If the United States Supreme Court issued an opinion on integrated schools and ignored Brown v. Board of Education, it would be news. Earlier this summer the court decided a juvenile justice case without mentioning the decision that Chief Justice Earl Warren called the “Magna Carta for juveniles.”
That decision, J.D.B. v North Carolina, involved the interrogation of a thirteen-year-old, seventh grader at his middle school for thirty to forty-five minutes. A uniformed police officer took J.D.B. from his classroom to a conference room, where two police officers and two school administrators questioned him about break-ins and thefts in his neighborhood. The officers did not read him his rights or contact his legal guardian, his grandmother. Based on J.D.B.’s confession, two juvenile petitions were filed against him for breaking and entering and larceny. His public defender moved to suppress J.D.B.’s statements on the grounds that J.B.D. had been “interrogated by police in a custodial setting without being afforded Miranda warnings” and that the circumstances of the interrogation made his confession involuntary.
Writing for a razor-thin majority, Justice Sonia Sotomayor declared that police officers and courts must take account of the age of a child being interrogated to determine whether that child believes he or she is in custody. In other words, does the child think he or she can stop the interrogation and leave? If not, then the Court held that the child must be Mirandized. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave,” Sotomayor wrote. “Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.” Writing for the court’s most reliable conservatives (Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas), Justice Samuel Alito provided a litany of reasons to reject such a “reality-based” approach. Once you start making exceptions for age, he argued then you will have to make exceptions for other individual characteristics such as intelligence. This slippery slope, according to Alito, would ultimately undermine the clarity and certainly of the Miranda warning, which has become a fixture in American law and popular culture.
Sotomayor’s majority opinion and Alito’s dissent both surprisingly omit a landmark case. Neither justice mentions In re Gault, the 1967 Arizona case the Supreme Court agreed to hear exactly one week after announcing Miranda v. Arizona, which was highly controversial. “The Supreme Court’s trumpet call for justice had been heard as a call for permissiveness in dealing with criminals, and Miranda v. Arizona became the cutting edge of a political thrust against the Warren Court,” Fred Graham, who covered the Supreme Court for The New York Times, reported in his book The Self-Inflicted Wound. As it turned out, Gault would be the last great battle in the Warren Court’s due process revolution—a revolution that not only secured the rights of the accused, but also helped Richard Nixon secure the presidency in 1968. Nixon had “run against Warren and his Court as much as he had run against his Democratic rival, Senator Hubert Humphrey,” Bob Woodward and Scott Armstrong later noted in The Brethren, their bestseller on the inner workings of the Burger Court.
In Gault, the Court held for the first time that children in juvenile court were constitutionally entitled to most of the same due process protections that adults had in criminal court. At the time the Warren Court decided Gault, children were routinely denied due process in juvenile court because it was assumed that they were entitled to custody, not liberty. The legal doctrines of parens patriae (the state as a father) and in loco parentis (in the place of a parent) undergirded the ways in which courts, schools and reformatories, treated children and adolescents. Gerald Gault, fifteen-year-old when he allegedly made an obscene phone call to a neighbor, was brought before a juvenile court judge in an informal hearing. No written notice of charges had been sent to his Gerald or his family. They did not have an attorney. The complainant was not present. No witnesses provided sworn testimony. And no record or transcript was made of the proceedings. Gerald Gault was sentenced to serve up to six years in a boot camp for an offense that would have cost an adult no more than a $50 fine or two months in jail.
Chief Justice Earl Warren assigned Justice Abe Fortas, the Court’s most adamant proponent of the privilege against self-incrimination, to write the opinion. The majority of the justices agreed that children and their families were entitled to basic due process protections, including adequate notice and the right to counsel. Fortas’s biggest challenge was to persuade at least four justices to join him in attaching the privilege against self-incrimination in all juvenile court proceedings, a foundational principle of the adversarial system of justice and the basis of Miranda.
Fortas argued juvenile courts were sending children to institutions that were in fact prisons. Children thus required the same safeguards as adults. The privilege against self-incrimination was essential protection against coercion. Initially, Warren and Brennan (two of the five-vote majority in Miranda) were unconvinced. Fortas demonstrated that young people, even innocent ones, were more susceptible than adults to confessing guilt when facing pressure from police officers. In sum, minors were actually in greater need of the 5th Amendment right than adults.
Warren and Brennan were persuaded. In a brief note, the Chief Justice informed Fortas: “I join your magnificent opinion in the above case. It will be known as the Magna Carta for juveniles.”
Gault helped cement the principle that children have constitutional rights to due process, a once radical notion so widely accepted today that neither Justice Sotomayor nor Justice Alito cited the case law on this point. All the justices, except for Justice Thomas, believe that children have constitutional rights. Thomas, on the other hand, believes that the founders’ understanding of childhood remains constitutional sound, as he yet again pointed out in his dissent in the California video game case, Brown v. Entertainment Merchants Association. The other eight justices assume children have constitutional rights and differ only on when they must be Mirandized. In the process, the entire court has forgotten about Fortas’s Magna Carta for juveniles.
The Gault decision closed a chapter in the Court’s history. In the late 1970s, one commentator even described Gault as a relic from the heyday of Great Society liberalism instead of a logical extension of constitutional rights to children. And because Nixon chose justices whose outlook differed sharply from Fortas’s, the steady progress of children’s legal rights abruptly stopped and remains unfulfilled. To this day, there is no constitutional right to a jury trial in juvenile court.
In recent years, the Supreme Court has begun to grapple with these issues again. In its landmark 2005 decision in Roper v. Simmons, the Court abolished the juvenile death penalty. Yet these new rulings, including J.D.B. v. North Carolina, continue to ignore Gault and the thinking that went into it. Fortas’s opinion, for example, acknowledged the differences between children and adults would complicate building the privilege against self-incrimination into juvenile justice. “We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children,” he wrote, “and that there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents.”
As Sotomayor’s and Alito’s opinions demonstrate, the justices are trying to figure how Gault and Miranda fit together. Reading Gault would help.
