Due Process. It’s a fancy phrase for something that is easy to understand. Due process simply means fair treatment under the law. Yes, it is really that simple (despite the fact that attorneys, judges, and legal scholars have spent years debating and defining the phrase).
The concept of due process is memorialized in the Fourteenth Amendment which guarantees that no state shall “deprive a person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Regardless of race, creed, color or status, all persons are to be treated equally before the law. Sounds easy right? It should be.
Unfortunately, children in the juvenile justice system do not have the same rights as adults involved with the criminal justice system—despite the fact that kids face similar consequences such as arrests, search and seizure of their body and property, and incarceration in local and state detention centers. Is that fair and equal treatment?
For over 50 years, child advocates have been fighting for the fair treatment of children in the juvenile justice system. Last week marked the 48 year anniversary of the most influential juvenile due process case, In re Gault. It was such a monumental court decision that it is literally a social justice holiday of sorts for juvenile justice reform advocates. Juvenile defenders and civil rights lawyers around the nation celebrate the day when juveniles who were accused of committing a crime received just a few of the rights afforded to adults.
Some background on the case: In 1965, Gerry Gault, a 14 year old kid, was charged with making prank phone calls to his neighbor. Gerry was arrested without notice being given to his parents, incarcerated awaiting a hearing, convicted by a juvenile court in a summary hearing, and committed to a juvenile correctional facility for an indeterminate period not to extend beyond his 21st birthday (up to 7 years). He was not represented by an attorney. Had he been an adult, Gerry would have faced a maximum punishment of a fine of $50, two months in jail, or both.
The Gault decision established four basic rights for children in juvenile delinquency proceedings:
- To be informed of their rights and charges against them
- To be represented by an attorney
- To refuse to testify against themselves
- To confront their accuser and cross-examine witnesses.
Gault was a huge step towards fairness in the juvenile justice system (which is why May 15th is a national juvenile justice holiday), but far from the fair and equal treatment to which children are entitled in our judicial system.
48 years after Gault, children are still not afforded the same constitutional rights in juvenile delinquency proceedings as adults. Children are not afforded jury trials. Children are not afforded the right to get a release on bail. In 2015, children are being arrested and held in detention for extended periods of time without probable cause—when there is no proof that they did anything wrong.
Although some states have laws which protect the due process rights of children, there are many that do not. This is a national problem. Despite the fact that research and data shows us that throwing children in prison turns out to be a really bad idea (http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/15/throwing-children-in-prison-turns-out-to-be-a-really-bad-idea/ ), over 130,000 juveniles are detained in the US each year with 70,000 in detention on any given day (2010 data).
We have made some strides, but still have a long way to go. EVERY CHILD DESERVES FAIR TREATMENT UNDER THE LAW. Due process is not a privilege. It is a constitutional right. Through litigation and policy advocacy, Children’s Law Center fights to secure the constitutional rights for children in the juvenile justice system and ensure their fair treatment under the law (shameless plug: see some of our awesome work here) http://www.childrenslawky.org/category/litigation/ .
We are a small organization with a gigantic goal. We are fortunate that advocates like Jessica and Al believe in our mission. We thank them for pedaling justice—from Cincinnati to Ferguson to New Orleans— and invite you all to invest in our efforts and advocacy on behalf of all of our children.
Civil Rights Attorney and Ohio Litigation and Policy Director of the Children’s Law Center, Inc.