Fifty years ago this month, the U.S. Supreme Court decided the landmark juvenile case of In re Gault.1 The decision ensures that juveniles accused of committing a crime have the right to counsel and other due process rights, including the right to be notified of the charges, the right to cross-examine witnesses, and the right not to make a statement against oneself. The Court famously noted that under the U.S. Constitution, “the condition of being a boy does not justify a kangaroo court.”2 This article reviews the state of today’s juvenile courts in light of Gault and considers the protections that juvenile courts must provide to youth to ensure that their due process rights are protected.
The Gault Facts and Decision
Gerald Gault was 15 years old when he and a friend were taken into custody by the sheriff of Gila County, Ariz. A neighbor, Mrs. Cook, had complained that Gerald and his friend had called her on the telephone and made lewd remarks. At the time, Gerald was on probation because he had been with another boy who had stolen a wallet from a woman’s purse. Gerald’s parents were not at home when he was picked up, and no notice that Gerald was being taken into custody was left at their home or otherwise provided to them. Gerald’s family found out where he was only after speaking to the family of Gerald’s friend.
The next day, Gerald, his mother, his older brother, and two probation officers appeared before the court in chambers. The judge asked Gerald about the telephone call, but no witnesses were called and Mrs. Cook did not attend. Gerald told the judge he dialed the number, but did not do the talking. No transcript, recording, or record of the substance of the proceedings was made. Gerald remained in the detention facility. At a hearing the next week, Mrs. Gault asked to have Mrs. Cook at the additional proceeding so that she could identify which of the two boys had actually done the talking, but the judge said that Mrs. Cook did not need to be there.
At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School until he reached the age of 21. The court’s order stated that “after a full hearing and due deliberation the Court finds that said minor is a delinquent child, and that said minor is of the age of 15 years.”3 If Gerald had been an adult, the maximum punishment would have been either a fine of $5-$50 or imprisonment up to a two-month maximum jail term.
By the time the Supreme Court considered Gault’s case later in 1967, juvenile courts had been in existence for almost 70 years. In 1899, Illinois created the first “juvenile court.” Until then, children, even very young ones, were being treated like adults, including being housed in adult jails. Reformers at the time understood that children had different needs than adults, and judges were given broad discretion to handle each case as they saw fit. The idea was that juvenile courts would be informal proceedings, in which “a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition.”4
Soon all states had juvenile courts, most of which focused on the best interest of each child with the goal of providing rehabilitation for children rather than punishment. Because these courts focused on rehabilitation for children, they did not provide children with the constitutional protections provided to adults in criminal courts. Over time, many involved in court systems became concerned about the wide range of consequences judges were giving to similarly situated children. Many juvenile courts were becoming punitive in nature, but the court procedures remained informal and children were not afforded constitutional protections.
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These concerns clearly weighed on the Supreme Court as it considered Gault’s case. The Court explained that juveniles did not receive the care and rehabilitation envisioned by the juvenile courts nor the constitutional protections adults were entitled to, leaving them with “the worst of both worlds.”5 The Court noted that juvenile court judges lacked the necessary expertise and resources to fulfill their intended functions. The combination of complete discretion coupled with a total lack of due process had led to an unacceptable level of arbitrariness. Even if juvenile courts’ goals still focused on rehabilitation, Gault had been incarcerated, and the Court explained that “it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’”6
The Court’s decision in Gault was not unanimous. Justice Stewart dissented, explaining that “a juvenile proceeding’s whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court.”7 He concluded that to “impose the Court’s long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era, there were no juvenile proceedings, and a child was tried in a conventional criminal court with all the trappings of a conventional criminal trial.”8
Supreme Court Jurisprudence in Gault’s Wake
Three additional U.S. Supreme Court cases quickly followed Gault, the results of which clarified the rights of juveniles. In In re Winship, the Court held that in delinquency proceedings, the standard of proof was beyond a reasonable doubt.9 The following year, in McKeiver v. Pennsylvania, the Court held that juveniles did not have the right to a jury trial. The Court explained that if juveniles were given jury trials, there would be little left to distinguish juvenile delinquency hearings from criminal trials.10
At least some of Justice Stewart’s concerns proved to be predictive: in the 1980s and 1990s, in response to a perceived increase in serious juvenile crime, many state legislatures passed laws that turned away from rehabilitation and focused on punishment. Many states made it easier to transfer children to adult court.
Every state’s juvenile justice system has been shaped by
the Supreme Court’s decision in Gault.
In 1996, Wisconsin created a Juvenile Code to “promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively.”11 It was a significant change from the original Children’s Code that had been enacted in 1977, the purpose of which had been, in part, to protect children’s constitutional and other rights and to provide a program of “supervision, care and rehabilitation” for children who committed delinquent acts.12
Every state’s juvenile justice system has been shaped by the Supreme Court’s decision in Gault. In Wisconsin, several of the rights afforded juveniles mirror those of adults. For example, the right to remain silent and the right to sworn testimony are the same. The right to written notice is protected by statute, which requires the state to file a petition to initiate juvenile proceedings and requires that a copy be provided to the juvenile and the juvenile’s parents, guardian, legal custodian, and physical custodian.13
The Promise of Gault: The Right to Counsel and the Role of Counsel
Juveniles in Wisconsin have a clear right to counsel, which is outlined in the Juvenile Code.14 It is impossible to discuss the right to counsel without considering the role of counsel and the juvenile defense attorney’s role in protecting a client’s constitutional rights. The Court in Gault explained that juveniles need the assistance of counsel “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.”15
To meet this standard, juvenile defense attorneys must provide the basic duties of an effective criminal defense practice, including interviewing all prospective witnesses, investigating legal and factual defenses, litigating motions and other pretrial issues, preparing for contested trials and dispositional hearings, and abiding by the ethics rules. The State Public Defender has created resources to help juvenile defenders meet these requirements.16
Juvenile defense attorneys, however, must provide more: they should also have a working knowledge of the juvenile code, principles of adolescent development, relevant case law, and local resources and rules. Juvenile defense attorneys are advocates for their clients’ expressed interests. To effectively communicate with a young client in order to understand his or her wants, juvenile defenders must be able to use developmentally appropriate language to ensure that clients are making carefully considered choices in their cases.
Juvenile defense attorneys must zealously advocate for their clients’ expressed interests; they must not act as guardians ad litem and should not assume that they know what is best for the client. Learning of a juvenile’s wishes may be more challenging than learning those of an adult client: children may not understand that the lawyer is their advocate, may not understand the system as well as an adult, may lack the maturity to fully understand what is happening with their case, and may attempt to defer to their lawyer. The juvenile defense attorney must ensure that the client understands that the client is the “boss” in the relationship.
Juvenile defense attorneys have the added complication of maintaining client confidentiality when so many adults, especially parents, may want or expect to know what the lawyer is going to do in the juvenile’s case. The wishes of a parent, however, might not match those of their child, and lawyers must make sure they are following their client’s direction. Parents might pressure their children to waive counsel or to enter a plea even if the juvenile does not want to. Lawyers should educate these adults to help them understand the goals of litigation without sharing confidential information.
Those involved in the juvenile justice system, including courts and prosecutors, must consider the legal competency of all juvenile clients in order to proceed; defense counsel must raise competency if they have reason to doubt a client’s competency.17 Juveniles, like adults, have a due process right and can be prosecuted only if they are competent to understand the proceedings.
Clients may have difficulty grasping legal concepts due to a lack of experience, but the meaning of “rights,” “pleas,” “disposition,” and other legal terms can likely be taught. But difficulty communicating with a client, a client’s young age, limited intellectual functioning or verbal and comprehension skills, a poor academic record, or placement in special education should all prompt a lawyer to question whether the client is competent.
In a large study of juvenile adjudicative competency, researchers measured children’s understanding and decision-making abilities specifically for trial preparation.18 The researchers found that juveniles aged 11-13 were more than three times as likely as individuals 18-24 to be “seriously impaired” on competence and relevant abilities. Even juveniles aged 14 or 15 were twice as likely to be “seriously impaired.” Juveniles with IQs lower than 85 were more likely to be “significantly impaired” in abilities relevant for competence to stand trial than juveniles of average intelligence.
Juvenile defense attorneys must zealously advocate for
their client’s expressed interests; they must not act as
guardians ad litem and should not assume that they know
what is best for the client.
On a practical level, this means that not only juvenile defenders, but also juvenile courts should consider whether a child who is either under 14 years old or who has a relatively low IQ is competent to proceed with a delinquency matter. Juvenile defenders should also be aware that one unique aspect to juvenile competency is that a juvenile may be competent to face one charge and not another. A 14-year-old client might be able to understand a charge of disorderly conduct and assist in his own defense, but that same client might not understand a more complex sexual assault charge and its attendant collateral consequences.
If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile’s competency to proceed, the court must order that the juvenile be examined by a doctor to determine competency.19 In requesting that a client be evaluated for competency, juvenile defenders must keep in mind that the lawyer must balance his or her concerns about the client with the knowledge that the lawyer’s opinions, perceptions, and impressions of a client’s competency to proceed are protected by the attorney-client privilege.20
If a juvenile is found not competent, the proceedings may be suspended and a juvenile in need of protection or services (JIPS) petition can be filed.21
Gault in the Wisconsin Supreme Court
In 2005, in In the Interest of Jerrell J.,22 the Wisconsin Supreme Court held that juvenile interrogations must be electronically recorded, a rule that was later codified in statute. In deciding whether Jerrell’s confession had been voluntary, the court considered that Jerrell was only 14 and that he had an IQ of 84. The court also found that the police tactics were coercive, in part because Jerrell repeatedly requested to talk to his parents and was denied that opportunity over the course of many hours.
In reaching its conclusion, the court cited Gault, noting that the U.S. Supreme Court had spoken in Gault of the need to exercise “special caution” when assessing the voluntariness of a juvenile confession, particularly when there is prolonged or repeated questioning or when the interrogation occurs in the absence of a parent, lawyer, or other friendly adult.23
New Constitutional Protections: Today’s “Gaults”
The U.S. Supreme Court has, in recent years, decided a new generation of juvenile cases providing constitutional protections to children accused of crimes. These cases have relied on advances in brain science and adolescent development to reaffirm the principle that first inspired Illinois to create a juvenile court back in 1899: children are indeed different and are not simply “little adults.”
First, in Roper v. Simmons,24 the U.S. Supreme Court held that imposition of the death penalty for crimes committed by juveniles constitutes cruel and unusual punishment under the Eighth Amendment. The Court explained that the death penalty is always reserved for the very worst offenders, and that children cannot be put in that category, for three reasons: 1) juveniles lack maturity and have an underdeveloped sense of responsibility; 2) juveniles are more vulnerable and susceptible to negative influences and outside pressures, particularly peer pressure; and 3) juveniles’ characters are not fully formed. For these reasons, juveniles possess more potential for rehabilitation.
Next, in Graham v. Florida,25 the U.S. Supreme Court held that it is unconstitutional to impose life imprisonment without the possibility of parole on juveniles for nonhomicide offenses. The opinion noted that a life-without-parole sentence improperly denies juveniles the chance to demonstrate growth and maturity.26
Two years later, in Miller v. Alabama,27 the U.S. Supreme Court held that imposing mandatory life-without-parole sentences on children violates the Eighth Amendment. The Court reiterated its conclusion from Roper and Graham that children should not be treated like adults for sentencing purposes. The Court explained that sentencing courts should consider children’s chronological age and also children’s inability to fully appreciate risks and consequences. The Court made clear that given children’s “diminished culpability” and “heightened capacity for change,” sentencing children to this penalty should be uncommon.
One unique aspect to juvenile competency is that a juvenile
may be competent to face one charge and not another.
Most recently, in Montgomery v. Louisiana28 the U.S. Supreme Court held that the requirements of Miller are retroactive, and that courts were required to consider a juvenile’s “limited capacity for foresight, self discipline, judgment...and potential for rehabilitation” before sentencing them to life without parole.29
Wisconsin does not have the death penalty, nor does it have mandatory life without parole for juveniles, but the U.S. Supreme Court’s jurisprudence on these issues continues to be relevant to lawyers and judges here.
In 2011, the Wisconsin Supreme Court considered the issue of nonmandatory life-without-parole dispositions for juveniles in State v. Ninham.30 Omer Ninham was 14 years old when he was convicted in adult court of first-degree intentional homicide. The court concluded that sentencing a 14 year old to life in prison without the possibility of parole for intentional homicide is not categorically unconstitutional. The court held that Ninham’s sentence was severe, but not “unduly so.” 31
Since that decision, however, the U.S. Supreme Court has continued to remind participants in the juvenile justice system that children are different from adults and should rarely, if ever, be subject to the most serious punishments. Juvenile defense lawyers should familiarize themselves with the language in these cases because the concepts can be applied at every stage of juvenile proceedings.
For example, in Miller, the U.S. Supreme Court explained that juveniles have diminished culpability and greater prospects for reform than adults; this ability to change might justify a deferred prosecution agreement rather than a formal adjudication in certain cases. The Court also noted that juveniles have less control over their environment than do adults and lack the ability to remove themselves from crime-producing settings. Finally, the Court noted that juveniles’ characters are not fully formed and demonstrate a greater possibility for change.32
Gerald Gault went on to serve a distinguished 23-year career in the U.S. armed forces; he rarely speaks about his case. On the 40th anniversary of the decision, however, he noted that, “People in this society need to realize that these children that were put behind bars, without counsel, are our next leaders.”33 On this 50th anniversary of Gault, we should ask ourselves how we are serving our future leaders of Wisconsin.
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If you weren’t practicing law, what would you be doing?
I wasn’t sure how to answer this question, so I asked my kids what they thought. They came up with being a dairy farmer because I have a strange love of cows and I eat a lot of cheese. This is true.
But I think that if I weren’t practicing law, I would actually do something involving gardening. I would love to work in a nursery or a greenhouse, at a botanical garden, or on a landscape crew. Digging, planting, pruning, and mulching all have the ability to change the way a space looks in a short span of time (kind of like vacuuming but much more fun). I spend most weekends in the spring and summer out in my yard pulling weeds, dividing plants, watering, and watching things grow. I’m pretty sure I could do it all day every day.
I love being a lawyer, but I’d love to spend each day with my hands in the soil.
Devon M. Lee, State Public Defender’s Office, Madison.
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1 In re Gault, 387 U.S. 1 (1967).
2 Id. at 28.
3 Id. at 5.
4 Id. at 26.
5 Id. at 18 n.23.
6 Id. at 27-28.
7 Id. at 79.
8 Id. at 80.
9 In re WInship, 397 U.S. 358 (1970).
10 McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
11 Wis. Stat. § 938.01(2) (legislative intent of the “Juvenile Justice Code”).
12 Wis. Stat. ch. 48 (Children’s Code).
13 Wis Stat. § 938.255.
14 Wis. Stat. § 938.23.
15 Gault, 387 U.S. at 36.
17 State v. Johnson, 133 Wis.2d 207, 395 N.W.2d 176 (1986).
18 Thomas Grisso et al., “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants,” Law & Human Behavior 333-63 (Aug. 2003).
19 Wis. Stat. § 938.295(2).
20 State v. Meeks, 2003 WI 104, 273 Wis.2d 794, 666 N.W.2d 859.
21 Wis. Stat. § 938 30(5).
22 In re Jerrell C.J., 2005 WI 105, 283 Wis.2d 145, 699 N.W.2d 110.
23 Id. ¶ 21.
24 Roper v. Simmons, 543 U.S. 551 (2005).
25 Graham v. Florida, 560 U.S. 48 (2010).
26 Id. at 73.
27 Miller v. Alabama, 132 S. Ct. 2455 (2012).
28 Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
29 Id. at 726.
30 State v. Ninham, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451.
31 Id. ¶ 37.
32 Miller, 132 S. Ct. at 2464-65.
33 In the Matter of Gerald Gault: 51 Years Later, National Association of Women Judges, 2015 Annual Conference, Program and Document Notes.