On the 48th Anniversary of In Re Gault

Many people who follow the legal system can identify a few United States Supreme Court decisions that profoundly impacted society or some segment of it. Most people know about Rowe v. Wade, and even schoolchildren know about Brown v. Board of Education. Public defenders know Terry v. Ohio. More recently, many people are aware of Citizens United v. Federal Election Commission. Today marks the anniversary of a monumentally important Supreme Court decision that is perhaps less well-known. On May 15, 1967, forty-eight years ago, the Supreme Court decided in In re Gault that the juvenile delinquency system must provide due process and legal representation to children accused of committing crimes.

For decades following the founding of the first formal juvenile court in Cook County, Illinois, in 1899, and before the Gault decision in 1967 the juvenile justice system was seen as beneficial to the children within it, and indeed for many it was vastly superior to the adult criminal system to which many children had previously been subjected. We can look back on some of the early writing about juvenile courts and scoff at the hilariously naïve quotes from commenters. I try to be forgiving, because they were really trying their best to do right by children, and for the most part they succeeded, but it difficult to read this material without a jaded eye:[i]

Why is it not just and proper to treat these juvenile offenders … as a wise an merciful father handles his own child whose errors are not discovered by the authorities? Why is it not the duty of the state, instead of asking merely whether a boy or a girl has committed a specific offense, to find out what he is, physically, mentally, morally, and then if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen.[ii]

Or this:
The design is not punishment, nor the restraint imprisonment, any more than is the wholesome restraint which a parent exercises over his child.[iii]

This is particularly evocative:

The ordinary trappings of the courtroom are out of place in such hearings. The judge on the bench, looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the child at his side, where he can on occasion put his arm around his shoulder and draw the lad to him, the judge, while losing none of his judicial dignity, will gain immensely in the effectiveness of his work.[iv]

Enter Gerald Gault, known as “Gerry”, who was 15 years old in 1965. Gerry was accused of making prank phone calls to his neighbor. Justice Fortas described these phone calls by saying, “It will suffice for purpose of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety.” We can all picture how those conversations must have gone, and I think many of us chuckle at what we imagine, even though we can probably understand how Gerry’s neighbor lost her patience with these calls. She told the police about the calls and that she suspected Gerry, and then she promptly exits the story without going to court even a single time, but what happened to Gerry next was profoundly punitive.

Gerry Gault was arrested and taken to detention. His parents were not notified until they started calling around looking for him. They were given oral notice of a court appearance the next day. Neither Gerry nor his parents were given any notice of charges. The very next day, Gerry was re-committed to detention in a hearing that was not recorded, and released a few days later for reasons that are lost to time. Again the Gaults were given informal notice of a court appearance set 3 days later, which was exactly one week after the phone calls. This subsequent hearing also was not recorded, and no formal evidence was given. Gerry had no lawyer to assist him and still had not been given formal notice of the charges. At the conclusion of the hearing, Gerry Gault was sentenced to 6 years in state custody, and no appeal was permitted. It bears emphasizing that Gerry Gault was sentenced to six years in juvenile prison for a crime that would have been a low-level misdemeanor in adult court. For what it is worth, he denies to this day that he made the phone calls.

The Gault family obtained the assistance of an attorney to institute a habeas proceeding, and this is the case which went all the way to the Supreme Court. The Supreme Court held that the summary procedure that ended with Gerry sentenced to 6 years in prison was unconstitutional stating, “Departments for established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness.” Of the supposed rehabilitative nature of the system, the court said, “[H]owever euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time…. Instead of mother and father and sisters and brother and friends and classmates, his world is peopled by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide.” The court found that basic fairness for children required notice of charges, right to counsel, right to confrontation, and privilege against self-incrimination. 

The Gault revolution was slow.  Even today, some people who act as juvenile defenders do not understand their role to act for the expressed interest of the child rather than to act as guardian ad litem doing what they suppose to be in the child’s best interest. Some service providers require that children confess their crimes as part of the rehabilitation process. Some judges resent having to hear motions to suppress illegally obtained evidence. I have spoken to many juvenile defenders who claim their judges don’t allow opening or closing arguments at trial. Some defenders still look down on juvenile defenders because they do not do jury work. 

Today, let us not dwell on these shortcomings. Instead, let us celebrate the progress we have made. It is a wonderful and exciting time to be involved in the juvenile defense system. Today, most juveniles who go to court are met with regular proceedings. They are usually represented by counsel, and the state is required to prove allegations beyond a reasonable doubt. Increasingly, legislatures are interested in building a smarter, more age appropriate, and (not coincidentally) cheaper juvenile justice system by reducing youth incarceration. Juvenile defenders usually are afforded the same respect as other public defenders. After a long post-Gault dormancy, the U.S. Supreme Court has again turned its attention to the juvenile system with a series of decisions expanding the protections afforded youthful offenders.[v] The work is not over, but it has certainly begun, and it began with Gerry Gault.

[i] I owe a debt to Tobie Smith of the Legal Aid Society in Birmingham, Alabama, for bringing these passages to my attention years ago.