Supreme Court Decision Authored by Memphis Native Still Challenging Juvenile Courts 47 Years Later

It was 47 years ago this month that a Memphis native authored a Supreme Court opinion that would alter the course of juvenile justice in the U.S.
SCOTUS_Justice_Abe_Fortas
Supreme Court Justice Abe Fortas

On May 15th, 1967, Memphian and Supreme Court Justice Abe Fortas  wrote the majority opinion for the In re Gault decision, which held that children were “persons” under the U.S. Constitution and should be treated fairly when faced with deprivation of liberty.

Specifically, it established the due process rights of children — that they have a right to counsel and were entitled to notice of charges against them and to confront and cross examine accusers.  The decision also firmly stated that children have a right against self-incrimination. In other words, it provided children the same due process rights as adults.

Fortas and the court sided with a 15 year-old Arizona boy named Gerald Gault who had been sentenced to six years in reform school … for a prank phone call. It was not just the outrageous outcome of this case, however, that eventually brought the Gault case before the U.S. Supreme Court in 1967; It was the entire legal process that led to the sentence:

  • Gault was removed from his home by law enforcement without notification to his parents.
  • Gault’s accuser was not present at the hearing.
  • No record was kept of the proceeding and no witnesses were sworn in before testimony.
  • Gault was never advised of his rights and no attorney was present.

At the time, the maximum sentence in Arizona for an adult accused of the same crime —  a $50 fine and two months in jail. Much less than the six years Gault was given.

Gault’s parents filed a petition for his release, which eventually reached the Supreme Court.

On the anniversary of a court decision made more than four decades earlier, it is ironic that the the Department of Justice would currently be in the process of enforcing this opinion in Memphis — an opinion authored by a Memphis native. In its 2012 investigation of the Shelby County Juvenile Court, the DOJ repeatedly cited Gault to support charges that essential rights had not been extended to children in Memphis and Shelby County.

“More than 40 years ago, the Supreme Court established the parameters of due process for children facing delinquency proceedings and thereby subject to the ‘awesome prospect of incarceration.’ In re Gault, 387 U.S. 1, 36 (1967). The Court held that children must be afforded the right to counsel, the right to notice of the charges, the right to be free from self-incrimination, and the right to confront witnesses

“During our investigation, we found pre-Gault era practices in JCMSC [Juvenile Court of Memphis and Shelby County] that violate the due process rights of children facing delinquency proceedings. These practices violate the children’s civil rights.”

Investigation of the Shelby County Juvenile Court, U.S. Department of Justice Civil Right Division, April 26, 2012.

At the start of this year, the Shelby County Public Defender’s new Juvenile Defender Unit began taking cases in juvenile court. This marked the first time in more than 30 years that the Public Defender’s Office has been formally involved in Juvenile Court. You can read more about the immersive training the Juvenile Defender Unit and some private attorneys are undergoing to learn the latest practices in this highly specialized area of law:

Juvenile Defenders Gather in Memphis, Train to Fight Transfers

Tennessee Lawyers Learn Latest National Juvenile Defense Practices in Memphis

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Revisiting Fortas

You can also learn more about the role Memphis native Abe Fortas played in developing new standards for the defense of children and adults in this inaugural edition of Memphis Law, a new magazine published by the University of Memphis Cecil C. Humphreys School of Law. Our office wrote the cover story about Fortas’ contributions to the right to counsel in our country. We also wrote an article about the state of public defense in Memphis,today. If you’re an alumni or supporter, the magazine will be delivered to your home. Or you can check out the issue online: ‘Memphis Law’ Inaugural Issue