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

2185

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 Ame ndment 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. GAULT VS. GIDEON DEFENSE COUNSEL: DIFFERENT

CONSTITUTIONALLY ............................................................................. 2190

III. DECADES OF GAULT DISILLUSIONMENT AND DREAMS OF GIDEON

DELIVERANCE ....................................................................................... 2193

IV. BEING CAREFUL ABOUT WHAT WE WISH FOR: GIDEON’S

LACKLUSTER LEGACY ........................................................................... 2197

A. LIMITED AND LIMITING LEGAL DOCTRINES ..................................... 2197

B. PROMISE IN PRACTICE: FIFTY YEARS OF FAULTY REPRESENTATION .... 2200

V. FURTHER MAKING THE CASE FOR SEEING THINGS DIFFERENTLY:

COURTS AND KIDS ................................................................................ 2205

A. DISPOSITIONAL AND OTHER DIFFERENCES IN THE COURTS ................ 2205

B. DEVELOPMENTAL AND OTHER DISTINCTIONS IN DEFENDANTS .......... 2207

VI. GOING BACK TO GAULT: TOWARDS A MODERN FOURTEENTH

AMENDMENT FRAMEWORK ................................................................... 2208

A. PAST CALLS FOR A COHERENT FAIRNESS FRAMEWORK FOR JUVENILE-

DEFENSE COUNSEL .......................................................................... 2209

B. BACK TO BASICS: GAULT’S EMBRACE OF EMERGING VIEWS AND

VOICES ........................................................................................... 2210

C. CONTEMPORARY EXPERT AND STAKEHOLDER RECOMMENDATIONS ... 2211

D. MODEL STATE PRACTICES IN MODERN AMERICA .............................. 2213

E. SOME FURTHER IMPLICATIONS: JUVENILE DEFENSE BEYOND

OFFENSE ........................................................................................ 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.

Wainwright2—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).