The Supreme Court and Juvenile Justice

JUDITH S. KAYE∗

For so many things I thank the Historical Society profoundly, but place right at the top of my list the delightful opportunity your invitation has given me to read the prior Annual Lectures—interesting, exciting, thoroughly intimidating—touching on the Court’s history, its cases, its people, even its wives (the subject of Justice Ginsburg’s 1999 lecture). Wholly apart from the Society’smany initiatives to preserve the Court’shistory and increase public awareness of its contributions to our nation, the now nearly three dozen Annual Lectures alone offer an amazing insight into this great institution. Justice opened his 2008 of children, a subject that dominated my many lecture by explaining that he chose his sleepless nights as Chief Judge of the State of subject—the origin of the baseball antitrust New York, where—like state courts through- exemption—on a dark, cold December day, out the country—we have a staggeringly high when thoughts of spring brought to mind docket of Family Court cases, touching ev- thoughts of baseball. Hence he treated us to ery aspect of children’s lives. Just now in a session with our Great American Pastime, New York (the subject of several scathing re- centered on the Court’s 1922 decision, Fed- ports on our juvenile detention facilities) and eral Baseball Club of Baltimore v. National in Pennsylvania (the site of a juvenile judge League of Professional Baseball Clubs.1 corruption scandal)—indeed, throughout the I too made my choice of subject on a dark, nation—attention is riveted on juveniles, chil- cold December day, contemplating this mag- dren accused of what for adults might be crimi- nificent spring afternoon, when my favorite nal conduct. How do we balance today’svexing sport—ice hockey—would soon be packing crime and incarceration statistics with mod- its bags for the season. (And wouldn’t you ern developmental science regarding troubled know, the New York Rangers were out of it young people? After considerable reflection, again!) My thoughts thus turned to other are- my initial plan to address children generally nas and, not surprisingly, settled on the subject thus narrowed a bit to juveniles, due process, THE SUPREME COURT AND JUVENILE JUSTICE 63 and the Supreme Court’s watershed decision home at about six o’clock, Gerald was not of May 15, 1967, .2 there. His older brother was sent to look for Most Americans know what “Miranda” him at the trailer home of the Lewis family, stands for, even if they’re not sure about the and he learned that Gerald was in custody. origin of custodial warnings. Every law stu- Gerald’smother and brother went to the Deten- dent recognizes Dollree Mapp, John Terry, and tion Home, where the deputy probation officer, as important figures in Charles Flagg, who was also superintendent the Supreme Court’s criminal procedure cases of the Detention Home, told Mrs. Gault “why of the 1960s. Outside the juvenile-justice com- Jerry was there,” and that a hearing would be munity, however, how many Americans know held in at three o’clock the fol- the name Gerald Gault? Few, I suspect, are lowing day. aware that the appeal on young Gerald’s be- The next day, Officer Flagg filed a peti- half struck at the heart of the assumed benev- tion, supported by his affidavit, without serv- olence of our juvenile courts, agencies, and ing the Gaults. Indeed, they did not see the peti- institutions, and in so doing shook the roots of tion until a habeas corpus hearing two months the juvenile-justice system nationwide. Who is later. The petition recited only that Gerald was Gerald Gault, and what circumstances led him a delinquent minor under the age of eighteen to the Supreme Court of the ? in need of the protection of the court, and it sought a hearing and order regarding his care and custody. There was no hint of what he I. The Facts supposedly had done wrong. On June 8, 1964, at about 10 a.m., Gerald Also on June 9, Gerald, his mother, Francis Gault and a friend, Ronald Lewis, his older brother, and Probation Officers were taken into custody by the Sheriff of Gila Flagg and Henderson appeared before Juve- County, . At the time of his arrest, nile Court Judge Robert McGhee in cham- Gerald Gault was fifteen years old and serv- bers. Gerald’s father was not present, as he ing six months’ probation for being in the was at work out of the city. Nor was Mrs. company of a boy who stole a wallet from a Cook, the complainant, at the hearing. No one woman’s purse. Three years later, in his opin- was sworn, and no record of any sort was ion for a divided Court, Justice made. Information about the June 9 hearing, described the events that followed. In reciting as well as a June 15 hearing, was drawn en- the facts and holding, I barely resist the temp- tirely from the testimony of the Juvenile Court tation to read his words verbatim—the story Judge, Mr. and Mrs. Gault, and Officer Flagg as told is fascinating. at the habeas corpus proceeding conducted two The June 8th arrest resulted from a tele- months later. phone complaint by a neighbor of the boys, It appears that, at the June 9 hear- Mrs. Cook, following her receipt of a lewd or ing, Judge McGhee had questioned Gerald indecent phone call. In Justice Fortas’s words, about the telephone call, but there was dis- “the remarks or questions put to [Mrs. Cook] agreement as to just what he had said that were of the irritatingly offensive, adolescent, day. His mother later testified that Ger- sex variety.” ald said he only dialed Mrs. Cook’s num- When the sheriff picked up Gerald Gault ber and handed the telephone to his friend, at home and took him to the local Children’s Ronald; Officer Flagg testified that Gerald Detention Home, his mother and father were had admitted making the lewd remarks, but both at work. The sheriff left no notice that Judge McGhee himself recalled that Gerald their son had been arrested and took no other “admitted making one of these [lewd] state- steps to tell them. When his mother arrived ments.” Whatever Gerald’s actual testimony 64 JOURNAL OF SUPREME COURT HISTORY on June 9, Judge McGhee ended the hearing with the Supreme Court of Arizona and re- by saying that he would think about it. ferred to the Superior Court for hearing. Remarkably, Gerald was taken back to the At the Superior Court hearing on the pe- Detention Home, rather than being sent home tition, Judge McGhee was vigorously cross- with his family, and was detained until June 11 examined as to the basis for his actions. He or 12, when he was driven home. The record testified that he had taken into account the does not disclose why he was kept in the De- fact that Gerald was on probation. Asked un- tention Home or why he was released. On the der what section of the Code he had found the day of his release, Mrs. Gault received a note boy delinquent, Judge McGhee answered that signed by Officer Flagg, saying “Mrs. Gault: Gerald came within the Arizona delinquency Judge McGhee has set Monday June 15, 1964 statute providing that a “delinquent child” in- at 11:00 A.M. as the date and time for fur- cludes one “who has violated a law of the state ther Hearings on Gerald’sdelinquency.” Twice or an ordinance or regulation of a political sub- in his writing—once in the facts, once in the division thereof”—here specifically, a section analysis—Justice Fortas observed that the of- of the Arizona Criminal Code providing that ficer’s note was written on plain paper, not a person is guilty of a misdemeanor who “in official letterhead. the presence or hearing of any woman or child ...uses vulgar, abusive or obscene language.” Quite a crime! The prescribed penalty, for an June 15 Hearing adult, was $5 to $50, or imprisonment for not On June 15, Gerald, his parents, Ronald more than two months. For Gerald, a juvenile, Lewis and his father, and Officers Flagg and the prescribed penalty turned out to be roughly Henderson appeared before Judge McGhee. six years. Witnesses at the later habeas corpus proceed- Judge McGhee stated that he acted as ing again differed in their recollections of what well under a provision of Arizona’s delin- Gerald’s testimony had been at the June 15 quency statute defining a “delinquent child” hearing. According to Judge McGhee, while as one who is “habitually involved in immoral “there was some admission of some of the lewd matters.” As to the basis for his conclusion statements, he didn’t admit any of the more se- that Gerald was habitually involved in im- rious lewd statements.” Again, Mrs. Cook did moral matters, Judge McGhee testified that, not attend. Mrs. Gault’srequest that Mrs. Cook two years earlier, Gerald had been the subject be present was denied. Imagine: throughout of a “referral” for stealing a baseball glove this entire course of events, the only person from another boy and lying to the Police De- who actually spoke to Mrs. Cook was Officer partment. He recalled there had been no hear- Flagg—just once, over the telephone. ing, and no accusation relating to this incident, Also at the June 15 hearing, the proba- due to lack of material foundation. The Judge tion officer filed a “referral” report, again not also testified that Gerald had admitted making disclosed to Gerald or his parents. The report other nuisance phone calls in the past that were listed the charge as “Lewd Phone Calls.” At “silly calls, or funny calls, or something like the conclusion of the hearing, Judge McGhee that.” The Superior Court dismissed the writ of committed fifteen-year-old Gerald as a juve- habeas corpus, and the Arizona supreme court nile delinquent to the State Industrial School affirmed. “for the period of his minority [that is, un- til 21—nearly six years], unless sooner dis- charged by due process of law.” Arizona law Supreme Court Appeal did not permit an appeal in juvenile cases. A Appellants’ jurisdictional statement and brief petition for writ of habeas corpus was filed to the Supreme Court of the United States THE SUPREME COURT AND JUVENILE JUSTICE 65 urged the Court to hold the Juvenile Code of themselves. Rather, children formed the back- Arizona invalid because, contrary to the Due drop for the Court’s consideration of compet- Process Clause of the Fourteenth Amendment, ing claims regarding their welfare brought by the Arizona statute allowed a juvenile to be opposing entities such as Congress, the states, taken from the custody of his parents and com- parents, and schools. There were, for exam- mitted to a state institution in which basic due- ple, child labor law cases pitting the federal process rights were denied—namely, the right government against the states, and challenges to notice of charges, to counsel, to confronta- to state authority requiring that schoolchil- tion and cross-examination; the right against dren recite the Pledge of Allegiance, or pro- self-incrimination; the right to a transcript of hibiting teaching foreign languages in elemen- the proceedings; and the right to appellate re- tary school, or mandating public education for view. children not meeting one of several explicit exemptions. Thus, through the mid-twentieth century, Arizona’s Answer when children appeared at all in Supreme The State of Arizona answered that it would Court cases, more often than not they tended be the first to agree that a juvenile is entitled to be the context for adjudication of the rights to due process of law in juvenile court, but ar- of others, not their own. Until 1962, the Court gued that the essential question posed is “what had not passed on the legality of code proce- constitutes due process in such a proceeding.”3 dures or police practices respecting juveniles. The state urged that one must be mindful of the Gault and its immediate predecessors put the nature of the juvenile proceeding and its de- rights of juveniles center stage. Moreover, it vout attempt to avoid an adversarial approach was a time in Supreme Court history of un- to juvenile problems. Arizona maintained that precedented procedural reform of federal and in the spirit of the traditional juvenile court, its state criminal-justice systems. Debate raged Juvenile Code was framed precisely to protect about incorporation of the Bill of Rights into a child of tender years and provide the child the Fourteenth Amendment, about the scope of due process of law. that amendment’sdue-process protections, and Forty-six years later, it is difficult to un- about the standard of review of due-process derstand the legal mind-set that could sub- challenges to state action. While there was ject a child and his parents to the state’s wide agreement that the words “due process of utterly unfettered discretion—benevolent or law” applied to the adjudication of juveniles— not—resulting in Gerald’s case in a penalty even the Arizona supreme court agreed that of nearly six years for commission of a minor Gerald Gault had a right to due process—what offense while on probation for an accessorial, did that encompass? nonviolent act. Indeed, in affirming the Supe- rior Court, the Arizona supreme court pointed out that Arizona’s Juvenile Code would even Answering the Question have allowed Judge McGhee to commit In Gallegos v. Colorado,5 just five years before Gerald until age twenty-one without any fur- Gault, in setting aside a youngster’s confes- ther showing of delinquency during his six- sion, Justice William Douglas answered that month probation period if he felt that served the only guide to the meaning of due pro- Gerald’swelfare and the interests of the state.4 cess was the “totality of circumstances,” in- In preparing this lecture, I came to under- cluding the youth of the petitioner, long de- stand that, for most of its history leading up to tention, failure to send for his parents, failure Gault, the Supreme Court was not often asked immediately to bring him before a juvenile to consider the constitutional rights of children court judge, and failure to see to it that he 66 JOURNAL OF SUPREME COURT HISTORY

Gerald Gault, whose delinquency case rose to the Supreme Court in 1967 and became the basis for a landmark decision, is shown here being trained in automotive work. had the advice of a lawyer or friend.6 Gallegos mental state) and Clarence Earl Gideon in the was followed by Kent v. United States,7 aDis- Supreme Court’smonumental right-to-counsel trict of Columbia juvenile proceeding in which case.9 Justice Fortas speculated in his writing for the five-Justice majority that juveniles faced with incarceration yet unprotected by the con- II. The Court’s Decision stitutional guarantees afforded adults might “receive the worst of both worlds.”8 A proce- On May 15, 1967, the Court announced its dural error with respect to waiver of jurisdic- decision in favor of the Gaults. Justice For- tion, however, required remand and prevented tas wrote for the Court—passionately and at the Court’sgiving its full attention to the issue. length—joined by Chief Justice Earl War- The stage thus was set for In re Gault— ren and Justices Douglas, Tom Clark, and the Supreme Court’s first full-fledged foray William Brennan. Justices and into juvenile justice, and for Justice Fortas in filed separate concurrences. Jus- particular. He not only had tilled the soil in tice Harlan concurred in part his Kent opinion but also as a lawyer some and dissented in part. Justice years earlier had successfully represented both was the sole dissenter; he would have dis- Monte Durham in the D.C. Circuit’s overturn missed the appeal. of the McNaghten Rule (thus allowing for ev- I was struck, reading Justice Stephen idence of the science regarding defendant’s Breyer’s2009 Annual Lecture on Dred Scott,10 THE SUPREME COURT AND JUVENILE JUSTICE 67 by his reference to the communicative power of tion of adult procedures and penalties to chil- a single word in the Court’s extensive writings dren, who could be given long prison sentences in that case. The word Justice Breyer high- and mixed in jails with hardened criminals. lighted from Dred Scott was “calm,” as used They were convinced that society’s role was by Justice Benjamin Curtis in his dissent from not simply to ascertain whether the child was the now-infamous Taney writing concluding guilty or innocent but rather how the child that “a negro, whose ancestors were imported could be treated and rehabilitated, that ju- into the country and sold as slaves” is not en- venile court procedures—from apprehension titled to sue as a citizen in the courts of the through institutionalization—should be clini- United States.11 As Justice Curtis wrote, “a cal, not punitive. They sought to achieve these calm comparison” of the words of the Dec- ends, without “constitutional grief,” by in- laration of Independence with the individual sisting that juvenile court proceedings were acts and opinions of its authors would have not adversarial because the state proceeded shown the error, the utter repugnancy, of the in parens patriae—in Justice Fortas’s view a majority’s conclusion.12 murky phrase, its historic credentials of dubi- For me, the analogy is to Justice Fortas’s ous relevance, with no presence whatever in description of the Arizona proceedings as a the history of criminal jurisprudence.15 “kangaroo court”13 —in essence, an out-and- out mockery of justice, the ultimate condem- nation of a judicial proceeding. Even more Civil Proceedings poignantly, he wrote: “The condition of being a The reformers, moreover, had argued for the boy does not justify a kangaroo court.” I think right of the state, as parens patriae, to deny of the high drama of those words, and I think a child procedural rights, asserting that, un- of Justice Stewart’s contrasting characteriza- like an adult, a child had a right “not to lib- tion, in dissent, of Gault as an “obscure”14 erty, but to custody.”16 Thus, when a child Arizona case that was better left to the state’s was delinquent, the state could intervene— benevolent discretion. Could there be a starker not to deprive the child of any rights, because contrast—one side believing that in this case the child had none, but to provide the “cus- Gerald Gault had received all the process that tody” to which the child was entitled. For this was due him, the other labeling the proceeding reason, juvenile proceedings were considered a downright mockery of justice. That contrast, civil, not criminal, and not subject to require- for me, captures the essence of the tension, the ments normally constraining a state seeking to dilemma, that persists to this very day: pre- deprive a person of liberty. cisely what is encompassed by “due process” Noting that the highest motives and most in the adjudication of juveniles? Where, and enlightened impulses motivated this peculiar how, and by whom, are the lines to be drawn? system for juveniles—a system unknown to our law in any comparable context—Justice Fortas pronounced its constitutional and the- Opening Thoughts oretical underpinnings debatable. However Justice Fortas began his opinion for the Court benevolently motivated, unbridled discretion with the observation that, from the inception was frequently a poor substitute for princi- of specialized juvenile courts in 1899, juris- ple and procedure. Refusing to succumb to dictions had insisted upon wide differences either sentiment or folklore, Justice Fortas de- in the procedural rights accorded adults and clined to credit the claim that juveniles ben- juveniles, and he recounted at length the his- efited from special procedures applicable to tory underlying those differences. The early them that offset their denial of normal due reformers were appalled about the applica- process. In his view, due-process standards, 68 JOURNAL OF SUPREME COURT HISTORY

Pictured are the members of the Court who heard the Gault case. Justice Abe Fortas (standing at right) wrote the majority opinion, which recognized the rights of juveniles but was careful not to extend to them all the rights of adult defendants.

intelligently administered, would not compel due process, even the juvenile who had vio- the states to abandon or displace the substan- lated the law might feel unfairly treated and tive benefits of the juvenile process. therefore resist rehabilitation. Justice Fortas next used statistics to dis- After reviewing the relevant statistics, pute the argument that the absence of con- Justice Fortas turned to the reality underly- stitutional protections reduced crime, or that ing Gerald Gault’s appeal. A boy is charged the juvenile system, functioning free of con- with misconduct and committed to an institu- stitutional inhibitions as it had largely done, tion where he may be restrained for years. “It is was effective to reduce crime or rehabilitate of no constitutional consequence—and of lim- offenders. He saw no reason why, consistent ited practical meaning—that the institution ... with due process, a state could not continue is called an Industrial School” when it is in ac- to provide and improve the confidentiality of tuality “an institution of confinement in which records of police contacts and court action the child is incarcerated.”17 The child’s world relating to juveniles where appropriate. He becomes “‘a building with whitewashed walls, also cited recent studies suggesting that the regimented routine and institutional hours. ...’ appearance and actuality of fairness, impar- Instead of mother and father and sisters and tiality, and orderliness—in short, the essen- brothers and friends and classmates, his world tials of due process—would prove the more is peopled by guards, custodians, state em- therapeutic practice for court-involved youth. ployees and ‘delinquents’ confined with him Indeed, one study had concluded that where for anything from waywardness to rape and stern discipline followed procedural laxness, homicide.”18 Given this reality, Justice For- the contrast could harm a child, who might tas continued, “it would be extraordinary if feel deceived or enticed. Without appropriate our Constitution did not require the procedural THE SUPREME COURT AND JUVENILE JUSTICE 69 regularity and the exercise of care implied in juvenile court’s conclusion could burden the the phrase ‘due process.’ Under our Constitu- machinery for habeas corpus, saddle the re- tion,” he declared, in words that have resonated viewing court with the need for record recon- through the decades, “the condition of being a struction, and impose upon the juvenile judge boy does not justify a kangaroo court.”19 the unseemly duty of testifying under cross- Justice Fortas further observed that where, examination concerning the hearings before as here, the juvenile has a home and a family, him.22 The message to the states is clear: Do the judge should have made a careful inquiry it anyway. as to the possibility that the boy could be disci- All in all, Justice Fortas’swriting was what plined and dealt with by them, despite previous the Pennsylvania supreme court later called transgressions. Instead, the judge here focused “a sweeping rationale and a carefully tailored on points that were little different from those holding.”23 Significantly, Justice Fortas did relevant to determining any violation of a penal not explicitly join the debate regarding the ex- statute. Indeed, “the essential difference be- tent to which appellants’ due-process claims tween Gerald’scase and a normal criminal case were cognizable against the state of Arizona [was] that safeguards available to adults were by virtue of the Fourteenth Amendment’s in- discarded in Gerald’s case[, yet] the summary corporation of the Bill of Rights, though his procedure and long commitment was possible opinion for the Court appears to adopt “selec- because Gerald was 15 years of age instead of tive incorporation.” over 18.”20 At the other extreme, Justice Stewart, in dissenting, criticized the Court for using this “obscure” Arizona case to impose criminal Defined Rights trial restrictions upon thousands of juvenile Despite the pitch of his writing, Justice Fortas codes and juvenile courts throughout the na- fashioned a holding that recognized for juve- tion.24 Justice Stewart saw the decision as both niles only some, notably not all, of the rights of unsound as a matter of constitutional law and adult defendants. He concluded, first, that due unwise as a matter of judicial policy. The Ari- process of law required notice of the proceed- zona courts had found that Gerald Gault’s par- ing equal to that deemed constitutionally ad- ents knew of their right to counsel and right equate for adults. Second, in proceedings that to subpoena, cross-examine, and confront wit- might result in commitment to an institution nesses; that they knew the possible conse- in which the juvenile’s freedom is curtailed, quences of a finding of delinquency; and that the child and his parents must be notified of Mrs. Gault knew the exact nature of the charge the child’sright to counsel. Third, the constitu- against Gerald from the day he was taken to tional privilege against self-incrimination was the detention home. as applicable to juveniles as to adults. Fourth, absent a valid confession, a court cannot de- termine delinquency or order commitment to Defined Danger a state institution in the absence of sworn tes- There was thus, in Justice Stewart’s view, no timony subjected to the opportunity for cross- need in this case for the Court to decide any examination in accordance with the law and of those issues, and—even more important—a constitutional requirements.21 Although the distinct danger that the Court’sdecision equat- Court declined to hold that juveniles were en- ing juveniles with adults would simply invite a titled to a transcript of proceedings and to an long step backward into the horrors of the nine- appeal, Justice Fortas noted that failure to pro- teenth century. He gave one pointed example in vide an appeal, to record the proceedings, to text—a twelve-year-old boy charged with mur- make findings, or to state the grounds for a der was hanged to death, after adult criminal 70 JOURNAL OF SUPREME COURT HISTORY court proceedings that were in the view of the pelling reasons to defer imposition of addi- New Jersey courts “all very constitutional”— tional requirements. The Court could avoid and he footnoted a second example, where a imposing unnecessary restrictions and es- death sentence was upheld for a ten-year-old cape dependence upon classifications that convicted on his own confession of killing his could prove to be illusory. Moreover, he ob- bedfellow.25 served that both juvenile crime and juvenile Plainly, like Justice Fortas, Justice Stewart courts were under earnest study throughout was passionate about the subject, but he would the country—as continues to this day, I might have left well enough alone, in the capable add—and he feared that by imposing rigid pro- and caring hands of the state juvenile courts, cedural requirements, the Court could inad- fearing that this was just a terribly wrong step vertently discourage state efforts to find better for the Supreme Court to take. solutions and thus hamper enlightened devel- A powerful, portentous difference—but opment of the juvenile court systems. Provi- hardly the end of the debate among the Gault sion of notice, counsel, and a record, in his Justices. Would that there were only two sides view, would permit orderly efforts to deter- to every story! The writings of Justices Har- mine later whether more satisfactory classifi- lan and Black centered on the third side to the cations could be devised and, if so, whether the Gault story and the fourth: proper interpreta- Fourteenth Amendment required additional tion of the of the Four- procedural safeguards. In that Gerald and his teenth Amendment as applied to the states. parents were not provided adequate notice, In Justice Harlan’s view, concurring and they were not advised of their right to counsel, dissenting, the majority had both gone too and no record was maintained of the proceed- far and fallen short in assessing the proce- ings, Justice Harlan concluded that Gerald had dural requirements of the Fourteenth Amend- been deprived of his liberty without due pro- ment, and perhaps worst of all, it had failed cessoflaw. to identify with any certainty the standards to be applied.26 Justice Harlan suggested three criteria to measure procedural due-process Justice Black’s View requirements in juvenile court proceedings. Justice Black essentially agreed with Justice First, to assure fundamental fairness, no more Stewart’s dissent that the Court should not restrictions should be imposed than are imper- have passed on the issues presented because ative; second, the restrictions imposed should they were not squarely presented, but he also preserve, as far as possible, the essential ele- felt obliged to weigh in on “due process.” He ments of the state’s purpose; and finally, the joined in the majority view that juvenile courts restrictions chosen should permit later orderly had failed their purpose. The Arizona law had selection of additional protections that might denied the Gaults and their son the right to ultimately prove necessary. In this way, the notice, right to counsel, right against self- Court could guarantee the fundamental fair- incrimination, and right to confront witnesses. ness of the proceeding, yet permit the states to They were entitled to all of these rights, not continue development of an effective response because fairness required them, but because to juvenile crime.27 those rights were specifically granted them by the Fifth and Sixth Amendments, made ap- plicable to the states through the Fourteenth A Middle Ground Amendment.28 Measured by the standard of fundamental fair- Justice Black’s words principally were di- ness, Justice Harlan proposed a sort of mid- rected to what he viewed as Justice Harlan’s dle ground, underscoring that there were com- misreading of the Due Process Clause to allow THE SUPREME COURT AND JUVENILE JUSTICE 71 the Court “‘to determine what forms of proce- was not on the ground that it was “unfair,” but dural protection are necessary to guarantee the rather on the ground that it violated the Fifth fundamental fairness of juvenile proceedings’ and Sixth Amendments, imposed on the states ‘in a fashion consistent with the “traditions and by the Fourteenth Amendment.31 conscience of our people.”’” He saw nothing And there it is, five views of the law, each in its words or history to permit such inter- expressed with intensity and authority—in all, pretation, and argued that “‘fair distillations eighty-one power-packed pages of the U.S. Re- of relevant judicial history’” were no substi- ports. tute for the words and history of the clause I close this discussion of the Gault writ- itself. Justice Black maintained that the phrase ings with a personal recollection from my own “due process of law” had through the years treasured years at the New York State Court evolved as the successor in purpose and mean- of Appeals. In instances where a case frac- ing to the words “law of the land” in Magna tured our court and generated several separate Carta, and that nothing done since the Magna writings, often I would ask myself: In finally, Carta intimated “that the Due Process Clause absolutely and definitively resolving this case gives courts power to fashion laws in order to before us, hasn’t the court now given good meet new conditions, or to fit the ‘decencies’ solid support for every possible conclusion? of changed conditions, or to keep their con- In Gault, I believe the answer clearly is yes. sciences from being shocked by legislation, state or federal.”29 III. Gault’s Trail in the Supreme Court Freedom in this nation, Justice Black warned, would be far less secure the very mo- No surprise, then, that the decision has had ment that judges could determine which safe- an interesting life in the Supreme Court since guards “‘should’ or ‘should not be imposed’ May 15, 1967. And I use the word “interesting” according to their notions of what constitu- advisedly, having been told by a friend that tional provisions are consistent with the ‘tradi- “interesting” is most appropriate to describe tions and conscience of our people.’” Judges a bad blind date. In short, it’s a transparent with such power, even while professing “‘to attempt to avoid a frank answer. proceed with restraint,’ will be above the Con- Though Gault is a landmark of juvenile stitution, with power to write it, not merely to justice, it has in fact shown up in a variety interpret it”—“the only power constitutionally of Supreme Court cases—even in the 1969 committed to judges.”30 affirmance of Timothy Leary’s conviction for Having previously voiced his support for drug trafficking.32 Just a moment’s diversion “full incorporation” of the Bill of Rights to touch on those cases before returning to the through the Fourteenth Amendment, Justice appeals involving juveniles. Black noted that the Gault case concerned Bill Plainly, throughout the ensuing decades of Rights amendments; that the “procedure” Gault has had a role in the Supreme Court’s power Justice Harlan had claimed for the Court articulation of the contours of constitutional related “solely to Bill of Rights safeguards”; procedural protections in criminal cases, un- and that Justice Harlan had also claimed for the derscoring that due process and fair trial are Court “a supreme power to fashion new Bill flexible concepts that require identifying and of Rights safeguards according to the Court’s accommodating the interests of individuals notions of what fits tradition and conscience.” and society. Because Justice Black did not believe that the Outside the world of procedural rights in Constitution vested “such power in judges, ei- criminal cases, the Court has invoked Gault ther in the Due Process Clause or anywhere in shaping rights relative to summary court- else,” his vote to invalidate the Arizona law martials, prison discipline, civil commitments 72 JOURNAL OF SUPREME COURT HISTORY of mental patients and the like—a category tal deprivations as are adults, the Court since roughly definable as “quasi-criminal” cases— Gault has made clear that the state is entitled like the juvenile delinquency proceeding in to adjust its legal system to account for chil- Gault itself, in some respects akin to criminal dren’s vulnerability and their needs for con- cases, in others not. Here the Court has drawn cern, sympathy, and parental attention. A del- significant distinctions, depending on the icate balance indeed. nature of the proceeding, exemplified in 1984, in Allen v. Illinois, by Justice ’s narrowing of Gault’s majestic Scope of Due Process declaration that “our Constitution guarantees And that perception returns us to the subject that no person shall be ‘compelled’ to be a of the day: precisely what is encompassed by witness against himself when he is threatened procedural “due process” in adjudicative pro- with deprivation of his liberty.”33 At issue ceedings involving juveniles, who may face in Allen was the Illinois Sexually Dangerous removal from home and years of commitment Persons Act, which could result in indeter- to a state institution? What has been Gault’s minate commitment to a maximum-security trail, first in later Supreme Court decisions psychiatric institution. In concluding that the addressing that question, and then finally— loss of liberty does not equate a proceeding and briefly—in the world beyond the Supreme with a criminal prosecution for purposes of Court? the Sixth Amendment, the Court carved out Wouldn’t you know, the very next juve- as determinative the state’s interest in treating nile due-process case to arrive at the Supreme sexually dangerous persons under its parens Court—some have suggested an even more patriae as well as police powers, which of significant case, in that it signaled how the course went the other way in Gault. Court would actually apply Gault—came from That brings to mind another majestic dec- my own former court, the New York State laration from Justice Fortas’s pen that has un- Court of Appeals: In re Winship,36 in 1970. I dergone refinement by the Supreme Court: have to admit that, as a judge, it seemed to me “Neither the Fourteenth Amendment nor the that once certiorari was granted, the judges of Bill of Rights is for adults alone.”34 From the court under review should themselves have among the several noncriminal Supreme Court the option to present the appeal to the Supreme decisions citing Gault, I am drawn especially Court. (Just joking.) Take my word for it: no to the abortion and birth-control cases citing one on Earth has researched more exhaustively Fortas’spowerful words in attempting to define or feels more strongly for affirmance than the the extent of state power to regulate the con- majority writer, no one more strongly for rever- duct of minors not constitutionally regulable sal than the dissenter. Talk about passionate— when committed by adults. As Justice Lewis F. they would do a phenomenal job! Powell observed in 1979 in Bellotti v. Baird,35 upholding a Massachusetts statute requiring parental consent for underage abortions, those words are only the beginning of the very dif- In Winship, it was the state court dissenter, ficult analysis that must be made, necessarily Chief Judge Stanley Fuld, who ultimately pre- recognizing the peculiar vulnerability of chil- vailed in the Supreme Court, extending in- dren, their inability to make critical decisions corporation into juvenile proceedings of addi- in an informed, mature manner, and the im- tional federal procedural rights not explicitly portant parental role in child-rearing. Thus, al- found in the Bill of Rights, the reasonable- though children may be protected by the same doubt standard—and by the way, in so doing, constitutional guarantees against governmen- making the reasonable-doubt standard part of THE SUPREME COURT AND JUVENILE JUSTICE 73 the Due Process Clause guarantees for adults was “‘burn[ing] down the stable to get rid of as well. In Justice Brennan’s stirring words the mice.’”40 Oh, my! for the majority, “We made clear [in Gault] that civil labels and good intentions [to save the child] do not themselves obviate the need The Ensuing Decades for criminal due process safeguards in juve- So how in the ensuing decades have the “kan- nile courts, for ‘[a] proceeding where the is- garoo” and the “mice” fared in the Supreme sue is whether the child will be found to be Court of the United States? Are juvenile adju- ‘delinquent’ and subjected to the loss of his dication proceedings more like criminal cases, liberty for years is comparable in seriousness or not? And what is the standard for deter- to a felony prosecution.’”37 mining the process due: totality of the cir- Justices Harlan and Black—one concur- cumstances, fundamental fairness, strict incor- ring, one dissenting—continued their debate poration, selective incorporation of the Bill regarding the proper scope of the Due Process of Rights, or something else? Which has Clause. While reemphasizing that there was prevailed—Gault’s “sweeping rationale,” or no automatic confluence between criminal due its “carefully tailored holding,” or the infor- process and juvenile due process, Justice Har- mality, flexibility and breathing room of the lan in this instance agreed with the majority beneficent juvenile courts? Each camp, you that the reasonable-doubt standard was an ex- recall, had ardent advocates in Gault. pression of fundamental procedural fairness, There was not long to wait for an answer. merely requiring juvenile court judges to be In McKeiver v. Pennsylvania,41 in 1971, the more confident in their belief that the youth Court drew the line at the right to jury tri- did the act charged.38 Justice Black, reject- als in juvenile adjudications, fixing the stan- ing the reasonable-doubt standard, reiterated dard of review as Justice Harlan’s “funda- his view that the explicit language of the Bill mental fairness” and limiting the concept of of Rights, and not any individual judges’ no- fundamental fairness to rights associated with tions of “fairness,” should define due process the fact-finding process. Juveniles, Justice of law.39 wrote, are entitled to some And a new voice—Chief Justice Warren but by no means all of the constitutional rights Burger, joined by Justice Stewart—dissented accorded to adult criminal defendants; trial by from what he saw as “the further strait- jury is not a necessary component of accurate jacketing of an already overly restricted” ju- fact-finding, and requiring jury trials would venile justice system. He lamented (as Jus- effectively remake juvenile proceedings into tice Stewart had done in Gault) that each step full-blown adversarial contests. In denying the the Supreme Court took toward adding rights enlargement of due process to include the right was turning the clock back to the nineteenth to trial by jury, the Court’s majority under- century, pre–juvenile court era. In his words, scored the need to maintain what it called the “What the juvenile court system needs is not intimacy of the juvenile proceeding, express- more but less of the trappings of legal proce- ing reluctance to curtail the opportunity for dure and judicial formalism; the juvenile court states to experiment further and seek in new system requires breathing room and flexibility and different ways the elusive answers to the in order to survive, if it can survive the re- problems of the young, through fairness, con- peated assaults from the Court.” Like Justice cern, sympathy, and paternal attention. Only Fortas in Gault, Chief Justice Burger also drew Justice Douglas, joined by Justices Black and from the animal kingdom to express his fear Marshall, dissented, seeing acceptance of the that, by adding greater judicial formalism to juvenile as a person entitled to the same pro- juvenile court proceedings, the Supreme Court tection as an adult—including the right of trial 74 JOURNAL OF SUPREME COURT HISTORY by jury—as “the true beginning of the rehabil- essarily confined.47 Significantly, both lower itative process.”42 courts learned on June 20, 1979 that they had I highlight just a couple of the Court’s gotten it wrong—the first erred too much on subsequent decisions touching on juveniles. the side of the child, the second too much on Again in Breed v. Jones,43 in 1975, the the side of the state. A fine balance indeed! Court weighed in on the side of the benevo- In 1984, in Schall v. Martin,48 the balance lent, “intimate”44 state juvenile-justice exper- tipped even further away from Gault’s “sweep- iment, noting that although the system had ing rationale” and toward the broad discretion fallen short of the high expectations of its of state juvenile courts, the Court through Jus- sponsors, it still offered broad social benefits tice Rehnquist grounding its conclusion on that can survive constitutional scrutiny. Here what Justice Fortas two decades earlier had the Court spoke unanimously in extending to disparaged as the “murky” soil of parens pa- juveniles the protection against double jeop- triae.49 ardy in transfer proceedings to the adult court In Schall, a facial challenge to provisions system. The Court was not persuaded that re- of New York’s Family Court Act, the issue quiring transfer proceedings to be held prior was pretrial detention for a class of youngsters to adjudicatory hearings would unduly strain based on a finding of serious risk that they juvenile court resources, yet on the other hand might commit what would be a crime before the added protection would promote funda- the return date. Both the district court and the mental fairness. Breed was the first case where Second Circuit had held in favor of the juve- the Court reached a unanimous conclusion in niles, because the statute was administered in striking the “due process” balance, and the last such a way that detention served as punishment to add to the balance specific constitutional imposed without proof of guilt established in protections for the juvenile. accordance with the requisite constitutional standard. The six-Justice Supreme Court ma- jority, however, concluded that preventive de- A Fateful Day tention serves a legitimate state interest, and For me, the ambivalence regarding troubled that (recognizing the state’s superior parens young people is well illustrated by two de- patriae interest) the procedural safeguards cisions handed down the very same day— were sufficient to authorize the detention of at June 20, 1979. In one, Fare v. Michael C.,the least some juveniles charged with crimes. As Court reversed the California supreme court, Justice Rehnquist wrote, “[t]he harm suffered concluding that a sixteen-year-old knowingly by the victim of crime is not dependent on the waived his constitutional rights—including age of the perpetrator.”50 On the other side, the right to counsel and right against self- championed with equal fervor, are the coun- incrimination—when he asked to see his pro- tervailing considerations articulated by Justice bation officer,45 provoking Justice —including bodily restraint of the Marshall’s ringing invocation in his dissent of juvenile for presumptively innocent conduct, Gault’s admonitions regarding confessions by stigmatization, and the feeling of young de- minors.46 But in the second case decided that tainees that society at large views them as hos- day, Parham v. JR, the Court reversed a three- tile and “irremediably ‘delinquent’”—all tip- judge District Court for the Middle District of ping toward a more rigorous constitutionally Georgia, concluding that Georgia procedures guaranteed liberty interest for the juveniles.51 for admitting a child for treatment to a state I conclude these few highlights from mental hospital on parental consent were con- Supreme Court history invoking Gault with stitutionally insufficient to satisfy the child’s the Court’s 1993 decision in Reno v. Flo- substantial liberty interest in not being unnec- res,52 involving a facial challenge by a class of THE SUPREME COURT AND JUVENILE JUSTICE 75

Gault shakes hands with Norman Dorsen, the lawyer who argued his case. Dorsen later became general counsel and then president of the American Civil Liberties Union, arguing or appearing as amicus in countless cases before the Supreme Court, including Gideon v. Wainwright, the Pentagon Papers case and the Nixon Tapes case. Gault was his very first argument in this Chamber. unaccompanied alien juveniles held in custody , joined by Justice Black- by what was then the Immigration and Natural- mun: “If the Government is going to detain ization Service, pending deportation proceed- juveniles in order to protect their welfare, due ings, pitting any liberty interest arising from process requires that it demonstrate, on an in- custodial detention on the one hand against dividual basis, that detention in fact serves that the state interest in preserving and promot- interest.”55 ing the welfare of children on the other. Here The world changes. The Court changes. again, the balance tipped in favor of the state. Technology changes—the Geralds of today no In joining Justice ’sopinion up- doubt texting, tweeting, twittering (hopefully holding institutional custody, Justice Sandra not sexting) instead of telephoning. And the Day O’Connor meticulously traced the path struggle to strike a balance endures. of decisions involving children generally, from Gault in 1967 to Santosky v. Kramer53 in 1982, IV. Gault’s Legacy concluding that, where a juvenile has no re- sponsible adult available, where the govern- Often courts are left wondering how things ment does not intend punishment, and where actually turned out for the flesh-and-blood hu- the conditions of custody are decent and hu- man beings before them. In Gerald’s case, we mane, there is no constitutional violation.54 are fortunate enough to know. He spent his ca- That conclusion evoked the dissent of Justice reer in the Army and throughout his life has 76 JOURNAL OF SUPREME COURT HISTORY

Gault spent his entire career in the Army. In 2007, he described the impact of his case: “Then I had no rights. But now my children, the children of the community, children of the world have rights.”

remained an upstanding member of the com- But second, the subject of juvenile jus- munity. Asked about the impact of his appeal, tice commands extraordinary public interest he responded: “Then I had no rights. But now today. In New York alone, the Department of my children, the children of the community, Justice has recently concluded a two-year in- children of the world have rights. They have vestigation by documenting brutal instances in rights to an attorney, and to be able to question our juvenile detention facilities, where many their accuser. ...I feel it was well worth the nonviolent first-time young offenders are fight. And I think my folks do, too. I really housed, threatening to sue the state if the short- do.”56 comings are not addressed.59 Our Governor’s Interesting. What do you think, I wonder? Task Force has its juvenile-justice recommen- Fortunately, I am in a position today, in this ex- dations;60 our chief judge has his.61 Front- alted Chamber, where I do not have to answer page stories across the nation have addressed any questions. And by the way, neither do you. a whole host of issues involving adolescents— But I do believe that Gault has been a good from zero-tolerance school-discipline poli- subject for the Annual Lecture of the Supreme cies,62 to family cycles of self-destruction, Court Historical Society. Here’s why. to heavy racial disparities,63 to the devastat- First, of course, the case unquestionably ing impact of the current economic crisis on marks an important chapter in the history of the already troubled teenagers. Efforts are un- Supreme Court of the United States. Although der way to find innovative policy and prac- In re Gault, unlike Gideon v. Wainwright,57 tice models, a response both to the growth never inspired a popular film starring the likes of punitive reactions by the states (including of Henry Fonda, the case has generated a great transfers to the adult criminal-justice system) deal of activity and commentary.58 and to the inarguable statistical correlation THE SUPREME COURT AND JUVENILE JUSTICE 77 between juvenile incarceration and, not greater as opposed to the absolute last word of this rehabilitation, but rather, higher recidivism lecture—has yet to be spoken. rates. Contemporaneously, but certainly not co- Epilogue incidentally, scientific research on adolescent development—the neurological, psychologi- Gerald Gault’s counsel at the Supreme Court, cal, and behavioral differences between chil- Norman Dorsen (a former law clerk to Jus- dren and adults—has burgeoned.64 Surely the tice Harlan), later became general counsel and field has come a long way since 1967, when the then president of the American Civil Liber- Court’s focus was less on the unique vulner- ties Union (ACLU), arguing or appearing as ability of adolescents and more on the proce- amicus in countless cases before the Supreme dural protections of our Constitution. The lit- Court, including Gideon v. Wainwright,66 the erature on adolescent brain development and Pentagon Papers case,67 and the Nixon Tapes related issues is voluminous today. Most re- case.68 Gault was his very first argument in cently, in Graham v. Florida,65 the Court’s re- this Chamber. Dorsen is currently Counselor jection of life without parole as a violation to the President of New York University and of the Eighth Amendment, Justice Anthony the Stokes Professor of Law at NYU School Kennedy drew from those sources, referenc- of Law, where he has taught since 1961 (coin- ing in particular juveniles’ impulsiveness, dif- cidentally, when I was a student there). Presi- ficulty thinking in terms of long-term benefits, dent Bill Clinton awarded Dorsen the Eleanor and reluctance to trust adults. Where will this Roosevelt Medal for contributions to human new science take the Court next? Though we rights in 2000, and in 2007 the Association of now have proved scientifically what we have American Law Schools presented him with its always known instinctively about kids, still we triennial award for “lifetime contributions to struggle to strike a good balance between their the law and to legal education.”69 rights and their wrongs. Amelia Dietrich Lewis was an Arizona Clearly juvenile justice remains a critical cooperating attorney with the ACLU who rep- subject today, the best idea by far being delin- resented the Gaults at the state habeas cor- quency prevention—early intervention, social pus proceeding and in the Arizona supreme services to keep kids in their schools and with court. Her representation had focused chiefly their families, education rather than incarcer- on parental custody rights, but with the entry of ation, an idea we all can be part of. It’s the the ACLU it shifted to the due-process rights children’s future to be sure—but it’s our fu- of juveniles. A pioneer among women lawyers, ture, our nation’s future too. Ms. Lewis was admitted to the New York Bar And finally, yes, I do agree with Ger- in the 1920s and worked in the New York City ald Gault that it was worth the court battle. juvenile justice system until 1957, when she A full century after the Fourteenth Amend- moved to Arizona. When she sat for the Ari- ment was adopted, the Supreme Court in Gault zona bar examination, only one other woman for the first time recognized the constitutional was taking the exam—Sandra Day O’Connor. status—the “personhood”—of juveniles, and Ms. Lewis received an award from the Ameri- for the first time put a spotlight on what always can Bar Association for her work on Gault and must be special about our specialized juvenile- practiced law until she was eighty-nine years justice system, given both its subjects and its of age. She died two years later, in 1994.70 objects. That is a powerful message. Frank A. Parks, an assistant attorney gen- Of only one thing am I certain: that the eral in Arizona, represented the state on the absolute last word on the enormously complex brief and in oral argument. Parks had been ad- and consequential subject of juvenile justice— mitted to the Arizona bar the prior year. He 78 JOURNAL OF SUPREME COURT HISTORY left to join a private litigation firm in 1967, of Appeals of the State of New York, for part- the same year the Supreme Court decided nering with her in this endeavor. From the first Gault, and developed a specialty in medical- moment to the last, their constant exchange of malpractice defense litigation. He cofounded ideas, comments, and drafts added immeasur- the Sanders and Parks law firm in 1973 and ably to the joy of preparing and presenting this served as its president until 1984. He was the lecture. Additionally, she thanks Shari Gra- recipient of the 1999 Arizona Medical Associ- ham, a valued colleague at the firm Skadden, ation Distinguished Service Award. Mr. Parks Arps, Slate, Meagher & Flom, for her assis- is now retired.71 tance in preparing the lecture for publication. Following the Supreme Court victory, 1Federal Baseball Club of Baltimore v. Nat’l Gerald Gault was released from confinement, League of Professional Baseball Clubs, 259 having been detained for close to three years. U.S. 200 (1922). A year later, he joined the Army and spent 2In re Gault, 387 U.S. 1 (1967). his career there, rising to the rank of sergeant. 3Brief for the State of Arizona, In re Gault, According to Professor Dorsen, Gault appar- 387 U.S. 1 (1967) at 8. ently has a spotless record and is an upstanding 4In re Gault, 99 Ariz. 181, 193 (1965). member of his community.72 5Gallegos v. Colorado, 370 U.S. 49 (1962). Later interviewed about his landmark 6Gallegos, 370 U.S. at 55. As an aside, I note case, Gault reminisced: “Lord, here I am, I that in my years as a judge on New York didn’t do anything wrong. I’m in court being State’s high court, I came to appreciate that tried, and now I’m being sentenced until I’m the amorphous, highly deferential “totality of 21 years old. I didn’t know what to think. Look- the circumstances” test most often—but obvi- ing back, I was really dazed about it ... The ously not always—translated into “conviction first time being pulled away from Momma and affirmed.” Daddy—it kind of put me in shock ...I seen 7Kent v. U.S., 383 U.S. 541 (1966). my folks later that evening at the ... juve- 8Kent, 383 U.S. at 556. nile hall ... Mom and daddy talked to me. 9Durham v. United States, 214 F.2d 862 They told me exactly what they were doing, (1954); Gideon v. Wainwright, 372 U.S. 335 and why they were doing it and how they were (1963). See also Christopher P. Manfredi, going about it ... I figured right then, hey, if The Supreme Court and Juvenile Justice my folks are willing to fight like that and get (Lawrence: University Press of Kansas, 1998), that worked up about it, I should too.”73 pp. 58, 74. When the “dean of boys” at Fort Grant 10Stephen G. Breyer, “A Look Back at the Dred State Industrial School called to tell him that Scott Decision,” 35 Journal of Supreme Court he had won his case and would be released, and History 110 (2010). that there were reporters waiting to interview 11Dred Scott v. Sandford, 60 U.S. 393, 430 him, Gerald asked why reporters wanted to talk (1857). to him. The “dean” said, “Your case went all 12Dred Scott, 60 U.S. at 574. the way to the Supreme Court. Juvenile cases 13In re Gault, 387 U.S. at 28. don’t do that.” Gerald replied, “Wow! I guess 14In re Gault, 387 U.S. at 78. one did ...”74 15In re Gault, 387 U.S. at 16. 16In re Gault, 387 U.S. at 17. 17In re Gault, 387 U.S. at 27. As a matter of ENDNOTE fact, I might add, this Industrial School later ∗Supreme Court Historical Society Annual did become an Arizona state prison for male Lecture, June 7, 2010. The author thanks Mar- convicts. jorie McCoy, former Deputy Clerk of the Court 18In re Gault, 387 U.S. at 27. THE SUPREME COURT AND JUVENILE JUSTICE 79

19In re Gault, 387 U.S. at 27–28. izens, The Role of the Juvenile Court II, 20In re Gault, 387 U.S. at 29. 271 (Springer-Verlag 1987), describing Schall 21The right against self-incrimination and the v. Martin as the Court’s “most significant re- rights to confrontation and cross-examination trenchment from Gault.” The entire chapter— provoked Justice White’s concurrence, on Chapter 15—is a terrific reference. grounds that the record was inadequate and 49In re Gault, 387 U.S. at 16. those holdings unnecessary. In re Gault, 387 50Schall, 467 U.S. at 264–65. U.S. at 64 (White, J., concurring). 51Schall, 467 U.S. at 291 (Marshall, J., dissent- 22In re Gault, 387 U.S. at 58. ing). 23In re Terry, 438 Pa. 339, 345 (1970). 52Reno v. Flores, 507 U.S. 292 (1993). 24In re Gault, 387 U.S. at 78. 53Santosky v. Kramer, 455 U.S. 745 (1982). 25In re Gault, 387 U.S. at 80. Indeed, the Ohio 54Flores, 507 U.S. at 315-319 (O’Connor, J., Association of Juvenile Court Judges (joined concurring). in by the Kansas Association of Probate and 55Flores, 507 U.S. at 343 (Stevens, J., dissent- Juvenile Judges) and amicus curiae argued in ing) (emphasis in original). support of affirmance. 56National Juvenile Defender Center, “Gault 26In re Gault, 387 U.S. at 65. at 40,” Interview with Gerald Gault, avail- 27In re Gault, 387 U.S. at 71–72. able at http://www.njdc.info/gaultat40/gault_ 28In re Gault, 387 U.S. at 59, 60–62. interview.php (last accessed March 1, 2011). 29In re Gault, 387 U.S. at 62. 57Gideon v. Wainwright, 372 U.S. 335 30In re Gault, 387 U.S. at 63. (1963). 31In re Gault, 387 U.S. at 63–64. 58“The Promise of In re Gault: Promoting 32Leary v. United States, 395 U.S. 6, 54 (1969) and Protecting the Right to Counsel in Ju- (Stewart, J., concurring). venile Court,” 60 Rutgers L. Rev., an entire 33Allen v. Illinois, 478 U.S. 364, 372 (1984). issue of stimulating articles commemorating 34In re Gault, 387 U.S. at 13. Gault’s fortieth anniversary, exemplifies the 35Bellotti v. Baird, 443 U.S. 622 (1979). bountiful commentary the case continues to 36In re Winship, 397 U.S. 358 (1970). generate. 37In re Winship, 397 U.S. at 365–66. 59Letter, Loretta King, Acting Assistant 38In re Winship, 397 U.S. at 375 (Harlan, J., Attorney General, to the Honorable David A. concurring). Paterson, Governor of N.Y., Aug. 14, 2009, 39In re Winship, 397 U.S. at 377 (Black, J., Department of Justice, available at http:// dissenting). www.justice.gov/crt/about/spl/documents/ 40In re Winship, 397 U.S. at 376. NY_juvenile_facilities_findlet_08–14– 41McKeiver v. Pennsylvania, 403 U.S. 528 2009.pdf (last visited Feb. 12, 2011) (detailing (1971). Department of Justice’s investigation of the 42McKeiver, 403 U.S. at 566 (Douglas, J., dis- Lansing Residential Center, Louis Gossett, Jr. senting). Residential Center, Tryon Residential Center, 43Breed v. Jones, 421 U.S. 519 (1975). and Tryon Girls Center). 44McKeiver, 403 U.S. at 545. 60Governor David Paterson’s Task Force on 45Fare v. Michael C., 442 U.S. 707 (1979). Transforming Juvenile Justice, “Charting a 46Fare, 442 U.S. at 728. New Course: A Blueprint for Transforming 47Parham v. J.R., 442 U.S. 584 (1979). Juvenile Justice in New York State,” Dec. 48Schall v. Martin, 467 U.S. 253 (1984). 14, 2009, Vera Institute of Justice, avail- See also Janet Fink, “Determining the Future able at http://www.vera.org/paterson-task- Child: Actors on the Juvenile Court Stage,” force-juvenile-justic-report (last visited Feb. in F. Hartmann, ed., From Children to Cit- 12, 2011). 80 JOURNAL OF SUPREME COURT HISTORY

61Jonathan Lippman, “Reforms Proposed for capable of thinking like adults, they are men- Juvenile Justice,” New York Law Journal,May tally and emotionally still children.” Mark 3, 2010, at 11. Hansen, “What’s the Matter with Kids To- 62American Bar Association Juvenile Justice day: A Revolution in Thinking about Chil- Committee, “Zero Tolerance Policy,” Feb. dren’s Minds Is Sparking Change in Juve- 2001, Juvenile nile Justice,” ABA Journal 50, 52 (July 2010). Justice Policies, available at http://www. The author speculates regarding ramifica- abanet.org/crimjust/juvjus/zerotolreport.html tions of the new research for juvenile justice (last visited Feb. 12, 2011). generally. 63USHRN Working Group on Juvenile Justice, 66Gideon v. Wainwright, 372 U.S. 335 “Response to the Periodic Report of the United (1963). States to the Committee on 67New York Times Co. v. United States, 403 the Elimination of Racial Discrimina- U.S. 713 (1971). tion,” Feb. 2008, available at http://www. 68United States v. Nixon, 418 U.S. 683 (1974). juvenilejusticepanel.org/resource/items/U/S/ 69Norman Dorsen, biographical sketch, NYU USHRNWGroupJJUSFailureICERD08.pdf Law, available at https://its.law. nyu.edu/ (last visited Feb. 12, 2011). facultyprofiles/profile.cfm?section = bio& 64The mounting literature on juvenile crime personID = 19885 (last visited Feb. 12, 2011). and punishment, particularly the scientific 70Wolfgang Saxon, “Amelia Lewis, 91, Victor data, is simply breathtaking. Professor Jeffrey in Case That Changed Juvenile Justice,” New Fagan’s eighty endnotes accompanying his ex- York Times, Nov. 19, 1994, available at http:// cellent article, “The Contradictions of Juve- www.nytimes.com/1994/11/19/obituaries/ nile Crime and Punishment,” in 139 Daedalus, amelia-lewis-91-victor-in-case-that-changed- Journal of the American Academy of Arts and juvenile-justice.html (last visited Feb. 12, Sciences 3: 43, 57–61 (summer 2010), offer a 2011). good sample of the ongoing research. 71Frank A. Parks, Attorney Profile, Sanders 65Graham v. Florida, 130 S.Ct. 2011 (2010). & Parks P.C., available at http://www. As Mark Hansen wrote recently, Justice sandersandparks.com/Bio/FrankParks.asp Kennedy said “no recent data provided rea- (last visited Feb. 12, 2011). son to reconsider the Roper decision and its 72Norman Dorsen, “Reflections on In re observations about juveniles. If anything, he Gault,” 60 Rutgers L. Rev. 1, 10 (Fall 2007). said, the evidence has become stronger and 73National Juvenile Defender Center, “Gault more conclusive in the five years since. Sci- at 40,” Interview with Gerald Gault, avail- entists say research demonstrates what every able at http://www.njdc.info/gaultat40/gault_ parent of a teenager probably knows instinc- interview.php (last accessed March 1, 2011). tively: that even though adolescents may be 74Id.