AuthorBy Attorney David N. Sandberg

New Hampshire Bar Journal


2007 Summer, Pg. 58.


New Hampshire Bar JournalSummer 2007, Volume 48, No. 2Annual Survey of New Hampshire LawRESOLVING THE GAULT DILEMMABy Attorney David N. SandbergI. INTRODUCTION

May 15, 2007 marked the 40th anniversary of In re Gault, the most important case in the history of the juvenile court.

Even casual observers of the court know that Gault vested delinquents nationwide with constitutional protections for the first time, the right to counsel being foremost.(fn1) No longer could juvenile court rationales justify extreme miscarriages of justice, keeping in mind that 15-year old Gerald Gault was sentenced to six years in reform school for purportedly making a lewd phone call to a neighborhood woman.(fn2)

Although Gault continues to be worthy of celebration for its insistence on basic rights for youthful offenders, there was a troubling side to Gault which is often overlooked. Simply put, injecting rights into the historically informal juvenile court with its singular rehabilitative mission ran the risk of rendering the court virtually indistinguishable from the criminal justice system. Given that the principal reason for creating the new juvenile court at the turn of the 20th century was the inappropriateness of the adult system for minors, this was no small concern.(fn3)

United States Supreme Court Associate Justice Fortas, writing for the majority, was confident that the insistence on some fundamental rights for delinquents would not affect the basic workings of the court. Justice Stewart was far less confident.(fn4) More than this, Stewart saw a profound incompatibility between rights and the juvenile court's historical manner of processing delinquents - to an extent that he was convinced Gault sounded the death knell for the juvenile court as a unique judicial institution. He was not alone in this regard amongst the Gault justices.

Thus, the 40th anniversary of Gault is also an occasion to re-visit this great debate and to see how over time the juvenile court has fared and who was right. An assessment begins with a look at the pre-Gault juvenile court: the young people it served and its governing philosophy.

  1. THE PRE-GAULT JUVENILE COURT (1899-1967)(fn5)

    Prior to the 20th century, treatment of poor or "wayward" children and youth in the United States was often grotesque and cruel: capital punishment for disobeying a parent(fn6); indentured servitude; whippings; being placed in adult institutions including insane asylums, jails and prisons(fn7); being sold to the highest bidder; and slavery for Afro-Americans. Early reform efforts in the 19th century - houses of refuge, reform schools, and "placing out" via orphan trains - were well-intended but often fraught with abuses.

    In the latter half of the 19th century, a number of reform efforts were undertaken to assist the poor and the immigrant poor in particular. Progressive women, especially, took a particular interest in children deemed to be wayward or "delinquent", believing these children to be more the victim of their environments than being inherently bad or evil as was commonly thought(fn8).

    The reformers' concerns coincided with the emergence of the new social sciences including sociology, psychology and criminology. These ingredients were central to the formation of the first justice system for juveniles, established by the Illinois Legislature in Cook County in 1899. By 1927, all but two states (Maine and Wyoming) had juvenile courts. Although each state was free to develop its juvenile courts as it deemed best, the nation's juvenile courts shared many of the same features including:

    * Delinquency was viewed as a disease (not as a crime), susceptible to diagnosis and treatment.

    * All proceedings were considered civil versus criminal in nature.(fn9)

    * It made no difference what offense brought the child to the court because the court's concern lay with what a youth could become with the court's assistance.(fn10)

    * The child did not need rights because the court's sole purpose was to rehabilitate, not punish, the child. Benevolent judges and probation officers, not lawyers, would safeguard the child's interests.(fn11)

    * All proceedings were informal, with judges serving as father figures rather than as judges. Consistent with this view, judges were vested with maximum discretion in administering "best interest of the child" dispositions.

    * All proceedings were confidential to protect a youth's indiscretions from becoming etched in the public's mind.(fn12)

    It is important to recall that once under way, the early juvenile courts intentionally rejected the rights-based model which characterized - and continues to characterize - the criminal justice system. In a nutshell, due process and rights were exchanged for a promise that the juvenile court would devote all of its institutional energies to guiding its young constituents toward a more hopeful future.(fn12a)

    Although the juvenile court was not without its critics in the early decades of its existence, it was not until the 1950's and especially the 1960's that a broader backlash began to emerge, based on judicial abuses. In retrospect, it was na

    That day came when a 15-year-old delinquent filed an appeal with the United States Supreme Court. The delinquent was not Gerald Gault and the case did not involve a fringe crime such as a lewd phone call. Rather, the delinquent was Morris Kent who was accused of several heinous crimes.(fn13) His appeal was based on his contention that he had been improperly transferred from the juvenile court to the adult justice system for trial. The difference was huge. If retained in the juvenile court system, the maximum time he could serve was five years. If convicted in adult court, as he eventually was, he could and did receive a sentence of 30-35 years in prison.

    The Supreme Court's holding in the Kent case was relatively insignificant in that it only applies to delinquents who face possible transfer out of the juvenile court, a very small percentage of the nation's delinquent population.(fn14) Of greater importance was the Supreme Court's short but ominous critique of the nation's juvenile court system, a critique that was to ripen in Gault exactly one year later.


    1. The Arizona Juvenile Court

      Seemingly, there had to have been more to Gerald Gault's case to warrant his being sent to reform school for six years. Surely, making a dirty phone call - even if proven - could not have been the sole basis for such a severe sentence.

      In fact, there was no more. Gerald's only previous encounter with the Arizona juvenile court was a complaint that he had been present when another boy had taken a wallet from a woman's purse. For this, he was placed on six months probation. In short, there were no aggravating circumstances - no circumstances at all - that would have warranted confinement in the Arizona Industrial School from age 15 to 21.(fn15)

      Gault's "sentence" was bad enough, but the process by which it was arrived at was worse. Typical of the times, juvenile court proceedings in Gerald Gault's case were not recorded nor was there a written order by the judge. The only reason the proceedings came to light is because, subsequent to being sentenced to the Industrial School, Gault advocates petitioned an Arizona superior court to grant a writ of habeas corpus. Superior court proceedings were recorded, and became part of the record that the Arizona Supreme Court reviewed when it accepted Gault's appeal from a superior court order denying his writ.

      The superior court record revealed the following:

      * A woman made a complaint with the local sheriff's department to the effect that Gerald Gault and another boy had made lewd remarks to her over the phone.

      * Gerald and his friend were promptly taken into custody around 10 a.m. on June 8, 1964.

      * Gerald's parents, at work, were not notified.

      * When Gerald failed to return home that evening, his parents sent his brother out to look for him, and he learned that Gerald was being held at the Detention Home.

      * Mrs. Gault and Gerald's brother went to the Detention Home the evening of June 8 where an Officer Flagg, superintendent of the Detention Home who doubled as a probation officer, told them why Gerald was in custody and that there would be a "hearing" in juvenile court the following day.(fn16)

      * The next day, Officer Flagg filed a petition with the juvenile court, simply stating that Gerald was a minor, a delinquent, and "in need of the protection of the Honorable Court".

      * The petition was never served on Gerald or his parents.

      * On June 9, Gerald, his mother, his older brother and two probation officers including Officer Flagg met in chambers with the judge. The neighborhood woman was not present, no one offering information about the alleged lewd phone call was sworn, and there were conflicting opinions about what Gerald admitted to the juvenile court judge. At the conclusion of the chamber conference, the judge said he would "think about it." Gerald was returned to the Detention Home where he remained until June 11 or 12 (the record is unclear which) when he was released to his parents' custody. Neither his detention or his release was ever explained.

      * Late in the day of his release, Gerald's mother received a "note" from Officer Flagg indicating another hearing would be held on June 15.

      * On June 15, accompanied by his mother and his father, Gerald appeared before the same juvenile...

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