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Bar Journal - Summer 2007

Resolving the Gault Dilemma



        May 15, 2007 marked the 40th anniversary of In re Gault, the most important case in the history of the juvenile court.

        Even casual observers of the court know that Gault vested delinquents nationwide with constitutional protections for the first time, the right to counsel being foremost.1  No longer could juvenile court rationales justify extreme miscarriages of justice, keeping in mind that 15-year old Gerald Gault was sentenced to six years in reform school for purportedly making a lewd phone call to a neighborhood woman.2  

        Although Gault continues to be worthy of celebration for its insistence on basic rights for youthful offenders, there was a troubling side to Gault which is often overlooked. Simply put, injecting rights into the historically informal juvenile court with its singular rehabilitative mission ran the risk of rendering the court virtually indistinguishable from the criminal justice system. Given that the principal reason for creating the new juvenile court at the turn of the 20th century was the inappropriateness of the adult system for minors, this was no small concern.3 

        United States Supreme Court Associate Justice Fortas, writing for the majority, was confident that the insistence on some fundamental rights for delinquents would not affect the basic workings of the court. Justice Stewart was far less confident.4  More than this, Stewart saw a profound incompatibility between rights and the juvenile court’s historical manner of processing delinquents – to an extent that he was convinced Gault sounded the death knell for the juvenile court as a unique judicial institution. He was not alone in this regard amongst the Gault justices. 

        Thus, the 40th anniversary of Gault is also an occasion to re-visit this great debate and to see how over time the juvenile court has fared and who was right. An assessment begins with a look at the pre-Gault juvenile court: the young people it served and its governing philosophy. 



        Prior to the 20th century, treatment of poor or “wayward” children and youth in the United States was often grotesque and cruel: capital punishment for disobeying a parent6; indentured servitude; whippings; being placed in adult institutions including insane asylums, jails and prisons7; being sold to the highest bidder; and slavery for Afro-Americans. Early reform efforts in the 19th century – houses of refuge, reform schools, and “placing out” via orphan trains – were well-intended but often fraught with abuses.

        In the latter half of the 19th century, a number of reform efforts were undertaken to assist the poor and the immigrant poor in particular. Progressive women, especially, took a particular interest in children deemed to be wayward or “delinquent”, believing these children to be more the victim of their environments than being inherently bad or evil as was commonly thought8.

        The reformers’ concerns coincided with the emergence of the new social sciences including sociology, psychology and criminology. These ingredients were central to the formation of the first justice system for juveniles, established by the Illinois Legislature in Cook County in 1899. By 1927, all but two states (Maine and Wyoming) had juvenile courts. Although each state was free to develop its juvenile courts as it deemed best, the nation’s juvenile courts shared many of the same features including:

     Delinquency was viewed as a disease (not as a crime), susceptible to diagnosis and    treatment.

     All proceedings were considered civil versus criminal in nature.9

     It made no difference what offense brought the child to the court because the court’s concern lay with what a youth could become with the court’s assistance.10 

     The child did not need rights because the court’s sole purpose was to rehabilitate, not punish, the child. Benevolent judges and probation officers, not lawyers, would safeguard the child’s interests. 11 

     All proceedings were informal, with judges serving as father figures rather than as judges. Consistent with this view, judges were vested with maximum discretion in administering “best interest of the child” dispositions.

     All proceedings were confidential to protect a youth’s indiscretions from becoming etched in the public’s mind. 12

        It is important to recall that once under way, the early juvenile courts intentionally rejected the rights-based model which characterized - and continues to characterize - the criminal justice system. In a nutshell, due process and rights were exchanged for a promise that the juvenile court would devote all of its institutional energies to guiding its   young constituents toward a more hopeful future.12a

        Although the juvenile court was not without its critics in the early decades of its existence, it was not until the 1950’s and especially the 1960’s that a broader backlash began to emerge, based on judicial abuses. In retrospect, it was naïve to think that a closed, informal system with no checks and balances would benefit the children except in rare instances. Unfortunately, the abuses appeared to have become commonplace, and it was only a matter of time before this came to a head.

        That day came when a 15-year-old delinquent filed an appeal with the United States Supreme Court. The delinquent was not Gerald Gault and the case did not involve a fringe crime such as a lewd phone call. Rather, the delinquent was Morris Kent who was accused of several heinous crimes. 13 His appeal was based on his contention that he had been improperly transferred from the juvenile court to the adult justice system for trial. The difference was huge. If retained in the juvenile court system, the maximum time he could serve was five years. If convicted in adult court, as he eventually was, he could and did receive a sentence of 30-35 years in prison.

        The Supreme Court’s holding in the Kent case was relatively insignificant in that it only applies to delinquents who face possible transfer out of the juvenile court, a very small percentage of the nation’s delinquent population. 14 Of greater importance was the Supreme Court’s short but ominous critique of the nation’s juvenile court system, a critique that was to ripen in Gault exactly one year later.



      A. The Arizona Juvenile Court

        Seemingly, there had to have been more to Gerald Gault’s case to warrant his being sent to reform school for six years. Surely, making a dirty phone call – even if proven – could not have been the sole basis for such a severe sentence.

        In fact, there was no more. Gerald’s only previous encounter with the Arizona juvenile court was a complaint that he had been present when another boy had taken a wallet from a woman’s purse. For this, he was placed on six months probation. In short, there were no aggravating circumstances - no circumstances at all - that would have warranted confinement in the Arizona Industrial School from age 15 to 21. 15 

        Gault’s “sentence” was bad enough, but the process by which it was arrived at was worse. Typical of the times, juvenile court proceedings in Gerald Gault’s case were not recorded nor was there a written order by the judge. The only reason the proceedings came to light is because, subsequent to being sentenced to the Industrial School, Gault advocates petitioned an Arizona superior court to grant a writ of habeas corpus. Superior court proceedings were recorded, and became part of the record that the Arizona Supreme Court reviewed when it accepted Gault’s appeal from a superior court order denying his writ.

        The superior court record revealed the following:

     A woman made a complaint with the local sheriff’s department to the effect that Gerald Gault and another boy had made lewd remarks to her over the phone.

     Gerald and his friend were promptly taken into custody around 10 a.m. on June 8, 1964.

     Gerald’s parents, at work, were not notified.

     When Gerald failed to return home that evening, his parents sent his brother out to look for him, and he learned that Gerald was being held at the Detention Home.

     Mrs. Gault and Gerald’s brother went to the Detention Home the evening of June 8 where an Officer Flagg, superintendent of the Detention Home who doubled as a probation officer, told them why Gerald was in custody and that there would be a “hearing” in juvenile court the following day. 16 

     The next day, Officer Flagg filed a petition with the juvenile court, simply stating that Gerald was a minor, a delinquent, and “in need of the protection of the Honorable    Court”.

     The petition was never served on Gerald or his parents.

     On June 9, Gerald, his mother, his older brother and two probation officers including Officer Flagg met in chambers with the judge. The neighborhood woman was not present, no one offering information about the alleged lewd phone call was sworn, and there were conflicting opinions about what Gerald admitted to the juvenile court judge. At  the conclusion of the chamber conference, the judge said he would “think about it.”  Gerald was returned to the Detention Home where he remained until June 11 or 12 (the record is unclear which) when he was released to his parents’ custody. Neither his  detention or his release was ever explained.

     Late in the day of his release, Gerald’s mother received a “note” from Officer Flagg indicating another hearing would be held on June 15.

     On June 15, accompanied by his mother and his father, Gerald appeared before the same juvenile court judge. Officer Flagg was again present but the complainant was not. The judge said she did not need to be present, making Officer Flagg the only one at the hearing other than possibly young Gerald who knew anything about the alleged crime. The judge was given a probation report, but neither Gerald or his parents received a copy. The report identified the charge as “Lewd Phone Calls”.

     As reflected in the later habeas corpus proceedings, Officer Flagg acknowledged that Gerald did not make any admissions of guilt at the June 15 hearing. On the other hand, the juvenile court judge who testified in the habeas proceedings in superior court said: “there was some admission again of some of the lewd statements…he didn’t admit to any of the more serious lewd statements.”

     The June 15 hearing concluded with the juvenile court judge sending Gerald to the State Industrial School “for the period of his minority [until 21], unless sooner discharged by due process of law”.


B. The Petition for Writ of Habeas Corpus and Appeal to the Arizona Supreme Court

        At the time of Gault’s case in Arizona, there was no statutory right of appeal. Consequently, legal advocates who came forward to assist were left with a writ of habeas corpus as the means of getting a higher court to review what had happened to Gerald. As was almost always the case in the first 60 years of the juvenile court, appellate courts had little interest in second-guessing juvenile court decisions, choosing instead to leave such matters to the judge who best knew the child’s circumstances.

        In what today seems a breathtaking conclusion, the Arizona Supreme Court agreed that constitutional due process principles were applicable to juvenile courts, but disagreed that Gerald’s commitment to the Industrial School for six years, via a summary proceeding, violated these principles.


C. The Appeal to the United States Supreme Court.

        If state appeals in juvenile court were rare, appeals to the United States Supreme Court were even rarer. However, this began to change with the Court’s 1966 Kent decision.

Clearly, the Court was increasingly troubled by judicial excesses and the absence of rights for juveniles in the informal juvenile court. Justice Fortas for the Kent majority summarized this concern:

There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds; that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children. 17

        It is against this backdrop that the Court not only agreed to hear Gault’s case the following year but in a resounding 8-1 decision eventually held that thereafter all delinquents in juvenile courts across the country were entitled to the right to notice, to counsel, to cross-examination and the privilege against self-incrimination. 18

        Justice Fortas, again writing for the majority in a juvenile case and as forenoted, did not seem to think that Gault’s insistence on a few rights for juveniles would fundamentally alter the manner in which juvenile courts conduct their business:

As we shall discuss, the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process. 19  

In a concurring opinion, Justice Black agreed that juveniles must be accorded basic constitutional  protections. For him, the Bill of Rights would tolerate no less. However, he had a profoundly different view than Justice Fortas concerning the effect of this on juvenile court proceedings:

This holding strikes a well-nigh fatal blow to much that is unique about the juvenile courts in the Nation. For this reason, there is much to be said for the position of my Brother Stewart… . 20 

Justice Harlan, resorting to a fundamental fairness approach to Gault’s appeal, agreed that  timely notice and the right to counsel are necessary to satisfy the Due Process Clause of the 14th Amendment. 21  For these reasons, he concurred with the majority that the judgment of the Arizona Supreme Court must be reversed. Moreover, Harlan concluded that imposition of these rights “should not cause any substantial modification in the character of juvenile court proceedings”. 22  However, he strongly disagreed with the majority’s insistence on the rights of confrontation, cross-examination and the protection against self-incrimination. He dissented from this part of the majority’s opinion, stating:

quite unlike notice, counsel and a record, these requirements might radically alter the character of juvenile court proceedings… . At the least, it is plain that these additional requirements would contribute materially to the creation in these proceedings of the atmosphere of an ordinary criminal trial, and would, even if they do no more, thereby largely frustrate a central purpose to these specialized courts. 23 

Although agreeing the Arizona Supreme Court judgment had to be reversed, Justice White felt compelled to write a concurring opinion in which he indicated he would not have reached the confrontation and cross-examination issues in Gault’s appeal. As for the protection against self-incrimination, he agreed in principle that this right is applicable to the adjudicatory phase of delinquency proceedings but he was unable to discern in the appellate record whether Gault’s right in this regard was violated. As to this particular constitutional protection, White concluded:

But I do hope that the Court will proceed with some care in extending the privilege, with all its vigor, to proceedings in juvenile court… . 24 

And then came Justice Stewart’s dissent. He pulled no punches: 

The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials. I believe the Court’s decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy. 25 

Stewart acknowledged that juvenile courts had often fallen short of their founding ideals, and that much work remained to be done. But, he concluded:

I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court’s opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution…to impose the Court’s long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. 26 

His deeply felt concerns went unheeded. The due process revolution that was already underway in a few states prior to Gault was now energized nationwide. Given a long history of juvenile court excesses which Gerald Gault’s case seemed to symbolize, the Court’s ruling was laudable. But, there were those ominous separate opinions by Justices Black, White and Harlan, and outright expression of doom by Justice Stewart. Even Justice Fortas had hedged, indicating there should be no problem so long as the new due process procedures were “intelligently and not ruthlessly administered.”

        However lacking in specifics, the common thread to the justices’ concerns was that Gault was imposing a sophisticated, adult-like legal process on a system that dealt with young people who, more often than not, were a long way from adulthood, both age-wise and developmentally. If nothing else, the original juvenile court at least used a process that its juveniles could often understand. With much wisdom, it also placed a youth’s development at the juvenile court’s center. Yet, a juvenile court without regard for individual rights too often led to intolerable injustices such as Gerald Gault experienced.

        Seemingly, there was no way to meld these core values into a cohesive, coherent whole: the nation could have a rights-centered or a therapeutically-centered juvenile court, but not both.



      A. In re: Wesley B. , 145 N.H. 428 (2000)

        Eleven year old Wesley B. appealed a juvenile court finding of delinquency (arson) to the New Hampshire Supreme Court. The Court’s opinion provides the following background information:

     Testimony during the adjudication revealed that while firemen were at Wesley B.’s house to put out a fire, Wesley told a police officer that he, Wesley, had discovered the fire and made the 911 call.

     The officer called headquarters and a juvenile detective was sent to the home to speak with Wesley. His mother agreed to the detective taking Wesley to police headquarters without her.

     The detective interviewed Wesley for about two hours, read him his Miranda rights, gave him some juice, and told him he did not believe Wesley’s several accounts of how the fire might have started. Wesley soon confessed to having started the fire.

     Pursuant to a pre-trial competency examiner’s recommendations, Wesley’s attorney continually monitored his client’s understanding of the proceedings, the parties and witnesses used simple terminology, and the juvenile court judge ensured there was a break in the proceedings at the end of each hour. Nonetheless, on three occasions Wesley fell asleep during the proceedings.

     At the conclusion of the adjudication, the juvenile court judge found the delinquency petition to be true, in part based on Wesley’s confession to the juvenile detective which Wesley’s lawyer had unsuccessfully attempted to suppress.


        Wesley B.’s appeal to the Court was based on several theories, all having to do with the confession he made at the police station. The Court paid particular attention to whether Wesley’s confession was voluntary, and concluded it was not. In arriving at this, the  Court cited the competency examiner’s findings that Wesley had a high degree of immaturity and severe language handicaps, and that Wesley had been subjected to “repeated and prolonged questioning”. The Court concluded that Wesley’s “will was overborne”, necessitating a reversal of the finding of delinquency and a remand to the juvenile court. 


      B. In re J.B., 618 A.2d 1329 (1992)

        Whereas Wesley B.’s attorney functioned much as defense counsel would in a criminal  case, J.B.’s attorney utilized a very different approach which, ultimately, was at the center of J.B.’s appeal to the Vermont Supreme Court. The facts of J.B.’s case are as follows:

     The police received a report that 12-year-old J.B. had engaged in some type of sexual conduct with two 5- year-old boys.

     An investigating officer called J.B.’s father and asked to speak with J.B. about the report. Before giving permission, J.B.’s father called his lawyer who had represented the father on other matters. But, as the Vermont Supreme Court was to later note, the attorney “had little experience in criminal law.”

     The attorney encouraged J.B. and his parents to cooperate with the police, to work with the system rather than fight it. Sometime thereafter, J.B., accompanied by his parents and their attorney, went to the police station where J.B.was “Mirandized.” The attorney assured J.B. and his parents this was routine procedure and further advised the family to acquiesce to the officer’s suggestion that he meet alone with J.B. so that the boy could speak “without embarrassment.”

     J.B. then confessed to the officer, resulting in delinquency petitions being filed against him. He pled nolo contendere at his adjudication, and at disposition was placed on probation which included a requirement that he participate in a psycho-sexual evaluation and follow any recommendations of the evaluator.

     At a subsequent hearing, a psychologist testified that J.B. had “blossomed” after the adjudicatory hearing, and that the juvenile court-ordered treatment had a “cathartic” and “rehabilitative” effect.

        Seemingly, this was a very positive and important outcome for young J.B. However, for reasons that are never clearly explained and notwithstanding their son “flourishing,” his parents retained a new attorney who filed a motion to “Reopen the Adjudication of the Merits.”

        The Vermont Family Court found the motion lacked merit for two reasons. One, as the Family Court saw it, the approach used by J.B.’s original attorney was a strategy, albeit “unorthodox,” but not malfeasance. Two, the parents’ motion failed to establish prejudice in that the strategy did not result in any harm to J.B. as evidenced by his remarkable therapeutic progress. The parents’ appealed the denial of their motion to the Vermont Supreme Court which had a decidedly different view of the attorney’s performance:

In the context of juvenile proceedings…Cantini’s approach was no strategy at all. The police interview, during which the twelve-year old boy was allowed to face his interrogators unaccompanied by counsel, simply served to arm the prosecution with evidentiary ammunition where it was questionable whether they, prior to the interview, had enough to convict him. The juvenile’s well-being before the court was not benefited by his confession…Cantini simply ‘threw in the towel’ and abandoned any strategy to bargain for the best outcome for the juvenile client. 27 

As for the psychologist’s testimony that J.B. had “blossomed” following the finding of delinquency and court-ordered treatment, the Vermont Supreme Court’s view was:

Whether or not the treatment was effective misses the point. The proper inquiry is whether the judicial process retained ‘its character as a confrontation between adversaries.’ 28 

The Court added that whether J.B. actually suffered any harm was immaterial. It was enough that the attorney had failed to assert J.B.’s 6th Amendment rights, thereby rendering the adversarial process “presumptively unreliable”.



        As is readily apparent, rights are in full bloom in Wesley B. and In re J.B. The fact that one case involves an 11-year- old and the other a 12-year-old makes the legal formalities all the more striking. 30 But, such is the juvenile court in the post-Gault modern era, at least in the preliminary and adjudicatory stages. 31 

        Moreover, the U.S. Supreme Court was not done with juvenile rights after the Gault decision. Subsequently, the Court ruled that the constitutional interests of delinquents are of sufficient magnitude to require proof beyond a reasonable doubt in adjudications, 32 and to protection against double jeopardy.33 In two other cases, the Court declined to vest juveniles with a constitutional right to pre-trial bail and trial by jury,34 but some jurisdictions have imposed these rights as a matter of state law. 35 

        Although it was never the intention of the Supreme Court to bring about the demise of the juvenile court, its damning critiques of the court in Kent and Gault sent a message that scrutinizing the juvenile court was necessary and proper.  In turn, this contributed to an atmosphere where the court became the target of wider criticism that began in earnest in the late 1970’s. 

        One source of criticism was a dissatisfied public that increasingly viewed the court as “soft” on juvenile crime, and encouraged state legislatures to enact tougher, more criminal justice-like dispositions for delinquents. Many legislatures did so, amending their delinquency statutes to balance rehabilitation with accountability and punishment.36  Others placed primary emphasis on accountability and punishment, and a few states eliminated all references to rehabilitation. 37  

        Another source of criticism was legal scholars and standards organizations. This criticism tended to focus on the juvenile court’s propensity for dispositions lacking in proportionality, and on the slowness of the court (and in some jurisdictions outright resistance) to fully implementing Gault rights. 38 A particular concern was the frequency with which juvenile court judges were all too willing to accept a juvenile’s waiver of the right to counsel. 39 

        Some of these critics called for the juvenile court’s delinquency jurisdiction to be abolished, one rationale being that at least a juvenile’s rights would be consistently recognized and enforced in criminal courts. 40 Others stopped short of recommending abolishment, but urged procedures that, if adopted, would render the juvenile court indistinguishable from criminal courts in most respects. 41 

        The court was not without its defenders, none more so than juvenile court judges. 42   And, although some states did abolish the juvenile court’s “status offender” jurisdiction, none saw fit to abolish its delinquency jurisdiction which, as the 20th century neared an end, often appeared more “criminal” than “juvenile” in nature. 

        Whether one agrees or disagrees with the increased formality and central role of rights in modern delinquency cases, it is impossible to miss the disconnect that frequently exists between the youths involved and the sophisticated legal process they find themselves in. For example, during his own trial, Wesley B. fell asleep three times. As for J.B., one is left to wonder what he made of his parents being displeased with a process that resulted in him “blossoming”. And, in both their cases, there is a disconnect between how the legal and rehabilitation systems view the youth’s confession. Whereas the former is deeply suspicious of confessions absent full legal protections, the latter frequently deems confessions a prerequisite for positive therapeutic outcomes.

        And, could any of the Gault justices have imagined the day when a court addressing juvenile matters would say “[w]hether or not the treatment was effective misses the point”? For sure, the Vermont Supreme Court’s intent was that treatment outcomes was not the state standard for determining ineffective assistance of counsel. But, the historical irony is impossible to miss.

        As the 20th century neared its end, the juvenile court had survived Gault and the subsequent calls to end its delinquency jurisdiction. But, it was a much altered institution, greatly in need of revitalization.



        In 1909, exactly ten years after the court was founded, Judge Julian Mack articulated the court’s uniqueness:  

The problem for determination by the judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career. 44             

        There it was and there it is: the court’s uniqueness lies with an overriding institutional commitment to helping young offenders alter the course of their lives - for the youths’ and society’s benefit. It did not – and does not - lie with rights and punishment, however important the former and sometimes necessary the latter. 45 Consequently, if the modern day court was to revitalize itself, the single best hope lay with finding ways to return to its core mission of helping young offenders. 46

        The challenge was and is at least threefold. First, so long as states principally or solely associate the purpose of delinquency codes with punishment, the juvenile court has no future as a unique institution. 47  The second challenge is to find ways for the juvenile court to principally focus on rehabilitation and honor a juvenile’s rights -  the dilemma that confronted the Gault justices. The third challenge is developing new methods of rehabilitating juvenile offenders, alternatives or additions to the “medical model” that characterized the court’s rehabilitative approach for many years and that has not fully recovered from the “just deserts” attacks and doubts about rehabilitation in general. 48 

        These challenges are formidable. Justices Harlan, Black and Stewart thought the Gault dilemma, alone, was insurmountable. Yet, there have been several encouraging developments, one at the outset of the post-Gault modern era, others more recent, that auger well for the court and its original mission.

        Concerning the first challenge – overcoming a punishment-dominated court – there are signs that the “just desserts” approach that was ascendant in the last two decades of the 20th century may have run its course, in good measure because of the well-publicized failures of “boot camps,” gross abuses of juveniles in some lock-ups, and renewed appreciation for developmental differences between minors and adults. 49 Also, many states are turning to “restorative justice” principles which reject a pure punishment model.    

        The second challenge – finding ways to principally focus on rehabilitation in the face of rights – has been and continues to be met in several ways, starting with passage of the federal Juvenile Justice Delinquency Prevention Act in 1974. 50 Among other things, the Act creates financial incentives for states to divert as many delinquents as possible from formal court processing. Youth offenders, parents and probation officers are encouraged to develop voluntary service plans that target causes of a youth’s misconduct, and involve community service providers. Formal court petitioning is a last resort, to be used only when a youth fails to honor the terms of the service plan, commits new offenses or the original offense involves a major crime. Rights are not an issue as the juvenile has either not been petitioned or, if petitioned, formal processing is deferred.   

        A more recent development is the emergence of “therapeutic”courts, the most publicized being the “drug court” which first appeared in 1989 in a Miami, Florida, criminal court. In a stroke of historical irony, the “drug court” model is being incorporated within a growing number of juvenile courts. 51 Especially intriguing about drug courts is their stunning resemblance to the practices and procedures that characterized the original juvenile court: 

     The judge is more therapeutic team leader than judge, exercising broad discretion. 52 

     The focus of the court-led process is therapeutic problem-solving, not litigation over guilt or innocence.

     The adversarial process is rejected as inconsistent with rehabilitative objectives.                    

     The accused’s potential for success is more important than the legal charges which prompted the court’s initial involvement.

     The prosecutor, defendant’s attorney, and defendant work cooperatively.

     The “client” (a/k/a the defendant) is encouraged to be open and honest with the judge.

     The court is foremost confronted with a “disease” (drug addiction), not a crime.

However, unlike the original juvenile court, the drug court acknowledges and respects individual rights. In addition, an accused – if deemed an appropriate candidate for the drug court – often has a choice of a rehabilitative-centered process or a rights-centered process. If the former is selected, rights are either voluntarily waived or held in reserve after the juvenile has consulted with counsel. 53  

        A more encompassing development is the subsuming of the nation’s juvenile court within the larger family court system such as is taking place in New Hampshire and elsewhere in the country. The family court philosophy favors alternatives to litigation such as mediation whenever possible.54 Most significantly, the family court philosophy emphasizes problem resolution rather than rights assertion. 55   

        The third challenge – finding alternatives or additions to rehabilitation based on the “medical model” – is being met, most recently, by therapeutic courts which, therefore, can be seen as fulfilling two important roles. Although therapeutic courts are infusing new life in the medical model, therapeutic courts have modified how the model is used. Most significantly, whereas courts traditionally delegated rehabilitation to treatment specialists, in therapeutic courts judges are key participants in the therapeutic process, especially in providing monitoring, accountability (including sanctions for non-compliance with the treatment plan), and encouragement. In addition, treatment personnel in drug courts often attain near co-equal status with judges, and routinely participate in court reviews.

        This challenge is also being met by courts using restorative justice principles which place secondary importance on the medical model, instead emphasizing offender accountability to the victim and the community versus the abstract “state.” Adherents to this rehabilitative approach believe it is essential to assist the offender assume a positive role in the community by the offender atoning and making the victim/community as whole as possible. Restorative justice accords the victim and the community central roles in an overall court process. 56    

       Each of these developments redirects the court’s energies and limited resources away from litigation and rights assertion back to the court’s original mission of assisting youthful offenders gain positive self-worth, for their sake and society’s. Also, there is a major shift underway, from the court and its juvenile justice adjuncts working in isolation with delinquents to the court including the community as a key stakeholder. 57 

        In the post-Gault era, rights are recognized, but increasingly are not the central focus. A youth opting for a rights-centered proceeding is not necessarily precluded from other rehabilitative opportunities in the dispositional phase. But, time spent on asserting rights is time lost on rehabilitation. And, making the transition from a rights’ mindset in the pre-trial and trial phases to a rehabilitative mindset can be difficult.58 

        Not all juvenile offenders are appropriate for such processes as diversion, drug courts or mediation. Some offenders present a significant risk to the public safety or chronically re-offend and warrant placement in secure or semi-secure facilities. 59 In these cases, the juvenile court today is able to conduct adjudicatory and dispositional proceedings in  recognition of a juvenile’s constitutional rights. A very small number within this group are sufficiently dangerous and beyond the juvenile court’s ability to manage to warrant transfer to the criminal justice system. 60 

        The overriding point is that at the outset of the 21st century, the juvenile court is on its way to reconciling rights and rehabilitation. More than this, the court is finding ways of effecting this reconciliation so that, once again, the court can be a therapeutically-centered institution, imbued with hope. 61    



        In reflecting on the juvenile court’s history, it was inevitable the day would come when rights for juveniles would be mandated. In the first decades of the 20th century, there were challenges to the new court’s constitutionality based on a juvenile’s lack of rights. Although they were not successful, concerns remained in some quarters about the  absence of rights. There were also continuing concerns that juveniles were too often  placed in harsh, even cruel, institutions rather than being provided the care and concern the reformers envisioned and had promised in return for juveniles having no rights.  

        Thus, Gault had to be. Although it began a needed process of resolving concerns about rights, it provided no guidance on how the juvenile court was to honor rights without severely compromising its rehabilitative mission and essential adjuncts including judicial discretion and informality.

        Justice Black seemed to see no way the juvenile court would be able to do this. For him, the loss of the court’s originality was a regrettable but unavoidable price to pay for upholding the Bill of Rights. Justice Stewart also thought the court was lost. Where he differed was his conviction that rights had no place in the juvenile court. Justice Fortas seemed to think the court could survive so long as the new rights were not “ruthlessly administered,” whatever that meant. 

        Justice Harlan’s opinion was the most interesting. At one level, it seemed little more than a continuing debate with Justice Black over the correct analysis to use when addressing constitutional questions. At another level, and alone amongst the Gault justices, Harlan attempted to do the hard work of finding a way to inject rights into the juvenile court without eliminating the court’s unique features. He did so by drawing the line at the rights of confrontation, cross-examination and protection against self-incrimination. For Harlan, these were the rights – not timely notice, counsel and a record – that would essentially convert a juvenile case into a criminal case.     

        For a number of years following the Court’s decision, Harlan as well as Justices Black and Stewart proved to be far more prescient than Fortas about Gault’s impact on the nation’s juvenile courts. But, as the court was forced to become rights-centered, two good things happened over time: the court learned how to provide true judicial process in those delinquency cases warranting formality, and, secondly, a rights-centered court that was inappropriate or unnecessary for many juveniles inspired the development of alternative ways of processing cases.    

        Thus, as the court embarks on its second century of existence, it is a much changed and  improved institution, no longer the “kangaroo court” that Justice Fortas ascribed to it in the Gault opinion. Most importantly, the court is developing a sounder informality, and is regaining its dominant focus on deterring delinquents from further criminality via old as well as new rehabilitative strategies.

        All in all, it increasingly looks like Justice Fortas had it right about the court’s ability to absorb Gault without forfeiting its unique identity.



1.     At the time of the Gault decision in 1967, only a few states mandated the     appointment of counsel for delinquents (e.g., New York in 1962). Some other states provided for counsel on a more limited basis pursuant to state statute or court rule. See In re Gault, 387 U.S. 1, 37 (1967).

2.     If Gerald Gault had been an adult and committed the same offense, the maximum sentence would have been a $50 fine or two months in jail.

3.     At the time of the Gault decision, “delinquency” encompassed not only criminal conduct but also a broad array of conduct which in the post-Gault era has been           “decriminalized” and goes by various acronyms including CHINS, FINS, MINS  and PINS. Moreover, the child protection jurisdiction which has increasingly           dominated  the modern juvenile court was still in its infancy at the time of the Gault case. Consequently, the rights issue as to “delinquents” impacted the heart of the juvenile court.

4.     Although Gault is commonly referred to as an 8-1 ruling, with Justice Stewart being the lone dissenter, Justice Harlan concurred in part and dissented in part.

5.     The author is especially indebted to three sources for enriching his understanding of pre-20th century disadvantaged children and the early years of the juvenile court: John C.Watkins, Jr., The Juvenile Justice Century: A Sociological Commentary on American Juvenile Courts, Carolina Academic Press (1998); Stephen O’Connor, Orphan Trains: The Story of Charles Loring Brace and the Children He Saved and Failed, Houghton Mifflin Co. (New York, 2001); and David S.Tanenhaus, Juvenile Justice in the Making, Oxford University Press (2004). For an especially poignant and tragic account of one of Brace’s (and society’s) failures, see Joan Jacobs Brumberg, Kansas Charley:The Story of a 19th Century Boy Murderer,Viking (2003). Despite his failures, Brace acted nobly in decrying society’s view of poor and wayward children as permanently imbued with Calvinistic evil. Also, there were orphan train children who greatly benefited from his and the New York Aid Society’s efforts.

6.     New Plymouth (Mass.) Colony, General Laws, ch.2, “Capital Laws”, Sec. 13 and 14 (1671).

7.     In 1857, for example, there were 4,000 inmates under 21 in New York adult       prisons. 800 were under 14, including 175 who were under 10. O’Connor, supra note 5, at 38.

8.     Lucy Flower and Julia Lathrop, in particular, were instrumental in getting the Illinois Legislature to enact the first juvenile court in 1899. Both were affiliated with Jane Addams and the famous Hull House in Chicago which was at the center of a variety of reform efforts. Another prominent woman in the first days of the Cook County Juvenile Court was Mrs. Stevens who became the Court’s first  probation officer. See generally Jane Addams, Twenty Years at Hull House, Signet Classic (1961).

9.     It is the characterization of juvenile court proceedings as civil versus criminal that for years allowed the court to survive challenges to its constitutionality. See, e.g., Julian W. Mack, “The Juvenile Court”, 23 Harvard Law Review 104 (1909-1910) for a classic defense of the juvenile court’s informality. Judge Mack was one of the nation’s first juvenile court judges, and one of the court’s staunchest defenders.

10.   It was this philosophy that resulted in youth such as Gerald Gault typically being petitioned as “delinquent” with no specific offense charged or deemed necessary.

11.   This doctrine met with considerable opposition at the outset of the new  juvenile court, and was not fully embraced by the court itself in its earliest years.   For example, the first juvenile court in Cook County, Illinois, provided some young offenders with counsel as well as the right to jury trial. Tanenhaus, supra note 5, at 41. However, challenges to the constitutionality of the new juvenile statutes based on the absence of rights were unsuccessful. See, e.g., Commonwealth v. Fisher, 213 Pa. St. 48 (1905)(“the design is not punishment, nor the restraint punishment, any more is the wholesome restraint which a parent exercises over his child…Every statute which is designed to give protection, care, and training to children…is but a recognition of the duty of the state…no constitutionality is violated”). This and similar rulings paved the way for rights to eventually pass out of existence from the pre-Gault juvenile court.

12. This doctrine, too, was not immediately put into practice by the earliest juvenile courts. See Tanenhaus, supra note 5. In time, it became a central feature of all juvenile courts, only to come under attack in the “just desserts” era which began in earnest in the 1980’s.  

12a.         For an interesting assessment of whether most juveniles in the late 1800’s had any meaningful rights to give in exchange for more benevolent treatment, see Sanford J. Fox, “Juvenile Justice Reform: An Historical Perspective”, 22 Stanford Law Review 1187 (June 1970). Professor Fox’s research revealed that most 19th century juveniles were processed by police magistrates, and those who were processed by adult criminal courts likely did not receive all the rights their adult counterparts did. Fox postulates that the late 19th century Reformers who were instrumental in bringing about the first juvenile court were not motivated by concerns over the lack of due process protections. Rather, he contends their motivation was to provide juveniles with alternatives to institutional placements. Id. at 1222.  

13.   Kent v. United States, 383 U.S. 541 (1966).

14.   In 2002, juvenile court judges transferred 7,100 delinquents to criminal court out of a total of 934, 900 who were formally processed by the nation’s juvenile  courts. Office of Juvenile Justice and Delinquency Prevention, “Delinquency Cases in Juvenile Court, 2002".

15.   In a Superior Court writ of habeas corpus proceeding, the juvenile court judge who sentenced Gerald testified that he acted pursuant to an Arizona statute that  included in the definition of “delinquent” a youth who is “habitually involved in immoral matters”. When pressed about habitual, the judge said he recalled a matter two years prior where Gerald stole a baseball mitt from another boy and lied to the police about this. The judge acknowledged there was no formal allegation or hearing “because of lack of material foundation”. He also recalled Gerald having made other nuisance phone calls which the judge characterized as “silly calls, or funny calls or something like that.”  Gault, supra note 1, at 9.

16.   Seemingly a character out of Dickens, Officer Flagg pursuant to juvenile court philosophy at the time was assumed to be looking out for Gerald’s interests as part of his probation officer duties.

17.   Kent, supra note 13, at 556.

18.   Fortas also referenced the right of confrontation but put foremost emphasis on the right of cross-examination. Although citing both, he did not explain their  interrelationship. Black, citing the 6th Amendment, made reference to a right of  confrontation only. In the later case of  Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987), the Court expressed the view that: “…[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” 

19.   Gault, supra note 1, at 21. Fortas went to considerable lengths in his opinion to bolster the Supreme Court’s historic decision. In one of his more eye-opening footnotes, he noted that of nearly 3,000 juvenile court judges in 1964, only 213 were full-time juvenile court judges. In addition, half had no undergraduate degree, a fifth no college, a fifth were not members of the bar, and three-quarters spent less  than one-quarter of their time on juvenile matters. Furthermore, approximately one-third of all juvenile court judges had no probation officers and social worker staff; and some 80-90 percent had no psychologists or psychiatrists to assist with dispositions. Gault, supra note 1, at 14.

20.   Id. at 60.     

21.   Harlan believed that the Constitution also required a written record of juvenile court proceedings.

22.   Gault, supra note 1, at 73.

23.   Id. at 75.

24.   Id. at 65.

25.   Id. at 78.

26.   Id. at 79.

27.   In re J.B. at 326.

28.   Id. at 327.

29.   In the modern era, an assessment of the Gault dilemma shifts from the survivability of the entire juvenile court to the survivability of the court’s delinquency jurisdiction. This is because at the time of the Gault decision, the juvenile court was essentially one jurisdiction. See supra note 3. See also N.H.Rev.Stat.Ann.169. In the post-Gault  modern era, the juvenile court divided into three jurisdictions: abuse/neglect, CHINS and delinquency. See, e.g., N.H.Rev.Stat.Ann.169-B, C and D (eff. 1979). Consequently, if the juvenile court was unable to survive Gault, it still would have its CHINS and abuse/neglect jurisdictions. This said, the court’s CHINS jurisdiction has had its own survivability challenges although not related to rights. The court’s third jurisdiction, abuse/neglect, has become the court’s dominant jurisdiction. Notwithstanding problems, there is no indication that this jurisdiction is endangered.    

30.   58 percent of the nation’s delinquency cases in 2002 involved youth under 16. Office of Juvenile Justice and Delinquency Prevention, supra note 14.

31.   Given Gerald Gault’s draconian sentence, it seems strange at first blush that the Court limited the right to counsel to the adjudicatory stage. However, it can be hypothesized that the Court envisioned the juvenile courts’ true uniqueness lying with the dispositional stage, and not wanting to extend rights to this stage. Concerning the dispositional stage, Justice Stewart (among others) argued that the single greatest failing of the juvenile court lay, not with the absence of rights, but with society’s historical failure to sufficiently fund dispositional services and programs for juveniles. J. Stewart, joining Chief Justice Burger, dissenting opinion, In re Winship, 397 U.S. 358 (1970). See also Fox, supra note 12a.  

32. Winship, supra note 31. In Winship, Justice Stewart, joined by Chief Justice Burger, dissented from the majority and “from further straitjacketing of an already overly restricted system. What the juvenile court needs is not more but less of the trappings of legal procedure and judicial formalism; the juvenile court requires breathing room and flexibility in order to survive, if it can survive the repeated  assaults from this Court…each step we take turns the clock back to the pre-juvenile-court era.”       

33. Breed v. Jones, 421 U.S. 519 (1975). In Breed, a unanimous Court agreed that “…courts should be reluctant to impose on the juvenile-court system any additional requirements which could strain its resources as to endanger its unique functions.”  The Court concluded, however, that vesting juveniles with the protection against double jeopardy would not unreasonably interfere with the juvenile court’s uniqueness.

34.   Schall v. Martin, 467 U.S. 253 (1984)(no right to pre-trial bail); and McKeiver v. Pennsylvania, 403 U.S. 528 (1971)(no right to trial by jury). The Court – or at least some of the justices – continued to struggle with the Gault dilemma in these two cases. In Schall, Justice Rehnquist for the majority noted: “We have tried…to strike a balance – to respect the ‘informality’ and ‘flexibility’ that characterizes juvenile proceedings…and yet…ensure that such proceedings comport with ‘fundamental fairness’ demanded by the Due Process Clause.”  In McKeiver, Justice Blackmum for the majority joined by Justice Stewart cautioned: “If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.”  

35.   In the mid-1980’s, some 14 states provided juveniles with the right to a jury trial. H. Ted Rubin, Behind the Black Robes, Sage Publications (1985) at 14. More recently, New Hampshire provides juveniles the right to jury trial in limited  situations. N.H.Rev.Stat.Ann.169-B:19, III.-c (a).

36.   Later than most states, the New Hampshire Legislature substantially amended its delinquency code to effect greater accountability. The statute’s current purpose clause, enacted in 1995, states: “Consistent with the protection of the public interest, to promote the minor’s acceptance of personal responsibility for delinquent acts committed by the minor, encourage the minor to understand and appreciate the personal consequences of such acts, and provide a minor who has committed  delinquent acts with counseling, supervision, treatment, and rehabilitation… .”   N.H.Rev.Stat.Ann.169-B:1.  Prior to 1995, the purpose clause read: “Consistent with the protection of the public interest, to remove from a minor committing a delinquency offense the taint of criminality and the penal consequences of criminal behavior, by substituting therefor an individual program of counseling, supervision, treatment, and rehabilitation.”

37.   Most extreme in its reforms was the State of Washington in 1978. See A.          Schneider and D. Schram, “The Washington State Juvenile Justice System Reform: A Review of Findings,” 1 Criminal Justice Policy Review  No. 2, Sage Publication, 211-235 (1986) (“Rehabilitation [in the State of Washington] has been replaced as the fundamental philosophy of the [juvenile] court by a ‘justice’ or ‘just desserts’ model…”).

38.   Whereas some critics cited the juvenile court’s slowness and even resistance to instituting the Gault mandates (concerns that continue to be voiced in some jurisdictions), others saw that rights came at a price to juveniles. See Justine Wise Polier, Juvenile Justice in Double Jeopardy: The Distanced Community and Vengeful Retribution, Lawrence Erlbaum Assocs. Publishers, Hillside, N.J.  (1989)(“Although the acceptance of due process proceeded, children and youth paid  an unanticipated price for the benefits. Higher benches were raised between judges and youths brought before the Juvenile Courts. Hands-on efforts to help youth by probation were restricted. Antiseptic distancing between court personnel and youth obscured their pain. Counsel bent on preventing intervention overlooked suffering that called for help.”) Id. at 11.

39.   See, e.g., Rubin, supra note 35, at 99. Very recently, the National Juvenile Defender Center states that, in some jurisdictions in the U.S., upwards of 80-90 percent of charged delinquents waive their right to counsel. Cited in L. Pearle, “Broken Promises: The Challenge of Juvenile Justice,” ABC News Law and Justice Unit (May 17, 2007).

40.   See, e.g., Stephen Wizner and Mary F. Keller, “The Penal Mode of Juvenile Justice: Is Juvenile Court Delinquency Jurisdiction Obsolete?”, New York Univ. Law Rev.  (Nov. 1977); and Francis Barry McCarthy, “Should Juvenile Delinquency Be Abolished?”, Crime and Delinquency, 196-203 (April 1977).  See also Barry C. Feld, “Criminalizing the American Juvenile Court,” 17 Crime and Justice 197 (1993). Professor Feld argued that, absent the juvenile court finding ways to accord juveniles legal and therapeutic justice, a slightly modified criminal court would better serve juveniles.

41.   Most noteworthy in this respect was the Institute of Judicial Administration (IJA) and the American Bar Association (ABA) Commission on Juvenile Justice Standards (1977). Although stopping just short of recommending the end of the court’s delinquency jurisdiction, the IJA-ABA Commission did recommend abolishment of the court’s status offender (CHINS) jurisdiction.

42.   Perhaps the best known defender of the modern juvenile court was the Hon. Justine Wise Polier, the legendary New York juvenile court judge, supra note 38. For Judge Polier, “the juvenile court was increasingly reduced to a way station for the imposing of fixed and longer sentences directly or by transfer to the Criminal Court…the judges became instruments for the imposition of community revenge.” Polier, supra note 38, at 28. See also H. Ted Rubin, “Retain the Juvenile Court?: Legislative Developments, Reform Directions, and the Call for Abolition”, 25 Crime and Delinquency 3 (July 1979). Another juvenile court judge acknowledged the juvenile court was on trial, but, nonetheless, lauded the court as “one of the nobler inventions in American history”. Regnal W. Garff, Jr. in Behind the Black Robes, supra note 35, at 244. For a vigorous judicial defense of the court maintaining its status offender jurisdiction, see Lindsay G. Arthur, “Status  Offenders Need a Court of Last Resort”, 57:4 Boston Univ. School of Law 631 (1977).

43.   The assessment in this section is premised on the view that successful resolution of the Gault dilemma includes not only the successful integration of rights and rehabilitation, but also revitalization of the juvenile court’s original mission and returning to its practical versus legal way of processing cases. Absent this, it seems likely that the juvenile court’s identity will increasingly be associated with rights,  leaving juvenile court advocates with the difficult task of articulating the court’s  institutional uniqueness. Notwithstanding Justice Fortas’s negative assessment in Gault of the juvenile court’s rehabilitative track record, implicit in his optimistic forecast was that rights could be integrated with something more than a permanently moribund rehabilitation – and without rights dominating the juvenile court process.

44.   Mack, supra note 9, at 119-120.

45.   Indeed, sometimes there would be no rehabilitation without rights assertion. 

46.   The author has no illusions about the difficulty associated with offender           rehabilitation, particularly with tougher, more defiant delinquents. In addition to having represented delinquents in juvenile court, he worked for seven years with court-referred delinquents in a  residential treatment program, and has conducted research as well as written on underlying factors in delinquent conduct. See  David N. Sandberg, The Child Abuse-Delinquency Connection, Lexington Books, D.C. Heath and Co. (1989). As one juvenile court judge put it, the challenge often lies with “break[ing] the cycle that goes from abused/neglected child to delinquent child to adult criminal to abusing and neglecting parents.” James S. Casey in Behind the Black Robes, supra note 35, at 209.

47.   The author views accountability as an important element of rehabilitation and punishment. However, unlike rehabilitation, punishment is associated with retribution and deterrence.

48.   For most of the 20th century, the medical model predominantly relied upon psychology and psychotherapeutic principles. Psychological evaluations, 1-1 counseling and group therapy have traditionally been the foremost exercises of these principles. For an interesting discussion of the medical model’s emergence in the juvenile court’s early years, see Tanenhaus, supra note 5, at Chapter 5 (“Medicalizing Delinquency”).

49.   Developmental differences between minors and adults played an important role in the recent U.S. Supreme Court case of Roper v. Simmons, 543 U.S. 551 (2005) which held that execution for offenses committed when the defendant was under 18 years of age violates the 8th Amendment prohibition against cruel and unusual punishment. Writing for the majority, Justice Kennedy stated: “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and statute which renders mandatory minimum sentences inapplicable to juveniles transferred to the adult justice system.”

50.   42 U.S.C. 5601 et seq. The Act also creates incentives for states to     “deinstitutionalize”, meaning to treat juveniles in smaller, community-based facilities (e.g. group homes) and within a family environment versus in large institutions. However heartening, it is a sad commentary on the nation’s historical lack of commitment to juveniles that the 1899 Illinois statute which created the nation’s first juvenile court also called for juveniles to be treated in family environments whenever possible. See Fox, supra note 12a., at 1212.

51.   The information on drug courts is principally taken from James L. Nolan, Jr., Reinventing Justice:The American Drug Court Movement, Princeton Univ. Press (2001). Although acknowledging remarkable similarities between the new therapeutic courts and the original juvenile court, Nolan notes several differences. This leads Nolan to conclude that recent therapeutic courts are not simply an extension of the original juvenile court model of justice. Id. at 174-176.  New Hampshire is the beneficiary of a “Reclaiming Futures” grant from the Robert Wood Johnson Foundation. According to Judge Thomas Bamberger of the Nashua District Court, the grant supports drug courts in several district courts and one superior court. Whereas New Hampshire juvenile court judges might conduct review hearings in non-drug court cases every 2-3 months, drug court judges typically hold review hearings every week to promote prompt accountability, including sanctions for non-compliance and positive reinforcement for compliance. In addition, drug treatment services are more intense and better coordinated than in non-drug court cases. See also Hon. Thomas Bamberger, “New Approach to Juvenile Justice Ends Revolving Door”, N.H. Bar News, Feb. 23, 2007.

52.   In words remarkably reminiscent of Judge Mack’s years ago, supra footnote 44, a drug court judge instructor recently encouraged other criminal court judges in training to “[b]e less the dignified, detached judicial officer. Show your concern, as well as your toughness. Treat the offender as a person and as an individual…Don’t lecture the offender, but engage him or her in conversation…Make a connection.”  Nolan, supra note 51, at 99.   Nolan extensively studied drug courts across America. He concludes that “[s]uch a shift does not just affect the way judges and other judicial officials think about the offender turned client, but it demands a wholesale judicial reorientation.” Id. at 51.  More than this, he sees the drug court movement as ‘fundamentally transforming the American judicial system.”  Id. at 43.

53.   Waiving or holding rights in reserve can occur at different points in proceedings, depending upon whether a particular drug court uses a “pre-adjudicatory” or “post- adjudicatory” model. Judge Bamberger indicates Nashua’s drug court uses the latter, and, therefore, adjudicatory related rights have been exercised via a consent agreement or evidentiary hearing. 

54.   See, e.g., N.H.Rev.Stat.Ann.170-B:14. Enacted in 2006, this innovative statute provides for mediated adoptions in lieu of termination of parental rights adjudications in some cases involving abused and neglected children. For a broader application of  alternatives to litigation in New Hampshire courts, see Chief Justice Broderick’s “State of the Judiciary”, Feb. 21, 2007.

55.   As the juvenile court is increasingly assimilated within the nation’s growing number of family courts, it is interesting to ponder whether the juvenile court will retain a separate identity. The author hypothesizes that abuse/neglect and CHINS cases will rapidly shed their “juvenile court” identity and will be commonly referred to as “family court” cases. In contrast, the juvenile court, historically, has been  principally associated with delinquency cases (and preventing delinquency). Consequently, it seems likely that reference to delinquency cases as “juvenile” and “juvenile court” cases is apt to linger long after this jurisdiction is ensconced within the family court.

56.   For an overview of restorative justice, see Gordon Bazemore,”The Fork in the Road to Juvenile Court Reform”, The Annals of the American Academy (July 1999). 

57.   For a discussion of the growing role of the community and volunteers in the juvenile court, see Leonard P. Edwards, “The Future of the Juvenile Court: Promising New Directions”, 6 The Juvenile Court No. 3 (Winter 1996).

58.   The author appreciates that delinquents, like their adult counterparts, have the right to assert their innocence, and to contest the charges against them or to otherwise resist state control, however well-intended the state’s purpose.

59.   Rehabilitation for this group is even more important given that most will eventually return to their communities.

60.   This procedure, be it by judicial waiver, statute or prosecutorial discretion, has long been viewed as essential to the juvenile court’s continued existence. See supra note 14.     

61. For another optimistic view of the juvenile court’s future, see Edwards, supra note 57. Judge Edwards is a well-known juvenile court judge in California and former president of the National College of Juvenile and Family Court Judges.


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