This Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault. It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must move beyond the limited “critical stage” and “offense focused” analyses used under right-to-counsel doctrines that have evolved under the Sixth Amendment for accused adults. Given that many facets of juvenile-court prosecutions allow for largely unchecked discretionary action by judges and court-related actors—both before and after adjudication—it rejects a trial-centered defense framework for effective juvenile representation. These ancillary parts of the process, too frequently below the law and lawyering radar, have the capacity to threaten youthful privacy, autonomy, and liberty more than a finding of guilt itself. And given what we now know about the capacities of young people to process information and make future-based decisions, the guiding hand of counsel is essential for the entire time a young person is involved with the juvenile justice system’s web. Accordingly, this Essay urges revisiting and re-envisioning the right and role of juvenile counsel under the Fourteenth Amendment rather than repeatedly mining the Sixth Amendment to establish a more robust conception of effective juvenile-court representation. Armed with recent findings about adolescent development and competence, and in light of the unique nature of such proceedings as they have evolved over time, we should fundamentally reconsider lawyer competence within juvenile prosecutions to ensure greater justice—both procedural and substantive—for court-involved youth.
Mae C. Quinn, Giving Kids Their Due: Theorizing a Modern Fourteenth Amendment Framework for Juvenile Defense Representation, 99 Iowa L. Rev. 2185 (2014)