Access Restricted to Northwestern Law CommunityIntroduction and Questions
The Promise of Gault: Re-enactment of the Supreme Court Oral Argument: Introduction
February 6, 2007
Northwestern University School of Law
Chicago
Good evening. My name is Bernardine Dohrn; I am director of the Children & Family Justice Center and clinical professor of law here at Northwestern University School of Law, Bluhm Legal Clinic.
“Under our constitution, the condition of being a boy does not justify a kangaroo court.”
Today we will see and hear a re-enactment of oral arguments before the U.S. Supreme Court forty years ago which lead to the 1967 landmark decision, In re Gault, establishing for the first time that children are constitutional persons and therefore have rights to due process under the law, including the right to counsel during juvenile court delinquency proceedings.
“Neither the fourteenth amendment nor the Bill of Rights is for adults alone.”
It was June 1964 when Gerald Francis Gault, age 15, was arrested and charged with making a single obscene phone call to a neighbor woman, Mrs. Cook - which the Supreme Court in its discreet and courtly way described as the “irritatingly offensive, adolescent sex variety.” Within a week, Gerald had been sentenced to the Arizona State Industrial School for Boys, or as the majority noted, a juvenile prison, for up to six years, or the age of 21. An adult charged with the same offense would have been sentenced to two months, at most, and a fine of $5 to $50. This happened in Arizona but it could have been Illinois.
Gerry Gault’s family was poor, and both parents worked so he was alone that morning when the police came and took him away. Luckily for him, a feisty, justice-minded woman attorney named Amelia Lewis had recently moved to Arizona from New York City. Lewis, herself an attorney and mother of three boys, saw Gerald as “a good kid in the wrong place at the wrong time” and vowed to handle the case as though it were going to the U.S. supreme court. (remember, there was no statutory right of appeal in Arizona for Gerry Gault.)
Mrs. Lewis recruited the extraordinary talents of Norman Dorsen, professor at NYU Law School then and still today, an active ACLU member, who had clerked for U.S. Supreme Court Justice John Marshall Harlan.
Mr. Dorsen is played tonight by University of Chicago clinical professor and director of the Mandel Legal Aid Clinic and former Public Defender of Cook County, Randolph Stone. Dorsen remembers that he knew nothing about children’s law or juvenile courts when he accepted the case, but was helped by a team which included an experienced juvenile court lawyer. His adversary in the Supreme Court argument was the State of Arizona in the person of Frank A. Park (played tonight by our popular and distinguished Northwestern University School of Law Professor Stephen Presser).
Our post-modern Supreme Court theatre company tonight is composed of:
- Chief Justice Earl Warren (played by U.S. District Court (of the Northern District of Illinois) Judge William Hibbler, former Presiding Judge and a of the world’s first juvenile court, the Juvenile Court of Cook County.
- Mr. Justice Abe Fortas who wrote the majority opinion (played by Chicago’s brilliant author of seven best selling novels including his newest, Limitations, and former U.S. attorney, Mr.Scott Turow.
- Mr. Justice Hugo Lafayete Black, who wrote a stronger concurring opinion is played by Illinois Supreme Court Justice Anne Burke, herself a former special assistant to the Governor on children) (Justice Burke will also play the role of Mr. Justice Douglas)
- Mr. Justice Byron White, who also wrote a concurring opinion is played by Justice Ilana Rovner of the U.S. 7th Circuit Court of Appeals) (& because she is so nimble, Justice Rovner will also play the role of Mr. Justice Potter Stewart who alone dissented in whole from the decision).
- Professor Uzomaka Nzelibe of the Children and Family Justice Center of the Bluhm Legal clinic will play Mr. Justice John Marshall Harlan II, who had young Norman Dorsen as his former clerk, and who concurred in part and dissented in part).
- Attorney Luis Pinedo, a recent alum of NWU School of Law and the Bluhm Legal Clinic, will be Justice William Brennan.
There will be a brief time for questions to the bench and to the attorneys before the reception.
Two and a half years after Gerald Gault was sent to the Arizona State Industrial School, the United States Supreme Court heard oral arguments on December 6, 1966. We begin with a question from the court to Mr. Dorsen...
The gavel bangs . . . .
Questions after the Staged Re-nactment of In re Gault
Justice Burke — In re Gault decided that children who could be deprived of their liberty were entitled to core, fundamental, due process rights. Mr. Justice Black (your judge) argues that children are entitled to all due process rights. What do you think about the two due process guarantees still not constitutionally secured for children -- the right to a jury, and the right to bail?
Justice Hibbler — Has the promise of Gault been realized in these 40 years? Do children alleged to be delinquent have the essentials of due process and fair treatment in juvenile court proceedings? What are two of the most important things that remain to be done to guarantee those effective rights?
Randolph Stone — What about the exchange and argument about the difference in access to counsel between rich and poor children? Do we today have two systems of justice for children?
Scott Turow — Why are the petitioners the parents here? Should it be the child? Who should receive notice? What is the relationship between the constitutional rights of the child and parent’s rights? Is the child’s relationship one of property?
Justice Ilana Rovner — The Gault decision concludes that “unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” ‘There is evidence…that the child receives the worst of both worlds: that he neither gets the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children.”
But isn’t there something to the Jane Addams original idea of informal and relaxed procedures in Juvenile Court? Why is that arbitrary?
Professor Stephen Presser — The assistant Attorney General for Arizona argues for states’ rights in this matter. Does that remain a relevant argument? Mr. Park argues that an adolescent does not know absolute liberty -- that he lives with parental restraints and limited freedom similar to going to school. This notion morphed into Justice Rheinquist’s infamous, “children are always in some forum of custody” dicta upholding New York State’s preventive detention law in Schall v. Martin.
What about states’ rights?
Are children always in some form of custody? Can one reasonably compare family life to incarceration?
Luis Pinedo — Mr. Parks also argues that this result in Gault will turn Juvenile Court into an adult criminal court, disregarding the essential differences and distinctions of the child person? Was he prescient? Do you agree?
Professor Nzelibe — Do unaccompanied undocumented children have the right to counsel in immigration/asylum cases? Should they? Are the arguments similar to those In re Gault?
