West Virginia: An Assessment of Access to Counsel and Quality of Representation in Juvenile Delinquency Court (2010)

In West Virginia, full-time public defenders work for the Public Defender Corporation, established by W.Va. Code 29-21-1, et seq. By statute, all indigent defense work is to be assigned to public defender offices except for conflicts and case overloads. However, public defender offices exist in only 23 of 55 counties (18 of 31 Judicial Circuits) because of local opposition to establishment of offices in those counties, caseloads too small to justify a full-time office, or other factors. In those counties without public defender offices, private attorneys, appointed on a case by case basis, undertake all representation. WV Public Defender Services is the sole source for all public defender and private counsel funding.

West Virginia’s juvenile code is one of the most progressive in the country. For example, West Virginia juveniles are entitled to evidentiary preliminary hearings, instead of probable cause determinations based solely on the information in the four corners of the police affidavit. Also, West Virginia’s code provides juveniles facing delinquency proceedings the additional due process protection of the right to a jury trial. A third example of West Virginia’s strong recognition of the importance of due process rights is in the area of interrogations. West Virginia’s youth code states that: a child younger than 13 years old cannot make an admission without the consent of the child’s parent and the child’s attorney; children between the ages of 14 -16 need the consent of either their attorney or their parent to make an admission; and youth 17 and older can consent on their own. In addition, because of both code provisions and practice, instances in which youths are transferred to adult criminal court are exceedingly rare. Finally, West Virginia’s code leaves no room for interpretation on issues that plague the juvenile defense systems of many other states, like children’s waiving counsel or an unwillingness to use diversion options, so that such issues do not exist in West Virginia’s juvenile proceedings.