Lost Causes

Author:Lucy S. McGough/Lauren Cangelosi
Position:Professor of Law/Candidate, May 2005, Paul M. Hebert Law Center

I.Introduction. II. A specialized court in the shadow of due process . III. State statutes governing waiver of counsel . IV. The legislative battle . V. Unanswered questions: counsel at the police station . VI. Conclusion.


Page 1125

I went in as a boy

And came out as a man

With a messed up attitude

And a messed up head.

I was taught to hate without pause

And now the people look at me and say, "You're a lost cause."1

Page 1126

I Introduction

This poem was written by an adolescent who was committed to the State Department of Public Safety & Corrections by a Louisiana juvenile court and sent to serve his time in a juvenile institution. The question is fairly raised whether John and other adolescents like him are in fact lost causes, doomed to a nine-out-of-ten chance of returning to prison,2 and a life of lost opportunities. Some critics have expanded the question to ask if the juvenile courts and the entire juvenile justice system of individualized treatment and rehabilitation are lost causes. They seek the abolition of the juvenile courts and a return to trying delinquents in the criminal courts.3 Some child advocates offer only faint defense of the current system.4 Others charge that the constitutionalization of the juvenile process that occurred a half-century ago has faded to a mockery of constitutional guarantees and that constitutionalization is itself a lost cause.5 Is there any hope that the juvenile justice system can replenish its idealism, that legislators and judges and critics and advocates can find a way to reinvent the juvenile courts? Page 1127

Rather miraculously a reform movement germinated in Louisiana in 2001. Perhaps the first official signal of change came when Chief Justice Pascal Calogero appealed for "all three branches to examine the issue of the current state of our juvenile justice system and to take bold steps to improve it."6 Three years later with the prodding of many veteran juvenile justice reformers, backed by some unexpected new allies, as well as the threats of continuing journalistic exposs and federal lawsuits, the legislature responded. (Some might say the legislature capitulated.). Louisiana moved to join the handful of other states that confer an absolute right to counsel for children accused of serious delinquent acts.7 In addition, the legislature tightened the requirements for demonstrating that a knowing and voluntary waiver of counsel has occurred. The trial court must now explicitly inquire into the child's competency level, taking into account the possibility that the child may be suffering from some developmental disability.8 Though unheralded by the press, this rather amazing occurrence in the legislature may signal a renewal of the state's commitment to its system of juvenile courts and is another manifestation of a larger concern for its juvenile justice system.9

In this article we will explore why this reform is so overdue, the arguments for and against juvenile waivers of counsel, the sources of political pressure that finally nudged philosophically resistant Page 1128 legislators to endorse the measure, and address the critical yet unresolved issues emanating from this new entitlement.

II A specialized court in the shadow of due process

Today's political and social environment that produced the 2004 non-waiver of counsel statute strikingly parallels that of Chicago in 1898 when the statute creating the first juvenile court was enacted.10

Two widely publicized public concerns coalesced to produce the reform: reports of dangerous conditions of juvenile imprisonment, and scientific findings casting doubt on juvenile decision-making and judgmental competency. The original juvenile court statute did not mention anything about an accused child's right to counsel. Indeed, the court was to be a sui generis institution, if anything modeled more on the practice of medicine than on the practice of law. The original statute called for separate dockets and case files, thus shielding the court's records from public view, and focused on rehabilitation rather than punishment. The heart of the court's operations was the disposition hearing: miscreant children were to be diagnosed and then cured by probation or other individualized rehabilitative treatment ordered by the court. The trial process was not described at all in the statute, though it was clear to all who worked for the bill's passage that this institution would function quite unlike a criminal trial court. Reformers referred to the court as a "parental" court11 or a "court for children."12 Within twenty years of the institution of the Chicago juvenile court, every state had enacted similar legislation. The Louisiana statute creating a separate court for juveniles in Orleans Parish was enacted in 1908.13 Page 1129

The juvenile court system was born out of the Progressive movement, which emerged around the turn of the twentieth century in response to the social problems caused by rapid industrialization, urbanization, and modernization.14 Progressivism encompassed many ideologies, but one of its unifying themes was that professionals and experts could develop rational and scientific solutions to social problems that would be administered by the state. Many Progressive legislative programs shared a child-centered focus; these laws came to be known as "child-saving" laws, which included child labor laws, child welfare laws, compulsory school attendance laws, and the juvenile court system.15 The Progressives' vision of the new court was that the services of the court were more important than its adjudicatory process, that it should be a procedurally lax court with "individualized, offender-oriented dispositional practices," which would help further protective and rehabilitative goals.16 Page 1130

Although it was called a "court," the delinquency trials were more similar to the processes of a bureaucratic agency than a criminal tribunal. The court was to be staffed with experts, who would diagnose and then meet the individualized needs of the "child at risk."17 The juvenile judge on the recommendation of probation staff made discretionary treatment decisions by substituting a scientific and preventative approach for the traditional punitive philosophy of criminal law.18 Whether the juvenile had actually committed the offense causing him to be haled before the court was important but apparently not essential for intervention. Courts often used a smoke- fire syllogism for justifying an allotment of treatment. If a child was arrested in the company of delinquents known to the court or if he was caught near the scene of a crime or simply idling about a high crime area, some judges might stretch skinny proof of every element of an offense in the name of administering a preventive dose of treatment, thus "saving" him from a future life of crime.

The first concern that prompted the creation of the juvenile court was that young children and adolescents were not yet morally accountable for their behavior. The Progressives viewed them as vulnerable and malleable beings whose irrationality and lack of judgment prevented competent decision-making and moral understanding. The creation of the new scientific discipline of developmental psychology which occurred in the 1880s lent "legitimacy to the idea that children were qualitatively different from adults."19 Interestingly, one of the components of the reformers' design of the Cook County (Chicago) Juvenile Court was a research center that would have access to court files and be able to interview children coming before the court with the purpose of determining the Page 1131 predominant causes of delinquency among recidivists. The Director of what came to be known as the Juvenile Psychopathic Institute later published an influential article, The Individual Study of the Young Criminal, which postulated that environmental factors heavily contributed to delinquency; that individualized treatment plans were essential to rehabilitation; and that children's developmental deficits warranted a nonpunitive social response.20 Page 1132

The second concern contributing to the climate of reform in turn- of- the-century Chicago was the discovery of dangerous conditions of confinement for children found to have committed a crime. One reformer searching the records of 1882 found that of the 7,566 convicts in the House of Corrections, 263 (3.5%) were fourteen years old or younger, including twenty children who were younger than eleven. Most had been arrested for being homeless or wandering the streets and should never have been imprisoned.21 Further, the conditions of the House of Corrections were bleak: "There are no healthful influences brought to bear on these youthful offenders, neither physically nor morally. . . . It is not a house of correction with themBit is a house of perversion, corruption and retrogression for them."22 Conditions were so bad that several Chicago judges refused to send children to the institution. 23 Page 1133

After a half-century of operation, the first constitutional challenge to the procedural laxity of the juvenile courts was presented to the United States Supreme Court,24 but the first full-blown consideration of whether state juvenile courts were subject to constitutional constraints came in 1967 with the famous Gault case.25 The case began with the arrest of fifteen-year-old Gerald Gault in Phoenix, Arizona, for allegedly making an obscene telephone call to a neighbor. He was taken into custody, detained overnight without notification to his parents, and made to appear at a hearing the following day. At no time was Gerald assisted by an attorney or advised of the right to counsel. Furthermore, Gerald was questioned at trial26 without having been advised of his privilege against self- incrimination. The evidence supporting his adjudication consisted of the hearsay allegations of the neighbor27 as reported by the probation...

To continue reading