Pre-Adjudication Access to Counsel for Juveniles

By Gleason, Christopher K. | Emory Law Journal, January 1, 2019 | Go to article overview

Pre-Adjudication Access to Counsel for Juveniles


Gleason, Christopher K., Emory Law Journal


INTRODUCTION

In re Gault1 significantly altered the legal system's relationship with children because it established that children possess certain constitutional rights.2 Though not addressing "the totality of the relationship of the juvenile and the state,"3 the Court in Gault asserted a novel proposition: "[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone."4 In doing so, the Court rejected a constitutional scheme in which children had been entitled to custody rather than to substantive, individual rights.5

Despite its revolutionary holding, Gault left some issues unresolved. This Comment focuses on one unresolved aspect of Gault: children's access to counsel before formal adjudication proceedings. For juveniles, pre-adjudication interactions with law enforcement often include some form of custodial interrogation, either at a police station or at school. This Comment argues that the Court should adopt two rules that would more effectively protect children's Fifth Amendment privilege against involuntary self-incrimination.

Part I begins by tracing the history of the juvenile justice system and the theories and goals that led to its creation and practices. With a particular focus on the parens patriae doctrine, Part I begins by exploring traditional justifications for regulating child welfare and the ways that juvenile courts reflected these ideas. Offering a thorough analysis of Gault, this Part also reflects on how Gault changed juvenile courts and constitutional theory. Because Miranda v. Arizona6 was incorporated into Gault, this Part also provides background on Miranda and on the traditional due process standard that courts apply when determining whether an individual's Fifth Amendment privilege against self-incrimination was voluntarily waived. This Part concludes by discussing the Court's recent case involving juvenile interrogation, J.D.B. v. North Carolina.7

Part II shifts to this Comment's argument. This Comment argues that the Supreme Court could adopt more protective measures for ensuring children's privilege against self-incrimination. Specifically, it discusses why children should be required to consult with counsel during pre-adjudication, as well as why they should not be able to waive counsel's presence during custodial interrogation. The Court could ground these mandates either in its Eighth Amendment jurisprudence or by following the logic of cases that have clarified Miranda. Aside from discussing the legal rationales for adopting more protective standards for children facing pre-adjudication interrogation, this Part also argues that an attorney's presence throughout interrogation, as opposed to other "friendly adult[s],"8 is imperative to protect children's interests in these settings.

Finally, Part III considers some of the implications and consequences of adopting this Comment's suggestions. It begins by acknowledging some of the potential challenges that would arise if the Supreme Court mandated pre-adjudication appointment of counsel. The costs of funding a public defense system that could accommodate this mandate and still provide effective assistance of counsel would present states with challenging budgetary and logistical scenarios, especially in non-urban areas.9 Part III thus reflects on the relative "costs" of implementation versus non-implementation. Despite recognizing the obvious monetary costs of this Comment's proposals, this Part argues that there are countervailing and weighty costs of non-implementation.

I. The Juvenile System and Children's Constitutional Rights

This Part begins in Section A by discussing the parens patriae doctrine and its significance to the development of juvenile courts. As noted by the Supreme Court, the parens patriae doctrine justified the creation of juvenile courts.10 Section B then discusses the development of juvenile courts and the ways that they were distinguishable from adult criminal courts. …

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