In Both Systems, Unfulfilled Promises on Protecting Kids in Court

Fifty years ago, the U.S. Supreme Court provided a blanket of protection against railroading youth involved in the juvenile justice system. Seven years later, Congress attempted to do the same for children involved in child welfare proceedings.

Decades later, legal representation for both sets of youth are better than they once were. But juvenile justice and child welfare advocates say that we’ve fallen far short of universal protection for youth in court.

Gault Turns 50

In 1967, the Supreme Court issued a decision in the case of Jerry Gault, who at age 15 was accused of making an obscene telephone call to a neighbor. A week after his arrest, with no lawyer or any substantive due process, Gault was committed to a detention center until the age of 21. The maximum penalty for that crime if he were an adult: a $50 fine and two months in jail.

The high court ruled that:

The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him.

In joining the majority opinion written by Justice Abe Fortas, Chief Justice Earl Warren decreed that In Re Gault would “be known as the Magna Carta for juveniles.”

The National Juvenile Defender Center used the 50th anniversary of this decision to release “Access Denied,” a report that documents the extent to which the United States has fallen short of the court’s aim. Among the findings from NJDC’s research:

  • Only 11 states currently provide a lawyer for every child accused of an offense, and no state requires the presence of a lawyer for interrogation.
  • Thirty-six states permit poor youth and their families to be charged fees for the provision of indigent defense; those fees range from $25 to hundreds of dollars.
  • Forty-three states allow children to waive their right to counsel without even hearing from a lawyer on the value of one.
  • Only 11 states require access to a lawyer after sentencing.

Those numbers might be overly generous too, NJDC points out. Research for the report “revealed that even in states with strong statutory requirements for children’s legal representation, practices within those states fall short of their constitutional obligation. In a handful of jurisdictions, the law is blatantly violated.”

The Obama Justice Department took on indigent defense as a pet project, appointing Harvard Law professor Larry Tribe to lead an Access to Justice initiative. But with no real dedicated funding, and fears that Tribe, a liberal icon with a penchant for being outspoken, might bring undue attention, the initiative faded quickly.

In the wake of the aborted initiative, the Justice Department did steer some Office of Juvenile Justice and Delinquency Prevention funds toward access to counsel for juvenile offenders from 2010 to 2014. The majority of that money, about $3.2 million, went to NJDC to conduct training and technical assistance on juvenile defense issues with states and local jurisdictions.


In 1974, Congress passed the Child Abuse Prevention and Treatment Act (CAPTA), which is the primary federal contribution to improving the standards and operation of child dependency courts.

Like most federal legislation, it dangles federal grant money as a carrot for states to live up to certain standards regarding how the courts work. Among the requirements for eligibility: That each child is provided with representation in court.

There are two problems with that, according to Amy Harfeld, national policy director for the Children’s Advocacy Institute (CAI).

The first is that CAPTA has been weakened by low appropriations and a lack of accountability.

“CAPTA has no credibility,” Harfeld said. “There is no state in substantial compliance, no meaningful oversight. States are sending in self-certification, and [the Administration on Children and Families] is extremely clear on the fact that they are not under any threat of sanction or penalty.”

The second problem is that the law requires representation, but not lawyers. The provision of a guardian ad litem (GAL), who may or may not be a lawyer, satisfies the requirement.

Advocates pushed to have this changed in the 2010 reauthorization of CAPTA so that a lawyer would be required for each child. However, the National Center for State Courts and other parties got the language removed, arguing it was an unfunded mandate to the states.

Even without a strong federal presence on the issue, Harfeld said, most states have moved toward requiring the presence of legal counsel for youth. But she offers the same caution about state statutes that NJDC did in its Gault report.

“Whether a child will receive the representation required in their state, or even the minimalist representation guaranteed under federal law is far from a certainty,” she said.

CAI’s goal, Harfeld said, is to move states toward not only the provision of a lawyer for each child, but a mandate that the services be “client-driven.” Many of the states that already require a lawyer on paper permit that person to communicate the best interests of the child. Under a “client-driven” arrangement, the lawyer must express the wishes of the child in any case where the child is able to articulate that.

Some states already require such an arrangement in statute. Others apply the client-driven requirement to certain proceedings. Pennsylvania, for instance, requires this arrangement at any hearing to consider the termination of parental rights.

The client-driven approach was recently adopted as part of the American Bar Association’s Model Act on Child Representation for all proceedings.

“The court process is so intimidating and frightening for everyone wrapped up in it,” said Harfeld. “To go through without any understanding…Kids don’t know they have rights. It’s an unimaginable deprivation of human rights for child to go through the process without counsel.”

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