Giving Kids Their Due: Theorizing a Modern Fourteenth Amendment Framework for Juvenile Defense Representation

• Author: Mae C. Quinn
• Position: Professor of Law, Washington University School of Law
• Pages: 2185-2217

Giving Kids Their Due: Theorizing a Modern Fourteenth Amendment Framework for Juvenile Defense Representation Mae C. Quinn  ABSTRACT: This Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault . It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must move beyond the limited “critical stage” and “offense-focused” analyses used under right-to-counsel doctrines that have evolved under the Sixth Amendment for accused adults. Given that many facets of juvenile-court prosecutions allow for largely unchecked discretionary action by judges and court-related actors—both before and after adjudication—it rejects a trial-centered defense framework for effective juvenile representation. These ancillary parts of the process, too frequently below the law and lawyering radar, have the capacity to threaten youthful privacy, autonomy, and liberty more than a finding of guilt itself. And given what we now know about the capacities of young people to process information and make future-based decisions, the guiding hand of counsel is essential for the entire time a young person is involved with the juvenile justice system’s web. Accordingly, this Essay urges revisiting and re-envisioning the right and role of juvenile counsel under the Fourteenth Amendment rather than repeatedly mining the Sixth Amendment to establish a more robust  Professor of Law, Washington University School of Law. Many thanks to the law student organizers of this important Symposium, including Kate Rahel, and their faculty advisor, Professor James Tomkovicz. I am also grateful to my research assistants Jessica Albert, Claire Botnick, John Laughlin, and Meredith Schlacter for their contributions to this project. 2186 IOWA LAW REVIEW [Vol. 99:2185 conception of effective juvenile-court representation. Armed with recent findings about adolescent development and competence, and in light of the unique nature of such proceedings as they have evolved over time, we should fundamentally reconsider lawyer competence within juvenile prosecutions to ensure greater justice—both procedural and substantive—for court-involved youth. I. INTRODUCTION .................................................................................... 2187 II. G AULT VS. G IDEON DEFENSE COUNSEL: DIFFERENT CONSTITUTIONALLY ............................................................................. 2190 III. DECADES OF G AULT DISILLUSIONMENT AND DREAMS OF G IDEON DELIVERANCE ....................................................................................... 2193 IV. BEING CAREFUL ABOUT WHAT WE WISH FOR: G IDEON ’S LACKLUSTER LEGACY ........................................................................... 2197 A. L IMITED AND L IMITING L EGAL D OCTRINES ..................................... 2197 B. P ROMISE IN P RACTICE : F IFTY Y EARS OF F AULTY R EPRESENTATION .... 2200 V. FURTHER MAKING THE CASE FOR SEEING THINGS DIFFERENTLY: COURTS AND KIDS ................................................................................ 2205 A. D ISPOSITIONAL AND O THER D IFFERENCES IN THE C OURTS ................ 2205 B. D EVELOPMENTAL AND O THER D ISTINCTIONS IN D EFENDANTS .......... 2207 VI. GOING BACK TO G AULT : TOWARDS A MODERN FOURTEENTH AMENDMENT FRAMEWORK ................................................................... 2208 A. P AST C ALLS FOR A C OHERENT F AIRNESS F RAMEWORK FOR J UVENILE D EFENSE C OUNSEL .......................................................................... 2209 B. B ACK TO B ASICS : GAULT ’ S E MBRACE OF E MERGING V IEWS AND V OICES ........................................................................................... 2210 C. C ONTEMPORARY E XPERT AND S TAKEHOLDER R ECOMMENDATIONS ... 2211 D. M ODEL S TATE P RACTICES IN M ODERN A MERICA .............................. 2213 E. S OME F URTHER I MPLICATIONS : J UVENILE D EFENSE B EYOND O FFENSE ........................................................................................ 2215 VII. CONCLUSION ....................................................................................... 2217 2014] GIVING KIDS THEIR DUE 2187 I. INTRODUCTION For nearly fifty years, clients, courts, and commentators have grappled with the right to, and role of, juvenile-defense counsel in this country. When the Supreme Court decided In re Gault in 1967, it provided youths facing charges in juvenile court with a constitutional right to representation. 1 It also gave young people a range of additional constitutional trial rights, including timely notice of the charges, the ability to remain silent in the face of accusation, and to cross examine any witnesses against them. The Court handed down Gault just four years after it decided Gideon v. Wainwright 2 —the landmark decision affording the right to counsel to adults accused of crimes. But it did not rely directly upon the Sixth Amendment to support its decision to extend the right of representation in juvenile prosecutions. Instead, unlike Gideon , Gault looked to the Fourteenth Amendment and the Due Process Clause for deciding when and what kind of representation juvenile courts must provide to youth facing accusations. Over the years, scholars and others have both celebrated and lamented the Supreme Court’s decision in Gault . It has been cited as an important part of the Warren Court’s due process “revolution.” But it has also been criticized as too stingy in the list of protections it provided to court-involved youth. Many detractors have argued that the Court should have more fully incorporated the Bill of Rights within juvenile-court proceedings—as was done for accused adults. In particular, academics and advocates have faulted Gault for failing to tap into the Sixth Amendment and its protections. They have repeatedly urged greater reliance on criminal court right-to-counsel principles to more fully protect accused youth against substandard representation and serve as a bulwark against systemic injustice in our juvenile courts. This call has been renewed and reinvigorated in recent years—particularly given juvenile courts’ ever expanding reach, more punitive treatment of youth, and disproportionately negative impact on communities of color. But this Essay argues our current adult-criminal-justice system and its provision of appointed counsel are nothing to celebrate—much less replicate—in the juvenile-justice system. This is especially true if we are interested in reducing lived injustice for, and improving the life chances of, vulnerable youth of color. Instead, particularly given what we now know about the unique nature of both juveniles and juvenile prosecutions, this paper takes a different tack. Modern understandings of young people, their ability to understand juvenile-court processes, and our own adult understanding that juvenile proceedings are becoming ever more complex and less trial-focused in nature, militate in favor of a more modern and nuanced approach to the right and role of juvenile-defense counsel. 1. In re Gault, 387 U.S. 1, 34–42 (1967). 2. Gideon v. Wainwright, 372 U.S. 335 (1963). 2188 IOWA LAW REVIEW [Vol. 99:2185 It is true that there has been some doctrinal expansion of the Sixth Amendment right to counsel in recent years, for instance, to encompass advice relating to collateral consequences of adult convictions. 3 But there has been backsliding too. More than this, adult-criminal representation has been largely analyzed as a charge-specific event that does not attach until the formal prosecutorial process has begun, and is to be afforded in thinly sliced portions consistent with those stages of the criminal process that are seen as “critical.” These doctrines are not sufficiently malleable or robust to provide for meaningful representation for young persons who find themselves involved in our more fluid and far-reaching juvenile-justice system. Their legal needs are more than event- or charge-specific. Indeed, in many states, juvenile cases continually unfold and grow over many years based upon the discretionary nature of juvenile-court processes. And a few juvenile prosecutions actually result in trial on the merits. Instead, youth are more frequently impacted by pretrial intake and detention processes, dispositional determinations, post-dispositional placement reviews, and aftercare requirements. 4 Thus a deeper and more holistic understanding of effective assistance of counsel—one that encompasses all phases of our modern juvenile-court process—is essential at this time. Contrary to many advocates and scholars, this Essay argues that a return to the more pliable and potentially more expansive fundamental fairness principles espoused by the Fourteenth Amendment may be what is necessary to further infuse juvenile-court proceedings with meaningful legal and lawyering standards. Part II begins by recounting how the right to counsel for juveniles was first established in Gault under the Fourteenth Amendment Due Process Clause. It notes that Gault , decided four years after Gideon , stood in stark contrast to Gideon v. Wainwright , which expressly extended Sixth Amendment right-to-counsel protections to accused adults in the state court system. At the time both were heralded as landmark decisions that would likely change justice systems around the country for the better. Over the last five decades, Gault has been described as a great disappointment. 5 Given the expanding reach of our juvenile-court systems, the punishments being...