Meaningful access to an attorney for adults turns 50 this year. For youth, access to an attorney is 46 years old and is still very much a work in progress. The landmark Supreme Court decision requiring appointed counsel for indigent adults, Gideon vs. Wainwright, was not applied to youth until the Supreme Court granted some limited due process protections in juvenile court with In re Gault.
The evolution of the right to an attorney is, unfortunately, typical of many historic approaches to juvenile justice. A constitutional guarantee was defined by and for adults, eventually trickling down to youth. Rather than seeking to understand youth on its own terms and in its own context, this approach applies adult rules to youth selectively, in ways that are developmentally inappropriate and disproportionately harsh for youth.
In some jurisdictions, juvenile court is not viewed as an area of expertise, but is used as a training ground for prosecutors, defenders, or judges who plan to practice in adult criminal court. Too often, this means that youth are charged or represented by the most inexperienced attorneys, in courtrooms where juvenile-specific legal theories are not given sufficient weight. Yet the principle of Gideon is especially important for youth. Most youth in juvenile court are indigent. Even when parents can afford an attorney, they may not understand why one is needed, or they may be angry with their child, and they may refuse to hire an attorney to represent their son or daughter.
Teens are exceptionally vulnerable during questioning by police. Youth overwhelmingly waive their right to an attorney during interrogation – up to 80-90% of the time in some jurisdictions. In the absence of attorneys, youth can waive many other important rights, including the right to certain hearings of the evidence against them. Even when youth are specifically told about their right to remain silent, they have been conditioned in school and at home to answer questions posed by adult authority figures. Their parents may tell them they have to talk to police.
Typically, teenagers do not understand that police are allowed to lie to them in order to elicit information. In many cases involving juvenile false confessions, youth were told, incorrectly, that there was overwhelming evidence implicating them and that they could not go home until they signed a statement confessing to a heinous crime. While many adults find it implausible that anyone would honestly believe that a confession will set them free, youth often believe just that – that by signing an obviously impossible statement, the truth will come out later, once they have talked to their parents and gotten help to sort out what has happened.
Since 2005, the Supreme Court has taken a much more robust and encouraging approach to youth rights. Rather than simply determining whether specific adult protections should apply to teenagers, the Court has begun to define separate constitutional guarantees for youth. These increasingly take into consideration the vast potential and unique vulnerabilities of teenagers.
Still, in order to provide youth with truly meaningful access to an attorney, much remains to be done. Youth should be educated about their right to an attorney in an age-appropriate fashion and should be encouraged to practice asserting it. Youth should be informed about situations when they might need to ask for an attorney, including when they are questioned on the street or at school.
Laws should protect youth against waiving their right to an attorney in serious cases. Attorneys appointed to represent youth should be well-qualified in juvenile-specific laws and committed to vigorously asserting, explaining, and expanding youth rights in a developmentally-appropriate fashion. The underlying promise of Gideon is that all Americans, no matter their status, should be able to have someone stand up for them when it matters. For youth in conflict with the law, this important work continues.