After Gault, Ideas About How to Protect Children’s Right to Counsel

15-year-old Arizona boy Gerald Francis Gault was taken into custody for allegedly making an obscene prank phone call to a neighbor in June 1964.

His parents were not notified of his arrest. In a subsequent hearing, the complaining witness did not appear, and no sworn testimony was taken. Gault was sent to Arizona’s State Industrial School until he turned 21.

Gault’s parents appealed the case to the Supreme  Court, and the court’s decision to overturn the lower courts represents a landmark ruling for juvenile justice in the U.S. The unanimous decision by the Supreme Court affirmed the right of juveniles to the same due process afforded adults, such as the right to counsel and an opportunity to confront and cross-examine accusers at hearings. 

“The condition of being a boy does not justify a kangaroo court,” wrote Justice Abe Fortas in his oft-quoted majority opinion.

Monday marked the 50th anniversary of the In re Gault decision that led to the creation of juvenile indigent defense systems in many states, but some advocates remain concerned about children’s access to legal representation.

To mark the Gault anniversary, the National Juvenile Defender Center (NJDC) has prepared a snapshot of existing standards for children’s legal representation in the nation’s 50 states. In Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel, the NJDC finds the idea of equal and comprehensive legal protections wanting.

“State laws and practices still do not honor the constitutional rights of youth,” the report reads.

Even though all states have some capacity to provide legal counsel to children in the justice system, those protections are marred by significant gaps that exacerbate economic and racial disparities faced by those entangled with the justice system.

In surveying the state of children’s legal defense, the report lays out a series of noteworthy findings:

• Only 11 states provide every child accused of an offense with a lawyer, regardless of financial status.
• No state guarantees lawyers for every child during interrogation, and only one state requires it under limited circumstances.
• Thirty-six states allow children to be charged fees for a “free” lawyer.
• Forty-three states allow children to waive their right to a lawyer without first consulting with a lawyer.
• Only 11 states provide for meaningful access to a lawyer after sentencing, while every state keeps children under its authority during this time.

Access to appropriate legal resources for children in the U.S. is often dictated by where a child lives or gets arrested, according to the NJDC report. Law and statutes around children’s legal counsel are often ambiguously worded, which frequently leaves decisions around legal representation up to the discretion of judges, district attorneys and other officials. The unclear status of these laws can often widen existing racial disparities in the justice system.

The report outlines several areas where reforms can be made in the spirit of the historic In re Gault decision. Some recommendations would require substantial legislative effort and buy-in — such as providing a juvenile defender to a child before he or she is interrogated.

Others aim to push the legal system to realize the promise of Gault: equal opportunities for all children to find justice under the law. These suggestions include automatically allowing all children to become eligible for a publicly funded juvenile defender regardless of their financial circumstances, providing a right to counsel for children after sentencing and monitoring children’s ability to waive counsel, among others.