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Juvenile offenders wait to go to the gym inside the Lucas County Juvenile Detention Center in Toledo, Ohio.

Give Juveniles Their Due

Fifty years after a landmark Supreme Court case, juvenile courts still lack due process.

During the summer of 1964, 15-year-old Gerald Gault was accused of making obscene phone calls to a neighbor. Gault, who was on probation at the time, was quickly arrested and put in a juvenile detention center without his parents ever being notified. At “trial,” Gault was questioned by the judge in the judge’s chambers without a lawyer. And despite the fact that his neighbor never testified, Gault was ultimately found delinquent and sentenced to serve six years in a state industrial school.

Gault later appealed his case all the way up to the Supreme Court. The Court, ruling in 1967, rightly found that the trial violated Gault’s right to due process, and its decision guaranteed juveniles a few key rights: the right to counsel, notice, confrontation, and privilege against self-incrimination. Further, the Court dismissed the argument that process would impede the ability of juvenile courts to consider each child’s unique personal history.

Sadly, 50 years after the ruling in In re Gault et al. juvenile courtrooms around the country remain woefully inept at ensuring due process. Our nation’s juvenile courts still lack procedure and formality. Though their informal processes may have developed with the intention of being kid-friendly, juvenile courts are also so focused on “fixing troubled youth” that they forget their primary function is to determine whether an accused child is delinquent or not.

What results is an environment where boundaries are blurred and children accused of crimes are made to believe that everyone in the courtroom is there to “help” them when, in reality, defense attorneys are the only parties obligated to advocate on their behalf.

As a public defender who represents individuals under 18 years old, I experience the persistent informality of the juvenile justice system every time I go to court and the problems that arise from it. For example, I once represented a 16-year-old who was in the custody of the Florida Department of Child and Family Services and facing several charges, including battery on a DCF employee. After years of physical abuse by his parents, he had been diagnosed with post-traumatic stress disorder. I decided to present a self-defense defense based, in part, on his history of abuse.

During the boy’s testimony about the abuse he suffered, the judge asked both myself and the prosecutor to approach the bench. The judge cautioned me against eliciting the testimony because it might “re-victimize” my client. I wanted to scream that the prosecution of my client was what was victimizing him, not my defense. Instead, I assured the judge that I carefully prepared the case with my client and argued that the information was part of his defense. The judge ended the exchange with an offhand, “but I’m not telling you how to put on your case.”

That kind of behavior is the product of an informal system where every party sees itself as helping the accused. The judge may not have realized it, but he was inappropriately intervening in a trial where he had only two duties—to impartially assess the admissible facts and to apply the applicable law. And though he probably had the best intentions, his intervention flew in the face of my client’s right to due process.

In the majority opinion for Gault, Justice Abe Fortas wrote, "Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” Fortas also offered a biting critique of the juvenile justice system, saying that “the condition of being a boy does not justify a kangaroo court.”

There is this myth that juvenile courts will lose their kid-friendly characteristics if they become more formal. The Gault court knew, however, that formality doesn’t force judges to be cold or treat children like adults. Rather, it ensures that the presumption of innocence is preserved and that proper procedures are followed by holding all parties accountable for litigating material issues. Half a century after the Gault ruling, it’s long past time we make good on its promise.

First, in order to bring much-needed formality to juvenile courts, judges must limit who is permitted to speak during proceedings and to what extent. The current roundtable atmosphere where parents, guardians, relatives, probation officers, and any other interested parties can speak out whenever they want doesn't aid the process of determining whether an accused child is delinquent.

As with adult court, the appropriate time to consider that testimony is during a sentencing hearing. It is a fairer procedure, as it allows the defense to prepare for what the witnesses will say and for the accused juvenile to share his or her perspective with the judge. Moreover, it would limit the amount of information the judge is exposed to about the accused before that same judge is expected to fairly and impartially assess the facts presented at trial.

Second, judges must also be wary of presenting adversarial parties in a courtroom as a team. Accused children must understand the realities of the legal process they are subject to. Moreover, that process must be applied consistently for each accused child. A systematic approach would ensure that each child gets a fair hearing and still allows judges to consider the unique circumstances of his or her personal history when determining an appropriate rehabilitative sentence.

Children, especially indigent children, are some of the most vulnerable people in our society. Establishing more formal procedures in our juvenile courts will ensure that Gault’s legacy is enacted and accused children’s rights are protected.

Prya Murad is an assistant public defender at the Office of the Public Defender, 15th Judicial Circuit in Palm Beach County, Fla. Murad has been a public defender since 2015 and has represented clients in misdemeanor, juvenile, and felony courts.