“Under our Constitution,” U.S. Supreme Court Justice Abe Fortas declared in the landmark decision, In re Gault, “the condition of being a boy does not justify a kangaroo court.” Gault initiated an era of due process, determining that the 14th Amendment to the Constitution guarantees children the right to notice of charges, the right not to incriminate themselves, the right to confrontation and cross-examination — and perhaps most crucially, the right to counsel.
Fast-forward 48 years: Are the children in your state provided these critical rights? How many of us can say for sure that children in our states “got Gault?”
Even as crime rates decline across the country, more than a million delinquency cases are still processed by our juvenile court system each year (1.1 million cases in 2011 according to the Office of Juvenile Justice and Delinquency Prevention). In most cases, the child is not detained (79 percent) but is found delinquent (59 percent). Most cases are settled by plea agreements, and the most common sentence is probation (64 percent), initiating months to years of court supervision, probation, detention and commitment.
Although juvenile court was designed to lead to better outcomes for children, the collateral consequences of juvenile adjudications have increased over time, imposing ever more barriers to education, employment, housing and the like. As the 50th anniversary of In re Gault approaches in 2017, it’s past time to stop merely processing children and youth, and start protecting their due process rights.
At the Colorado Juvenile Defender Center (CJDC) — formerly known as the Colorado Juvenile Defender Coalition — our wake-up call followed an 18-month assessment by the National Juvenile Defender Center (NJDC), published in 2012 as “ Colorado: An Assessment of Access to Defense Counsel and Quality of Representation in Juvenile Delinquency Cases.”
As advocates and defenders, we knew there were significant gaps in representation of youth at detention hearings, but what we didn’t realize was that for more than a decade, 45 percent of all delinquency cases statewide had no defense attorney present at any stage in the case to defend children. We asked Why Don’t Kids Have Lawyers?
To learn more, we embarked on a court-watching project, documented in Kids Without Counsel: Colorado’s Failure to Safeguard Due Process in Juvenile Delinquency Court. Court watchers made 20 visits to 16 courtrooms across 15 judicial districts, collecting information from more than 250 cases in Colorado.
For example, they observed the first-appearance plea-mills where children and parents sat in large groups, were handed plea paperwork and given a choice: They could “resolve” their cases then and there, or come back on another day to apply for a lawyer. The majority of parents we observed were relieved to “get the case over with” and take a plea without a full advisement of the child’s rights, review of the evidence against the child or investigation of the potential collateral consequences of taking a plea (or the obligations parents would be under going forward). Of course, far from getting the case over with, that was just Day 1 of many for these families.
As a result of NJDC’s and CJDC’s attention to the issue, our state legislative champions created a committee that met for six months to review timing of appointment of counsel, specialization of counsel, indigence guidelines and the public defender application process, waiver of counsel and collateral consequences. NJDC provided invaluable technical assistance throughout the process, and we brought in defenders from Louisiana, Massachusetts, North Carolina and Washington to demonstrate examples of juvenile defense specialization and leadership that could change the landscape in juvenile court.
For example, a pilot project in Washington state led by George Yeannakis of Team Child found that providing counsel to youth at first appearances in juvenile court led to a drop in prosecutor filings by 20 percent.
In its final report, Colorado’s legislative committee proposed comprehensive reforms that led to legislation enacted in 2014:
- mandating representation for every child in detention hearings;
- increasing notice to children and families on summonses and tickets of the right to counsel, and information on how to apply for a public defender before their first court date;
- requiring that every child who enters a guilty plea understands the collateral consequences of an adjudication;
- requiring reports from the judiciary (numbers of waivers, detention hearings releases) and the Office of the Public Defender and Alternate Defense Counsel (efforts to specialize, promote and support juvenile defenders) — information that will be submitted and reviewed for the first time by our House and Senate judiciary committees this fall.
We’re proud of our progress on this issue, but it seems likely that young people in other states are also suffering from the same sort of benign neglect of their due process rights given to them by Gault. It turns out that although kids are guaranteed lawyers under the Constitution, we can’t assume that they get them. Not only is that unfair, it can have devastating consequences on the lives of youth and their families. Colorado is proof that advocates and defenders can work together to change that.
It’s fitting, then, that this year youth justice reformers are celebrating the 10th anniversary of the founding of the National Juvenile Justice Network (NJJN), a national organization of 51 state-based advocacy groups like CJDC working in 39 states on behalf of youth in trouble with the law. Every member of NJJN has endorsed nine principles of youth justice reform, and this month — the 48th anniversary of the In re Gault decision — we’re making an effort to underscore the importance of ensuring access to quality counsel.
In 2017, we’ll all be celebrating the 50th anniversary of the landmark Supreme Court decision giving youth the right to counsel. It would be amazing if, two years from now, we could look at the children and youth in our courts and say, yes, they really have got Gault.