Meeting the Mandates of Gault: Automatic Appointment of Counsel in Juvenile Delinquency Proceedings
| Author | Mary Ann Scali |
| DOI | http://doi.org/10.1111/jfcj.12143 |
| Published date | 01 September 2019 |
| Date | 01 September 2019 |
Meeting the Mandates of Gault: Automatic
Appointment of Counsel in Juvenile
Delinquency Proceedings
By Mary Ann Scali
ABSTRACT
In 1967, the United States Supreme Court ruled that children facing delin-
quency charges have a constitutional right to defense counsel. Despite that mandate,
state assessments of juvenile defense systems have consistently found high rates of
waiver of counsel. Children are facing harsh punishments with potentially lifelong
consequences without the benefit of a trained defense attorney at their side. Given
the severity of the consequences of juvenile court involvement and society’s under-
standing of the developmental science behind adolescence, this article argues that to
meet constitutional requirements, juvenile courts must automatically appoint
defense counsel for all children facing delinquency charges.
Key words: appointment of counsel, child, constitution, counsel, defense, delinquency, Gault,
juvenile court, juvenile defense, lawyer, specialized, qualified, youth.
“On Monday, June 8, 1964, at about 10 a.m., Gerald Francis Gault and a
friend, Ronald Lewis, were taken into custody by the Sheriff of Gila County [Ari-
zona].”
1
They were not told they had the right to be silent, nor were they given
notice of the proceedings against them, a lawyer to defend them, or an opportunity
to cross examine witnesses. Nearly three years later, the United States Supreme
Court issued a ruling in Jerry Gault’s case that would indelibly change the juvenile
court system in this country.
2
Mary Ann Scali is the Executive Director of the National Juvenile Defender Center (NJDC), a non-
profit organization dedicated to promoting justice for all children by ensuring excellence in juvenile defense.
A lawyer and social worker who has worked in juvenile defense for more than 20 years, Mary Ann and the
team at NJDC partner with a national community of juvenile defenders to deliver juvenile defense training,
conduct state assessments of juvenile defense services, coordinate and participate in cross-disciplinary reform
efforts, and advance the constitutional rights of youth in the delinquency system.
1
2
Id.
Juvenile and Family Court Journal 70, No. 3
©2019 National Council of Juvenile and Family Court Judges
7
Although the Court made clear that “it would be extraordinary if our Constitution
did not require the procedural regularity and exercise of care implied in the phrase due
process,”
3
more than half a century after the Gault decision, far too many children move
through the juvenile court process without a qualified attorney by their side, ensuring
the protection of their constitutional rights.
4
Much has changed since the 1967 Gault decision. State laws have increasingly
imposed sanctions on youth that are nearly indistinguishable from the punishments
meted out in criminal courts.
5
The collateral consequences of juvenile court involvement
can last for the entirety of a child’s lifetime.
6
Developmental research, neuroimaging,
and brain science have dramatically changed our understanding of children’s and adoles-
cents’ culpability and ability to change.
7
And social science research has identified innu-
merable, lasting harms caused to youth by detention, shackling, incarceration, and other
features of juvenile court involvement.
8
While states were quick to enact increasingly harsher and more punitive sanctions
against youth in response to unfounded fears of a forthcoming “juvenile super preda-
tor”—between 1992 and 1995, 48 states increased penalties for youth
9
—they have lar-
gely been unable, or unwilling, to create and adequately fund systems that protect the
constitutional rights of young people involved in juvenile delinquency court.
10
“The
right to representation by counsel,” though, “is not a formality. It is not a grudging ges-
ture to a ritualistic requirement. It is the essence of justice.”
11
Juvenile courts must embrace due process and reject unbridled discretion and arbi-
trariness, as the Gault Court requires. Courts must ensure that every constitutional right
of each child is upheld at each hearing at every stage of the proceeding. “The probation
officer cannot act as counsel for the child.... Nor can the judge represent the child.”
12
3
Id. at 3.
4
OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION,INDIGENT DEFENSE FOR JUVENILES (2018),
https://www.ojjdp.gov/mpg/litreviews/Indigent-Defense-for-Juveniles.pdf.
5
Breed v. Jones, 421 U.S. 519 (1975) (“We believe it is simply too late in the day to conclude ...
that a juvenile is not put in jeopardy at a proceedings whose object is to determine whether he has commit-
ted acts that violate a criminal law and whose potential consequences include both the stigma inherent in
such a determination and the deprivation of liberty for many years.”).
6
Michael Pinard, The Logistical and Ethical Difficulties of Informing Juveniles About the Collateral Conse-
quences of Adjudications,6N
EV. L.J. 1111 (2006).
7
Laurence Steinberg, Adolescent brain science and juvenile justice policymaking,23PYSCHOL., PUB.POL’Y,
AND L. 410 (2017).
8
See Titilola Balogun et al., Does Juvenile Detention Impact Health?,24J.OF CORR.HEALTH CARE 137
(2018).
9
Maggie Clark, After Supreme Court Ruling, States Act on Juvenile Sentences,STATELINE, (Aug. 26, 2013),
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2013/08/26/after-supreme-court-
ruling-states-act-on-juvenile-sentences.
10
NAT’LJUVENILE DEF.CTR., ACCESS DENIED:ANATIONAL SNAPSHOT OF STATES’FAILURE TO PROTECT
CHILDREN’SRIGHT TO COUNSEL (2017) [hereinafter SNAPSHOT] at 4. “[T]hough every state has a basic structure
to provide attorneys for children, few states or territories adequately satisfy access to counsel for young peo-
ple.”)
11
Kent v. United States, 383 U.S. 541, 561 (1966).
12
In re Gault, 387 U.S. at 36.
8 | JUVENILE AND FAMILY COURT JOURNAL
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