50 Years After Gault — The Juvenile Justice System is Still Failing our Children

Treatment facilities. Group homes. Youth study centers.

Places in the United States where youth are incarcerated take on various names that are hardly short on euphemism. Sometimes, they’re even named after geographic features of the surrounding regions, eliciting tranquil imagery of lakes, mountains, and rivers. The vague and pleasant facility names obscure the realities of what happens behind closed doors: solitary confinement, physical and sexual abuse, chemical restraints, and widening margins of racial disparity.

As the U.S. Supreme Court noted nearly 50 years ago in In re Gault, the landmark decision that recognized a child’s right to an attorney in juvenile court, “Instead of mother and father and sisters and brothers and friends and classmates, [a child’s] world is peopled by guards, custodians, [and] state employees…”

Justice Abe Fortas, author of the now-infamous Gault opinion, laments the “whitewashed walls, regimented routine and institutional hours” of facilities that house children. Save for a few exceptions, institutions look no different today.

Courtesy of gaultat50.org

Young people who enter youth prisons experience treatment akin to that administered in adult prisons. Uniformed guards restrain children in handcuffs and leg irons, pat-frisk or strip search them, issue institutional undergarments and jumpsuits, and then lock youth into cell blocks. The emphasis on order and control within youth prisons discourages normal adolescent behavior, and often leaves children feeling hopeless, desperate, and alone. Some children are locked up at ages as young as 9 and 10 years old.

While the U.S. Department of Justice reports that youth incarceration rates have decreased 50% between 1999 and 2013, too many youth remain locked up — especially youth of color, who are far more likely to be detained despite committing roughly the same level of offenses as white youth. According to the W. Haywood Burns Institute, African American youth are five times more likely to be incarcerated than white youth; Native American youth are 3.2 times more likely; and Latino youth are two times as likely.

In some states, the racial disparities are profoundly higher. The Sentencing Project reports that Connecticut and New Jersey maintain rates of confinement less than half the national average, but confine African American youth at 24 times the rate of white youth — a near incomprehensible number.

This is not a stand-alone crisis.

A range of factors contributes to the culture of incarceration of youth. In particular, children’s lack of access to trained and specialized attorneys in juvenile court can have a devastating impact on their outcomes in the juvenile justice system.

Appointing legal counsel for children is common sense but not common practice. Despite Gault, the 1967 US Supreme Court decision that recognized a child’s constitutional right to counsel, children are routinely processed through the court system without ever speaking to a lawyer. In some counties, that number reaches as high as 80 percent of children.

The consequences aren’t minor.

Juvenile defense attorneys are uniquely situated to advocate for youth in the courtroom, in school, and in the community. At every step of the court process, juvenile defenders elevate young people’s voices, strengths, and experiences to achieve fair outcomes rather than ineffective punishment. And, for those youth who are incarcerated, juvenile defenders are an important watchdog in ensuring their safety and well-being while fighting for their release. Access to counsel is absolutely imperative in the fight to end youth incarceration.

To transform outcomes for young people, we need to promote a new system of juvenile justice that emphasizes community-based services and supports instead of youth incarceration.

In the last decade, juvenile defenders, advocates, and community members have worked together to organize successful campaigns to shut down notorious youth prisons and invest in community alternatives in several states, including Louisiana, New York, Mississippi, Texas, DC, and California. Today, several campaigns across the country are seeking to build on these victories.

National Juvenile Defender Center (NJDC) is a non-profit, non-partisan organization dedicated to promoting justice for all children by ensuring excellence in juvenile defense and is a co-author of this piece.

To learn more about youth prisons and our campaign to end youth incarceration, see www.youthfirstinitiative.org. You can also visit www.gaultat50.org for more information on children’s constitutional right to representation in juvenile court.