The Constitutional Rights of Children: In re Gault and Juvenile Justice
By David S. TanenhausUniversity Press of Kansas (2011)Reviewed by Richard Comenzo
“Gault was a period piece, but an important one,” writes David Tanenhaus in The Constitutional Rights of Children. His narrative reads like a novel as he explains and guides us through the intricate social and legal forces at play in the 1960s. He illustrates just how tentative and precious our constitutional rights are. Had eighth grader Gerald Gault not been sent to Fort Grant — the infamous juvenile penitentiary located in the Arizona desert — for an alleged “lewd” telephone call in 1964, the decision in In re Gault, the “Magna Carta for Juveniles,” would never have been written by Justice Abe Fortas in 1967.
Judge McGhee, an Arizona juvenile court judge, began this drama. Without advising Gault’s parents as to their right to obtain counsel and without hearing any testimony, he sentenced 15-year-old Jerry Gault to Fort Grant for six years. After he announced this sentence, he refused to allow Jerry’s mother to hug her son as he was being led away. The adult sentence for the lewd telephone call was merely a $50 fine.
When the Gaults decided to obtain counsel six weeks after their son’s incarceration, they retained an experienced attorney, Amelia Lewis, “one of the few women who was admitted to the New York bar in the 1920s.” Her habeas corpus appeal fell on deaf ears and Jerry remained in Fort Grant. With financing from the Arizona chapter of the ACLU, she appealed this decision to the Arizona Supreme Court. The appeal was denied, and she began to work closely with national ACLU attorney Melvin Wulf to prepare the case for the U.S. Supreme Court.
Finally, in 1966 the stage was set. The Supreme Court had finally decided a juvenile case, Kent v. United States, in which it held children have a right to a hearing before their cases are transferred to adult court. The right to counsel had been secured for felons throughout the United States in Gideon v. Wainwright (1963). And the battle to decide whether the 14th Amendment applied the Bill of Rights to all the states was looming. ACLU’s Norman Dorsen, the lead attorney for Jerry Gault, had to carefully navigate these treacherous waters when he argued the case in front of the Supreme Court.
The outcome was uncertain and the questioning was pointed at times. Justice Fortas, who was the author of the Kent decision, wrote the lengthy opinion. He concluded that “[u]nder our constitution, the condition of being a boy does not justify a kangaroo court.” After a great struggle, the concept of fairness now applied to even the youngest of our citizens. Now 45 years later we still must understand that freedom must be taught, and providing fundamental fairness to all is the best method to teach it.
Tanenhaus’ legal research is flawless. His prose is impeccable. His characterization of writing, crafting, and rewriting the Gault brief as enjoyable — before the advent of computers — is my only disagreement. The Constitutional Rights of Children is an excellent legal chronicle to read for everyone who struggles to provide adequate representation for juveniles.