Due Process Rights and Children: Fifty Years of In re Gault – Part One

On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

  • the right to notice of the charges;
  • the right to an attorney;
  • the right to remain silent; and
  • the right to confront and cross-examine witnesses.

While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

Early Juvenile Court Proceedings

Prior to Gault, procedural protections such as notice of the charges, the privilege against self-incrimination, and the right to counsel were generally ignored in juvenile proceedings. Under the doctrine of parens patriae (the state as parent), delinquent juveniles were viewed as wards of the state and were not considered to be on trial. The juvenile court’s goal was not to assign guilt or innocence, but rather to treat or rehabilitate the child. Early reformers thought that applying rigid rules of criminal procedure would only frustrate these benevolent purposes. Id. at 15-16. Thus, the state’s duty to protect the health and welfare of juveniles outweighed the state’s duty to protect their individual liberties.

Children were also denied procedural due process based on the view that, “unlike an adult, [a child] has a right ‘not to liberty but to custody.’” Id. at 17. The state’s role as parens patriae allowed it to step in and provide custody to children whose parents failed to do so. Writing for the majority inGault, Justice Fortas explained that under this view, “[the state] does not deprive the child of any rights, because he has none. It merely provides the ‘custody’ to which the child is entitled.” Id. As a result, the procedural safeguards that protected individual liberty in adult criminal trials were considered to be inapplicable to juveniles. This informality often led to arbitrary and unfair dispositions like the one in Gault’s case.

From Parens Patriae to Due Process

Gerald Gault’s “hearing” occurred in the judge’s chambers and included his parents and two probation officers. The only written notice he received was a note from an officer on plain paper given to his mother three days before the hearing. The complaining witness was not present and did not consult with the judge at any time. Gault allegedly confessed to making a “lewd phone call” when the judge questioned him at his initial hearing without advising him of the right to remain silent or the right to an attorney. Based on his confession, he was committed to a state institution for a maximum of six years, although an adult charged with the same offense would have been subject to a fine of $5.00 to $50.00 and no more than two months in jail. The adult also would have received the benefit of a full hearing on the merits with adequate prior notice and the right to counsel.

The Supreme Court harshly criticized the denial of procedural protections to Gault under the guise that his commitment was not punitive but rather an attempt “to save him from a downward career.” Id. at 26. Despite being called an “industrial school,” the reality is that Gault was committed to an institution where he was subject to confinement for many years. The Court saw no reason why constitutional due process would not apply to such a significant restraint on a child’s liberty, declaring that “the condition of being a boy does not justify a kangaroo court.” Id. at 28.

Citing its recent decision in Kent v. United States, 383 U.S. 541 (1966), the Court reiterated that the state’s paternalistic role in juvenile proceedings was not “an invitation to procedural arbitrariness.”Id. at 30. In Kent, the Court held that the juvenile waiver process (or transfer to adult court) resulted in “such tremendous consequences” as to justify a hearing, effective assistance of counsel, and a statement of reasons. Id. Thus, like the waiver process, a delinquency hearing “must measure up to the essentials of due process and fair treatment.” Id.

Gault established that due process in a delinquency hearing, at a minimum, requires:

  • Notice of Charges. Notice must be given to the juvenile and his or her parents, in writing, of the specific charges or factual allegations sufficiently in advance of the proceeding to allow them a “reasonable opportunity to prepare.” at 33.
  • Right to Counsel. Juveniles and their parents must be notified of the juvenile’s right to counsel and the right to appointed counsel if they cannot afford to hire one. at 41.
  • Right to Remain Silent. A juvenile’s admission may not be used against him or her in a delinquency proceeding absent “clear and unequivocal evidence” that the admission was made with knowledge that the juvenile had the right to remain silent and would not be penalized for exercising this right. at 44.
  •  Right to Confrontation and Cross-Examination. Absent a valid confession, an adjudication of delinquency must be based upon “sworn testimony subjected to the opportunity for cross-examination.” at 57.

 Due Process Rights Beyond Gault

Despite Gault’s mandate, “due process” still hasn’t been clearly defined in juvenile proceedings. Because the decision applies only to adjudication hearings, questions still remain about the scope of due process applicable to other stages of juvenile court. In a previous post, I addressed questions related to a juvenile’s due process rights during dispositional hearings, which are still unclear.

The Supreme Court also left open the question of indigence with respect to the right to counsel. In North Carolina, juveniles are presumed to be indigent, and thus, automatically receive appointed counsel when alleged to be delinquent. G.S. 7B-2000. They also have other statutory due process protections that go beyond Gault’s minimum requirements. G.S. 7B-2405. However, these rights are not guaranteed to juveniles in every state.

Likewise, the Court failed to outline the privilege against self-incrimination for juveniles and allowed states to determine procedures related to a juvenile’s waiver of rights. North Carolina has long provided juveniles with the right to have a parent present during a custodial police interrogation.G.S. 7B-2101. However, courts often find that juveniles were not “in custody” during police questioning, and thus, were not entitled to have a parent present. This remains true even though the Court held in J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), that officers must apply a “reasonable child” standard when determining whether they must administer warnings to juveniles.

Recent Reform Efforts in North Carolina

In 2015, the General Assembly passed House Bill 879 which was intended to improve consistency and enhance due process in several juvenile court proceedings. For example, it created new G.S. 7B-2408.5 (modeled after G.S. 15A-977) to establish a procedure for filing motions to suppress in juvenile court. Prior to the enactment of this statute, there was no uniformity in the way juvenile courts handled motions to suppress. Some courts followed the established adult criminal procedure, while others created local solutions with varying degrees of formality.

Similarly, a prosecutor’s ability to dismiss a juvenile petition, which was not addressed in the Juvenile Code, varied widely. Some courts only allowed dismissals by order of the court, while others gave prosecutors some discretion to dismiss the petition if certain conditions were met. Under new G.S. 7B-2404(b), it is clear that prosecutors may voluntarily dismiss a petition with or without leave, similar to their authority in criminal court. These and other procedural reforms promote uniformity and fairness in the juvenile process, consistent with Gault’s holding. (See thispost for a full summary of HB 879).

As the 50th anniversary of Gault approaches, the National Juvenile Defender Center is commemorating the decision through its “Gault at 50” campaign which urges juvenile defenders and other juvenile advocates to recommit themselves to protecting the rights of children. The campaign recognizes that while Gault was a huge step forward in seeking justice for juveniles, more work is necessary. Stay tuned for additional posts on Gault and how its promise is still being fulfilled.

*In collaboration with the Professor LaToya Powell at the UNC School of Government, this post is the first in a series of posts related to In re Gault and its impact on due process rights for juveniles. The blog posts in this series will be posted to both the On the Civil Side Blog and the Juvenile Defender Blog. OJD Summer Intern Evan Lee contributed to the research and writing of the blog.

 

Court of Appeals Delinquency Opinions

Three recent cases decided by the Court of Appeals:

Continuances

 In the matter of A.S., 2016 N.C. App. LEXIS 750 (unpublished opinion)

Rule(s):

  • “[N]o particular procedure is mandated” for a hearing on the defendant’s capacity to stand trial.
  • “’The statutory hearing requirement appears to be satisfied as long as it appears from the record that the defendant, upon making the motion, is provided an opportunity to present any and all evidence he or she is prepared to present.’” P.6
  • Evidence must be presented that the defendant was or likely was incompetent, not a request by the attorney to consider the issue of competency further.

http://appellate.nccourts.org/opinions/?c=2&pdf=33608

Sufficiency of the Evidence

 In the matter of A.O.A., 2016 N.C. App. LEXIS 744 (unpublished opinion)

Rule(s):

  • “To sustain a conviction of possession of drug paraphernalia, the State must demonstrate that the defendant: (1) knowingly, (2) possessed drug paraphernalia, and (3) used or intended to use that paraphernalia in connection with a controlled substance.” P.6.

http://appellate.nccourts.org/opinions/?c=2&pdf=33909

Ineffective Assistance of Counsel

 In the matter of G.R., 2016 N.C. App. LEXIS 740 (unpublished opinion)

Rule(s):

  • A claim of ineffective assistance of counsel which is uncertain to fall below an objective standard of reasonableness, but raises enough questions on appeal that further investigation is required, will be dismissed without prejudice to file a motion for appropriate relief with the lower court.

http://appellate.nccourts.org/opinions/?c=2&pdf=33653

New Policy Recommendations by the National Juvenile Justice Network

From Sarah Breyer, Executive Director of the National Juvenile Justice Network:

August 3, 2016

New Policy Recommendations!

Every year, NJJN members draft and vote on policy platforms on key issues in youth justice. They’re meant to guide and influence the creation of policy and legislation.

This year, we produced a new policy platform on confidentiality (along with a related document with detailed recommendations to ensure youth records are kept confidential), and we revisited and updated our policy platform on sex offense registries and related laws. Click here to see them.

 

 

 

 

Annual Conference Registration Ends Thursday, August 4!

Quick reminder that registration for the Annual Juvenile Defender Conference Ends Thursday, August 4th.

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The UNC School of Government has announced that registration for the 2016 Juvenile Defender Conference is now open and available at https://www.sog.unc.edu/courses/juvenile-defender-conference (Juvenile Defender Conference). The conference is cosponsored by the School of Government and the Office of Indigent Defense Services, and offers six hours of CLE credit—including one hour of ethics/professional responsibility—and feature instructors from across the state. The agenda is posted on the conference webpage, shown above.

JUVENILE DEFENDER CONFERENCE (August 12, 2016)

The Juvenile Defender Conference provides training for attorneys who represent children in delinquency proceedings. This year’s conference will focus on defending sex cases. It will include sessions on trial strategies, sex offender specific evaluations, the impact of the Sex Offender Notification Act (SORNA), and expunctions and confidentiality. A one hour ethics session is included as well.

Participants: The Juvenile Defender Conference is open to public defenders, appellate defenders, and other juvenile defenders.

Location, Dates, and Times: The conferenceswill be held Friday, August 12, at the School of Government on the UNC-Chapel Hill campus. Sign-in is 8:00 to 8:45 a.m. each day.

Registration: To register, as well as to find directions, hotel information, and other program information (including our cancellation and refund policy), visit:

The registration deadline for the conference is 5:00 p.m. on Thursday, August 4.  There is no onsite registration.

Fee: Thanks to support from IDS, there is no fee for IDS state employees. The registration fee for private assigned counsel is $155, which includes all materials, parking, breaks, and lunch.

Credit: Each program will offer approximately six hours of continuing legal education (CLE) credit, including one hour of ethics/professional responsibility.  The Juvenile Defender Conference qualifies for NC State Bar criminal law specialization credit.

Additional Information: We look forward to seeing you in August.  If you have any questions or would like additional information, please contact Danielle Rivenbark—Program Manager—at daniellp@sog.unc.edu / 919.843.8981.  If you have questions about the course content please contact Austine Long – Program Attorney – atalong@sog.unc.edu / 919.962.9594.