In Re Gault – Progress or Regression

“The Road to Hell is paved with good intentions.” – Unknown


As I walked into my first (and only!) law class in grad school, there was a quote written on the whiteboard. Our professor looked at us and asked, “How does this apply to our case today?” The case in question was “In re Gault,” the landmark US Supreme Court case which established the right to counsel for juveniles in delinquency cases in 1967. That may have been my only law class, but I continue to grapple with the issues raised by this case through my work training and providing technical assistance to juvenile drug treatment courts. In the 51 years since Gault, we’ve come a long way to ensure justice for youth, but there are still steps we need to take, especially when it comes to the right to counsel.

In May of 1967, Gerald Gault (aged 15) was accused of making lewd phone calls to an elderly neighbor; and the judge, with limited formal process and without any arguments made in Gerald’s defense, sentenced him to six years in a juvenile detention center. In the majority opinion of the Supreme Court, Justice Abe Fortas notes that such a crime, were it committed by an adult, would likely incur a small fine. But, the juvenile court, under the guise of protecting the youth, had condemned him to six years of incarceration without affording him constitutionally mandated representation by defense counsel.

In his dissenting opinion, Justice Potter Stewart states that “juvenile proceedings are not criminal trials.” Citing the 70-year evolution of juvenile justice, he claims that despite the sentence imposed upon Gault, juvenile court is different. Juvenile court is built on the premise that the state is not seeking to punish the young person but to care for them and that due process (including the right to counsel) is not a requirement because the system is set up to protect the child, not incriminate them.

Almost every time my work with the Juvenile Drug Treatment Courts (JDTC) Training and Technical Initiative sends me on an assignment to a juvenile drug treatment court, this same sentiment is expressed. “This court cares about the young person, we provide the best services – we’re looking out for the interests of the child … so we don’t need defense counsel in the room.” But, I would argue, this mindset calls for an increase in the due process safeguards afforded by defense counsel, not a reduction.

Any denial of liberty, however well-intentioned it may be, is serious. And the grave danger of juvenile courts is that substantial and significant rights can be revoked from a juvenile under the guise of “caring for them.” All the statements below are caricatures, but they reflect sentiments frequently expressed to our team by juvenile justice professionals.

“A week in detention will help them sober up.”

“Court mandated treatment will help them overcome their anger issues.”

“Being removed from their home will help because the parents are selling heroin out of the front room.”

These statements are all potentially valid and correct, but in recognizing that the constitutional right to counsel extends to juveniles, the Supreme Court ruled that these actions cannot be taken without a fair and impartial process, which includes the presence of defense counsel. A court is perfectly entitled to argue that one of the actions above is necessary for the child’s rehabilitation or healthy development, but if the young person does not have their voice represented through their own dedicated advocate (even if it’s overruled), it cannot be done.

The juvenile court, and especially JDTCs, are designed to be caring, therapeutic expressions of justice, but we must be careful not to allow these courts to repeat actions explicitly struck down in Gault. The juvenile court, the court supreme court ruled, cannot act “parens patriae” (i.e. purporting to represent the best interests of the juvenile). The court, of course, wants to prevent the young person from further interactions with the law, or from further development of maladaptive behaviors, but as Gault reminds us, these noble intentions must include a due process check. A young person has the right to refuse (for example) to plead guilty to a drug charge and instead ask their defense counsel to pursue dismissal of the charge, which in turn may prevent them accessing the services of drug court. If they have a substance use disorder, a JDTC might be the “best” place for them, but the Sixth Amendment still applies. They have the right to determine their own defense with the assistance of counsel, not the defense (or lack thereof) the court believes is best for them.

It is important to note that the case of Gerald Gault contains a litany of serious violations of the Constitution with extreme consequences. No court in the land is operating under the assumption it can lock a child up for six years without a formal hearing. Or hold the child pre-trial without informing his parents. Or drag a child into court without first outlining the charges…the list goes on. But the standard is not, and must never become, “not as bad Judge McGhee [the judge in Gerald Gault’s case.]” The standard is the Sixth Amendment. This is still court. Juvenile court may be seen as friendly, non-adversarial and overseen by a kindly judge, but it’s still court. Court has consequences. And because court has consequences, the framers of the Constitution put in safeguards, like the right to counsel.

The Supreme Court held that children have due process rights because the court tried to act in a capacity as a parent, not in spite of it. A child deserves fair representation; they might not know what’s “best” for them, but they know what they want, and they’re far more likely to participate in a process that listens to them and respects their interests. As indicated in the Gault ruling, the court is not a parent, and it has no right to impose its view of “best interests” on a young person without opposition. The road to hell may be paved with good intentions, but it is incumbent upon juvenile defenders to stop us from even starting down that road.