A Look Back at the Juvenile Justice System Before There Was Gault

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Sarah Barr

Office of Juvenile Justice and Delinquency Prevention Administrator Robert L. Listenbee talks about the importance of strong juvenile defense on May 16, 2016.

WASHINGTON — The case is a half-century old this week, a landmark decision that merged jurisprudence, common sense and fortunate timing to reshape juvenile justice and give children many of the same due process rights long held by adults charged with crimes.

The U.S. Supreme Court ruling issued on May 15, 1967, In re Gault, found for the first time that juvenile court cases are adversarial criminal proceedings. That gave youthful offenders the right to a defense lawyer, formal rules of criminal procedure and a chance to present their side of the story in an open hearing.

The decision reversed decades of practice in which juvenile judges were said to be benevolent custodians empowered to look after the best interest of children when their parents were unwilling or unable to keep them out of trouble. Sometimes the reality meant locking them behind bars for long stretches without representation or other basic rights.

In re Gault stopped that, and was applauded by attorneys and children’s advocates at the time. It continues to be the subject of debate and review today. The anniversary will be marked by symposiums and forums all week, including events in Washington sponsored by Georgetown University and the National Juvenile Defender Center, among others.

Courtesy of Peter Cahill

Gault in his military uniform. The woman is his attorney, Amelia Lewis.

“It’s important to celebrate Gault, and never forget how important the right to counsel is, not just in court but at every step in the process, even after incarceration if needed,” said Liz Ryan, president of Youth First, an advocacy group focused on ending youth incarceration. “At the same time, I think we have to understand how much more needs to be done, both in terms of access to counsel, and making sure lawyers are trained in juvenile law.”

By today’s standards, the Gault sentence from an Arizona court can seem a horrible case of judicial cruelty. Gerald Francis Gault, 15, was sentenced to spend up to six years in a violent, notorious youth detention center after being accused of making an obscene phone call to a neighbor. An adult charged with a similar crime would have received a $50 fine and up to two months in prison, said David Tanenhaus, law professor and author of “The Constitutional Rights of Children.”

Gault was on probation at the time for being with another teenager who stole a neighbor’s purse, although he was not accused of doing anything wrong in that crime. He never received a trial for the obscene phone call case, and there is no transcript or even a record of what happened during his appearances before Judge Robert E. McGhee.

One certainty is that McGhee questioned the teen without telling him he didn’t have to answer. Gault is said to have confessed to making the calls along with a friend of his. His parents were not present in court or even notified about the charges before he made the confession, according to Supreme Court records, Arizona court files and a legal brief filed on Gault’s behalf.

But a closer look at In re Gault shows the issues it raised weren’t new.  In fact, courts around the country were wrestling with the question of whether the best approach to doing what was best for the child gave states the right to ignore due process.

“The issue that a boy deserves the same level of justice and rights as a man charged with a crime was not invented that year,” said Peter Cahill, an attorney who tried juvenile cases in front of McGhee and who, from 2003 to 2015, served as judge of the same Gila County, Arizona court where Gerald Gault was sentenced.

“There are cases going back to the 1800s saying the same thing. Just a few months earlier the New Jersey Supreme Court ruled that even if a juvenile is not entitled to all his constitutional rights, they are entitled to the essential elements of due process and fair treatment,” Cahill said. “But in Gault, you had so many different elements that came together to even get this to the Supreme Court.”

Gault’s case became a national issue in large part because of his lengthy sentence at the Arizona Industrial School For Boys and what Cahill called a “pissed-off father” who wanted his son home with his two working parents in their Arizona trailer. That passion, according to interviews with legal scholars and a review of records and archival files at the National Archives and at Georgetown University’s Law Center, started a chain of events that changed juvenile justice forever.

And at its center, in an era when men dominated the legal world, were a tenacious woman attorney in Arizona and a brilliant female Holocaust survivor in New York City who shaped the case with grit, empathy and sweat, bringing some of the top legal East Coast minds into the journey.

A constant balancing act

As the Gault decision turns 50, evidence of its impact is visible in the vast network of juvenile courts, judges and attorneys trained to balance the best interests of the child within the Constitution and a web of protections unheard of when Gerald Gault and a friend made that fateful call to a neighbor, identified in court simply as Mrs. Cook.

In the past decade, youth crime, incarceration rates and recidivism rates have all dropped dramatically, bolstered by research and advances in child psychology.

Still, many of the same basic challenges facing juveniles in court remain. Lower-income families make up the bulk of the juvenile court population, judges still wrestle with the best way to get youth on track and advocates work tirelessly to give youth a voice.

Before Gault, juvenile court judges had great leeway to jail or punish children as they saw fit, as long as the measures were intended to get youth on the right path. Constitutional protections never entered into the equation.

Supporters of this approach included Justice Potter Stewart, the Supreme Court’s lone dissenter in an 8-1 decision. He argued — as did the attorneys for Arizona in its legal briefs — that states play a paternal role when children go to court. Since states are not seeking to punish the youth, but to rehabilitate him, constitutional protections and due process not only weren’t necessary, but were a harmful distraction in the pursuit of helping children, Stewart wrote in his dissent.

By the time Gault reached the Supreme Court, the notion of a patriarchal state juvenile justice system was already eroding. Justice Abe Fortas, writing for the court majority, shot it down for good.

“It was a very long opinion, well thought out, and Fortas really relied on social science at the time to push back against this fiction that a state is somehow working to protect the child and not to punish him,” said Tanenhaus, a professor at the University of Nevada at Las Vegas William S. Boyd School of Law. “Fortas took into account the damage that takes place when you incarcerate children, and at the long-term effects on a child.”

Fortas was particularly critical of what he called misguided attempts by juvenile court judges to replace constitutional legal rights with their own opinions as to what was best for a youth. More often than not, Fortas wrote, those attempts fail:

“Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is — to say the least — debatable. And in practice … the results have not been entirely satisfactory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.”

Making the case

Less than six months before Fortas issued the final Gault ruling, the case was argued before the Supreme Court in December 1966. A team of young, talented lawyers, led by American Civil Liberties Union attorney Ken Dorsen, made many of the same arguments Fortas would embrace. Gault’s team had timing on its side, fortunate to be in front of the liberal court of Chief Justice Earl Warren, who had pushed aggressively to expand due process rights at all levels of the court system, Tanenhaus said in a recent interview.

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Another factor working in favor of Gault was the harsh sentence, which was noted in the Supreme Court decision and legal briefs. Dorsen told the court at oral arguments that Gault was still in the youth detention center when the case came before the high court.

But that wasn’t the case, according to Cahill and archived records. The teenager had been released after six difficult and abusive months in lockup, Cahill said, although Dorsen, operating on the East Coast, was never informed of that.

Sitting next to Dorsen at the court arguments was Amelia Lewis, an Arizona attorney who took on the case when Gault’s father Paul, a mechanic, and mother Marjorie brought their last $100 to her and asked for help getting their son Gerald home, according to Cahill and archived case records and notes. The family had nearly run out of appeals and hope.

The dogged Lewis took on the case, enlisting the local ACLU and, eventually, the New York headquarters to help pursue the Gault appeal. She was so sure of her ability to win the case that, in a telling detail of the times, she wrote to the Clerk of the U.S. Supreme Court asking if it was proper for a woman to wear a hat during oral arguments, according to Cahill and archives.

Hats are not allowed, Lewis was told.

Attorney Gertrud Mainzer was not present. Cahill, Tanenhaus and other legal historians consider her the unsung hero whose legal skill greatly aided the case. She first noticed its potential to change juvenile law when it arrived unsolicited at the New York ACLU offices, where she worked as an attorney, Cahill said.

She was instrumental in compiling information needed for the team’s Supreme Court brief, and easily handled and processed large batches of material in the weeks leading up to the hearing.

Mainzer was also a survivor of the notorious Bergen-Belsen concentration camp, which affected her work on Gault. Decades later she discussed her ordeal and its impact on her approach to Gault in a taped interview. She later became a family court judge in New York.

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“Traute [her nickname] was the most interesting and inspiring person I came across in all my research,” Tanenhaus said. “She brought her perspective as a survivor, and she was the only one who could talk about the role and conditions of imprisonment have on children. She could discuss the long-term damage in a way that I think made a difference.”

The Gault case today

The decision in Gault was embraced quickly, immediately changing the way juvenile courts, prosecutors and defense attorneys operated, advocates said. In fact, the change and half-century passage of time means there are few if any lawyers and judges practicing today who have ever experienced a time when children weren’t entitled to legal representation,

But virtually everyone in the field understand and appreciates the importance of Gault, said Ryan, of Youth First. They also understand that it must be a stepping stone to even greater protections for children in court.

“I also think there has to be an understanding that having access to counsel shouldn’t mean a lawyer who is so overwhelmed he can’t adequately defend a case. If a lawyer is handling 600 cases, there can’t be the appropriate level of attention that Gault should guarantee,” Ryan said. “So yes, this anniversary is a good reminder of how far things have come, but it’s very, very important that we keep working to make sure there is more access, more competent access, at every stage of the juvenile court process.”

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