No United States Supreme Court decision has meant more to me during my life as a lawyer than In re Gault. Gault has been a constant companion of mine for almost thirty-five years. Not only did it inspire me in law school to become a juvenile defender, but it still inspires me today, informing my scholarship and casework on false confessions, including the case of Brendan Dassey, the 16-year-old boy whose confession to a murder and rape was featured in NETFLIX’s Making a Murderer.
In May, Gault will turn 50. It’s time for me to repay the debt I owe to Gault. This essay is a down payment on that debt.
Gerald Gault was a fifteen-year-old Arizona boy who was arrested in 1964 for making obscene phone calls to a neighbor. After a brief juvenile court hearing in which Gault was unrepresented by counsel, Gault was convicted and shipped off to a juvenile prison until his 21st birthday. Had he been an adult, the most severe penalty he could have received was a $50 fine and two months in jail.
In 1967, Gault’s case made its way to the Supreme Court where Associate Justice Abe Fortas was assigned to write the opinion. Fortas, who as a lawyer had won the right to appointed counsel for indigent defendants charged with felonies in 1963’s Gideon v. Wainwright, was the right justice for the job. He laid bare the gulf between the rhetoric of the juvenile court – with its “kindly” judges, informality, and therapeutic focus -- and its reality. To Fortas, the juvenile court all too often operated as a “kangaroo court,” one prone to inaccurate fact-finding, unchecked abuses of discretion, and arbitrary punishments. Moreover, the juveniles brought before it often received the “worst of both worlds: neither the protections offered to adults nor the solicitous care and regenerative treatment postulated for children.” To Fortas, Gerald Gault had received the worst of both worlds.
Justice Fortas’s cure for the court’s ails was a dose of due process, including notice of the charges, the right to confront and cross-examine witnesses and the right against self-incrimination. But to Fortas, it was the right to counsel that was paramount. Only with the “guiding hand” of counsel at every stage of the court proceedings, could a child “make skilled inquiry into the facts” and “ascertain a defense and prepare and submit it.”
In 1991, I left my law firm job to become a “guiding hand” for juvenile defendants. And for more than a decade, I represented teenagers charged with crimes in the Juvenile Court of Cook County, the first juvenile court in the world. At the time, the juvenile court was under assault again, this time from shoddy social scientists and crime control conservatives who argued that it was ill-equipped to deal with a new breed of youthful offender – the “superpredator.” This false narrative led many policymakers to pass laws which made it easier to prosecute juveniles as adults and to sentence convicted offenders to long periods of incarceration.
Beginning in 1999, in connection with the 100th anniversary of Cook County’s juvenile court, juvenile defenders and advocates around the country fought to reclaim the founding narrative of the court – that young people were less culpable of their crimes than adults. Relying, in part, on new scientific discoveries about the adolescent brain, we not only squashed the “superpredator” myth, but have begun to turn back the tide of draconian legislation that followed in its wake. Today, instead of making it easier to prosecute juveniles as adults, many states are “raising the age” of juvenile court jurisdiction. The juvenile death penalty has been abolished and the U.S. Supreme Court, state courts, and legislatures have life without parole and other severe sentences for youthful offenders squarely in their sights.
In 2004, I left my practice in juvenile court to become the Legal Director of the Center on Wrongful Convictions. This time it was a much less studied aspect of Gault – the opinion’s discussion of the right against self-incrimination and the problem of false confessions-- that spoke to me.
To explain the phenomena of false confessions, Justice Fortas turned to Dean John Henry Wigmore, Northwestern Law School’s most famous former evidence law professor and Dean. Wigmore noted that although there has “been no careful collection of statistics of untrue confessions,” more than enough had been verified to understand why they occur. To Wigmore, false confessions happened when a suspect is placed in a situation where the risks associated with falsely confessing are less than those associated with maintaining one’s innocence. Justice Fortas recognized that when “children from an early age through adolescence” are placed in such situations, it “is imperative” to view their confessions with skepticism. In other words, the risk of false confessions increases when children are subjected to interrogative pressure.
Justice Fortas and Dean Wigmore inspired me to collect and study cases of false confessions. In 2004, Dr. Richard Leo and I published The Problem of False Confessions in the Post-DNA World, a study of 125 proven false confessions since 1989. Nearly one-third of those in our study were children or adolescents at the time of their false confessions. In 2011, the Supreme Court cited our study in J.D.B. v. North Carolina for the proposition that today’s psychological interrogation tactics “can induce a frighteningly high percentage of people” to falsely confess. By the time of J.D.B., I had co-founded the Center on Wrongful Convictions of Youth and the Court cited our amicus brief for the proposition that the risk of false confessions is “all the more troubling” and “all the more acute” when the subject of that interrogation is a juvenile.
Gault spoke not only to the problem of false confessions but also to increased risk of coerced confessions when youthful suspects are interrogated. This is where Gault is key to understanding the story of Brendan Dassey’s confession. Quoting from the Court’s 1948 decision in Haley v. Ohio, Justice Fortas recognized that tactics which may “leave a man cold and unimpressed” may “overawe and overwhelm” a teenager. The tactics used in Dassey’s interrogation -- the “false friend” ploy, lies about evidence, and implied promises of leniency -- might not have caused a seasoned adult criminal to buckle and break. But such tactics, easily overwhelmed Dassey, whose youth, mental limitations, and inexperience with the law made him especially vulnerable to them.
Justice Fortas’s opinion in Gault was a judicial work of art. After Justice Fortas sent a draft of his opinion around to the other justices to review, he received a note back from Chief Justice Earl Warren. The note read: “I join your magnificent opinion … It will be known as the Magna Carta for juveniles.”
Gault is my Magna Carta. It’s my raison d’etre. Happy 50th! May you continue to inspire lawyers for years to come.