Pre-adjudication Access to Counsel for Juveniles

• Jurisdiction: United States,Federal
• Publication year: 2019
• Citation: Vol. 69 No. 2

Pre-Adjudication Access to Counsel for Juveniles

Christopher K. Gleason

PRE-ADJUDICATION ACCESS TO COUNSEL FOR JUVENILES Abstract

This Comment considers the juvenile justice system and the application of the Fifth Amendment's privilege against self-incrimination to children. It describes the development of the juvenile system and tracks its development up to In re Gault. Despite Gault's significance and promising rhetoric, practical barriers still exist that undermine the full expression of children's constitutional rights in the juvenile justice system.

One of this Comment's overarching goals is to reflect on how Gault's central premise—that children are entitled to constitutional rights—can be more meaningfully achieved. Specifically, this Comment looks to juvenile interrogations and proposes mandatory pre-adjudication access to counsel for children encountering the juvenile system, especially prior to and during custodial interrogations. This piece also argues that children should not be able to waive the presence of counsel during interrogation, and it addresses why this kind of mandatory provision is not problematic despite the juvenile system's history of paternalism.

Recognizing that its proposals are broad in scope, this Comment offers two possible rationales that could support adoption of its suggestions. With reference to the Supreme Court's recent Eighth Amendment jurisprudence and to its cases that interpreted Miranda's provisions, this Comment offers examples of how the Court's existing precedent may allow the Court to adopt a heightened constitutional standard to protect children's Fifth Amendment privilege against self-incrimination.

Finally, this piece concludes by considering the feasibility of the suggestions it offers. Despite some legitimate concerns and arguments that cut against this Comment's proposals, mandatory pre-adjudication access to counsel is necessary for children as they interact with the juvenile system, and there are equally significant costs of non-implementation. Additionally, broader awareness of the costs of current approaches to juvenile justice may serve as an impetus for policy reform.

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Introduction.............................................................................................361

I. The Juvenile System and Children's Constitutional Rights...............................................................................................362

A. Parens Patriae ........................................................................... 363
B. The Development of Juvenile Courts........................................ 365
C. In re Gault................................................................................. 366
D. Gault, Miranda, and the Fifth Amendment ............................... 369
E. Analyzing Juvenile Confessions................................................ 372

II. Mandatory Access to Counsel Before Adjudication...........375

A. Access to Counsel as a Mandatory Provision .......................... 376

1. The Right to Counsel for Juveniles..................................... 377
2. The Role of Counsel in Pre-Adjudication Interrogation .... 378

B. Rationales for Adopting Additional Rules ................................ 380

1. Eighth Amendment Examples ............................................. 381
2. Edwards and McNeil.......................................................... 385

C. Serving State Interests and Legitimizing Parens Patriae ........... 388

1. Serving State Interests ........................................................ 388
2. Legitimizing Parens Patriae ................................................ 389

III. Implications and Consequences.................................................390

A. Costs and Feasibility ................................................................ 391
B. Paternalism .............................................................................. 393
C. Redressing Systemic Imbalances .............................................. 395

Conclusion.................................................................................................395

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Introduction

In re Gault¹ significantly altered the legal system's relationship with children because it established that children possess certain constitutional rights.² Though not addressing "the totality of the relationship of the juvenile and the state,"³ the Court in Gault asserted a novel proposition: "[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone."⁴ In doing so, the Court rejected a constitutional scheme in which children had been entitled to custody rather than to substantive, individual rights.⁵

Despite its revolutionary holding, Gault left some issues unresolved. This Comment focuses on one unresolved aspect of Gault: children's access to counsel before formal adjudication proceedings. For juveniles, pre-adjudication interactions with law enforcement often include some form of custodial interrogation, either at a police station or at school. This Comment argues that the Court should adopt two rules that would more effectively protect children's Fifth Amendment privilege against involuntary self-incrimination.

Part I begins by tracing the history of the juvenile justice system and the theories and goals that led to its creation and practices. With a particular focus on the parens patriae doctrine, Part I begins by exploring traditional justifications for regulating child welfare and the ways that juvenile courts reflected these ideas. Offering a thorough analysis of Gault, this Part also reflects on how Gault changed juvenile courts and constitutional theory. Because Miranda v. Arizona⁶ was incorporated into Gault, this Part also provides background on Miranda and on the traditional due process standard that courts apply when determining whether an individual's Fifth Amendment privilege against self-incrimination was voluntarily waived. This Part concludes by discussing the Court's recent case involving juvenile interrogation, J.D.B. v. North Carolina.⁷

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Part II shifts to this Comment's argument. This Comment argues that the Supreme Court could adopt more protective measures for ensuring children's privilege against self-incrimination. Specifically, it discusses why children should be required to consult with counsel during pre-adjudication, as well as why they should not be able to waive counsel's presence during custodial interrogation. The Court could ground these mandates either in its Eighth Amendment jurisprudence or by following the logic of cases that have clarified Miranda. Aside from discussing the legal rationales for adopting more protective standards for children facing pre-adjudication interrogation, this Part also argues that an attorney's presence throughout interrogation, as opposed to other "friendly adult[s],"⁸ is imperative to protect children's interests in these settings.

Finally, Part III considers some of the implications and consequences of adopting this Comment's suggestions. It begins by acknowledging some of the potential challenges that would arise if the Supreme Court mandated pre-adjudication appointment of counsel. The costs of funding a public defense system that could accommodate this mandate and still provide effective assistance of counsel would present states with challenging budgetary and logistical scenarios, especially in non-urban areas.⁹ Part III thus reflects on the relative "costs" of implementation versus non-implementation. Despite recognizing the obvious monetary costs of this Comment's proposals, this Part argues that there are countervailing and weighty costs of non-implementation.

I. The Juvenile System and Children's Constitutional Rights

This Part begins in Section A by discussing the parens patriae doctrine and its significance to the development of juvenile courts. As noted by the Supreme Court, the parens patriae doctrine justified the creation of juvenile courts.¹⁰ Section B then discusses the development of juvenile courts and the ways that they were distinguishable from adult criminal courts. It also reflects on the purported goals of juvenile court systems. Having discussed the buildup to Gault, Section C provides a full analysis of Gault and its impact on children's rights, juvenile justice systems, and constitutional theory. Section D then considers the relationship between Miranda and Gault, and Section E provides

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a backdrop on the standards under which courts assess juvenile Miranda waivers and confessions.

A. Parens Patriae

In Gault, the Court explained that parens patriae served as the guiding principle for establishing juvenile courts and for their distinctiveness from adult criminal courts.¹¹ Under English common law, parens patriae developed as a subset of the broader Prerogative Regis¹² and articulated the sovereign's duty to exercise "parental concern" for certain classes of vulnerable individuals, including dependent, though not necessarily delinquent, children.¹³ As incorporated into American law and further developed in the United States, parens patriae eventually became more closely synonymous with the state's general legislative authority.¹⁴

Once conceptually moored to the state's limited responsibility for vulnerable or otherwise incapacitated state-dependents, parens patriae came to embody the state's assumption of a much broader, wide-ranging responsibility to its citizens.¹⁵ In particular, parens patriae justified the state's assertion of responsibility for the welfare of all children, not just those who were state-dependent.¹⁶ As an operative theory in American law, then, parens patriae "lack[s] ... firm conceptual boundaries,"¹⁷ allowing it to serve as a justification for state regulation or intervention in a variety of contexts, including child labor, education, and delinquency.¹⁸ Despite its broad scope, parens patriae has maintained its fundamental connection to "parental"...