877, 896 (internal citations omitted)

[106] N.C.G.S. § 7B-1701(a)

[107] N.C.G.S. § 7B-1704

[108] See, Heather Hunt & Gene Nichol, The Price of Poverty in North Carolina’s Juvenile Justice System, North Carolina Poverty Research Fund, 4 (2021). Available at

[109] N.C.G.S. § 7B-1701(a)

[110] See A.S., 923 N.E.2d at 488

[111] See A.S., 923 N.E.2d at 492; see also Boykin, 395 U.S. at 242

[112] See A.S., 923 N.E.2d at 492

[113] State v. Benitez, 283 N.C. App. 40, 52, 872 S.E.2d 160, 166 (2022)

[114] N.C.G.S. § 7B-2000

[115] United States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008)

[116] United States v. Taylor, 183 F.3d 1199, 1203 (10th Cir. 1999)

[117] State v. Benitez, 283 N.C. App. 40, 52, 872 S.E.2d 160, 166 (2022)

[118] For a detailed discussion of how the risk level is calculated, see Charlie Brown & Michelle Hall, Juvenile Recidivism Study: FY 2020, North Carolina Sentencing and Policy Advisory Commission, 44-53 (2023). Available at

[119] Supra, note 95 at 19.

[120] See Mills, 10 Cal. 3d at 303

[121] A.S., 923 N.E.2d at 492

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