Introduction to the right to counsel for children in juvenile courts

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Juvenile court 1910You may be wondering how we’ve spent all of this time discussing the constitutional guarantee of counsel in criminal trials for anyone who cannot afford it, and not once have we even mentioned of the rights of children. Well, that’s for very good reason. You see, under our state and federal laws, children are incapable of committing crimes. Instead, they commit “delinquent acts.” You could be forgiven if this seems like a distinction without a difference. In the American legal system, children are held apart from adults; they are not exposed to trials in criminal courts, and thus the potentially severe punishments that might result from a guilty verdict rendered by a jury are to be reserved for adults. The concept of justice, for children, is radically different.[1]

It wasn’t always this way. Early on, criminal procedure in our state courts was largely based on English common law, which for centuries held that children under the age of seven were incapable of possessing criminal intent. Because a six-year-old could not even understand the concept of a crime, any bad thing he might do must be an accident. But, upon reaching the age of seven, children were treated just like adults. They could be arrested, tried, and punished for their actions. They could be sentenced to lengthy prison terms or even death.

To our more modern minds, the legal separation of child from adult being cemented at the age of seven seems ludicrous. Our state and federal laws over the years have demonstrated that young adults are not entirely worthy of being treated as . . . well . . . adults. Individuals under 18 years of age, after all, cannot serve on juries, vote, drink, or smoke because, as the U.S. Supreme Court has so eloquently put it, “the legislatures have wisely decided that individuals of a certain age aren’t responsible enough.” The Supreme Court recently detailed the scientific gap that differentiates children from adults, in its 2005 decision in Roper v. Simmons prohibiting the death penalty from being applied to anyone under 18, pointing to the “underdeveloped sense of responsibility” documented in numerous studies of children, their susceptibility to negative influences and peer pressure, and the “transitory nature of their personality traits” as evidence.

The founders of the nation’s first juvenile court systems did not have this exhaustive body of scientific analysis available to them well over a century ago, but nevertheless they correctly recognized that children are indeed different, and should therefore be dealt with by the courts in a different manner from adults. By the later stages of the 19th Century, many advocates had become disgusted that more and more children were serving lengthy sentences along with hardened adult criminals in our state prisons.

To those early reformers, children weren’t just developmentally different from adults. To them, the child is naturally good. He can be shepherded away from doing bad things, and society’s role in all of this is to intervene before it’s too late. Children, therefore, should not be punished; they should be treated and rehabilitated. This required a fundamental shift in focus – the court should be concerned with the juvenile offender, rather than the offense. But the punitive nature of adult criminal procedure was clearly at odds with this notion. Therefore, a new, more clinical style of court system was needed, entirely distinct from the criminal courts, complete with its own set of rules.

Illinois was the first state to adopt the juvenile court model in 1899, but from there it quickly spread to every state in the Union. The new juvenile court discarded questions of guilt and innocence inherent in the adversarial process of our criminal courts, and instead the state was to act in the best interests of the child. Parens patriae, it was called; a Latin phrase that translates to: “parent of the nation.”

Before, when a child was accused of crime and tried before a judge and jury, the court was required to afford the child the same procedural rights as it would to an adult defendant. The new juvenile courts did away with procedural rights for children altogether. In fact (the argument went) children have no rights. A child, after all, has spent all of his days being in the custody of some caring adult. He is told to go to school, do his chores, and go to bed. The custody and care his parents afford him is all that he is entitled to.[2] If the child commits a delinquent act, his parents have defaulted in their custodial obligations, and the state may intervene on the child’s behalf. The state becomes the parent: parens patriae.

In a criminal case, however, there are all sorts of procedural requirements and restrictions placed upon the state whenever it tries to take away a person’s liberty. But, because the juvenile courts were considered civil and benevolent in nature, rather than criminal and punitive, those same procedural safeguards for adults had no application in delinquency proceedings. Among the safeguards children lost when the juvenile courts were created, several are found in the Bill of Rights, such as: being entitled to bail; the right to be notified of the charges; the right to confrontation and cross-examination; trial by jury; privilege against self-incrimination; and, of course, the right to counsel.[3]

Although the creation of the juvenile court system was well-intentioned, the results were mixed at best.[4] Children would be taken into custody of the state, and parents frequently would be left un-notified for days of their child’s arrest. In determining whether a child should be detained or released back into the custody of his parents, juvenile court proceedings carried such an air of informality that they were frequently mistaken as being completely arbitrary. And, given the rehabilitative theory at the root of the juvenile court model, the state often failed its duty to serve effectively as “parent of the nation” – the constraints of funding and bureaucracy alike had left children in state custody without access to the essential social services promised to them.

By 1966, the U.S. Supreme Court famously expressed concern that, under the juvenile court model, children were receiving “the worst of both worlds.” They get “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Well, if that was the case, then what was the point of the juvenile courts in the first place? As a result, in state after state, the juvenile court model as a whole was directly challenged in state and federal courts as fundamentally unconstitutional. But each time, it survived.

So, rather than attacking their very existence, the legal question shifted toward the process of the juvenile courts: could the nation continue to justify affording children less protection than was given adults in criminal trials? Next, we see how the Supreme Court addressed this question in the 1966 case of Kent v. United States, which served as a prelude to the Court eventually establishing the right to counsel for children in all delinquency matters.

(Image of juvenile court proceedings c. 1910, via Teacher Community.)


[1] For the history of the juvenile justice system in America, we relied upon the U.S. Supreme Court’s published opinions in Kent v. United States, 383 U.S. 541 (1966) and In re Gault, 387 U.S. 1 (1967), along with a report of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice: A Century of Change (Juvenile Justice Bulletin, December 1999). See also, American Bar Association, The History of Juvenile Justice.

[2] In re Gault, 387 U.S. 1 (1967). “The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right ‘not to liberty, but to custody.’”

[3] While the question of whether the Fourteenth Amendment made the federal Bill of Rights obligatory upon the states was still outstanding as of the beginning of the 20th Century (when these juvenile courts were first established), each state government had already established its own set of due process restrictions under state statute, including the right to jury trial, bail, freedom from self-incrimination, and so forth.

[4] Kent v. United States, 383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967).