Juvenile courts have historically functioned under the ethos of parens patriae, the assumption that courts acts in the best interest of those who cannot help themselves. As a result, the juvenile-court system operates according to a parental rather than adversarial process, an informal, ad hoc judicial process governed by a supposedly benevolent and paternal juvenile court. In Justice Fortas’s opinion, this improvisational, parens patriae practice, no matter how well-intentioned, is the enemy of justice and individual rights. “[U]nbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure,” and “departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness,” Fortas wrote.

The primary holding in Gault is that children have the right to legal representation during the judicial process, and that proper procedure, not discretion, is necessary to ensure this right. “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him,’” Fortas wrote in his majority opinion, quoting Kent v. United States.

This year, the 50th anniversary of In re Gault, the National Juvenile Defender Center (NJDC) sought to determine just how successful the Gault decision has been in protecting the due-process rights, and specifically access to legal counsel, of the more than 1 million children who enter the American court system each year. Their findings, detailed in the report, “Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel,” suggest that the majority of states fail to protect children’s right to counsel, either in law or practice, in five significant ways.

Right to counsel regardless of financial status is guaranteed under the U.S. Constitution, and yet children are not automatically presumed to be eligible for free legal representation. Children’s eligibility is often predicated on an investigation of the family’s financial status, and this can significantly delay access to counsel while children await assistance in detention. The financial-qualification process can result in disagreements over the need for counsel. Mary Ann Scali, the executive director of the NJDC, says that Gault establishes “the child’s right to a lawyer, not the family’s right to a lawyer.”

Even in states where children are guaranteed counsel, access to an attorney may not be triggered early enough in the judicial process. Many children face interrogation without the guidance of counsel, for no U.S. state specifically provides children with access to counsel during interrogation, and only Illinois has provisions, albeit limited ones, to ensure that children younger than 15 who have been accused of “serious” offenses are provided with counsel during interrogation. The need for representation during interrogation, and the underlying power imbalance between children and law enforcement, is illustrated in the “Access Denied” report via a quote from Haley v. Ohio: