Juvenile Justice Articles

Still Seeking the Promise of Gault: Juveniles and the Right to
Counsel

By Robert E. Shepherd, Jr.

Robert E. Shepherd, Jr., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section’s Juvenile Justice Committee.

At the close of the 19th century, a group of progressive reformers in Chicago, led by Jane Addams and her colleagues at Hull House, joined with the Chicago Bar Association to convince the Illinois legislature to establish a separate juvenile court in Cook County to deal with troubled children in a more benign setting than the criminal courts. This new court flourished and spread early in the 20th century across the United States, and ultimately even around the world, as an alternative to trying youths as adults. The 1899 Illinois Juvenile Court Act created a separate court for neglected, dependent, or delinquent children under the age of 16, and it defined a rehabilitative rather than punishment purpose for that court. It also established a strong policy of
confidentiality for court records to minimize the stigma of an adjudication. It required the separation of juveniles from adults when incarcerated or placed in the same institution. It even barred the detention of children under age 12 in jails altogether. And it provided for greater informality of procedures within the court. (Robert E. Shepherd, Jr., Juvenile Justice: The Juvenile Court at 100, 13:4 CRIM. JUST. 47 (Winter 1999).) This new juvenile court existed alongside the criminal court, but it was a totally different institution and its informality continued to grow in a setting largely viewed as civil by the few appellate courts that addressed the rare issues
raised concerning the rights of the young people before this fledgling court.

The juvenile court functioned for nearly 70 years with little constitutional oversight, and without the required presence of lawyers, except, near the end of that period, in a few jurisdictions like New York and the District of Columbia. In addition, the juvenile justice process was largely untouched by the early phase of the “Warren Court revolution” that transformed criminal procedure. As the 1960s progressed, however, both the courts and society had to deal with growing questions about the continued validity and vitality of the juvenile court’s informality and treatment focus in the absence of full regard for due process. On the one hand, critics from
the right complained that the “kiddie court” was not fully capable of dealing with the “new” and “more dangerous” delinquent youths of that era, while their counterparts from the left urged with equal heat that the court was ignoring the juveniles’ rights. In spite of these dual concerns, the landmark decision in Gideon v. Wainwright, whose anniversary we celebrate this year, had almost no immediate impact on proceedings in the juvenile court, or even on consideration of a right to the assistance of counsel for youths before the court. (372 U.S. 335 (1963).)

The door cracks: Kent v. United States

In 1966, the U.S. Supreme Court finally addressed the fundamental fairness of the juvenile court’s process in a case from the District of Columbia. (Kent v. United States, 383 U.S. 541 (1966).) The Court concluded that Morris Kent was denied his due process and statutory rightswhen the trial judge failed to hold a hearing prior to transferring the 16-year-old to the adult court for trial and did not give Kent’s lawyer access to the social information relied on by the court. The Court decided, among other things, that there must be a meaningful right to representation by counsel in that the child’s attorney must be given access to the documents considered by the juvenile court in making its decision, and that the court must accompany its waiver order with a statement of the reasons for transfer. However, the Court’s primary reliance on District of Columbia statutory law for its decision left considerable doubt about the significance of the holding for other jurisdictions, although Justice Fortas sounded a warning to other states. Although the focus of the decision was on procedural regularity in transfer proceedings, Justice Fortas, in referring to the importance of the right to counsel, said “the right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.” (383 U.S. at 561.)

The door opens: a president’s commission and In re Gault

A year after the decision in Kent, the President’s Commission on Law Enforcement and the Administration of Justice, appointed by President Lyndon Johnson, issued its report that expressed, among other things, serious reservations about many of the fundamental premises of the juvenile justice system, including its effectiveness and lack of procedural safeguards. (THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967).) Some of these issues, along with lingering questions left unanswered by Kent, were addressed by the Supreme Court in the historic decision of In re Gault. (387 U.S. 1 (1967).) Gerald Francis Gault was a 15-year-old Arizona
youth charged with making a lewd telephone call to a female neighbor. He was taken into custody without notice given to his parents, detained awaiting a hearing, convicted by a juvenile court in a rather summary hearing, and committed to a juvenile correctional facility for an indeterminate period not to extend beyond his 21st birthday. Justice Fortas again wrote the opinion for the Court and he initially ruled—for the first time, surprisingly—that juveniles are persons within the meaning of the Fourteenth Amendment and, thus, are protected by its Due Process Clause. He went on to state that Gault’s constitutional rights had been violated in several important respects:

(1) Juveniles and their parents are entitled to constitutionally adequate notice of the precise nature of the charges against the youth.
(2) A youth charged with an act of delinquency must be advised of the right to the assistance of counsel and, if indigent, given the right to have counsel appointed.
(3) The juvenile has the right to confront the witnesses against him or her in the hearing on guilt or innocence and to cross-examine those witnesses.
(4) The privilege against self-incrimination applies to juvenile proceedings and the child must be informed of that right as well.

The Court also concluded that the precise label attached to juvenile proceedings by a jurisdiction did not dictate the scope of the juvenile’s rights, so simply calling such matters civil would not influence the parameter of the rights prescribed. Justice Fortas said, in very dramatic terms, that “it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the condition of being a boy does not justify a kangaroo court.” (In re Gault, supra, at 27–28.) He
went on to elaborate on the central importance of the right to counsel developed in Gideon and reinforced by Kent.

A proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child “requires the guiding hand of counsel at every step in the proceedings against him.” Just as in Kent v. United States, supra, 383 U.S. at 561–562, we indicated our agreement with the United States Court of Appeals for
the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21. (Id. at 36–37.)

Gerald Gault later spoke at an American Bar Association ceremony honoring Amelia Lewis with the Livingston Hall Award. Lewis was the lawyer who initiated Gault’s habeas corpus suit challenging the Arizona practices. Gault observed that, without a lawyer, he had no idea what was happening to him in court until the judge said he was committed “until he was twenty-one” and he realized that was more years than he could count on the fingers of one hand. Gault marked the constitutional domestication of the previously parens patriae juvenile court, and a new era dawned based on a due process model contrasted with the historic informality of juvenile
court proceedings.

The due process revolution continues

In subsequent cases, the Supreme Court further concluded that juveniles must be proven guilty beyond a reasonable doubt during the adjudicatory stage of delinquency cases (In re Winship, 397 U.S. 385 (1970)); that the right to a jury trial is not required by the Constitution in delinquency cases, although a state could provide a jury if it wished (McKeiver v. Pennsylvania, 403 U.S. 528 (1971)); and that the Double Jeopardy Clause prevents a juvenile court from transferring a juvenile to the adult court after previously finding him or her delinquent. (Breed v. Jones, 421 U.S. 519 (1975); Swisher v. Brady, 438 U.S. 204 (1978).) The High Court also decided that a juvenile’s self-incrimination Miranda rights are not invoked by his request to see his probation officer, as opposed to a lawyer, during custodial interrogation by the police (Fare v. Michael C., 442 U.S. 707 (1979), and that a juvenile can be subjected to “preventive detention” awaiting trial. (Schall v. Martin, 467 U.S. 253 (1984).) This has resulted in a somewhat schizophrenic aspect to the juvenile court’s appearance after nearly 20 years of conflicting Supreme Court decisions about the parameters of due process. The late Dean Roscoe Pound of Harvard Law School said that the juvenile court had become like “the illegitimate issue of an illicit relationship between the legal profession and the social work profession, and now no one wants to claim the little bastard.” (Hon. W. Don Reader, The Laws of Unintended Results, 29 AKRON L. REV. 477 (1996).) That certainly seems to be even more the case in the aftermath of this line of decisions.

The right to counsel after In re Gault

In the years following Gault, states moved to implement the right to counsel, but few have defined it as an absolute right by requiring that the juvenile have the advice of an attorney before the right to counsel can be waived, or by prescribing an “unwaivable” right to counsel. A series of studies by Professor Barry Feld of the University of Minnesota and one by the Government Accounting Office (GAO) reveal that many juveniles waive their right to a lawyer; the rate in rural jurisdictions rises to 50 percent or higher. Feld estimates that lawyers appeared to represent children in juvenile delinquency cases in only about 5 percent of those matters prior to the Gault decision. (Barry C. Feld, The Punitive Juvenile Court and the Quality of Procedural Justice:
Disjunctions Between Rhetoric and Reality, 36 CRIME & DELINQ. 443, 458 (1990).) He subsequently analyzed data from six states represented in the National Juvenile Court 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. (Barry C. Feld, In re Gault Revisited: A Cross State Comparison of the Right to Counsel in Juvenile Court, 34 CRIME & DELINQ. 393, 396, 400–01 (1988); Barry C. Feld, The Right to Counsel in Juvenile Court: An Empirical Study of When Lawyers Appear and the Difference They Make, 79 J. L. & CRIM. 1195, 1217–19 (1989).) The GAO found comparable disparities within and between states in a similar study. (United States Government Accounting Office, JUVENILE
JUSTICE: REPRESENTATION RATE VARIES AS DID COUNSEL’S IMPACT ON COURT OUTCOMES (1995).)

Other studies that followed the Gault decision 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. (Richard A. Lawrence, The Role of Legal Counsel in Juveniles’ Understanding of Their Rights, JUV. & FAM. COURT J., 54, 56–57 (Winter 1983–1984).) 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 indelinquency 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. (JANE KNITZER & MERRIL SOBIE, LAW GUARDIANS IN NEW YORK STATE: A STUDY OF THE LEGAL REPRESENTATION OF CHILDREN (1984).)

Congress speaks and ABA answers

Responding to these concerns, and the advocacy of a number of groups, including the American Bar Association and the Coalition for Juvenile Justice, Congress addressed the importance of effective legal representation of juveniles when it reauthorized the Juvenile Justice and Delinquency Prevention Act in 1992. A year later, the federal Office of Juvenile Justice and Delinquency Prevention awarded one of its first grants for the training of defenders and the improvement of defender services to the Juvenile Justice Center of the American Bar Association, which worked in conjunction with the Youth Law Center and the Juvenile Law Center to establish a project “to build the capacity and effectiveness of juvenile defenders through increasing access to lawyers for young people in delinquency proceedings and enhancing the quality of representation those lawyers provide.” (A CALL FOR JUSTICE: AN ASSESSMENT OF ACCESS
TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS 4 (1995) [hereinafter A CALL FOR JUSTICE].)

A Call for Justice, prepared by Patricia Puritz, project director of the ABA Juvenile Justice Center, with Sue Burrell, Mark Soler, and Loren Warboys of the Youth Law Center, and Robert Schwartz of the Juvenile Law Center, highlighted the gross inadequacies of America’s systems for providing effective counsel to youth in delinquency cases. It reiterated the call of the 1993 report of the ABA’s Presidential Working Group on the Unmet Legal Needs of Children and Their Families, America’s Children at Risk: A National Agenda for Legal Action, for the juvenile justice system to make greater efforts to fulfill the right to competent counsel. That 1993 report concluded that:

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. . . . (Id. at 60.)

A Call for Justice concluded similarly that much needed to be done to improve children’s access to counsel. It found that systems for the delivery of legal services to indigent youth differed widely across the country, that many young people still waived their right to counsel even where they were generally available, that caseloads were enormously high for juvenile defenders in most public defender offices and that their tenures practicing in juvenile court were short. The assessment also discovered that counsel, when present, often did not appear in cases until after the proceedings began and after the youth had been detained. It found that pretrial preparation
was frequently scanty and motion practice infrequent, and that practice at the disposition phase of the case was deficient. Appeals and other post-dispositional remedies were rarely pursued and training and support services for attorneys in juvenile courts were sorely lacking. Not all was so desultory; many individual juvenile defenders were delivering high quality representation and there were public defender offices and law school clinical programs that were exemplary in their services to their youthful clients. (See also N. Lee Cooper, Patricia Puritz & Wendy Shang, Fulfilling the Promise of In re Gault: Advancing the Role of Lawyers for Children, 33 WAKE FOREST L. REV. 651 (1998).)

The juvenile justice counterrevolution

When A Call for Justice was being written, America’s juvenile justice system was in the throes of the most significant upheaval since the Gault decision and the immediate legislative responses to that watershed event. The late 1980s and early 1990s were a time of cataclysmic changes in the juvenile justice process across the country. Nearly every state transformed its juvenile justice system into an only slightly scaled-down version of the adult criminal court for those juveniles not already transferred to the adult system. Juvenile court proceedings were opened up to public scrutiny and press coverage, and the veil of confidentiality was swept away from juvenile records; rehabilitation became a secondary goal for youth corrections, if a goal at all; determinate sentences to boot camps replaced treatment programs; and “parole” replaced “aftercare.” The consequences of a juvenile adjudication became far more severe, including the likelihood that the “youthful indiscretion” referenced by Justice Fortas could now become a predicate offense for a “three-strikes” determination or some other enhancement of an adult sentence in the future. Collateral consequences, including the deportation of alien children, became the rule rather than the exception. The stakes were much higher than they had been—even for Gerald Gault. In fact, the eventual military career that Gerald Gault so proudly achieved in the earlier era might be less accessible for the delinquent youth of the 21st century. As a result, the need for effective and meaningful legal representation in juvenile or family courts today is greater than ever before.

Right to counsel in the states

A recent series of state assessments under the auspices of the ABA Juvenile Defender Center, a project of the ABA Juvenile Justice Center, in collaboration with state groups has found similar shortcomings in the states evaluated—Texas, Louisiana, Georgia, Virginia, Kentucky, and Ohio—to those identified in A Call for Justice. (See Selling Justice Short: Juvenile Indigent Defense in Texas (2000) (with Texas Appleseed); The Children Left Behind: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Louisiana (2001) (with the Juvenile Justice Project of Louisiana); Georgia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2001) (with the Southern Center for Human Rights); Virginia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2002) (with the Mid-Atlantic Juvenile Defender Center); Kentucky: Advancing Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2002) (with the Children’s Law Center); Ohio: Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Ohio (2003) (with the Central Juvenile Defender Center and the assistance of the Juvenile Justice Coalition).)

These evaluations of the delivery of defense services to children charged with delinquency in these representative states bear out many of the conclusions reached in the national report almost a decade before. The promise of Gault is still not being kept. Gideon’s trumpet has been muted in many juvenile courts across America.

A reason for hope

The remarkable activities of the ABA Juvenile Justice Center over the past decade give cause for hope that the promise of Gault can still be kept and the trumpet of Gideon can yet be heard. The center has greatly increased its activities in the past decade. It has worked to secure grant funds for a National Juvenile Defender Center, which sponsors regional juvenile defender centers with energetic staff, training sessions, and computer listservs. Beginning in 1997, it annually holds juvenile defender leadership summits that bring people together to learn defender skills. It has published reports on girls in the juvenile justice system, and the Juvenile Defender Delinquency Notebook: A Case Preparation System for New Juvenile Defenders in 2000. It has also organized significant resources on the juvenile death penalty and provides a number of other services and resources. The National Juvenile Defender Center’s mission is “to ensure excellence in juvenile defense and promote justice for all children.” Posted on its website is the following statement:

We believe that: all children in the justice system must have ready and timely access to capable, well-resourced, well-trained legal counsel; all children are entitled to legal representation that is: individualized; developmentally and age appropriate; and free of racial, ethnic, gender, social, and economic bias; all children have strengths and the potential to become productive members of society and each has the right to constitutional and statutory protections; the juvenile defense bar must build its capacity, develop leadership and demonstrate a commitment to professionalism; the juvenile defense bar must promote accountability and bring about reform in the juvenile justice system; the juvenile defense bar’s role in the justice system will be advanced through collaboration and partnership; and, the juvenile defense system will be enhanced by greater community involvement.

The center’s vision statement says:

The National Juvenile Defender Center works to create an environment in which: children are treated with respect, dignity and fairness; juvenile courts are knowledgeable, sensitive and responsive to the needs of children; excellence is routine in juvenile defense; juvenile defenders have the capacity to fully protect children’s rights, including adequate resources and compensation, manageable caseloads, and sufficient access to investigation, expert and other ancillary and administrative support; juvenile defenders have resources and pay parity with juvenile prosecutors; the representation of children is specialized and adequate opportunities exist for juvenile defenders to fully exercise and enhance their legal, political, organizational, research and advocacy skills. (See www.abanet.org/crimjust/juvjus/jdc.html.)

These statements clearly reinforce what the American Bar Association articulated more than two decades earlier in the IJA-ABA Juvenile Justice Standards on Counsel for Private Parties. The realization of these goals will go a long way towards realizing the promise of Gault after more than 35 years. However, that realization will require a massive exercise of will. Much needs to be done to achieve effective systems for delivering meaningful representation services to indigent persons charged with either crime or delinquency, and that is only the starting point. Those legal services in the juvenile courts must be backed up with interdisciplinary support
services and particularized training in youth development and juvenile law, among other more generic trial advocacy and negotiation skills. There must be lower caseloads to allow for earlier representation of juveniles at detention hearings and, in some instances, during intake, and to allow for more time to develop a well-thought-out dispositional plan, perhaps in conjunction with a dispositional specialist. Attorneys need to spend more time with their youthful clients developing trust and simply explaining the legal process in developmentally appropriate terms. The lawyer in juvenile court needs to develop expertise in the range of educational and mental health
disabilities of young people, and the laws that define the special rights of those who are so disabled. These skills delineated are just the tip of the iceberg, but they may serve to illustrate that keeping the promise of Gault may go well beyond simply heeding the clarion call of Gideon. Anniversaries are nice to commemorate, but they also remind us of how much more needs to be done before a real celebration can take place.

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