PRETTY RAW

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP69B00369R000100240031-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 15, 2016
• Document Release Date: April 13, 2004
• Sequence Number: 31
• Publication Date: May 15, 1967
• Content Type: OPEN

May 15, 1967
Approved Fot8f4MfSgQeVOlhEE P6 ii9R000100240031-5
8t11 Congressional District of Missouri reaffirm
(All confidence and continued support, and
reassert and again pledge our loyalty to our
outstanding Democratic Federal and- State
officials, and our able 8th District Congres-
sional Representative, Honorable Richard H.
Ichord; and
Be it further resolved: That the members
of this Missouri Federation of Women's Dem-
ocratic Clubs of the 8th Congressional Dis-
trict of Missouri, under our beloved and
capable President, Mrs. Ruby Adkisson of
Sunrise Beach, Camden County, Missouri,
continue our labors in our great Democratic
Party by emulating that quality of leadership
which is exemplified by the untiring labors of
Mrs. Sallie Halley, Mrs. Ruby Jane Happy,
Mrs. Mary Lazier, Mrs. Alice Moore, Mrs. Jean
Casey, and Mrs. Ruby M. Kocher; and
Be it further resolved: That this federa-
tion, on this 6th day of May, 1967, express
our gratitude and appreciation to the Cameo
Club of Camden County, Missouri, for.their
efforts in making this Spring 1967 Conven-
tion of the Missouri Federation of Women's
Democratic Clubs of the 8th Congressional
District of Missouri such an outstanding suc-
cess and a day to be remembered; and
Be it further resolved: That in loving mem-
ory of our beloved youth killed in battle,
and for those Americans now fighting abroad
to preserve our way of life and government,
this convention, upon adoption of this Reso-
lution, pause in our work and pleasure, for
a moment of silent prayer, in memory and
respect for those who have made the supreme
sacrifice; as an expression of our support and
appreciation to our fighting men; and for the
hope that their efforts and sacrifices be not
in vain, that their efforts be rewarded soon
with the crown of success; and
Be it further resolved: That a copy of this
Resolution, as adopted, be mailed to Presi-
dent Mrs. Adkisson, Committeewoman Mrs.
Halley, President Mrs. Happy, Past-President
Mrs. Lozier, Mrs. Moore, Mrs. Casey and Mrs.
Kocher; and to our State Democratic officials,
our United States Senators, and our Congres-
sional Representative, Richard H. Ichord.
CHANGE IN AMERICAN SELLING-
PRICE GUIDELINES INCREASES
IMPORTS
(Mr. MONAGAN asked and was given
permission to address the House for 1
minute and to revise and extend his re-
marks and include extraneous material.)
Mr. MONAGAN. Mr. Speaker, as chair-
man of the Committee of the New Eng-
land Delegation Members which was set
up on May 24, 1966, by Speaker MCCOR-
.
MA f,, t
cx
k t'
i
As Chairman of the Committee of New
England Delegation members set up on May
24, 1966 by Speaker McCormack to take ac-
tion in response to the revision of the Ameri-
can Selling Price guidelines on rubber foot-
wear imports and otherwise in relation to the
threat of Increased import to domestic pro-
duction and employment, I want to discuss
two current matters touching our problem.
First, the President's representative. in
the current GATT negotiations on the Ken-
nedy Round has stated that any change of
the American Selling Price standard will
have to be made through Congressional ac-
tion and cannot be negotiated away. While
this is encouraging in the sense that it re-
turns control of this particular situation to
Congress, it does not present the complete
picture since we know that the Customs
Bureau has -already reduced the basis for
exclusion by ruling that the ASP standard
means the lowest price at which comparable
American shoes were sold rather than the
highest. This effected a cut of approximately
35%.
The second point of interest is the latest
compilation of figures concerning rubber
footwear imports during 1966.
The following statistics show a marked
worsening of our competitive imbalance and
indicate that our efforts to reverse by legis-
lation the Treasury Department's action of
February 1966 in lowering the ASP guidelines
must continue.
In 1986, the U.S. production of rubber-
soled shoes with fabric uppers dropped 8.7
million pairs, a 5.6 percent reduction under
1965. At the same time, foreign imports of
such shoes increased by some 3 million pairs,
a rise of 8.6 percent. Thus, in 1966 imports
increased from 19 percent to 22 percent of
U.S. production while U.S. exports re-
H 5439
mained "negligible." This clearly shows the
effect of the guideline revision.
Footwear imports not subject to ASP
valuation were raised by 10.5 million pairs, a
rise of over 135 percent above 1964. That
,is, in this last particular, the Treasury, by
executive ruling similar to the above-de-
scribed interpretation of the ASP, deter-
mined that such products were not "simi-
lar" to U.S. footwear and thereby removed
their exclusion. Imports have increased from
3.25 million pairs in 1958 to 35.1 million
pairs in 1966 a rise of over 1000%.
These facts are significant in relation to
the current GATT negotiations and the
prospective termination of the Trade Expan-
sion Act.
We must continue to act vigorously in this
matter and I shall keep you informed of all
developments so that we may obtain a favor-
able solution to this problem.
Sincerely yours,
JOHN S. MONAGAN, -
Member of Congress.
U.S. DEPARTMENT OF COMMERCE,
BUSINESS AND DEFENSE SERVICES AD-
MINISTRATION,
Washington, D.C., April 28, 1967.
Hon. JOHN S. MONAGAN,
House of Representatives,
Washington, D.C.
DEAR MR. MONAGAN: In reply to a telephone
request of April 26, from Mr. Palmesi of your
office, we are providing data on U.S. produc-
tion and imports of-rubber footwear to sup-
plement our letter of April 20.
Prior to September 1963, imports were not
separated according to whether or not they
were like or similar to U.S. footwear-only
total imports were reported.
Shoes and slippers with sole vulcanized to fabric upper
[Thousands of pairs]
1958
1963
1964
1965
1966
U.B. production______________________________________________
U.B
shipments
71,409
162,885
162,206
166 909
157,155
.
-----------------------------------------------
70,001
148,335
162,151
165,741
157,388
U.B. imports;
Like or similar to U.B.footwear -------------------
(I)
22,659
21,345
16,257
16
888
Not like or similar to U.B. footwear_______________________
(1))
21,279
7,718
15,787
,
18,172
Total imports________________________________________
3,248
28,676
29,063
32,044
35,060
U.B.sales (shipments plus imports) ____________________
73,249
177,011
191,214
197,785
192,448
available.
I Not 2 Data covers September to December 1963 only.
Source: Bureau of the Census.
a
a ac
on
n response to the
revision of the American selling-price PRETTY RAW
id
li
gu
e
nes on rubber footwear imports
and otherwise in relation to the threat of
increased imports to domestic production
and employment, I should like to point
out two current matters touching our
problem.
First of all, the President's representa-
tive in the current GATT negotiations
on the Kennedy round has stated that
any change of the American selling-price
standard will have to be made through
congressional action and cannot be
negotiated away.
The other point is that the figures for
1966 have come in and show a substan-
tial reduction in exports and also a very
substantial increase by 3 million pairs
in imports, a rise of 8.6 percent. The effect
of the guidelines' change is clear.
The other statistics I have included In
the letters which I have asked to be put
in the RECORD as a part of these remarks.
The letters are as follows:
(Mr. HALEY asked and was given per-
mission to address the House for 1 min-
ute and to revise and extend his remarks
and include extraneous matter.)
Mr. HALEY. Mr. Speaker, I have asked
permission to place in the CONGRESSIONAL
RECORD an editorial which appeared in
the Thursday, May 11, issue of the Win-
ter Haven Daily News-Chief, one of
Florida's finest daily newspapers.
The editorial, entitled "Pretty Raw,"
expresses the disgust and indignation
that the people in my district feel about
the announcement that the United
States expects to loan more than $32
million to the Fiat Co. of Italy, to pur-
chase tools for a factory it would build
in Russia.
Publisher and Editor Bill Rynerson has
stated this reaction well. I agree fully
with his comments on this rediculous
turn of events.
The editorial follows:
PRETTY RAW
Last week it was announced that the
United States expects to make a $32.5 mil-
lion loan to the Fiat Company of Italy, which
in turn would purchase machine tools for
a factory it would build in Russia, ostensibly
to make automobiles. What nation is it that
supplies the greatest amount of material for
North Vietnam to kill Americans?-Russia.
What nation is it that continues to stir up
unrest all over the world in free countries?-
Russia. What nation is it that backed Castro,
even to the place of sending ICBMs to
Cuba?-Russia.
So we want to make it easier for these
people to destroy us. We not only -furnish
the money for the communists to get an
Italian firm to build and run the factory,
but we also furnish the know-how in design,
fine workmanship and - finished basic tool
products. And remember that the greatest
suppliers of war materials are the automo-
bile plants. If you ever write your Congress-
men, write them now and tell them that we
shouldn't set up trade with a nation bent on
our destruction, through a third party or
even directly. -
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 H 5440 CONGRESSIONAL RECORD - HOUSE May 4 1967
THE GAULT CASE-A LANDMARK
SUPREME COURT DECISION
(Mr. PUCINSKI asked and was given
permission to address the House for 1
minute and to revise and extend his re-
marks and include extraneous matter.)
Mr. PUCINSKI. Mr. Speaker, the U.S.
Supreme Court in a landmark decision
just handed down a few minutes ago has
struck down much that is unique about
America's juvenile courts and their treat-
ment of juveniles. As chairman of the
subcommittee now holding hearings on
H.R. 7642, the Presidential act known as
the Juvenile Delinquency Control Act of
1967, I was very much impressed by this
decision in what it shows the great need
for the legislation which is now pending
before our committee. The Supreme
Court has remanded the Gault case back
to Arizona insisting a 15-year-old boy
must be given all of his constitutional
rights of due process.
In a 7-to-1 decision, the U.S. Supreme
Court decided in favor of the appeal of
Gerald Francis Gault of Arizona saying,
in effect, that the youth had been denied
"due process' in a State juvenile court
hearing which had found him guilty of
charges of making obscene telephone
calls.
In an opinion written by Mr. Justice
Fortas, the Court said in effect:
In hearings before a juvenile court, where
a youth has been charged with delinquent
behavior and where there is a possibility
that he may be incarcerated as a result of
the hearing, then the following provisions of
the Bill of Rights will apply:
? 1. Effective notice must be made to the
juvenile and his parents of the charge placed
against him.
2. The juvenile must have the right of
assistance of counsel-either private or ap-
pointed.
3. The juvenile must have the right to
confront witnesses who testify against him.
4. The juvenile must be accorded the.
privilege against self-incrimination.
The Court said it expressly was not
dealing with the conditions which existed
_prior to the trial, such as the arrest and
detention.
Mr. Justice Stewart dissented to the
majority opinion on the grounds that the
case should not have been treated as a
criminal proceeding and, therefore,
should never have come before the Su-
preme Court.
Mr. Justice Harlan concurred in those
portions of the majority opinion relating
to the rights of notice and counsel, but
dissented on those portions which provide
the right of confrontation of witnesses
and the right of self-incrimination.
Gault was convicted by the Arizona
State Juvenile Court. As there is no ap-
peal from the juvenile court proceedings
in Arizona, an appeal was made within
the State for a Writ of Habeas Corpus.
This was denied by a lower court and
that decision was affirmed by the Ari-
zona Supreme Court which said, in effect,
that the boy had received "due process."
That decision was appealed to the U.S.
Supreme Court which reversed the find-
ing of the Arizona State Supreme Court
and remanded the case back to Arizona
for further proceedings.
This historic decision will cause every
community in America to review its
treatment of juveniles by local juvenile
courts.
I believe this decision will create tre-
mendous problems for every community
in this Nation-problems that I believe
can be helped toward solution with H.R.
7642 now pending before my subcom-
mittee.
As chairman of the Subcommittee on
General Education I found today's de-
cision of paramount importance in re-
storing constitutional rights to all Amer-
icans-including youngsters.
The President's proposal incorporated
in H.R.7642 which I am sponsoring would
help local communities establish ade-
quate programs to deal with juenvile
delinquency particularly in prevention of
such delinquency. I urge my colleagues to
study the Court's decision and also my
proposal which is so timely- in view of
today's decision.
I asi unanimous consent to include at
this point, the text of today's decision
and the dissenting views.
The decision referred to is as follows:
[Supreme Court of the United States-No.
116.-October Term, 1966]
IN THE MATTER OF THE APPLICATION OF PAUL
L. GAULT AND MARJORIE GAULT, FATHER AND
MOTHER OF GERALD FRANCIS GAULT, A MI-
NOR, APPELLANTS-ON APPEAL FROM THE
SUPREME COURT or ARIZONA
(May 15, 1967)
(MR. JUSTICE FoRTAS delivered the opinion
of the Court.).
This is an appeal under 28 U.S.O. ? 1257
(2) from a judgment of the Supreme Court
of Arizona affirming the dismissal of a peti-
tion for a writ of habeas corpus. 99 Ariz. 181,
407 P. 2d 760 (1965). The petition sought the
release of Gerald Francis Gault, pet{tioners'
15-year-old son, who had been committed
as a juvenile delinquent to the State Indus-
trial School by the Juvenile Court of Gila
County, Arizona. The Supreme Court of
Arizona affirmed dismissal of the writ
against various arguments which included
an attack upon the constitutionality of the
Arizona Juvenile Code because of its alleged
denial of procedural due process rights to
juveniles charged with being "delinquents."
The court agreed that the constitutional
guarantee of due process of law is applicable
in such proceedings. It held that Arizona's
Juvenile Code is to be read as "impliedly"
implementing the "due process concept." It
then proceeded to identify and describe "the
particular elements which constitute due
process in a juvenile hearing." It concluded
that the proceedings ending in commitment
of Gerald Gault did not offend those re-
quirements. We do not agree, and we re-
verse. We begin with a statement of the facts.
On Monday, June 8, 1964, at about 10
a.m., Gerald Francis Gault- and a friend,
Ronald Lewis, were taken into custody by
the Sheriff of Gila County. Gerald was then
still subject to a six months' probation or-
der which had been entered on February 25,
1964, as a result of his having been in the
company of another boy who had stolen a
wallet from a lady's purse. The police action
on June 8 was taken as the result of a ver-
bal complaint by a neighbor of the boys,
Mrs. Cook, about a telephone call made to
her in which the caller or callers made lewd
or indecent remarks. It will suffice for pur-
poses of this opinion to say that the re-
marks or questions put to her were of the
irritatingly offensive, adolescent, sex variety.
At the time Gerald was picked up, his
mother and father were both at work. No
notice that Gerald was being taken into
custody was left at the home. No other steps
were taken to advise them that their son 4rud,
in effect, been'arrested. Gerald was taken to
the Children's Detention Home. When his
mother arrived home at about 6 o'clock,
Gerald was not there. Gerald's older brother
was sent to look for him at the trailer home
of the Lewis family. He apparently learned
then that Gerald was in custody. He so in-
formed his mother. The two of them went
to the Detention Home. The deputy proba-
tion officer, Flagg, who was also superintend-
ent of the Detention Home, told Mrs. Gault
"why Jerry was there" and said that a hear-
ing would be held in Juvenile Court at 3
o'clock the following day, June 9.
Officer Flagg filed a petition with the Court
on the hearing day, June 9, 1964. It was not
served on the Gaults. Indeed, none of them
saw this petition until the habeas corpus
hearing on August 17, 1964. The petition was
entirely formal. It made no reference to any
factual basis for the judicial action which it
initiated. It recited only that "said minor is
under the age of 18 years and in need of the
protection of this Honorable Court [and
that] said minor is a delinquent minor" It
prayed for a hearing and an order regarding
"the care and custody of said minor." Officer
Flagg executed a formal affidavit in support
of the petition.
On June 9, Gerald, his mother, his older
brother, and Probation Officer Flagg and
Henderson appeared before the Juvenile
Judge in chambers. Gerald's father was not
there. He was at work out of the city. Mrs.
Cook, the complainant, was not there. No
one was sworn at this hearing. No transcript
or recording was made. No memorandum or
record of the substance of the proceedings
was prepared. Our information about the
proceedings' and the subsequent hearing on
June 15, derives entirely from the testimony
of the Juvenile Court Judge,' Mr. and Mrs;
Gault and Officer Flagg at the habeas corpus
proceeding conducted two months later.
From this, it appears that at the. July 9
hearing Gerald was questioned by the judge
about the telephone. call. There was conflict
as to what he said. His mother recalled that
Gerald said he only dialed Mrs. Cook's num-
ber and handed the telephone to his friend,
Ronald. Officer Flagg recalled that Gerald
had admitted making the lewd remarks.
Judge McGhee testified that Gerald "ad-
mitted making one of these [lewd] state-
ments." At the conclusion of the hearing, the
judge said he would "think about it." Gerald
was taken back to the Detention Home. He
was not sent to his own home with his par-
ents. On June 11 or 12, after having been
detained since June 8, Gerald was released
and driven home .2 There is no explanation in
the record as to why he was kept in the De-
tention Home or why he was released. At 5
p.m. on the day of Gerald's release, Mrs.
Gault received a note signed by Officer
Flagg. It was on plain paper, not letterhead.
Its entire text was as follows:
"Mrs. Gault :
"Judge McGhee has set Monday June 15,
1964 at 11:00 A. M. as the date and time for
further Hearings on Gerald's delinquency
/s/Flagg"
At the appointed time on Monday, June
15, Gerald, his father and mother, Ronald
Lewis and his father, and Officers Flagg and
Henderson were present before Judge Mc-
1 Under Arizona law, juvenile hearings are
conducted by a judge of the Superior Court,
designated by his colleagues on the Superior
Court to serve as Juvenile Court Judge.
Arizona Const., Art. 6, ? 15; Arizona Revised
Statutes (hereinafter ARS) ?? 8-201, 8-202.
2 There is a conflict between the recollec-
tion of Mrs. Gault and that of Officer Flagg.
Mrs. Gault testified that Gerald was released
on Friday, June 12, Officer Flagg that it had
been on Thursday, June 11. This was from
memory; he had no record, and the note was
undated.
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Mai? 15, 1967 CONGRESSIONAL RECORD
- HOUSE H 5441
- Ghee, Witnesses at the habeas corpus pro- acted under ARS ? 8-201-6 (d) which includes We shall not consider other issues which
ceeding differed in their recollections of in the definition of a "delinquent child" one were passed upon by the Supreme Court of
Gerald's testimony at the June 15 hearing. who, as the judge phrased it, is "habitually Arizona. We emphasize that we indicate no
Mr. and Mrs. Gault recalled that Gerald involved in immoral matters.- e
again testified that he had only dialed the Asked about the basis for his conclusion court tow with te as respect to whether such the other rion o sue s ros does
number and that the other boy had made that Gerald was "habitually involved in im- or Issue
the remarks. Officer Flagg agreed that at this moral matters," the judge testified, some- h does not nstitu with requirements of
hearing Gerald did not admit making the what vaguely, that two years earlier, on July the Federal Constitution.
lewd remarks: But Judge McGhee recalled 2, 1962, a "referral" was made concerning TIC
that "there was some admission again of Gerald, "where the boy had stolen a base- The Supreme Court of Arizona held that
some of the lewd statements. He-he didn't _ ball glove from another boy and lied to the due process of law is requisite to the con-
admit any of the more serious lewd state- police Department about it." The judge said stitutional validity of proceedings in which
ments." 4 Again, the complainant, Mrs. Cook, there was "no hearing," and "no accusation" a court reaches the conclusion that a
was not present. Mrs. Gault asked that Mrs. relating to this incident, "because of lack of juvenile has been at fault, has engaged in
Cook be present "so she could see which boy material foundation." But it seems to have conduct prohibited by law or has otherwise
had done the talking, the dirty talking over remained in his mind as a relevant factor. misbehaved with the consequence that he
the phone." The Juvenile Judge said "she The judge also testified that Gerald had ad- is committed to an institution in which his
didn't have to be present at the hearing." The mitted making other nuisance phone calls freedom is curtailed. This conclusion is in
judge did not speak to Mrs. Cook or commu- in the past which, as the judge recalled the accord with the decisions of a number of
nicate with her at any time. Probation Ofll- boy's testimony, were "silly calls, or funny courts under both federal and state con-
cer Flagg had talked to her once-over the calls, or something like that."
telephone on June 9. The Superior Court dismissed the writ, stitutions a
At this June 15 hearing a "referral report" and appellants sought review in the Arizona
made by the probation officers was filed with Supreme Court. That court stated that it 7 For example, the laws of Arizona allow
the court, although not disclosed to Gerald considered appellants' assignments of error arrest for a misdemeanor only if a warrant
or his parents. This listed the charge as as urging (1) that the Juvenile Code, ARS is obtained or if it is committed in the pres-
"Lewd Phone Calls." At the conclusion of ? 8_201 to ? 8-239, is unconstitutional be- ence of the officer. ARS ? 13-1403. The Su-
the hearing, the judge committed Gerald as a cause it does not require that parents and preme Court of Arizona held that this is in-
juvenile delinquent to the State Industrial children be apprised the specific applicable in the case of juveniles. See ARS
School "for the period of his minority [that does not require re proper notice ccharges, ? 8-221 which relates
specifically is, until 211, unless sooner discharged by an appeal; a hearing,
(2) eilas jCase
due process of law." An order to that effect annd d does s not provide for r an appe and (2) . But compare Two Brothers hers and d a Case
was entered. It recites that "after a full that the proceedings and order relating to of Liquor, Juv. Ct. D. C. Nos. 66-2652-J, 66-
hearing and due deliberation the Court finds Gerald constituted a denial of due process 2653-J, December 28, 1966 (opinion of Judge
that said minor is a delinquent child, and of law because of the absence of adequate no- Ketcham) ; Standards for Juvenile and Fam-
tice of the charge and the hearing; failure ily Courts, Children's Bureau Pub. No. 437-
that said minor is of the age of 15 years." to notify appellants of certain 1966 (1966), p. 47 (hereinafter cited at
No appeal Is permitted by Arizona law In rights including ing the he constitutional Standards); New York Family
juvenile cases. On August 3, 1964, a petition rights to counsel and to Court Act
for a writ of habeas corpus was filed with confrontation, and the privilege against self- ? 721 (McKinney's, Vol. 29A, 1963) (herein..
the Supreme Court of Arizona and referred incrimination; the use of unsworn hearsay after cited ited as as N. Y. Family Act).
by it to the Superior Court for hearing, testimony; and the failure to make a record The Court also held that t the the judge may
At the habeas corpus hearing on August of the proceedings. Appellants further as- consider hearsay if it is "of a kind on which
17, Judge McGhee was vigorously cross- serted that it was error for the Juvenile Court reasonable men are accustomed to rely in
examined as to the basis for his actions. He to remove Gerald from the custody of his serious affairs." But compare Note, Juvenile
testified that he had taken into account the parents without a showing and finding of Delinquents: The Police, State Courts, and
fact that Gerald was on probation. He was their unsuitability, and alleged a miscellany Individualized Justice, 79 Harv. L. Rev. 775,
asked "under what section of ... the code of other errors under state law. 795 (1966) (hereinafter cited as Harvard Law
you found the boy delinquent?" The Supreme Court handed down an Review Note) :
His answer is set forth in the margin c in elaborate and wide-ranging opinion affirm- "The informality of juvenile court hear-
substance he concluded that Gerald came ing dismissal of the writ and stating the ings frequently leads to the admission of
within ARS ? 8-201-6 (a) , which specifies that court's conclusions as to the issues raised hearsay and unsworn testimony. It is said
a "delinquent child" includes one "who has by appellants and other aspects of the that `close adherence to the strict rules of
violated a law of the state or an ordinance or juvenile process. In their jurisdictional state- evidence might prevent the court from ob-
regulation of a political subdivision thereof." ment and brief In this Court, appellants taining important facts as to the child's
The law which Gerald was found to have do not urge upon us all of the points passed character and condition which could only
violated is ARS ? 13-377. This section of the upon by the Supreme Court of Arizona. be to the child's detriment.' The assmuption
Arizona Criminal Code provides that a person They urge that we hold the Juvenile Code Is that the judge will give normally inad-
who "in the presence of or hearing of any of Arizona invalid on its face or as applied missible evidence only its proper weight. It
woman or child . uses vulgar, abusive or in this case because, contrary to the Due is also declared in support of these eviden_
obscene language, is guilty of a misdemeanor Process Clause of the Fourteenth Amend- tiary practices that the juvenile court is not
.
The penalty specified in the Criminal ment, the juvenile is taken from the custo- a criminal court, that the importance of
8 Officer Flagg also testified that Gerald
had not, when questioned at the Detention
Home, admitted having made any of the lewd
statements, but that each boy had sought to
put the blame on the other. There was con-
flicting testimony as to whether Ronald had
accused Gerald of making the lewd state-
ments during the June 15 hearing.
`Judge McGhee also testified that Gerald
had not denied "certain statements" made to
him at the hearing by Officer Henderson.
e "Q. All right. Now, Judge, would you tell
me under what section of the law or tell me
under what section of-of the code you found
the boy delinquent?
"A. Well, there is a-I think It amounts
to disturbing the peace. I can't give you the
section, but I can tell you the law, that when
one person uses lewd language In the pres-
ence of another person, that it can amount
to-and I consider that when a person makes
it over the phone, that it is considered in
the presence, I might be wrong, that is one
section. The other section upon which I con-
sider the boy delinquent is Section 8-201,
Subsection (d), habitually involved in im-
moral matters."
imutea discretion, and in which the fol-
lowing basic rights are denied:
1. Notice of the charges;
2. Right to counsel;
3. Right to confrontation and cross-ex-
amination;
4. Privilege against self-incrimination,-
5. Right to a transcript of the proceed-
ings; and
6. Right to appellate review.
OARS ? 8-201-6, the section of the Arizona
Juvenile Code which defines a delinquent
child, reads:
"'Delinquent child' includes:
"(a) A child who has violated a law of the
state or an ordinance or regulation of a po-
litical subdivision thereof.
"(b) A child who, by reason of being in-
corrigible, wayward or habitually disobedient,
is uncontrolled by his parent, guardian or
custodian.
"(c) A child who is habitually truant from
school or home.
"_(d) A child who habitually so deports
himself as to injure or endanger the morals
or health of himself or others."
formality of the proceedings. But to the ex-
tent that the rules of evidence are not merely
technical or historical, but like the hearsay
rule have a sound basis in human experi-
ence, they should not be rejected in any
judicial inquiry. Juvenile court judges in
Los Angeles, Tucson, and Wisconsin Rapids,
Wisconsin report that they are satisfied with
the operation of their courts despite appli-
cation of unrelaxed rules of evidence." (Foot-
notes omitted.)
It ruled that the correct burden of proof
is that "the juvenile judge must be per-
suaded by clear and convincing evidence that
the infant has committed the alleged de-
linquent act." Compare the less stringent
"preponderance of the evidence" test, N. Y.
Family Court Act ? 744 (where maximum
commitment is three years, ?? 753, 758). Cf.
Harvard Law Review Note, p. 795.
8 See, e.g., In the Matters of Gregory W.
and Gerald S., 19 N.Y. 2d 55; - N. E. 2d -
(1966); In the Interests of Carlo and Stasi-
lowicz, 48 N.J. 224, 225 A. 2d 110 (1966); Peo-
ple v. Dotson, 46 Cal. 2d 891, 299 P. 2d 875
(1956); Pee v. United States, - U.S. App.
D. C. -, 274 F. 2d 556 (1959) ; Wissenburg
v. Bradley, 209 Iowa 813, 229 N. W. 205 (1930) ;
Bryant v. Brown, 151 Miss. 398, 118 So.,184
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911 1 ; 442 LONGRESSIONAL RECORD -HOUSE May i ~i is 9 Fi "
Tills Court has not heretofore decided rules governing the arrest and interrogation proved to be a great help to those who sought
he precise question. in Kent v. United of adults by the police are not observed In to rationalize the exclusion of juveniles front
States, 383 U.S. 541 (19136), we considered the case of juvenilesl3 the constitutional scheme; but its :msaning is
the requirements for a valid waiver of the The history and theory underlying this murky and its historic credential, are of
"exclusive" jurisdiction of the Juvenile development are well-known, but a recapitu- dubious relevance, The phrase was taken from
Court of the District of Columbia so that a lation is necessary for purposes of this opin- chancery practice, where, however, it was
juvenile could be tried in the adult criminal ion. The juvenile court movement began in used to describe the power of the State to
t'ourt of the District. Although our decision this country at the end of the last century. act in loco parentis for the purp:u;s of pre--
turned upon the language of the statute, we From the juvenile court statute adopted in tecting the property interests and the person
:'inphasized the necessity that "the basic Illinois in 1899, the system has spread to of the child") But there is no trace of the
acquirements of due process and fairness" be every State in the Union, the District of Co- doctrine in the history of criminal jiarie-
satisfied in such proceedings.- Haley v. Ohio, lumbia, and Puerto Rico 14 The constitu- prudence. At common law, children under
:332 U-S. 596 (1948), involved the admissi- tionality of juvenile court laws has been sus- seven were considered incapable of r ossessing
bility, in a state criminal court of general tallied in over 40 jurisdictions against a va- criminal intent. Beyond h and that ae. gn. th~heory ey were
{urisdiction, of a confession by a 15-year- riety of attacks. cub I arrest, aid boy. The Court held that the Fourteenth The early reformers were appalled by adult punishment like adult offenders.ro In these
Amendment applied to prohibit the use of procedures and penalties, and by the fact old days. the State was not deemed to :have
he coerced confession. Mr. JUSTICE DOUGLAS that children could be given long prison authority to accord them fewer procedural
;aid, "Neither man nor child can be al- sentences and mixed in jails with hardened rights than adults,.
'owed to stand condemned by methods criminals. They were profoundly convinced The right of the State, as parcvs patriae,
'which flout constitutional requirements that society's duty to the child could not be to deny to the child procedural rights avail-
of due process of law."'? To the same enact confined, by the concept of justice alone. able to his elders was elaborated ty the as-
le Gallegos v. Colorado, 370 U.S. 49 (1962). They believed that society's role was not to section that a child, unlike an ad-alt, has a
accordingly, while these cases relate Only ascertain whether the child was "guilty" or right "not to liberty but to custody." He can
to restricted aspects of the subject, they "innocent," but "What is he, how has he be made to attorn to his parents, to go to
unmistakably indicate that, whatever may become what he is, and what had best be school, etc. If his parents default in i-
be their precise impact, neither the Four- done in his interest and in the interest of schor eat cefaulal e-
Lecaith Amendment nor the Bill of Rights the state to save him from a downward fectively l, -that r performing if the child is utodial tun--
is for adults alone. career." 11 The child-essentially good, as ffoias
We do not in this opinion consider the im- they saw it-was to be made "to feel that the state may intervene. In doing .;o, it does
pact of these constitutional provisions upon he is the object of [the State's] care and not deprive the child of any rights, because
bhe totality of the relationship of the juve- solicitude," 11 not that he was under arrest he has none. It merely provides the "custody"
nice and the state. We do not even consider or on trial. The rules of criminal procedure to which the child is entitiled,~ On this basis,
the entire process relating to juvenile "delin- were therefore altogether inapplicable. The proceedings involving juveniles were de-
quents." For example, we are not here con- apparent rigidities, technicalities, and harsh- scribed as "civil" not "criminal" z aid there-
cernea with the procedures or constitutional ness which they observed in both substantive fore not subject to the requirements which
rights applicable to the pre-judicial stages and procedural criminal law were therefore restrict the state when it seeks to deprive a
of the juvenile process, nor do we direct our to be discarded. The idea of crime arid pun- person of his fiber tyr
attention to the post-adjudicative or dfs- ishment was to be abandoned. The child was
positional process. See note 48, infra. We con- to be "treated" and "rehabilitated" and the Accordingly, the highest motives and most
Sider only the problems presented to us by procedures, from apprehension through in- enlightened impulses led to a peculiar sys-
this case. These relate to the proceedings by stitutionalization, were to be "clinical" tern for juveniles, unknown to our law in
which a determination is made as to whether rather than punitive. any comparable context. The constitutional
a juvenile is a "delinquent" as a result of 't'hese results were to be achieved, without and theoretical basis for this peculiar sys-
alleged misconduct on his part, with the con- coming to conceptual and constitutional tem is-to say the least-debatable. And in
sequence that he may be committed to a grief, by insisting that the proceedings were practice, as we remarked in the .Kent case,
state institution. As to these proceedings. not adversary, but that the State was pro- supra, the results have not been entirely
there appears to be Little current dissent ceeding as parens patriae.'" The Latin phrase
from the proposition that the Due Process _
Clause has a role to play." The problem is ciial procedures of juvenile courts. But see
to ascertain the precise impact of the due See note, 7, supra. Waite, How Far Can Court Procedure Be
' Sec National Council of Juvenile Court
process requirement upon such proceedings. Socialized Without Impairing Individual
inception of the juvenile court Judges, Directory and Manual (1964), p. 1. Rights, 13 J. Ain. Inst. of Crim.. L. & Crim.
Prom the lJThe number of juvenile judges as of 1964 is 339, 340 (1922) : "The Court which must di-
svstern, wide differences have been toles- listed as 2.987, of which 213 are full-time
aced---indeed insisted upon-between the juvenile court judges. Id., at 305. The Nat'l rest its procedure even apparently to do
procedural rights accorded to adults and Crime Comm'n Report indicates that half of something to a child because of shat lie loos
those of juveniles. In practically all juris- these judges have no undergraduate degree, done, is parted from the cou.rl; which is
dictions, there are rights granted to adults fifth have no college education at all, a avowedly concerned only with dying sorne-
which are withheld from juveniles. In a.ddi- a fifth are not members of the bar, and three- thing fcc a child because of wh.a'; he is and
tion to the specific problems involved in the quarters devote less than one-quarter of needs,, by a gulf too wide to be bridged by
present case, for example, it has been held their time to juvenile matters. See also Mc- any humanity which the judge may intro-
that the juvenile is not entitled to bail, to Cane, Profile of the Nation's Juvenile Court duce into his hearings, or by the habitual use
indictment by grand jury, to a public trial or Judges (monograph, George Washington Uni- of corrective rather than punitive methods
to, trial by jury.' It is frequent practice that versify, Center for the Behavioral Sciences, after conviction.."
1!165)? which is a detailed statistical study of ? Paulsen, op. cit. supra, note 15, at 173;
hurley, Origin of the Illinois Juvenile Court
Hurley
( i928);
W. ; Dend v. (l Wilson, Application 142 Tex. juvenile court judges, and indicates addi- The Clinic, and the Court
S. W. 2d 269 9 (194 44)); Application of of Johnson, , tionall y that hat about a quarter of these judges Law, inThe Child,
1.'78 F. Stipp. 155 D. C. D. N. J. 1957). have no law school training at all. About (1925) pp. 321, 328.
323 U. S., at 553. one-third of all judges have no probation m Julian Mack, The Chancery Procedure in
32 U. S., at 601 (opinion for four Jus- and social work staff available to them; be- the Juvenile Court, in The Child, The Clinic,
(ices ) . , tween eighty and ninety percent have no and. the Court (1925), p. 310.
See Report of the President's Commis- available psychologist or psychiatrist. Ibid. 31 See, e. g., Shears, Legal Proble ns Peculiar
ion on Law Enforcement and Administra- It has been observed that while "good will, to Children's Courts, 48 A. B. A. J. 719, 720
Lion of Justice, "The Challenge of Crime in a compassion and similar virtues are . . ad- (1962) ("The basic right of a juvenile is not
Free Society" (1967) (hereinafter cited as mirably prevalent throughout the system ... to liberty but to custody. He has the right, to
Nat'l Crime Comm'n Report), pp. 81, 85-86: expertise, the keystone of the whole venture, have someone take care of him, and if his
Standards, p. 71; Gardner, The Kent Case is lacking." Harvard Law Review Note, p. 809. ]parents do not afford him this custodial priv-
aaid the Juvenile Court: A Challenge to In 1965, over 697,000 delinquency cases (ex- ilege, the law most do so."); Ex p,xrte Crouse,
triwyers, 52 A. B. A. 923 (1966); Paulsen, eluding traffic) were disposed of in these 4 Whart. 9, 11 (Sup. Ct. Pa. 1839);iPetiliorr of
1".;.irness to the Juvenile Offender, 41 Minn. L. courts, involving some 601,000 children, or Ferrier, 103 Ill. 967, 371-373 (188:.).
rev. 547 (1957) ; Ketcham, The Legal Renais- 2111 of all children between 10 and 17. Juve- The Appendix to the opinion of Judge
:;once in the Juvenile Court, 60 Nw, U. L. nile Court Statistics--1961, Children's Bu- :Prettyman in Pee v. United States, --- U. S.
U.ev. 585 (1965) ; Allen, The Borderland of reau Statistical Series No. 85 (1966), p. 2. App. D. C. ----, 274 F. 2d 559 (1959) Fists
Criminal Justice (1964), pp. 19--23; Harvard 'a See Paulsen, Kent v. United States: The authority in 51 jurisdictions to this eflect.
c,aw Review Note, p. 791; Note, Rights and Constitutional Context of Juvenile Cases, Even rules required by due process in civil
ib'habilitation in the Juvenile Courts, 67 1966 Sup. Ct. Review 1.67, 174. proceedings, however, have not generally
,'ot. L. Rev. 281 (1967); Comment, Criminal "Julian Mack, The Juvenile Court, 23 been deemed compulsory as to proceedings
olenders in the Juvenile Court: More Brick- Harv. L. Rev. 104, 119--120 (1909). affecting juveniles. For example, constitu-
bats and Another Proposal, 114 U. Pa. L. Rev. Id., at 120. tional requirements as to notice of issues,
1] 71 .1966). Id., at 109; Paulsen, op. cit. supra, note which would conurionly apply in civil. cases,
- `;ee Kent v. United States, 383 U. S. 541, 15, at 173-174. There seems to have been lit- are commonly disregarded in juvenile pro-
:Fi5 and n. 22 (1966). tae early constitutional objection to the spe- ceedings, as this case illustrates.
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Mai 15, 1967 CONGRESSIONAL RECORD - HOUSE
satisfactory a Juvenile court history has
again demonstrated that unbridled discre-
tion, however benevolently motivated, is fre-
quently a poor substitute for principle and
procedure. In 1937, Dean Pound wrote: "The
powers of the Star Chamber were a trifle in
comparison - with those of our juvenile
courts. " ZA The absence of substantive
standards has not necessarily meant that
children receive careful, compassionate, in-
dividualized treatment. The absence of pro-
cedural rules based upon constitutional prin-
ciple has not always produced fair, efficient,
and effective procedures. Departures from
established principles of due process have
frequently resulted not in enlightened pro-
cedure, but in arbitrariness. The Chairman
of the Pennsylvania Council of Juvenile
Court Judges has recently observed: "Un-
fortunately, loose procedures, high-handed
methods and crowded court calendars, either
singly or in combination, all too often, have
resulted in depriving some juveniles of fun-
damental rights that have resulted in a de-
nial of due process." 0
29 "There is evidence . that there may
be grounds for concern that the child re-
ceives the worst of both worlds: that he gets
neither the protection accorded to adults
nor the solicitous care and regenerative
treatment postulated for children" 383 U.S.,
at 556, citing Handler, The Juvenile Court
and the Adversary System: Problems of
Function and Form, 1965 Wis. L; Rev. 7;
Harvard Law Review Note; and various con-
gressional materials set forth at 383 U,S., at
546, n. 5.
On the other hand, while this opinion and
much recent writing concentrate upon the
failures of the juvenile court system to live
up to the expectations of its founders, the
observation of the Nat'l Crime Comm'n Re-
port should be.kept in mind:
"Although its shortcomings are many and
its results too often disappointing, the juve-
nile justice system in many cities is operated
by people who are better educated and more
highly skilled, can call on more and better
facilities and services, and has more ancil-
lary agencies to which to refer its clientele
than its adult counterpart." Id., at 78.
24 Foreword to Young, Social Treatment in
Probation and Delinquency (1937), p. xxvii.
The 1965 Report of the United States Com-
mission on Civil Rights, "Law Enforcement-
A Report on Equal Protection in the South,"
pp. 80-83, documents numerous instances in
which "local authorities used the broad dis-
cretion afforded them by the absence of
standards (in the juvenile process)" to pun-
ish, intimidate, and obstruct youthful par-
ticipants in civil rights demonstrations. See
also Paulsen, Juvenile Courts, Family Courts,
and the Poor Man, 54 Calif. L. Rev. 694, 707-
709 (1966).
25 Lehman, A Juvenile's Right to Counsel in
a Delinquency Hearing, 17, Juvenile Court
Judges Journal 53, 54 (1966).
Compare the observation of the late Arthur
T. Vanderbilt, Chief Justice of the Supreme
Court of New Jersey, in a foreword to Virtue,
Basic Structure for Children's Services in
Michigan (1953), p. x:
"In their zeal to care for children neither
juvenile judges nor welfare workers can be
permitted to violate the Constitution, espe-
cially the constitutional provisions as to due
process that are involved in moving a child
from its home. The indispensable elements of
due process are: first, a tribunal with jurfs-
dictiion; second, notice of a hearing to the
proper parties; and finally, a fair hearing.
All three must be present if we are to treat
the child as an individual human being and
not to revert, in spite of good intentions, to
the more primitive days when he was treated
as a chattel."
We are warned that the system must not
"degenerate into a star chamber proceeding
with the judge imposing his own particular
brand of culture and morals on indigent peo-
Failure to observe the fundamental re-
quirements of due process has resulted in
instances, which might have been avoided,
of unfairness to individuals and inadequate
or inaccurate findings of fact and unfortu-
nate prescriptions of remedy. Due process of
law Is the primary and indispensable foun-
dation of individual freedom. It is the basic
and essential term In the social compact
which defines the rights of the individual
and delimits the powers which the State may -
exercise.-0 As Mr. Justice Frankfurter has
said: "The history of American freedom is,
in no small measure, the history of proce-
ple.... " Judge Marion G. Woodword, letter
reproduced in 18 Social Service Review 365,
368 (1944). Doctor Rovet, the Swiss psychia-
trist, in his monograph for the World Health
Organization, Psychiatric Aspects of Juvenile
Delinquency (1951), p. 79, stated that: "One
of the most definite conclusions of this in-
vestigation is that few fields exist in which
more serious coercive measures are applied,
on such flimsy objective evidence, than in
that of juvenile delinquency." We are told
that "The judge as amateur psychologist,
experimenting upon the unfortunate chil-
dren who must appear before him, is neither
an attractive nor convincing figure." Har-
vard Law Review Note, p. 809.
20 The impact of denying fundamental pro-
cedural due process to juveniles involved
in "delinquency" charges is dramatized by
the following considerations: (1) In 1965,
persons under 18 accounted for about one-
fifth of all arrests for- serious crimes (Nat'l
Crime Comm'n Report p. 55) and over half
of all arrests for serious property offenses
(id., at 56), and in the same year some 601,-
000 children under 18, or 2% of the total
population of that age, came before juvenile
courts (Juvenile Court Statistics-1965,
Children's Bureau Statistical Series, No. 85,
p. 2 (1966)). About one out of nine youths
will be referred to juvenile court in connec-
tion with a delinquent act (excluding traffic
offenses) before he is 18 (Nat'l Crime
Comm'n Report, p. 55). Cf. also Wheeler &
Cottrell, Juvenile Delinquency-Its Preven-
tion and Control (Russell Sage Foundation,
1965), p. 2; Report of the President's Com-
mission on Crime in the District of Colum-
bia (1966) (hereinafter cited as D.C. Crime
Comm'n Report), p. 773. Furthermore, most
juvenile crime apparently goes undetected
or not formally punished. Wheeler and Cot-
trell, supra, observe that "Almost all young-
sters have committed at least one of the
petty forms of thelf and vandalism in the
course of their adolescence." Id., at 28-29.
See also Nat'l Crime Comm'n Report, at p.
65, where it is stated that "self-report
studies reveal that perhaps 90 percent of all
young people have committed at least one
act for which they could have been brought
to juvenile court." It seems that the rate
of juvenlie delinquency is also steadily
rising. See Nat'l Crime Comm'n Report, p.
56; Juvenile Court Statistics, supra, pp. 2-3.
(2) In New York, where most juveniles are
represented by counsel (see.note 69, infra)
and substantial procedural rights are af-
forded (see e.g., notes 80, 81, 99, infra), out
of a fiscal year 1965-1966 total of 10,755 ju-
venile proceedings involving boys, 2,242 were
dismissed for failure of proof of the fact-
finding hearing; for girls, the figures were
306 out of total of 1,051. New York Judicial
Conference, Twelfth Annual Report, pp. 314,
318 (1967). (4) In about one-half of the
States, a juvenile may be transferred to an
adult penal institution after a juvenile
court has found him "delinquent" (Delin-
quent Children in Penal Institutions, Chil-
dren's Bureau Pub. No. 415 (1964), p. 1). (4)
In some jurisdictions a juvenile may be sub-
jected to criminal prosecution for the same
offense for which he has served under a juve-
nile court commitment. However, the Texas
procedure to this effect has recently been held
unconstitutional by a federal district court
H 5443
dure." x But in addition, the procedural rules
which have been fashioned from the gen-
erality of due process are our best instru-
ments for the distillation and evaluation of
essential facts from the conflicting welter of
data that life and our adversary methods
present. It is these instruments of due proc-
ess which enhance the possibility that truth
will emerge from the confrontation of oppos-
ing versions and conflicting data. "Procedure
is.to law what 'scientific method' is to sci-
ence." 28
It is claimed that juveniles obtain benefits
from the special procedures applicable to
them which more than offset the disadvan-
tages of denial of the substance of normal
due process. As we shall discuss, the observ-
ance 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 juve-
nile process R? But it is important, we think,
that the claimed benefits of the juvenile
process should be candidly appraised. Neither
sentiment nor folklore should cause us to
shut our eyes, for example, to such startling
findings as that reported in an exceptionally
reliable study of repeaters or recidivism con-
ducted by the Stanford Research Institute
for the President's Commission on Crime in
the District of Columbia. This Commission's
Report states:
"In fiscal 1966 approximately 66 percent of
the 16- and 17-year-old juveniles referred to
the court by the Youth Aid Division had been
before the court previously. In 1965, 56 per-
cent of those in the Receiving Home were
repeaters. The SRI study revealed that 61 per-
cent of the sample Juvenile Court referrals
in 1965 had been previously referred at least
once and that 42 percent had been referred
at least twice before." Id., at 773.
Certainly, these figures and the high crime
rates among juveniles to which we have re-
ferred (supra, note 26), could not lead us to
conclude that the absence of constitutional
protections reduces crime, or that the juve-
nile system, functioning free of constitu-
tional Inhibitions as it has largely done, is
effective to reduce crime or rehabilitate of-
fenders. We do not mean by this to denigrate
the juvenile court process or to suggest that
there are not aspects of the juvenile system
relating to offenders which are valuable. But
the features of the juvenile system which its
proponents have asserted are of unique bene-
fit will not be impaired by constitutional
domestication. For example, the commend-
able principles relating to the processing and
treatment of juveniles separately from adults
are in no way involved or affected by the
procedural issues under discussion S0 Further,
judge, In a habeas corpus action. Sawyer v.
Huack, 245 F. Supp. 55 (D. C. W. D. Tex. 1965).
(5) In most of the States the juvenile may
end in criminal court through waiver (Har-
vard Law Review Note, p. 793)3.
27 Malinski v. New York, 324 U.S. 401, 414
(1945) (concurring opinion).
2B Foster, Social Work, the Law, and Social
Action, in Social Casework, July 1964, p.
286.
29 See Note, Rights and Rehabilitation in
Juvenile Courts, 67 Cod. L. Rev. 281, 321, and
passim (1967).
20 Here again, however, there is substantial
question as to whether fact and pretension,
with respect to the separate handling and
treatment of children, coincide. See gen-
erally, infra.
While we are concerned only with proce-
dure before the juvenile court in this case,
it should be noted that to the extent that
the special procedures for juveniles are
thought to be justified by the special con-
sideration and treatment afforded them,
there is reason to doubt that juveniles always
receive the benefits of such a quid pro quo.
As to the problem and importance of special
care at the adjudicatory stage, cf. notes 14
and 26, supra. As to treatment, see Nat'l
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115144 CONGRESSIONAL RECORD - ]HOUSE
we are told that one of the important bene-
!;ts of the special juvenile court procedures
1 than they avoid classifying the juvenile as
3 "criminal." The juvenile offender is now
classed as a "delinquent." There is, of course.
no reason why this should not continue. It
is disconcerting, however, that this term has
aurae to involve only slightly less stigma than
term "criminal" applied to adults 3' It is
, ko emphasized that in practically all juri::-
ttictions, statutes provide that an acLjudica.-
tion of the child as a delinquent shall not
operate as a civil disability or disqualify him
for civil service appointments= There is no
reason why the application of due process
requirements should interfere with such pro-
Beyond this, it is frequently said that
juveniles are protected by the process from
disclosure of their deviational behavior. As
the Supreme Court of Arizona phrased it in
the present case, the summary procedures
of juvenile courts are sometimes defended by
a statement that it is the law's policy "to
hide youthful errors from the full gaze of
I tie public and bury them in the graveyard
of the forgotten past." This claim of secrecy,
however, is more rhetoric than reality. Dis-
closure of court records is discretionary with
the judge in most jurisdictions. Statutory
restrictions almost invariably apply only to
the court records, and even as to those the
evidence is that many courts routinely fur-
nish information to the Fill and the military,
and on request to government agencies and
Crime Comm'n Report, pp. 80, 87; D. C. Crime
Comm'n Report, pp. 665--676, 686-687 (at p.
687 the Report refers to the District's "bank-
ruptcy of dispositional resources"), 692-695,
'T00-718 (at p. 701 the Report observes that
"The Department of Public Welfare lacks
even the rudiments of essential diagnostic
and clinical services"); Wheeler & Cottrell,
Juvenile Delinquency-Its Prevention and
Control (Russell Sage Foundation, 1965), pp.
32-35; Harvard Law Rev. Note, p. 809: Paul-
sen, Juvenile Courts, Family Courts, and the
Poor Man, 54 Calif. L. Rev. 694, 709-712
,1966); Polier, A View From the Bench
1964). Cf. also, In the Matter of the Youth
house, Inc., Report of the July 1966 "A"
Term of the Bronx County Grand Jury, Su-
preme Court of New York, County of Bronx,
Trial Term, Part XII, March 21, 1967 (c*.
New York Times, March 23, 1967, p. 1, col. 8.).
The high rate of juvenile recidivism casts
some doubt upon the adequacy of treatment
afforded juveniles. See D. C. Crime Comm'n
Report, p. 773; Nat'l Crime Comm'n Report,
pp. 55, 78.
In fact, some courts have recently indi-
cated that since treatment is the essential
quirt pro quo, a juvenile may challenge the
validity of his custody on the ground that
lie is not in fact receiving and special treat-
ment. See Creek v. Stone, --- U. S. App. D. C.
, - F. 2d -- (1967) ; Kautter v. Reid,
183 F. Supp. 352 (D. C. D. C. 1960); White v.
acid, 125 F. Supp. 647 (D. C. D. C. 1954). See
also Elmore v. Stone, -- U. S. App. D. C.
1355 F. 2d 841 (1966) (separate statement
of Bazelon, C. J.): Clayton v. Stone, -- U. S.
App. D. C. -, - F. 2d -- (1966) (sepa.-
rate statement of Bazelon, C. J.). Cf. Wheeler
& Cottrell, supra, at pp. 32, 35; In re Rich,
125 Vt. 373, - A. 2d ----- (1966). Cf. also
house v. Cameron, -- U. S. App. D. C.
373 F. 3d 451 (1966).
I' . . the word 'delinquent' has today
developed such invidious connotations that
the terminology is in the process of being
csltered: the new descriptive phrase is 'per-
sons in need of supervision,' usually short-
cned to 'pins.'" Harvard Law Review Note.
p. 799, n. 140. The N.Y. Family Court Act
1712 distinguishes between "delinquents"
and "persons in need of supervision."
' Moe., e.g., the Arizona provision, ARS,
8-228.
even to private employers:'30 Of more impor-
tance are police records. In most States the
police keep a complete file of juvenile "police
contacts" and have complete discretion as to
disclosure of juvenile records. Police depart-
ment, receive requests for information from
the FBI and other law-enforcement agencies,
the Armed Forces, and social service agencies,
and most of them generally comply.'' Private
employers word their application forms to
produce informat.in n concerning juvenile ar-
rests and court proceedings, and in some ju-
risdictions information concerning juvenile
police contacts is furnished private employers
as well as government agencies.""
In any event, there is no reason why, con-
sistently with due process, a State cannot
continue, if it deems it appropriate, to pro-
vide and to improve provision for the con-
ndentiality of records of police contacts and
court action relating to juveniles. It is in-
tering to note, however, that the Arizona
Supreme Court used the confidentiality argu-
ment as a justification for the type of notice
which is here attacked as inadequate for
due process purposes. The parents were given
merely general notice that their child was
charged with "delinquency." No facts were
specified. The Arizona court held, however,
as we shall discuss, that in addition to this
general "notice," the child and his parents
must be advised "of the facts involved in
the case" no later than the initial hearing
by the judge. Obviously, this does not "bury"
Line word about the child's transgressions. It
merely defers the time of disclosure to a
',oint when it is of limited use to the child
or his parents in preparing his defense or
explanation.
13'urther, it is urged that the juvenile bene-
tits from informal proceedings in the court.
she early conception of the juvenile court
proceeding was one in which a fatherly judge
touched the heart and conscience of the
erring youth by talking over his problems, by
paternal advice and admonition, and in
which. in extreme situations, benevolent and
wise institutions of the State provided guid-
ance and help "to save him from a downward
career." .0 Then, as now, goodwill and com-
passion were admirably prevalent. But re-
cent studies have, with surprising unanim-
ity, entered sharp dissent as to the validity
in this gentle conception. They suggest that
the appearance ,is well as the actuality of
fairness, impartiality and orderliness--in
short, the essentials of due process may be a
more impressive and more therapeutic atti-
tude so I it as the juvenile is concerned. For
example, in a recent study, the sociologists
Wheeler and Cottrell observe that when the
procedural laxness of the "parens pat;''iae"
attitude is followed by stern disciplining, the
contrast may have an adverse effect upon the
child, who feels that he has been deceived or
enticed. They conclude as follows: "Unless
appropriate due process of law is followed,
even the juvenile who has violated the law
may not feel that he is being fairly treated
and may therefore resist the rehabilitative
efforts of court personnel."- Of course, it is
Harvard Law Review Note, pp. 784--785,
800. Cf. Nat'l Crime Comm'n Report, pp. 87-
88; Ketcham, The Unfulfilled Promise of the
Juvenile Court (Nat'l Council on Crime and
Delinquency, 1961), pp. 102-103.
Id., at 785-787.
Id., at 785, 800. See also, with respect to
the problem of confidentiality of records,
Note. Rights and Rehabilitation in the Juve-
nile Courts, 67 Col. L. Rev. 281, 286-289
(1967). Even the privacy of the juvenile hear-
ing itself Is not always adequately protected.
Id., at 285--286.
11' Mack, The Juvenile Court 23 Harv. L.
Rev. 104, 120 (1909).
"- Juvenile Delinquency-Its Prevention
and Control (Russell Sage Foundation,
1966), p. 33. The conclusion of the Nat'l
Crime Comm'n Report is similar: "IT] here is
May 1 , `967
not suggested that juvenile court judges
should fail appropriately to take account, in
their demeanor and conduct, of the emo-
tional and psychological attitude of the ju-
veniles with whom they are con:'ronted.
Whiffle clue process requirements will., in some
instances, introduce a degree of circler and
reguLar'ty to juvenile court proceedings to
determine delinque.iccy, and in untested
cases will introduce some elements of the
adversary system, nothing will require that
the conception of the kindly juvenile judge
be replaced by its opposite, nor do 've here
rule upon the question whether ordinary due
process requirements, must be observad with
respect to hearings to determine the' disl:'o-
sition of the delinquent child.
Ultimately, however, we confront I. ie real-
ity of that portion of the juven.ila court
process with which we deal in this case. A
boy is charged with misconduct. The boy is
committed to an institution where he may
be restrained of liberty for years. It s of no
constitutional consequence-and of limited
practical weaning--that the institution to
which he is committed is called an Industrial
School. The fact of the matter is that, how-
ever euphemistic the title, a "receivin?g hom.e"
or an "industrial school" for juveniles is an
institution of confinement in which the child
is incarcerated for a, greater or lessor time.
His world becomes "a building with white-
washed walls, regimented routine ant insti-
tutional laws . . . .?"w Instead of mother and
father and sisters and brothers and friends
and classmates, his world is peopled by
guards, custodians, state employees, and
"delinquents" confined with him for any-
thing from waywardness 1e to rape and honii-
cide.
In view of this, it would be extraordinary
if our Constitution did not require the pro-
cedural regularity and the exercise of care
implied in the phrase "due process: Under
our Constitution, the condition of 'ieing a
boy does not justify a kangaroo court. The
traditional ideas of juvenile court proccedure,
indeed, contemplated that time wculd be
available and care would be used to estab-
lish precisely what the juvenile did and why
he did it--was it a prank of adolescence or a
brutal act threatening serious consequences
to himself or society unless corrected? 40 Un-
der traditional notions, one would assume
that in a ease like that of Gerald Gault,
where the juvenile appears to have: s, home,
a working mother and father, and an older
brother, the Juvenile Judge would hate made
a careful inquiry and judgment as to the
possibility that the boy could be disciplined
and dealt with at home, despite his previous
transgressions" Indeed, so far as appears in
increasing evidence that the informal pro-
cedures, contrary to the original expectation,
may themselves constitute a further obstacle
to effective treatment of the delinquent to
the extent that they engender in the child
a sense of injustice provoked by seemingly
all-powerful. and challengeless exerufse of
authority by judges and probation officers."
Id., at IL5. See also Allen, The Borderland of
Criminal Justice (1964). p. 19.
Hofnies' Appeal, 379 Pa. 599, 616, 109 A.
2d -- 530 (1954) (Musmanno, J., dissent-
ing). See also The State (Sheerin) v. Govern-
nor, Supreme Court of Ireland, July 2.3, 1966;
Trimble a'. Stone, 187 F. Supp. 483, 485-485
(D.C.D.C. 1960); Allen, The Borderland of
Criminal Justice (1964), pp. 18, 52-56.
a0 Cf. the Juvenile Code of Arizona, AILS
? 8-201-6.
^? Cif., however, the conclusions of the DC.
Crime Comro'n Report, pp. 692-693, concern-
ing the inadequacy of the "social study rec-
ords" upon which the juvenile court; judge
must make this determination and decide
on appropriate treatment.
^' The Juvenile Judge's testimony at the
habeas corpus proceeding is devoid of any
meaningful discussion of this. He appears to
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1115445
the record before us, except for some con- reaching a result of such tremendous con- The Supreme Court of Arizona rejected
versation with Gerald about his school work sequences without ceremony-without hear- appellants' claim that due process was denied
and his "wanting to go to ... Grand Can- ing, without effective assistance of counsel, because of inadequate notice. It stated that
yon with his father," the points to which the without a statement of reasons." 40 We an- "Mrs. Gault knew the exact nature of the
judge directed his attention were little dif- nounced with respect to such waiver proceed- charge against Gerald from the day he was
ferent from those that would be involved ings that while "We do not mean . . . to in- taken to the detention home." The court
in determining any charge of violation of dicate that the hearing to be held must con- also pointed out that the Gaults appeared
a penal statute.42 The essential difference be- form with all of the requirements of a crimi- at the two hearings "without objection."
tween Gerald's case and a normal criminal nal trial. or even of the usual administrative The court held that because "the policy of
case is that safeguards available to adults hearing; but we do hold that the hearing the juvenile law is to hide youthful errors
were discarded in Gerald's case. The summary must measure up to the essentials of due from the full gaze of the public and bury
procedure as well as the long commitment process and fair treatment." 4'1 We reiterate them in the graveyard of the forgotten past,"
were possible because Gerald was 15 years of this view, here in connection with a juvenile advance notice of the specific charges or
age instead of over 18. court adjudication of "delinquency," as a re- basis for taking the juvenile into custody
If Gerald had been over 18, he would not quirement which is part of the Due Process and for the hearing is not necessary. It held
have been subject to Juvenile Court pro- Clause of the Fourteenth Amendment of our that the appropriate rule is that "the infant
ceedings 93 For the particular offense imme- Constitution 4? and his parent or guardian will receive a
diately involved, the maximum punishment We now turn to the specific issues which petition only reciting a conclusion of delin-
would have been a fine of $5 to $60, or im- are presented to us in the present case. quency.?1 But no later than the initial hear-
prisonment in jail for not more than two
months. Instead, he was committed-to cus-
tody for a maximum of six years. If he had
been over 18 and had committed an offense
to which such a sentence might apply, he
would have been entitled to substantial
rights under the Constitution of the United
States as well as under Arizona's laws and
constitution. The United States Constitution
would guarantee him rights and protections
with respect to arrest, search and seizure,
and pretrial interrogation. It would assure
him of specific notice of the charges and ade-
quate time to decide his course of action and
to prepare his defense. He would be entitled
to clear advice that he could be represented
by counsel, and, at least if a felony were in-
volved, the State would be required to pro-
vide counsel if his parents were unable to
afford it. If the court acted on the basis of
his confession, careful procedures would be
required to assure its voluntariness. If the
case went to trial, confrontation and oppor-
tunity for cross-examination would be guar-
anteed. So wide a gulf between the State's
treatment of the adult and of the child re-
quires a bridge sturdier than mere verbiage,
and reasons more persuasive than cliche can
provide. As Wheeler and Cottrell have put
it, "The rhetoric of the juvenile court move-
ment has developed without any necessarily
close correspondence to the realities of court
and institutional routines." 44
In Kent v. United States, supra, we stated
that the Juvenile Court Judge's exercise of
the power of the State as parens patriae was
not unlimited. We said that "the admonition
to function in a 'parental' relationship is not
an invitation to procedural arbitrariness." 4?
With respect to the waiver by the juvenile
court to the adult of jurisdiction over an
offense committed by a youth, we said that
"there is no place in our system of law for
have centered, his attention upon whether
Gerald made the phone call and used lewd
words. He was impressed by the fact that
Gerald was on six months' probation because
he was with another boy who allegedly stole
a purse-a different sort of offense, sharing
the feature that Gerald was "along." And he
even referred to a report which he said was
not investigated because "there was no accu-
sation", "because of lack of material founda-
tion."
With respect to the possible duty of a trial
court to explore alternatives to involuntary
commitment in a civil proceeding, cf. Lake v.
Cameron, - U.S. App. D.C. -, 364 F. 2d
65.7 (1966), which arose under statutes relat-
ing to treatment of the mentally ill.
43 While appellee's brief suggests that the
probation officer make some investigation of
Gerald's home life, etc., there is not even a
claim that the judge went beyond the point
stated in the text.
43 ARS ? ? 8-201, 8-202.
44 Juvenile Delinquency-Its Prevention
and Control (Russell Sage Foundation, 1966),
p. 35. The gap between rhetoric and reality
is also emphasized in the Nat'l Crime
Comm'n Report, pp. 80-81.
a? $83 U.S., at 555.
rr ??w-- ??. 6~ .=w ~__~ ??__~~__~ ~~.~____~ are denied, they must be given a reasonable
Code is unconstitutional or alternatively that period of time to prepare."
the proceedings before the Juvenile Court We cannot agree with the court's con-
were constitutionally defective because of elusion that adequate notice was given in
failure to provide adequate notice of the this case. Notice, to comply with due process
hearings. No notice was. given to Gerald's requirements, must be given sufficiently in
parents when he was taken into custody on advance of scheduled court proceedings so
Monday, June 8. On that night, when -Mrs. that reasonable
opportunity Gault went to the Detention Home, she was d
be afforded, and it musst "set set forth ion
alleged
orally informed that there would be a hear- Misconduct with particularity." 62 It is ob-
ing the next afternoon and was told the rea- vious, as we have discussed above, that no
son why Gerald was in custody. The only purpose of shielding the child from the pub-
written notice Gerald's parents received at lie stigma of knowledge of his having been
any time was a note on lain a
er rom
p p p
Officer Flagg delivered on Thursday or Fri-
day, June 11 or 12, to the effect that the
judge had set Monday, June 15, "for further
hearings on Gerald's delinquency."
A "petition" was filed with the court on
June 9 by Officer Flagg, reciting only that
he was informed and believed that "said
minor is a delinquent minor and that it is
necessary that some order be made by the
Honorable Court for said minor's welfare."
The applicable Arizona statute provides for a
petition to be filed in Juvenile Court, alleg-
ing in general terms that the child is "neg-
lected, dependent, or delinquent." The stat-
ute explicitly states that such a general alle-
gation is sufficient, "without alleging the
facts," 40 There is no requirement that the
petition be served and it was not served upon,
given, or shown to Gerald or his parents 60
4? 383 U.S., at 554. THE CHIEF JUSTICE stated
in a recent speech to a conference of the Na-
tional Council of Juvenile Court Judges, that
a juvenile court "must function within the
framework of law and . in the attainment
of its objectives it cannot act with unbridled
caprice." Equal Justice for Juveniles, 15 Ju-
venile Court Judges Journal, No. 3, 14, 15
(1964).
47 383 U.S., at 562.
4? The Nat'l Crime Comm'n Report recom-
mends that "Juvenile courts should make
fullest feasible use of preliminary confer-
ences to dispose of cases short of adjudica-
tion." Id., at 84. See also D.C. Crime Comm'n
Report, pp. 662-665. Since this "consent de-
cree" procedure would involve neither ad-
judication of delinquency nor institutionali-
ing is served by the procedure approved by
the court below. The "initial hearing" in
the present case was a hearing on the merits.
Notice at that time is not timely; and even
if there were a conceivable purpose served
by the deferral proposed by the court below,
it would have to yield to the requirements
that the child and his parents or guardian
be notified, in writing, of the specific charge
or factual allegations to be considered at
the hearing, and that such written notice be
given at the earliest practicable time, and
in any event sufficiently in advance of the
hearing to permit preparation. Due process
of law requires notice of the sort we have
described-that is, notice which would be
deemed constitutionally adequate in a civil
or criminal proceeding 63 It does not allow
ceeding, as specified by the statute, seems to
require that after a preliminary inquiry by
the court, a determination may be made "that
formal jurisdiction should be acquired."
Thereupon the court may authorize a peti-
tion to be filed. ARS ? 8-222. It does not ap-
pear that this procedure was followed in the
present case.
61 No such petition was served or supplied
in the present case.
"Nat'l Crime Comm'n Report, p. 87. The
Commission observed that "The unfairness
of too much informality is . . . reflected in
the inadequacy of notice to parents and ju-
veniles about charges and hearings." Ibid.
63 For application of the due process re-
quirement of adequate notice in a criminal
context, see, e. g., Cole v. Arkansas, 333 U.S.
196 (1948); In re Oliver, 393 U.S. 257, 273-278
(1948). For application in a civil context
see
,
,
be construed as expressing any views with _ e. g., Armstrong v. Manzo, 380 U.S. 545 (1965) ;
respect to such procedure. The problems of Mullane v. Central Hanover Tr. Co., 339 U.S.
pre-adjudication treatment of juveniles, and 306 (1950). Cf. also Chaloner v. Sherman, 242
of post-adjudication disposition, are unique U.S. 455 (1917). The Court's discussion in
to the juvenile process; hence what we hold these cases of the right to timely and ade-
in this opinion with regard to the procedural quate notice forecloses any contention that
requirements at the adjudicatory stage has the notice approved by the Arizona Supreme
no necessary applicability to other steps of Court, or the notice actually given the Gaults,
the juvenile process. was constitutionally adequate. See also An-
4D ARS ? 8-222(B) . tieau, Constitutional Rights in Juvenile
60 Arizona's Juvenile Code does not provide Courts, 46 Cornell L. Q. 387, 395 (1961) ; Paul-
for notice of any sort to be given at the com- sen, Fairness to the Juvenile Offender, 41
mencement of the proceedings to the child or Minn. L. Rev. 547, 557 (1957). Cf. Standards,
his parents. Its only notice provision is to the pp. 63-65; Procedures and Evidence in the
effect that if a person other than the parent Juvenile Courf, A Guidebook for Judges, pre-
or guardian is cited to appear, the parent or pared by the Advisory Council of Judges of
guardian shall be notified "by personal serv- the National Council on Crime and Delin-
ice" of the time and place of hearing. ARS quency (1962), pp. 9-23 (and see cases dis-
? 8-224. The procedure for initiating a pro- cussed therein).
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CONGRESSIONAL RECORD - HOUSE ;1 ay 15, 10671
a hearing to be held in which a youth's free..
don and his parents' right to his custody
are at stake without giving them timely
notice, in advance of the hearing, of the
specific issues that they must meet. Nor, in
the circumstances of this case, can it reason-
ably be said that the requirement of notice
was waived."
i. V RIGHT TO COUNSEL
Appellants charge that the Juvenile Court
proceedings were fatally defective because
the court did not advise Gerald or his parents
of their right to counsel, and proceeded with
the hearing, the adjudication of delinquency
and the order of commitment in the absence
of counsel for the child and his parents or an
x,press waiver of the right thereto. The Su-
rreme Court of Arizona pointed out that
"there is disagreement [among the various
jurisdictionsi as to whether the court must
advise the infant that he has a right to coun-
1wl." F~^ It noted its own decision in State Dept.
or Public Welfare v. Barlow, 130 Ariz. 249, 296
. 2d 298 (1956), to the effect "that the par-
rnts of an infant in a juvenile proceeding
cannot be denied representation by counsel
of their choosing." (Emphasis added.) It re-
ferred to a provision of the Juvenile Code
which it characterized as requiring "that the
probation officer shall look after the interests
of neglected, delinquent and dependent chil-
dren," including representing their interests
i:a court:- The court argued that "The parent
surd the probation officer may be relied upon
t-o protect the infant's interests." Accordingly
it rejected the proposition that "due process
requires that an infant have a right to coun-
sef." It said that juvenile courts have the dis-
cretion, but not the duty, to allow such rep-
resentation; it referred specifically to the sit-
it a+;.,,, in which the Juvenile Court discerns
conflict between the child and his parents
as an instance in which this discretion might
be exercised. We do not agree. Probation of-
ficers, in the Arizona scheme, are also arrest-
ing officers. They initiate proceedings and file
petitions which they verify, as here, alleging
the delinquency of the child; and they testi-
s here, against the child. And here the
iaitbfon officer was also superintendent of
*Oo Detention Home. The probation officer
cannot act as counsel for the child. kits role
in the adjudicatory hearing, by statute and
in fact, is as arresting officer and witness
against the child. Nor can the judge repre-
sent the child. There is no material difference
strafed incremiug recognition of this view.
In at least one-third of the states, statutes
now provide for the right of representation
by retained counsel in juvenile delinquency
proceedings, notice of the right, or assign-
ment of counsel, or a combination of tnese.
In other states, court, rules have i,irntlar
provisions ?k
The President's Crime Commission has re-
cently recommended that in order to ai;sure
"procedural justice for the child," it is neces-
sary that "Counsel . . . be appointed as a
matter of course whet:ever coercive a,:tion
is a possibility, without requiring any
affirmative choice by child or parent" L- As
in this respect between adult and juvenile
proceedings of the sort here involved. In
adult proceedings, this contention has been to represent indigen s . in proceedings
foreclosed by decisions of this Court." A pro- before the juvenile court; , .." See Black v.
credin where the issue is whether the child United States, --- L:".S. App. D. C. -,
g 355 F. 2d 104, 106-107 (1965), cori-
is --,
loss be of "delinquent"
, this Act as providing a right t: I ap-
jecte d to the found to
his s liberty y for years years sub-
struin?"
je
comparable In seriousness to a felony prose- pointed counsel and to be informed of that
cation. The juvenile needs the assistance of right). Other state statutes allow apl:oint
counsel to cope with problems of laws es to ment on :request, or in some classes of :uses,
make skilled inquiry into the facts, to insist or in the discretion of the court, etc The
upon regularity of the proceedings, and to state statutes are collected and classified in
ascertain whether he has a defense and to Riederer, The Role of Counsel in the Juvenile
prepare and submit it. The child "requires Court, 2 J. Faro. Law 1.6. 19-20 (1962), which.
the guiding hand of counsel at every step however, does not treat the statutes cited.
in the proceedings against hhn." ''" Just as in above. See also Note, Rights and Rehal,ilita-
He.nt v. United States, supra, at 561-562, we tion In Juvenile Courts, 67 Col. L. Rev. 281,
indicated our agreement with the United 321-322 (1967).
States Court of Appeals for the District of 0 Skoler and Tenney, Attorney Repre??
Columbia Circuit that the assistance of corm- sentation. in Juvenile Court, 4 J. Fain. Law
sel is essential for purposes of waiver pro- 77, 95--96 (1964); Riederer, The Role or c,oun-
ceedings, so we hold now that it is equally sel in. the Juvenile Court, 2 J. Fam. Law 16
essential for the determination of delinquen- (1902).
cy, carrying with it the awesome prospect of Recognition, of the right to counsel in-
i u.arceration in a state institution until the volves no necessary interference wits the
Ivenile reaches the age of 21.1 special purposes of juvenile court procedures;
During the last decade, court deet',uric ai indeed, it see eas that counsel can pl 3. e n im-
tant role in the process of rehabilitation.
Mrs. Gault's "knowledge" of the charge Alabama, 287 U.S. 45, 61 (1932); en ee Courts, 67 Col L. Rev. 281, 3':4 327
against Gerald, and/or the asserted failure to ; Powell V. (1967) .
object, does not excuse the lack of adequate Gideon V. Wainwright, 372 U.S. 335 (1963). I ? Nat'l Crime Comtn'rr Report, pp. 86-87.
notice. Indeed, one of the purposes of notice `'" In the present proceeding, for example, The Connnission's statement of its position
is to clarify the issues to be considered, and although the Juvenile Judge believed that is very forceful:
as our discussion of the facts, supra, shows, Gerald's telephone conversation was within "Tie Commission believes that no single
oven the Juvenile Court Judge was uncertain -lie condemnation of ARS ? 13-377, he sag- action holds more potential for achieving
:a;, to the precise issues determined at the ,vested some uncertainty because the statute procedural justice for the child in the juve?-
tvvo "hearings." Since the Gaults had no irohibts the use of vulgar language in the vile court than provision of counsel. The
ruisel and were not told of their right to presence of or hearing of" a woman or child. presence of all independent legal representa-
counsel, we cannot consider their failure to "'Puivell v. Alabama, 287 U.S. 45, 69 (1932). Live of the child, or of his parent, is the key-
object to the lack of constitutionally ade- ""'This means that the commitment, in stone of the whole structure of guarantees
quote notice as a waiver of their rights. Be- . rtuany all cases, is for a minimum of three that it minimum system of procedural Justice
cause of our conclusion that notice given years since jurisdiction of juvenile courts is requires The rights to confront one's accus-
only at the first hearing Is inadequate, we t" ually limited to age 18 and under. ere, to cross-examine witnesses, to present
need not reach the question whether the rc See cases cited in note 55, supra. evidence and testimony of one's own to be
Gaults ever received adequately specific no.- See, e.g., Schinitsky, 17 The Record (N.Y. unaffected by prejudicial and unreliacle evi-
Lice even the June 9 hearing, in light of the City Bar Assn.) la (1962) ; Paulsen, Fairness dente, to participate meaningfully in. the dis-
act they were never c the Juvenile Offender, 41 Minn. L. Rev. positional decision, to take an appeal have
f apprised of the charge
of, being habitually involved in Immoral mat.- 547, 56&-573 (1957); Antieau, Constitutional substantial meaning for the overwhelming
'?rights in Juvenile Courts, 46 Cornell L. Q. majority of persons brought before the juve-
ue,:' 37, 404-407 (1961); Paulsen, Kent v. United
~ For recent cases in the District of Colum - nile court only if they are provided with a cnnr-
caLes: The Constitutional Context of etert lawyers who can invoke those rights
oing tn there must be advice l athe Juvenile Cases, 1966 Sup. Ct. Rev. 167, 187- effp ectively. The most informal and well-hi-
right t o holding an
mi~iginted d if necessary, d to have counsel p - ,89; Ketcham, The Legal Renaissance in the
ecessary, see, e. . g., , Shtioutakin v. tentLoned of judicial proceedings ar:, tecla-
1iistrict of Columbia,-U.S. App. D.C. Juvenile Court, 60 Nw. U. L. Rev. 585 (1965); nical; few adults without legal training can
236 F.2d 666 (1956); Black v. United State::, 111son, Juvenile Courts and Due Process, in influence or even understand them certai,i-
-- App. D.C. --, 355 F.2d 104 (1965); In usticc for the Child (Rosenheim ed.) 95, ly children cannot, Papers are drawn and
re Poff, 135 F. Supp. 224 y'D. C. D. C. 1955). 103105 (1962); Note, Rights and Rehabilita- charges expressed in legal language. Events
Cf. also interest of Long, 184 So. 2d 1361, 862 tioli i?r Juvenile Courts, 67 Col. L. Rev. 281, follow one another in a manner that, appears
1 327 (1967). See also Nat'l Prob. and arbitrary and confusing to the uninitiated.
Decisions, unexplained, appear too official to
t;al(;3. up 'l.d Ct. 891, , 299 299., P. 1 2d d 87 875 (1956). v. Dotson, 46 Parole Assoc., Standard Family Court Act
Tice section cited by the court, ARS (1959) ? 19, and Standard Juvenile Court challenge. But with lawyers come record.,, of
8-204-C, reads as follows: A,'t (1959) ? 19, in NPPA Journal 99, 323 proceeding,; records make possible appeis
"The probation officer shall have the au- (1959) (hereinafter cited as Standard Family which, even if they do not occur, impart by
l,hority of a peace office. He shall: curt Act and Standard Juvenile Court Act, their possibility a healthy atmosphere of
"1. Look after the interests of neglected rorpectively). accountability.
delinquent and dependent children of the Only a. few state statutes require advice "Fears have been expressed that lawyers
county. nil liar right to counsel and to have counsel would make juvenile court proceedings ad-
"2. Make investigations and file petition;, appointed. See N.Y. Family Court Act ? 3241, versary. No doubt this 1.mm partly true, but it is
3. Be present in court when cases are i49, '+28, 741; Calif. Welfare & Inst'ns Code partly desirable. In.fcrmality is often abused.
heard concerning children and represent ? 633, 634, 659, 700 (1966) (appointment The juvenile courts deal with cases In which
heir interests. i> nimmndatory only if conduct would be a facts are disputed and in which, therefore,
4. Furnish the court information and as- felony in the case of an adult); Minn. Stat, rules of evidence, confrontation of witnesses,
stance as it may require. Ann ~ 260.155 (2) (1966 Supp.) (see Com- and other adversary procedures are ca led for.
"5. Assist in the collection of sums ordered urel i; of Legislative Commission accompany- They deal with many cases involving ccn-
;)aid for the support of children. ing this section) ; District of Columbia Legal duct that can lead to incarceration or close
'T. Perform other acts ordered by the Aid Act, D. C. Code ? 2-2202 (1961) (Legal supervision for long periods, and therefore
iourt." Aid Agency "shall make attorneys available juveniles often need the same a,a,fsguards
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Mag 15, 1967 CONGRESSIONAL RECORD - HOUSE H 5447
Mated by the authoritative "Standards for The Act provides that "At the commence- ings. Appellants attack this on the ground
Juvenile and Family Courts," published by ment of any hearings" under the delinquency that the admissions were obtained in disre-
the Children's Bureau of the United States article of the statute, the juvenile and his gard of the privilege against self-incrimina-
Department of Health, Education, and Wel- parent shall be advised of the juvenile's tion ?? If the confession is disregarded, appel-
fare: right to be represented by counsel chosen lants argue that the delinquency conclusion,
"As a component part of a fair hearing by him or his parent ... or by a law guardian since it was fundamentally based on a finding
required by due process guaranteed under the assigned by the court ...." e The California that Gerald had made lewd remarks during
14th Amendment, notice of the right to coun- Act (1961) also requires appointment of the phone call to Mrs. Cook, is fatally defec-
sel should be required at all hearings and counsel 70 tive for failure to accord the rights of con-
counsel provided upon request when the We conclude that the Due Process Clause frontation and cross-examination which the
family is financially unable to employ coun- of the Fourteenth Amendment requires that Due Process Clause of the Fourteenth
sel." Standards, at p. 57. in respect of proceedings to determine de- Amendment of the Federal Constitution
This statement was "reviewed" by the Na- linquency which may result in commitment guarantees in state proceedings generally 7?
tional Council of Juvenile Court Judges at to an institution in which the juvenile's Our first question, then, is whether Gerald's
its 1965 Convention and they "found no freedom is curtailed, the child and his parent admission was improperly obtained and re-
fault" with it ?? The New York Family Court must be notified of the child's right to be lied on as the basis of decision, in conflict
Act contains the following statement: represented by counsel retained by them, or with the Federal Constitution. For this pur-
"This act declares that minors have a right to if they are unable to afford counsel, that pose, it is necessary briefly to recall the
"T assistance d c of that m of r ha own right to counsel will be appointed to represent the relevant facts.
Ing or of law guardians ?7 in neglect proceed- child.
re-
ings under article three and in proceedings At the habeas corpus proceeding, Mrs. cipient of the alleged telephone calll,, was not
to determine juvenile delinquency and Gault testified that she knew that she could called as a witness. Gerald's mother asked
whether a person is in need of supervision have appeared with counsel at the juvenile the Juvenile Court Judge why Mrs. Cook was
under article seven. This declaration is based hearing. This knowledge is not a waiver of not present and the judge replied that "she
on a finding that counsel is often indispen- the right to counsel which she and her didn't have to be present." So far as appears,
sable to a practical realization of due process juvenile son had, as we have defined it. They Mrs. Cook was spoken to only once, by Office
of law and may be helpful in making reasoned had a right expressly to be advised that they Flagg, and this was by telephone. The judge
determinations of fact and proper orders of might retain counsel and to be confronted did not speak with her on any occasion.
disposition." with the need for specific consideration of Gerald had been questioned by the probation
whether they did or did not choose to waive officer after having been taken into custody.
that are granted to adults. And in all cases the right. If they were unable to afford to The exact circumstances of this questioning
that are need advocates t. speak for them employ counsel, they were entitled in view do not appear but any admissions Gerald
and guard their interests, particularly wof the seriousness of the charge and the po- may have made at this time do not appear
aisposi and dare made. It pis the articularly when
is- tential commitment, to appointed counsel, in the record ?4 Gerald was also questioned by
d s osit stage decisions o which the opportunity unless they chose waiver. Mrs. Gault's knowl- the Juvenile Court Judge at each of the two
edge that she could employ counsel is not an hearings. The judge testified in the habeas
arises to offer individualized treatment plans "Intentional relinquishment or abandon-
and in which the danger inheres that the ment" of a full known rIght.71 akin
lewd Gera a te ants . . .
g "some of that
court's coercive power will be applied with- V. CONFRONTATION, SELF-INCRIMINATION, [but not] any of thee more serious a lewd
out adequate knowledge of the circum-
"Fears also have been expressed that the
formality lawyers would bring Into juvenile
court would defeat the therapeutic aims of
the court. But informality has no necessary
connection with therapy; It is a device that
has been used to approach therapy, and it is
not the only possible device. It is quite pos-
sible that in many instances lawyers, for all
their commitment to formality, could do
more to further therapy for their clients than
can the small, overworked social staffs of the
courts.
"The Commission believes it is essential
that counsel be appointed by the juvenile
court for those who are unable to provide
their own. Experience under the prevailing
systems in which children are free to seek
counsel of their choice reveals how empty of
meaning the right is for those typically the
subjects of juvenile court proceedings. More-
over, providing counsel only when the child
is sophisticated enough to be aware of his
statements." There was conflict and uncer-
tainty among the witnesses at the habeas
corpus proceeding-the Juvenile Judge, Mr.
and Mrs. Gault, and the probation officer-as
to what Gerald did or did not admit.
We shall assume that Gerald made ad-
missions of the sort described by the Juve-
nile Court Judge, as quoted above. Neither
Gerald nor his parents was advised that he
did not have to testify or make a statement,
or that an incriminating statement might
result in his commitment as a "delinquent."
The Arizona Supreme Court rejected ap-
pellant's contention that Gerald had a right
to be advised that he need not incriminate
himself. It said: "We think the necessary
flexibility for individualized treatment will
be enhanced by a rule which does not require
the judge to advise the infant of a privilege
against self-incrimination."
In reviewing this conclusion of Arizona's
Supreme Court, we emphasize again that we
are here concerned only with proceedings to
port, determine whether a minor is a "delinquent"
waive his announced right are not enough, Re--u-, iweuun Annual
pp. 288-291 (1967) for detailed statis- and which may result in commitment to a
as experience In numerous jurisdictions re- tics on representation of juveniles in New state institution. Specifically, the question
veals. York. For the situation before 1962, see is whether, in such a proceeding, an admis-
"The Commission recommends: Schinitsky, The Role of the Lawyer in Chil- sion by the juvenile may be used against him
"COUNCIL SHOULD BE APPOINTED AS A MATTER dren's Court, 17 The Record (N.Y. City Bar In the absence of clear and unequivocal evi-
OF COURSE WHEREVER COERCIVE ACTION IS A POS- Assn.) 10 (1962). In the District of Colum- dence that the admission was made with
SIBILrTY, WITHOUT REQUIRING ANY AFFIRMATIVE bia, where statute and court decisions require knowledge that he was not obliged to speak
CHOICE BY CHILD OR PARENT." that a lawyer be appointed if the family is and would not be penalized for remaining
"Lehman, A Juvenile's Right to Counsel unable to retain counsel, see note 63, supra, silent. In light of Miranda v. Arizona, 384
in A Delinquency, Hearing, 17 Juvenile Court and where the juvenile and his parents are so U. S. 436 (1966), we must also consider
Judge's Journal 53 (1966). In an interesting informed at the initial hearing, about 85 to whether, If the privilege against self-incrimi-
review of the 1966 edition of the Children's 90% do not choose to be represented and sign nation is available, it can effectively be
Bureau's "Standards," Rosenheim, Standards a written waiver form. D.C. Crime Comm'n waived unless counsel is present or the right
for Juvenile and Family Courts: Old Wine in Report, p. 646. The Commission recommends to counsel has been waived.
a New Bottle, 1 Fam. L.Q. 25, 27 (1967), the adoption in the District of Columbia of a It has long been recognized that the elicit-
author observes that "The `Standards' of "law guardian" system similar to that of New ing and use of confessions or admissions re-
1966, just like the 'Standards' of 1954, are York, with more effective notification of the quire careful scrutiny. Dean Wigmore states:
valuable precisely because they represent a right to appointed counsel in order to
11
e
m-
diligent and thoughtful search for an ,
accom- mate the problems of procedural fairness.
modation between the aspirations of the accuracy of fact-finding, and appropriateness
founders of the juvenile court and the grim of disposition which the absence of counsel
realities of life against which, in part, the in so many juvenile court proceedings In-
due process of criminal and civil law offers us volves. Id., at 681-685.
protection." 70 See note 63, supra.
?7 These are lawyers designated, as provided 71 Johnson v. Zerbst, 304, U. S. 458, 464
by the statute, to represent minors. N.Y. Fam- (1938) ; Carnley v. Cochran, 369, U. S. 506
ily Court Act ? 242. (1962) ; United States ex rel. Brown v. Fay,
?8 N.Y. Family Court Act ? 241. 242 F. Supp. 273 (D. C. S. D. N. Y. 1965).
Appellants urge that the writ of habeas
corpus should have been granted because of
the denial of the rights of confrontation and
'cross-examination in the Juvenile Court
hearings, and because the privilege against
self-incrimination was not observed. The
Juvenile Court Judge testified at the habeas
corpus hearing that he had proceeded on the
basis of Gerald's admission at the two hear-
00 N.Y. Family Court Act ? 741. For accounts
of New York practice under the new proce-
dures, see Isaacs, The Role of the Lawyer in
Representing Minors in the New Family
Court, 12 Buffalo L. Rev. 501 (1963); Dem-
bitz, Ferment and Experiment in New York:
Juvenile Cases in the New Family Court, 48
Cornell L. Q. 499, 508-512 (1963). Since in-
troduction of the law guardian system in
September of 1962, it is stated that attorneys
are present in the great majority of cases.
Harvard Law Review Note, p. 796. See New
72 The privilege Is applicable to state pro-
ceedings. Malloy V. Hogan, 378 U. S. 1 (1964).
??Pointer v. Texas, 380 U. S. 400 (1965);
Douglas v. Alabama, 380 U. S. 415 (1965).
7h For this reason, we cannot consider the
status of Gerald's alleged admissions to the
probation officers. Cf., however, Comment,
Miranda Guarantees In the California Juve-
nile Court, 7 Santa Clara Lawyer, 114 (1966).
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H 5448 CONGRESSIONAL RECORD - HOUSE May 15, J1967
"The ground of distrust of confessions
,Wade in certain situations is, in a rough and
indefinite way, judicial experience. There has
been no careful collection of statistics of
untrue confessions, nor this any great num-
ber of instances been even loosely reported
- , but enough have been verified to fortify
the conclusion, based on ordinary observa-
iion of human conduct, that under certain
:;tresses a person, especially one oY defective
mentality or peculiar temperament, may
falsely acknowledge guilt. This possibility
eises wherever the innocent person is placed.
In such a situation that the untrue acknowl-?
adgement of guilt is at the time the more
promising of two alternatives between which
he is obliged to choose; that is, he chooses
any risk that may be in falsely acknowledg--
ing? guilt, in preference to some worse alter--
nasive associated with silence.
"The principle, then, u;aon which acon-
ession may be excluded is that it is, under
conditions, testimonially untrustworthy. .
[T]he essential feature is that the principle
of exclusion is a testimonial one, analogous
to the other principles which exclude narra-
tions as untrustworthy. .. ." s
This Court has emphasized that admis-
the
h
---
e
avwher this dren. 'rue language of
a 15-year-old d boy o reversed. the conviction of
a 1.55- -yearoy for murder, Mars. JvsTicE applicable to the States by operation of the liege may, for example, be claimel In a
DOUGLAS said: Fourteenth Amendment, is unequivocal and civil or aclministra,sive proceeding, if the
"What transpired would make us pause for without exception. And the scope of the priv- statement is or may be inculpator.careful inquiry if a mature mast were it,- ilege is comprehensive. As Mr. JosTles It would be entirely unrealistic to carrcc
valved. And when, as here, a mere child-an WrrrrE, concurring, stated in Murphy v. out of the Fifth Amendment all statements
a y victim of the law-is before us, special Waterfront Commission, 378 U. S. 52 (1964), by juveniles on the ground that these can-
care in scrutinizing the record must be used. at 94: not lead to "criminal" involvement. In 'she
Age 15 is a tender and difficult age for a boy "The privilege can be claimed in any proceed- first place, juvenile proceedings to determr.ne
of any race. He cannot be judged by the more ing, be it criminal or civil, administrative "delinquency," which may lead to commit-
exacting standards of m.a.turity. That which or judicial, investigatory or adjudicatory ... ment to a state institution, must be regarded
would leave a man cold and unimpressed can it protects any disclosures which the witness as "criminal" for. purposes of the srivil,,ge
overawe and overwhelm a, lad in his early may reasonably apprehend could be used in against self-incrimination. To hold ochervrise
teens. This is the period of great instability a criminal prosecution or which could, lead would be to disregard substance because of
which the crisis of adolescence produces. A to other evidence that might be so used." the feeble enticement of the "civil" label-of-
Is su lied )'n convenience which had been attached to
s
of night by relays of police, is a ready victim
of the inquisition. Mature men possibly might
stand the ordeal from midnight to 5 a. m. But
we cannot believe that a lad of tender years
is a match for the police in such a contest.
lie needs counsel and support if he is not to
become the victim first of fear, then of panic.
lie needs someone on whom to lean lest the
overpowering presence of the law, as he knows
it, crush him. No friend stood at the side of
this 15-year-old boy as the police, working
in relays, questioned hint hour after hour,
from midnight until dawn. No lawyer stood
f;uard to make sure that the police went so
Tar, and no farther, to see to it that they
stopped short of the point where he became
the victim of coercion. No counsel or friend
was called during the critical hours of ques-
honing " 7tl
In Haley, as we have discussed, the ooy
was convicted in adult court, and not a ju-
venile court. In notable decisions, the New
Park Court of Appeals and the Supreme
Court of New Jersey have recently considered
decisions of juvenile courts in which boys
have been adjudged 'delinquent" on the
basis of confessions obtained in circtrmi-
:,tances comparable to those in Haley. In
both instances, the State contended before
its highest tribunal that constitutional re-
quireineiits governing inculpatory statements
applicable in adult courts do rot apply to
juvenile proceedings. In each case, the State's
contention was rejected, and the juvenile
court's determination of delinquency was, se,
aside on the grounds of inadmissibility of
the confession. In the Matters of Gregory
tV. and Gerald S., 19 N, Y. 2d 555-N. E. 2d-
Wigmore on Evidence ? 822 (3d ed. 1940).
T^ 332 U.S., at 599--600 (opinion of Ma.
J USFICe DOUGLAS, Joined by JUSTICES BLACK,
Morphy and Rutledge; Justice Frankfurter
concurred in a separate opinion).
(t966) (opinion by Keating, J.), and in 'the referred to above, the New York Court of Ap-
interests of Carlo and Stasilowicz, 48 N. J. peals he&d that the 'privilege against self-
224, 225 A. 2d 110 (1966) (opinion by Proctor, incrimination applies in juvenile delinquency
3) cases and requires the exclusion of inivolun-
the privilege against self-incrimination. Is, tary confessions, and that People v. Gewi.sr,
of course, related to the question of the safe- 260 N.Y. 1.71. (1932), holding the contrary,
guards necessary to assure that admissions had been specifically overruled by statute.
or confessions are reasonably trustworthy, The authoritative "Standards for Juvenile
that they are not the mere fruits of fear. or and Family' Courts" concludes tha'-;,
coercion, but are reliable expressions of the "Whether or not transfer to the criminal
truth. The roots of the privilege are, how- is a possibility, certain procedures should
ever, far deeper. They tap the basic stream always be followed. Before being inter viewsd
of religious and political principle because [by the police] the child and his l:arents
the privilege reflects the limits of the in- should be informed of his right to have legal
dividual's a.ttornment to the state and--in a counsel :present and to refuse to n wer q e;z-
he shottid
philosophical sense--insists upon the equality tion8 or to he fingerprinted [Si)
of the individual and the ,State?' In other so decide." `
application to juvenile; of the
words, the privilege has a broader and deeper Against the appiic_' .
thrust than the rule which prevents the use right to silence, it is argued that juvenile
of confessions which are the product of proceedings are "civil" and not "criminal,"
?toercion because coercion is thought to carry and therefore the privilege should not apply.
with it the danger of unreliability. One of It is true that the statement of the privilege
its purposes is to prevent the State, whether in the Fifth Amendment, which is applicable
by force or by psychological domination, to the States by reason of the Fcu:rteenth
from overcoming the mind and will of the Amendment, is that no person "shall lie cora-
person under investigation and depriving polled in any criminal case to be a witness
him of the freedom to decide whether to against himself." However, it is also clear
Grist the State in securing his conviction?B that the availability of the privilege does
roceeding in
of
p
It would indeed be surprising if the priv- not turn upon the type
siege against self-incrimination were avail- which its protections is invoked, but upon
,,+a1.oment or echnission
pp
k-1) a
With respect to juveniles, both common juvenile proceedings, Indeed, in over hat.. or.
observation and expert opinion emphasize the States, there is s not even assul'ssee that
that the "distrust of confessions made in the juvenile will be kept in separate institu-
certain situations" to which Dean Wigmore tions, apart from adult "criminals." In those
referred in the passage quoted above, is im- States juveniles may he placed in or trans-
perative in the case of children from an ferred to adult penal institutions ke after
early age through adolescence. In New York, having been found "delinquent" by a juve-
for example, the recently enacted Family nile court. For this purpose, at least, crrn-
Court Act provides that the juvenile and mitment is a deprivation of liberty. It is
his parents must be advised at the start of incarceration against one's will, whether it is
the hearing of his right, to remain silent. ? called "cr i;minal" or "civil." And cur Con-
The New York statute also provides that the stiuution guarantees that no person shaft be
police must attempt to communicate with "compelled" to be a witness agains ; himself
the juvenile's parents before questioning when lie is threatened with depri,ution of
himi't and that a confession may not; be ob- his liberty-a command which this Court
tained from a child prior to notifying his has broadly applied and generously impie-
parents or relatives and releasing the child mented its accordance with the te