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G, Gault, In Re,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 16 January 2021

Gault, In Re,

387 U.S. 1 (1967), argued 6 Dec. 1966, decided 15 May 1967 by vote of 8 to 1; Fortas for the Court, Black and White concurring, Harlan concurring in part and dissenting in part; Stewart in dissent. From the turn of the century until the 1960s, the assumptions of juvenile justice had drawn inspiration from the reform ideology of the *Progressives. State intervention into the juvenile’s life was justified as parens patriae, that is, a protective, paternal interest in the welfare of a wayward or otherwise distressed child. This approach led to a nationwide institutional distinction between the adversary process of adult criminal adjudication and the flexible and informal decision making created for juvenile proceedings. Separate legislative codes and correctional alternatives were established for juveniles whose behavior would have been considered criminal if they were adults.

The growing problem of juvenile misconduct and a popular perception that the juvenile justice system was failing both society and its clientele called into question the assumptions of that system and attracted the attention of both scholars and government officials. Following the Supreme Court’s landmark rulings that brought unprecedented procedural reforms to federal and state criminal justice systems, it seemed inevitable that the justices would also place the nation’s juvenile justice system under the scrutiny of constitutional due process.

The Court first signaled its interest in the area in Kent v. United States (1966), a 5-to-4 decision that rejected a cursory waiver of Kent’s juvenile status so that he might be tried as an adult. The majority used the occasion to speculate that a juvenile—faced with incarceration in an informal juvenile proceeding, yet unprotected by the due process guarantees afforded adults under the Constitution—might encounter “the worst of both worlds” (p. 556). Developing this theme boldly a year later, Justice Abe *Fortas’s opinion in Gault attacked the entire juvenile justice system, with only Justice Potter *Stewart disagreeing on the merits of the case.

At issue was the commitment of fifteen-year-old Gerald Gault to Arizona’s State Industrial School until his majority (a maximum of six years), following his adjudication as a “delinquent child” for making an obscene phone call to a neighbor while on probation for another juvenile offense. Had Gault been tried as an adult, his maximum punishment would have been a fifty-dollar fine or two months incarceration. What made Gault’s case significant was that, despite the severity of his punishment, Arizona law afforded him virtually no “due process” at all—no official notice of his precipitous hearings (he was committed within a week of the offense), no notification that *counsel could be present at the hearings, no opportunity to confront or cross-examine the woman who complained about the phone call, and no protection against *self-incrimination. His questionable admission about taking part in the phone call became the primary basis for the commitment.

Fortas took the opportunity to question broadly the wisdom of parens patriae as the guiding principle of juvenile adjudication. He then tailored a careful holding that extended many (but not all) of the rights of adult criminal defendants, under the *Due Process Clause of the *Fourteenth Amendment, to those juveniles subject to a deprivation of liberty upon adjudication of delinquency. Included were adequate and timely notice of charges and hearings, notice of the right to counsel at adjudication, the right to confront and cross-examine witnesses, and the protection against self-incrimination. Justice Fortas argued that the extension of these protections would not interfere fundamentally with the distinctive informality and flexibility of juvenile adjudication.

The majority opinion was controversial both on the Court and off. Justices Hugo *Black and John M. *Harlan used the case as an occasion to continue their ongoing debate about the proper interpretation of “due process” as it applied to the states—a debate that grew more heated in a subsequent juvenile justice case, In re *Winship (1970). Justice Stewart dissented primarily on the ground that the majority’s decision ran the risk of making the juvenile process identical to the adult criminal process, thus recreating the problem that the Progressives had attacked at the turn of the century.

Gault and its practical consequences for juvenile justice (particularly the decision’s emphasis on procedural compliance and its injection of defense (p. 379) counsel into the system) have produced considerable controversy, although the case remains the constitutional landmark for juvenile adjudication. Critics have attacked the decision as part of the larger “due process revolution” of the 1960s, charging that the Warren Court majority placed too much faith in the efficacy of procedural remedies to accomplish substantive reforms in criminal justice. Particularly with regard to Gault, critics complain that an overemphasis on due process, on the one hand, diverts attention from the larger substantive issue of the system’s fundamental capacity to develop appropriate remedies for delinquent behavior and, on the other hand, adds to the case management woes of the already overburdened juvenile courts.

See also due process, procedural; juvenile justice.

John R. Sutton, Stubborn Children: Controlling Delinquency in the United States, 1640–1981 (1988). Stanton Wheeler and Leonard S. Cottrell, Jr., Juvenile Delinquency: Its Prevention and Control (1966).

Albert R. Matheny