October is for Youth Justice Awareness Month

October is Youth Justice Awareness Month. With that in mind, the entries for this month will focus primarily on issues related to the juvenile justice system. The following post offers a brief discussion on the right to counsel in juvenile delinquency proceedings.

In 1967, the Supreme Court recognized juveniles’ right to Due Process under the 14th Amendment in the landmark case In re Gault. This decision granted juvenile defendants many of the same due process rights afforded to adults, including the right to formal notification of the charges against them, the right against self-incrimination, the right to confront witnesses, and the right to counsel. While this was a huge victory for children and child’s rights advocates, the reality of the situation is decidedly less triumphant.

In most cases, the right to counsel “kicks in” just prior to the child’s initial detention hearing; at this point, the child and their parents are notified of their right to counsel and the child is appointed an attorney if the child is determined indigent. However, this is not the child’s first point of contact with the juvenile justice system—that would be when the child is first taken into custody. This is a critical point for the child, as things can potentially go very wrong if they do not have access to counsel at this early stage. Research has shown that children are far more susceptible to coercion than adults, so it is likely that a child may offer incriminating evidence upon being questioned, irrespective of their guilt or innocence. Furthermore, children typically lack a thorough (or in many cases, even cursory) understanding of how the justice system works, so it is imperative they have an advisor at every stage of the process to ensure their rights are protected.

To illustrate this point, one need only look to Fare v. Michael C. (1979), where the Supreme Court established that a juvenile’s right to counsel must be explicitly invoked. In this case, the child’s request to see their probation officer (a trusted adult) was deemed insufficient to invoke his Fifth Amendment right against self-incrimination, and therefore the child’s statements made during police interrogation were all admissible in court. But how can we expect children to know precisely whom to ask for help, and when? How are children supposed to know the right things to say, or not to say, when most adults in similar positions are equally unaware? The justice system is complex and the children who find themselves within it are often under a great deal of stress—not only from the experience itself, but also from outside influences such as their parents, police, prosecutors, and even judges. 

Furthermore, the notion that a child can waive their constitutional rights—in particular the right to counsel—is ludicrous, and such waivers should be per se unallowable. The decision giving juveniles the right to counsel in Gault was predicated on due process considerations, rather than the right to counsel guaranteed by the 6th Amendment. While an adult’s right to waive counsel in criminal proceedings arises out of the 6th Amendment, due process under the 14th Amendment does not necessitate the same result for juveniles. In fact, given the developmental differences between children and adults, it would be clearly out of line with due process considerations to allow juveniles to waive their right to counsel. The chances of obtaining a “voluntary,” “knowing” and “intelligent” waiver (as is required by law) from a child are severely diminished in consideration of the various stressors the child faces while in contact with the system. This, combined with the fact of the still-developing adolescent brain and compounded by the vital role of counsel in juvenile proceedings, make waiver of the right to representation totally inappropriate in these cases.

 If a child under these circumstances can waive their right to counsel, how can any of their other constitutional rights be guaranteed? Without an inalienable right to representation in delinquency proceedings, the due process considerations extended to juveniles in Gault are effectively meaningless. Therefore, the right to counsel should activate automatically and inviolably at the earliest stage possible to ensure that a child’s rights are protected throughout the entire juvenile justice process.

For a more thorough discussion on this topic, see:

Gary G. Strieker, Waiver of Constitutional Rights by Minors: A Question of Law or Fact, 19 Hastings L.J. 223 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss1/9

Ellen Marrus, Gault, 40 Years Later: Are We There Yet?, 44 Criminal Law Bulletin 413 (2008), U of Houston Law Center No. 2014-A-51. Available at: https://ssrn.com/abstract=2450171

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