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  • Wisconsin Lawyer
    March 31, 2008

    Guest Editorial: In re Gault: Do Its Promises Still Protect Juveniles?

    Recent research into human brain development and statistics that show minority juveniles have more frequent contacts with and severe consequences in the juvenile justice system raise questions about the system's fundamental fairness.

    Wisconsin Lawyer Wisconsin Lawyer

    Vol. 80, No. 11, November 2007

    May 15, 2007 marked the 40th anniversary of In re Gault, a landmark case that began a series of U.S. Supreme Court decisions outlining procedural safeguards to ensure the fundamental fairness of the juvenile justice system. This article asks if Gault continues to achieve that goal in light of two issues: recent scientific research about adolescent brain development; and the current statistics regarding the disproportionate number of minority juveniles who have contact with the Wisconsin juvenile justice system.

    The Gault Case

    Forty years ago, the U.S. Supreme Court extended to juvenile delinquency hearings the due process protections that it had imposed on adult court proceedings. In In re Gault,1 the Supreme Court established the key components of due process: notice of the charges against the juvenile; the right to legal counsel; the right against self-incrimination; and the right to confront and cross-examine witnesses. Gerald Gault was a 15-year-old Arizona boy charged with making a lewd telephone call to a female neighbor. He was taken into custody without notice being given to his parents, detained awaiting a hearing, convicted by a juvenile court in a summary hearing, and committed to a juvenile correctional facility for an indeterminate period not to extend beyond his 21st birthday. Had he been an adult, Gault would have faced a maximum punishment of a fine of $50, two months in jail, or both.

    The Gault decision exemplified the philosophy of using the procedural safeguards already present in adult court to ensure fundamental fairness in juvenile delinquency hearings. In subsequent decisions, the Supreme Court furthered this philosophy by extending to delinquency hearings the reasonable doubt standard2 and the Fifth Amendment protection against double jeopardy.3 However, the justices did not establish complete parity with the adult system in that they did not extend the right to trial by jury into delinquency hearings.4 The cases giving rise to these extensions articulated components of fundamental fairness and standardized procedures to uphold it.

    Gault in Wisconsin: Historical Context

    In 1911, the Wisconsin Legislature joined the movement of separating juveniles from adults and required every county to have a juvenile court. In 1919, the legislature standardized the various county juvenile laws by enacting a new section of the state statutes entitled "Child Protection and Reformation." Ten years later, the legislature revised and retitled the chapter to the "Children's Code." The 1953-1955 legislative session established some procedural safeguards for juvenile hearings. The stated goal of these safeguards was to ensure that each child who came before the juvenile court had the opportunity for normal physical, mental, and moral development.5 The Wisconsin Handbook for Juvenile Court Service published in 1961 indicated that the juvenile court could accomplish this goal by reviewing each case on an individual basis according to the procedures intended to safeguard the rights of the child and of his or her parents and to protect the interests of the community.6 Wisconsin Statutes section 48.01(3) identified as paramount the best interests of the child; parental and societal interests were to be subservient. These legislative efforts established some procedural safeguards in this pre-Gault era. However, even after these reform efforts, juvenile court judges still had the authority to determine the procedure to be followed in their courts.

    Seven months after the U.S. Supreme Court decided Gault, the Wisconsin Supreme Court in State ex rel. La Follette v. Circuit Court of Brown County7 applied the right to legal counsel portion of the Gault decision to cases in the Wisconsin juvenile justice system. The 1978 legislative session revised the Children's Code again, establishing the standard of "least restrictive means necessary for rehabilitation" and formalizing procedure and the role of prosecutor and defense counsel in juvenile hearings.

    Current Philosophy

    The 1980s and 1990s marked a shift in the juvenile justice system toward individual culpability and more accountability by the juvenile for his or her actions. In 1987, the Juvenile Justice Task Force suggested that the "least restrictive clause be deleted because it hindered the courts' ability to create an effective plan for services and treatment for the child."8 In 1994, Wisconsin Act 377 added a range of juvenile delinquency programs and established two committees, one of which, the Juvenile Justice Study Committee, fundamentally altered the philosophical approach to juvenile justice in Wisconsin. Many recommendations of this committee formed the cornerstone for the Juvenile Justice Code, which was enacted in 1995 and remains in effect today.

    1995 Wisconsin Acts 27 and 77 expanded the list of objectives to be met by the juvenile justice system. These Acts changed the objectives of the juvenile justice system by raising to equal standing the protection of society consideration and the best interests of the juvenile consideration. This philosophy focused less on intervention and rehabilitation and more on punishment and adult consequences for juvenile delinquent behavior.9

    Future Considerations

    The procedural safeguards established by Gault and codified in Wisconsin statutes are designed to protect the fundamental fairness of juvenile justice in Wisconsin. However, the effectiveness of these procedural protections may be challenged on the basis of developments in two areas: the emerging scientific research regarding adolescent brain development and statistical information about the disproportionate contact of minority juveniles.

    Kelly M. Krake

    Kellie M. Krake, U.W. 1991, is general counsel for the Wisconsin Public Defender’s Office. She is a graduate of the Senior Executives in State and Local Government Program at Harvard University’s John F. Kennedy School of Government. She is a coauthor of the Wisconsin Juvenile Law Handbook and teaches privacy law at the U.W. Law School.

    Recent research concerning brain development questions the concept that juveniles are capable of rational decision-making. In a June 2007 Wisconsin Lawyer article entitled "Return 17-Year-Olds to Juvenile Court," the authors highlight research in the field of adolescent brain development that supports the theory that human brains do not mature to the level of rational decision-making until the early age 20s.10 In 2005, in State v. Jerrell C.J.,11 the Wisconsin Supreme Court signaled its acceptance of the belief that juveniles facing interrogation are different from adults facing the same pressures. Chief Justice Abrahamson cited scholarly research to support the assertion that the condition of being a child renders one "uncommonly susceptible to police pressures."12 Also in 2005, the U.S. Supreme Court relied on scientific and sociological studies cited by the defendant, Christopher Simmons, and by amici curiae on his behalf when it determined that the Eighth and Fourteenth Amendments to the U.S. Constitution forbid imposition of the death penalty on offenders who were under age 18 when their crimes were committed.13

    This research exposes a flaw in the notion of accountability that is at the core of Wisconsin's juvenile justice system. The notion of accountability is based on the ideas that a person chooses to act a certain way and that a person should receive consequences for that action if it violates the law. However, if a juvenile is incapable of rational decision-making, which is implicit in the notion of accountability, is it not unfair to impose adult consequences for behaviors that derive from the juvenile's irrational decision-making process?

    The fact that a disproportionate number of juvenile minorities have contact with the criminal justice system also challenges the fundamental fairness of the juvenile justice system. A Wisconsin Office of Justice Assistance report indicates that minority juveniles have a greater likelihood of contact with law enforcement in Wisconsin than do nonminority juveniles.14 In 2005, a minority juvenile was 164 percent more likely than a white juvenile to be arrested; 229 percent more likely to be held in secure detention; and 312 percent more likely to be confined in a juvenile correctional facility.

    These statistics challenge the notion that fundamental fairness of the juvenile justice system is protected by the uniform application of its standardized due process procedures. If a segment of Wisconsin's juvenile population is represented disproportionately in the juvenile justice system, the application of that system as a whole is called into question. Given the questionable application of the juvenile justice system to the juvenile population as a whole, is that juvenile justice system inherently unfair because it is applied more often to one segment of the juvenile population than another, regardless of the uniformity of any procedural safeguards used within that system?


    The goal of ensuring fundamental fairness in the juvenile justice system through procedural safeguards remains as important today as it was in June 1964 when Gerald Gault found himself in the Arizona juvenile court system. However, recent brain development research and data on disproportionate minority contacts may highlight flaws within the juvenile justice system that undermine the fundamental fairness Gault sought to impose. In light of current information, is a systemic analysis of what fundamental fairness means within the context of the juvenile justice system warranted?


    1In re Gault, 387 U.S. 1 (1967).

    2In re Winship, 397 U.S. 358 (1970).

    3Breed v. Jones, 421 U.S. 519 (1975).

    4McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

    5Law Enforcement and Juvenile Justice in Wisconsin, U.W. Extension, Institute of Governmental Affairs, 1965.

    6Wisconsin Handbook for Juvenile Court Service, at 2 (1961).

    737 Wis. 2d 329, 155 N.W.2d 141 (1967).

    8Juvenile Justice Study Committee, Blueprint, at 5 (1995).

    9Wisconsin Council on Children and Families, Pipeline, at 11 (1995).

    10Eileen Hirsch, Ginger Murray, & Wendy Henderson, Raise the Age: Return 17-Year-Olds to Juvenile Court, 80 Wis. Law. 15 (June 2007).

    112005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110.

    12Id. ¶ 26 n.6.

    13Roper v. Simmons, 543 U.S. 551, 578 (2005).

    14Wisconsin Office of Justice Assistance, Disproportionate Minority Contact: An Analysis of Brown, Dane, Kenosha, Milwaukee, Racine and Rock Counties, 2002-2005, April 2007.

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