Our discussion is presented in seven parts. In Part I, we briefly sketch historical conceptions of adolescence and its relationship to foundational principles of the juvenile court, and juvenile court practice from its inception in the late nineteenth century through the mid-1960s. In order to more fully appreciate both the strengths and weaknesses of the Gault decision, we pay special attention to the larger social and legal context in which the case was decided. Part II is devoted to a discussion of Gault. We argue that although Gault represents a valiant attempt to impose the rule of law on a lawless system, the Court's failure to appreciate the uniqueness of childhood and adolescence produced a juvenile justice system characterized by procedural rights that remain, for the most part, empty promises, due to the young people's inability to exercise those rights in a meaningful way. In Part III, we analyze the post-Gault cases that fleshed out the application of Fifth and Sixth Amendment rights to juveniles, and highlight the limitations of these applications.
In Part IV, we consider Roper, and argue that it offers an important corrective to what came before. It creates a new lens through which to conceptualize juveniles in delinquency proceedings, and as seen in Part V, has great potential to become the basis for a legal paradigm shift that can transform Fifth and Sixth Amendment jurisprudence as applied to juveniles. In Part VI, we ask: What are the implications of the distinguishing features of adolescence for the meaningful exercise of due process rights? To answer this question, we look to empirical studies on adolescents' developmental capabilities and their understanding of, and abilities to waive, the right to remain silent and the right to counsel. We argue that the findings stipulated in Roper, coupled with the findings of recent empirical research, support a nonwaivable right to counsel at police interrogation and in juvenile delinquency proceedings.
Finally, in Part VII, we discuss how these rights might be implemented to maximize benefits to youth, by integrating knowledge of youth development with recommendations for legal advocacy. We consider some steps that attorneys can take to ameliorate adolescents' developmental deficiencies and to represent them more effectively. Our goal is to create the image a juvenile justice system adapts to the realities of children and their needs, in order to safeguard their fundamental right to be treated fairly.
Hillary B. Farber & Donna M. Bishop, Joining the Legal Significance of Adolescent Development Capacities with the Legal Rights Provided by In re Gault, 60 Rutgers L. Rev. 125 (2007).