Access to Counsel

About This Issue

In 1967, the U.S. Supreme Court in In re Gault secured for the first time essential due process rights for all children facing juvenile court, including the fundamental right to a lawyer. The Court mandated that states guarantee this critical right for all children under the Fourteenth Amendment, recognizing that the right to counsel is essential to a fair trial, especially for children.

Central to the right to counsel is the right to effective assistance of counsel. Following Gault, the U.S. Supreme Court clarified that the right to counsel cannot be satisfied by mere appointment of counsel, but rather due process demands that defense counsel engage in a “meaningful adversarial testing” of the prosecution’s case. Accordingly, all children facing juvenile court are entitled to a zealous advocate defending their interests and fighting for their rights.

This was reaffirmed in 2015 when the U.S. Department of Justice issued a statement of interest in a civil lawsuit, N.P. v. Georgia, and asserted the critical importance of children having access to qualified counsel. The department noted that the right to counsel is fundamental, especially for children, for whom the hallmarks of adolescent development heighten both their need and dependence on the “guiding hand of counsel.” It was an important acknowledgement that young people must be fiercely represented by skilled counsel—meaning that counsel must have enough time, resources, adequate training, and specialization to fulfill children’s right to counsel.

Our Position

Although children’s access to a lawyer is constitutionally mandated, far too often, children face charges in juvenile court without counsel to defend their rights, inform them about their case, and ensure their voice is heard throughout the legal process. This failure of our legal system happens for many reasons, from entrenched systemic racism to the lack of specialized and autonomous youth defense offices to juvenile court cultures that undermine the role of the defense attorney.

Defenders do far more than protect and enforce children’s legal rights. They also play a critical role in fighting implicit racial bias and dismantling structural racism within a system that disproportionately punishes Black, Latino/a, and Native/Indigenous youth. Defenders give voice to the trauma and strengths of a young person, and they fight to lessen the harms of the juvenile court system as much as possible. It is essential for all children in juvenile court to have meaningful access to a lawyer.

Youth defense delivery systems are a critical component of safeguarding children’s constitutional right to counsel. State practices vary widely, and in an effort to better understand how and whether states are fulfilling children’s due process rights, the Gault Center conducts state assessments of these defense systems. In addition to gathering general data and information about the system structures, assessments examine issues related to the timing of appointment of counsel; the frequency with which children waive their right to counsel and under what conditions they do so; resource allocation; attorney compensation; supervision and training; and access to investigators, experts, social workers, and support staff. Assessments also highlight promising approaches and innovative practices within the state and offer recommendations to improve areas where challenges are identified.

To date, we have published 28 assessments. Following the release of each assessment, we work closely with state actors—from judges to defenders to probation officers— to assist with the implementation of our recommendations. Our assessments are also useful for state legislatures, bar associations, and other groups seeking to ensure meaningful access to counsel for children.