Keeping the Promise of Gault: Requiring Post-Adjudicatory Juvenile Defenders

The title of this post is the title of a new article in the Georgetown Journal of Poverty Law and Policy by Professor Megan F. Chaney (La Verne College of Law) on the need for post-adjudicatory juvenile defenders (available via Lexis/Westlaw at 19 Geo. J. Poverty L. & Pol’y 351 (2012)).  This is an issue that is currently relevant in my state, where our youth have no right to appointed counsel post-adjudication, and is likely to have meaning in yours as well.

Here is an excerpt from the introduction:

The importance of Gault and the crucial role of juvenile defense counsel became evident to me during my time in the Juvenile Public Defender’s Office in Miami, Florida. My personal experience was that the quality of juvenile representation was equal to that provided for adult clients.  However, at the conclusion of the adjudicatory process, I lost contact with my child clients. The focus of my work in juvenile court was on the dispositional or adjudicatory phase of the proceeding, not on the post-adjudicatory phase. It is possible that members of our office were entrusted with monitoring juveniles who were committed to the state for care. I, however, was not. My job was to investigate charges and try cases.

After leaving the public defender’s office, I did not think about the juvenile justice system again until I was asked to co-direct the Juvenile Justice Clinic at the William S. Boyd School of Law at the University of Nevada, Las Vegas in 2006. There, I began to understand firsthand the illusion of “rehabilitation” in the juvenile court. In an effort to discover where the juveniles went after they were committed to the state of Nevada, several students enrolled in the Advanced Juvenile Justice Clinic traveled to all of the residential treatment programs in the state. We were often met with surprise, as few lawyers had ever visited their clients in these facilities. The facilities were so remotely located that not many people visited, including families and parents of those committed. Without many people visiting and commenting on the care of adjudicated juveniles, children were at the mercy of program facilitators and front-line workers entrusted by the state with their care and rehabilitation.

Over the last decade, practices and conditions at various juvenile rehabilitative programs have been examined and have been found to be failing to live up to the promise of a rehabilitative system. Children are sent to impersonal and overcrowded institutions that are often devoid of rehabilitative programming. These programs are often ill equipped to provide individualized treatment and assess each child’s needs.

The first juvenile justice reformers envisioned a safe haven away from the confines and harshness of adult court where less culpable youngsters could be rehabilitated to reenter society as productive, law-abiding adults. However, juvenile rights advocates pointed out that too much of a focus on rehabilitation and benevolent treatment was veiling the realities of juvenile “incarceration.” The United States Supreme Court stated in 1966 that “[t]here is evidence . . . that the child receives the worst of both worlds: that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children.” Juvenile rights reformers sought and gained minimum constitutional protections for juvenile clients.

The pendulum has therefore swung from unmitigated rehabilitative discretion to quasi-criminal courts where children who are adjudicated with the benefit of only a smattering of their rights are not evaluated individually for rehabilitation  specific to their potential to reenter society. The juvenile court is an on-going experiment in the best ways to serve the public and adjudicated youth. Not enough has been done to create a unique court that embraces this vision. The court, when working fluidly, may not look like a mini-criminal court. The notion that children must have all of the constitutional rights afforded adults in the criminal justice system or no rights at all is an incorrect dichotomy. The juvenile court should be experimenting with different lawyering roles that fit its institutional missions. These roles may include new and unexplored ways of serving the court and its constituencies. This Article addresses this dilemma. When the juvenile offender has been committed to the care of the state, the journey of the juvenile defender often comes to an end despite the fact that the need for representation continues. The state has the responsibility to provide appropriately tailored and effective rehabilitative programs for the children in its custody, and continued legal representation is the most effective means to ensure that no child is lost in the system.

Part I of this Article provides the reader with a brief history of the juvenile justice system in order to contrast the goals of this unique system with that of the adult criminal court. Such contrast illustrates why the role of a post-adjudicatory lawyer would help the juvenile court be accountable to its original aims.

Part II explains the crucial differences between the adult criminal justice system and the juvenile justice system that justify concentrating the efforts of the lawyers and stakeholders in the juvenile system on the dispositional or post-adjudicatory phase of the juvenile justice system.

Part III explains how the emergence of adult problem-solving courts and the tensions inherent in the defender role in these courts actually help shape a new role of post-adjudicatory juvenile lawyers.

Part IV uses the lessons from the adult problem-solving model to demonstrate why appointing a post-adjudication attorney for juveniles is necessary to ensure that the juvenile justice system is working in the way intended by both its framers and its continuing stakeholders.

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About Tamar Birckhead

School of Law
This entry was posted in Advocacy, Conditions of Confinement, Criminal /Juvenile Defense, Juveniles, Law Students, Legal Scholarship, Post-Conviction, Rehabilitation, State Laws. Bookmark the permalink.

8 Responses to Keeping the Promise of Gault: Requiring Post-Adjudicatory Juvenile Defenders

  1. Eric Zogry says:

    Tamar:

    Is there a link to the full article?

  2. Eric Zogry says:

    Thanks!

  3. The article is an appeal to generate more lawyer make work jobs. How does this article further the aims of public safety, the interest of the juvenile defendant, or even justice?

  4. pnicholson says:

    A right to post-adjudicatory counsel for juveniles would arguably achieve the three aims you mention even more so than the current right to juvenile defense counsel established in Gault, and certainly more so than our current system of discouraging or preventing post-adjudicatory representation. As the article makes clear, the divergence in the adult and juvenile systems occurs after adjudication, when the disposition is ordered and the juvenile is committed to the care and supervision of the state. This is where the rehabilitative “magic” is supposed to happen. However, if rehabilitative services are non-existent, ineffective, or not individualized, the juvenile is returned to the community untreated and unreformed, to the detriment of public safety, the interests of the juvenile, and ultimately, justice (since a promise to rehabilitate was the justification for the juvenile’s confinement in the first place). This is a failure seen more and more as state budgets are slashed and the availability of more effective, but resource-heavy, services and treatments dwindle. An attorney appointed to advocate for the juvenile throughout the entire period of juvenile court jurisdiction helps ensure that the juvenile has continued and meaningful access to individualized and appropriate services that will increase chances of true rehabilitation.

  5. Wendy Greene says:

    Post-disposition representation is the next critical step in the development of our juvenile justice system. With no one to advocate for them, or help them advocate for themselves, our incarcerated children do not have a voice and the system, which should be adversarial, loses its equilibrium. I cannot think of another area of law where the policy is to discourage a balanced adversarial approach. Giving juveniles access to counsel for the duration of their involvement in the juvenile justice system balances out this disequilibrium and will encourage public safety and the child’s development. Post-disposition representation assures that issues related to the conditions of their confinement, such as health, mental health, safety, and educational and rehabilitative services will be addressed. Post-disposition representation promotes justice by assuring that someone who represents the child, not the state, reviews their adjudication and disposition for any errors, which will not happen in every case but will inevitably occur. Post-disposition representation assures that the child’s voice is heard and his own interests and concerns are being addressed. Post-disposition advocacy helps keep the system honest by challenging it when necessary, pushing the envelope of possibilities and identify areas for reform. It is high time we integrate post-disposition representation into our juvenile justice system. We cannot lock our kids away, forget about them, and then release them with the expectation that they have been molded into model citizens when we have barely heard a word they had to say.

  6. There is no rehabilitation.

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