In Re Gault: “Constitutional Domestication” of the Juvenile Justice System

There are only a small number of criminal cases that all lawyers, even those who don’t practice criminal law, seem to know.  Although Miranda v. Arizona is probably the most famous, there is also Gideon v. Wainwright (right to counsel), Wong Sun v. United States (suppression of illegally obtained evidence), Crawford v. Washington (right to confrontation), and In Re Winship (burden of proof for criminal conviction).  Included on that small and exclusive list should be a case I had to re-read recently to prepare myself to take on juvenile cases:  In Re Gault, 387 U.S. 1 (1967).

Spelling out the constitutional due process rights of a juvenile who is arrested for a crime, In Re Gault is the first case any lawyer representing a juvenile defendant should read.  It also provides one of the best overviews of the due process guarantees generally I have ever seen.  As Justice Abe Fortas, writing on behalf of the majority, put it, “[p]rocedure is to law what scientific method is to science.”

Fifteen-year-old Gerald Gault was arrested in 1964 for making a lewd phone call.  That Fortas described the call as “of the irritatingly offensive, adolescent, sex variety” suggests that he didn’t think the call was anything more than a childish prank.  But the police officer, aware that Gault was already on probation in connection with another minor misdemeanor, apparently thought the boy posed a risk to society and took Gault into custody.  In so doing, he did not bother to inform Gault’s parents.  They simply came home to find their son gone.

The Arizona criminal system went on to violate almost every single right we would associate with the Due Process Clause.  First, apart from a “petition” filed by the police officer affirming the officer’s belief that Gault was a “delinquent minor” in need of the court’s supervision, Gault and his parents were not informed of the nature of the charges against Gault.  There was thus no way for Gault to prepare a defense.  And, because none of the proceedings against Gault were ever transcribed, it became very difficult for him to challenge the order that potentially committed him to a state institution until he turned 21.  Six years for a prank phone call!

Second, nobody ever informed Gault or his parents of his right to counsel.  As the Supreme Court of Arizona put it, the “parent and the probation officer may be relied on to protect the infant’s interests.”  This holding ignored the fact, as Fortas put it, that probation officers in Arizona “are also arresting officers.  They initiate proceedings and file petitions which they verify, as here, alleging the delinquency of the child; and they testify, as here, against the child.”  In other words, it would be difficult for the juvenile’s accuser to also act as his counsel.

Third, Gault was never advised of his right to remain silent. As the Arizona Supreme Court put it, “We think the necessary flexibility for individualized treatment will be enhanced by a rule which does not require the judge to advise the infant of a privilege against self-incrimination.” Fortas disagreed:  “It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children.”

Finally, because the recipient of the alleged phone call was never called to testify, Gault did not have the opportunity to confront the witnesses against him.  In fact, Gault’s uncounseled admissions – both to the police officer and in court – served as the government’s only evidence against him.

Reversing the order that committed Gault to a juvenile detention facility for up to six years, the decision held that most of the constitutional due process rights that apply to adults who are charged with a criminal offense should also protect juveniles.  These rights include notice of the charges, an opportunity to present a defense, representation by counsel, an opportunity to confront and cross-examine witnesses, the privilege against self-incrimination, and the right to appellate review.  (A later U.S. Supreme Court decision – McKeiver v. Pennsylvania – held that juveniles do not have a right to a jury trial.)

In reaching its decision, the Court mocked the early conception of juvenile court as “one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help to save him from a downward career.”  The notion of parens patriae, Fortas wrote, “may have proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme” but “its meaning is murky and its historic credentials are of dubious relevance.”  Furthermore, this case “has again demonstrated that unbridled discretion, however benevolently motivated is frequently a poor substitute for principle and procedure.”

Buried within the lengthy Gault decision is an interesting phrase:  “constitutional domestication.”  Fortas uses this term to point out how you can still achieve many of the advantages of a separate system for dealing with juveniles – for example, greater protection of the accused’s privacy – without requiring the juvenile to forego basic constitutional rights.  “The commendable principles,” Fortas writes, “relating to the processing and treatment of juveniles separately from adults are in no way involved or affected by the procedural issues under discussion.”

Fortas concluded:  “Due process of law is the primary and indispensable foundation of individual freedom.  It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.”

I wish I knew how to say things like that.