Gault's Promise Revisited: The Search For Due Process

DOIhttp://doi.org/10.1111/jfcj.12112
Published date01 June 2018
Date01 June 2018
Gault’s Promise Revisited: The Search
For Due Process
By Jay D. Blitzman
ABSTRACT
Fifty years ago, due process was introduced into the juvenile courts, but today
children still do not have the guiding hand of counsel at every stage of the proceed-
ings. In assessing the pre-Gault world, Chief Justice Fortas observed that “[a] child
receives the worst of both worlds:...he gets neither the protections accorded to
adults nor the solicitous care and regenerative treatment postulated for children.”
1
Fortas opined that “Then as now good will and compassion were admirably preva-
lent. But recent studies have entered with surprising unanimity, sharp dissent to the
vitality of this gentle conception. They suggest that the appearance as well as the
actuality of fairness- impartiality and orderliness- in short the essentials of due pro-
cess may be a more therapeutic attitude so far as the juvenile is concerned.”
2
The pre-
science of his observation has found resonance and reinforcement with the 2013
publication of Reforming Juvenile Justice: A Developmental Approach
3
which was
commissioned by the Office of Juvenile Justice Delinquency and Prevention
(OJJDP).
Reforming Juvenile Justice’s emphasis on encouraging not only the perception
but the actuality of fairness in all domains
4
connects directly to the essence of Gault’s
Judge Jay D. Blitzman is currently a First Justice of the Middlesex Division of the Massachusetts
Juvenile Court. Judge Blitzman has been a juvenile court judge for 23 years. Prior to joining the juvenile
bench, he was a founder and the first director of the Roxbury Youth Advocacy Project, an inter-disciplinary
public defender’s office which was the template for the creation of a state-wide juvenile unit. He is also a co-
founder of the Massachusetts Citizens for Juvenile Justice and Our RJ, a diversionary restorative justice pro-
gram that engages youth in the community and in court. Judge Blitzman is a Team Leader in Harvard Law
School’s Trial Advocacy Workshop program and teaches juvenile law at the Northeastern University School
of Law. Noah Lerner and Toni Kokenis of Northeastern University Law School served as research assistants
on this project. The views expressed in the article are solely those of the author.
“The child requires the guiding hand of counsel at every stage of the proceedings against him.” In Re
Gault, 387 U.S. 1, 36 (1967)
1
In Re Gault, 387 U.S. 1, 18 n. 23 (1967) (quoting Kent v. U.S., 383 U.S. 541, 556 (1966) (applying
principles of fundamental fairness to transfer hearings pursuant to the Fourteenth Amendment).
2
Id. at 24˗25.
3
See gemerally, Richard Bonnie et al., Reforming Juvenile Justice: A Developmental Approach (National
Academies Press, D.C. 2013)
4
Id.See e.g. Summary at 3, 4 & Ch. 7, Accountability and Fairness, at 183, 186-194.
Juvenile and Family Court Journal 69, No. 2
©2018 National Council of Juvenile and Family Court Judges
49
message. “Treating youth fairly and ensuring that they perceive that have been trea-
ted fairly and with dignity contribute to positive outcomes in the normal processes
of social learning, moral development, and legal socialization adolescence.”
5
The
research also demonstrates that public health oriented alternatives to traditional
court processing promote social connection and positive youth development.
6
The
OJJDP report provides a road map for promoting positive youth development and
social engagement by demonstrating that supporting such policies improves public
safety outcomes by reducing recidivism. In exploring whether Gault’s promise of due
process has been realized or is still aspirational, this article suggests that our inquiry
requires us to think contextually by considering how children and families are trea-
ted in and out of the courtroom. This entails consideration of educational, child wel-
fare and mental health services, as well as the scope of legal entitlements. Equity and
fundamental fairness, euphemisms for due process, are what will truly effectuate
Gault’s promise and should be the benchmark for all courts and systems that engage
with children.
Key words: Juvenile Justice, Child Welfare, Due Process, Fundamental Fairness, De facto and
De Jure Segregation, Cradle/ School-To-Prison-Pipeline, Social Justice.
INTRODUCTION AND FRAMING THE ISSUES
Gault is often cited as heralding the beginning of a due process revolution but in
spite of its seminal importance in signaling a radical departure from prior practice, the
case has not proved to be the juvenile justice system’s equivalent of Gideon v.
Wainwright.
7
In creating the right to counsel for indigent youth, Gaultsholding was
explicitly limited to the scope of fundamental fairness during the adjudicatory hearing.
Pre-adjudicatory proceedings, including the right to bail and dispositional issues were
not addressed.
8
Since Gault was decided in 1967, the Supreme Court has only extended
procedural due process rights relying again on principles of fundamental fairness on two
occasions; In Re Winship
9
in 1970 applying reasonable doubt to delinquency cases, and
Breed v. Jones
10
in 1975, applying double jeopardy principles to juvenile proceedings. In
McKeiver v. Pennsylvania,
11
in 1971, only four years after Gault was decided, a reconsti-
tuted Supreme Court declined to extend the right to trial by jury as a matter of constitu-
tional right to juveniles. The failure, or decision, to “constitutionalize” all of the due
process protections afforded adults through the incorporation clause of the Fourteenth
5
Id. Summary at 6.
6
See genrerally, Francine Sherman & Francine Jacobs, ed., Juvenile Justice: Advancing Research, Policy,
and Practice, (Wiley & Sons 2011).
7
Gideon v. Wainwright, 372 U.S. 335 (1963) (providing for the right to counsel for indigent criminal
defendants and incorporating all due process rights into criminal proceedings via the Fourteenth Amend-
ment)
8
Gault, 387 U.S. at 14 (“We do not in this opinion consider the impact of these constitutional provi-
sions upon the totality of the relationship of the juvenile and the state. [F]or example, we are not here con-
cerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile
process, nor do we direct our attention to the post-adjudicative or dispositional process.”).
9
In Re Winship, 397 U.S. 358 (1970).
10
Breed v. Jones, 421 U.S. 519 (1975).
11
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
50 | JUVENILE AND FAMILY COURT JOURNAL

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