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The Evolution of Juvenile Criminal Justice

Updated on August 5, 2017



    In 1967, the Supreme Court handed down in the historic decision of In re Gault.  Gerald Francis Gault was a 15-year-old Arizona youth charged with making a lewd telephone call to a female neighbor.

   At the time, Gault was on six months probation after having been found delinquent for stealing a wallet. He was not given adequate notification of the charges and not advised that he could be represented by counsel, nor did his accuser appear in court. He was convicted of this offense and sentenced to the StateIndustrialSchool until the age of twenty-one. Had Gault been an adult, the longest sentence he would have received would have been six months in a local jail. Gault's attorneys filed a writ of habeas corpus in the Superior Court of Arizona, and its denial was subsequently affirmed by the Arizona Supreme Court.

   On appeal to the U.S. Supreme Court, Gault's attorneys argued the juvenile code of Arizona was unconstitutional. Reversing the decision, the justices flatly declared “the condition of being a boy does not justify a kangaroo court.” The Court held that at the adjudicatory hearing stage, juvenile court procedures must include adequate written notice of charges, the right to counsel,  privilege against self-incrimination,  the right to cross-examine accusers; a transcript of the proceedings, and the right to appellate review. The Gault decision began what many have referred to as a "revolution in juvenile court practices."

   In a review of this case, Supreme court Justice Fortas wrote the opinion for the Court and ruled juveniles are “persons within the meaning of the Fourteenth Amendment and, thus, are protected by its Due Process Clause.”

   The Court also concluded that labeling the proceedings as juvenile does not eliminate the rights of the juvenile to due process. He went on to note that it was especially important for juveniles to have the right to counsel, a right which had been defined in earlier court cases.   Of course the court did not mandate counsel and continued to allow the juvenile and/or his family or guardian to determine whether to request counsel, especially in cases when indigent families could not afford counsel and needed to request a public defender of the court system.

   Essentially the court found that in cases when the finding a delinquent for a child will result in his subsequent loss of liberty for years, comparable in an adult proceeding to a felony, children needed the assistance of an attorney to assist them in navigating the court system.

   This was the first case in which the Supreme Court ruled children had the same constitutional rights as adults, and in doing so, essentially acknowledged that the juvenile court system was not always designed to protect the rights and best interest of the child, because if that were truly the case, a lawyer would not necessarily be required to do so.

  Gerald Gault supported this when he later spoke at an American Bar Association ceremony honoring the lawyer who had challenged the practice designed to confine him. He stated that without a lawyer, he had no idea what was happening to him in court until the judge told him.

   In the years following Gault, states moved to implement the right to counsel, though few have defined it as an absolute right; requiring the juvenile have the advice of an attorney, creating an unwaivable right.  

   Studies by Professor Barry Fled of the University of Minnesota and the Government Accounting Office reveal many juveniles waive their right to a lawyer.  Data Archive and concluded that even after Gault many jurisdictions still failed to appoint counsel in most delinquency cases, with a significant disparity between large urban jurisdictions and rural areas.

 The United States Government Accounting Office estimates that lawyers represented children in juvenile delinquency cases in only about 5 percent of those matters prior to the Gault decision.

  Other studies that followed Gault revealed serious problems in the quality of representation for juveniles, especially indigent youths. Professor Richard Lawrence found that the attorneys he surveyed in the early 1980s devoted little time to the juvenile delinquency cases they handled: more than 60 percent spent two hours or less in the representation of their juvenile clients. Additionally, a comprehensive study of the New York Law Guardian program conducted by Jane Knitzer and Professor Merril Sobie for the New York State Bar Association concluded that many of the lawyers representing juveniles in delinquency cases outside of New York City reported little interest in the substance of juvenile law. In 47 percent of the observed cases it appeared that the attorney either had not prepared or had prepared minimally for the case.

  Many of the problems that plague the juvenile justice system—including appalling conditions in confinement, inappropriate transfer to adult court, over-representation of children of color, and inadequate health and educational services—could be remedied if every child accused of a crime was well represented by competent counsel, knowledgeable about juvenile justice issues and committed to furthering that child’s interests at all points in the juvenile justice process.

   So while the Supreme Court identified a child’s right to have counsel, they did not mandate it and as with so many others of the court’s rulings regarding juveniles, while they took a stand in this case and on this topic, there has not been a national movement to make sure that all juvenile justice cases are tried consistently.  The court set the tone but had not policed their rulings, nor has the federal criminal justice, law enforcement or human services organizations stepped in to make sure that that all children receive the same counsel prior to hearing with the largest disparity between urban and rural areas.


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