Fundamental Unfairness: In re Gault and the Road Not Taken

73 Pages Posted: 7 Jun 2012 Last revised: 15 May 2013

See all articles by Robin Sterling

Robin Sterling

University of Denver Sturm College of Law

Date Written: June 7, 2012


The data are shocking and familiar. A grossly disproportionate number of youth in the juvenile justice system are children of color, and black youth, at only 16% of the population, are the group most overrepresented at every stage. An African American boy is 9 times more likely to be detained for a drug offense as a white boy charged with the exact same offense, and has a 1 in 3 chance of being sent to prison during his lifetime. These statistics stand despite widespread acknowledgment that the overrepresentation of youth of color in the juvenile justice system cannot be explained by offense rates, which are static across racial and ethnic groups; arrest rates, which hover near an all-time low; or demographics, which yield this pattern of overrepresentation even in states with very small populations of people of color.

The often overlooked history of the treatment of black system-involved children begins to give these statistics dimension. The Child Savers, the group of Progressive reformers who, in 1899, successfully championed the establishment of a separate juvenile system dedicated to rehabilitation instead of punishment, envisioned the proper objects of the juvenile court’s individualized services to be poor white and European immigrant youths, who were able to take advantage of an unspoken “cross-class alliance” that prioritized their needs over those of black children. In contrast, the violence against black children in the antebellum South, convict leasing, and Jim Crow juvenile justice all combined to paint a very different picture for black youths accused of crimes. Simply put, black children were black before they were children, and therefore exempt from the presumption that they were amenable to rehabilitation.

The Supreme Court’s omission of the brutal story of how black children actually fared in the juvenile justice system that the Child Savers built led to juvenile justice case law that also helps explain the statistics. During the Civil Rights Movement, in word and deed, the Court took steps to disassemble the legal scaffolding of American apartheid, one indignity at a time. In the area of criminal procedure, this meant extending the protections of the Bill of Rights to all adult defendants in state criminal proceedings via the Due Process Clause. But in In re Gault, the seminal case that gave youths in delinquency proceedings the right to counsel, the Court chose a different path. Instead of applying the procedural protections of the Bill of Rights, the Court extended juvenile delinquency respondents only Fourteenth Amendment due process protections. In this way, Gault distanced juvenile justice reform from the Civil Rights Movement.

This Article argues that Gault’s reliance on a fundamental fairness analysis based in Fourteenth Amendment due process, instead of on a fundamental rights analysis based in the Bill of Rights, was a critical misstep. It was a misstep in origin because it stemmed from the Court’s adoption of the Child Savers’ incomplete story about a benevolent juvenile system that promised rehabilitation in exchange for flexible procedures, instead of on the harsh reality of how the juvenile justice system treated children of color. It was a misstep in result because the straight line between the Child Savers’ story and Gault’s adoption of fundamental fairness split juvenile rights from the Court’s criminal procedure revolution. This critical mistake would serve to perpetuate, rather than redress, the legacy of disparate treatment of black system-involved children. The Court’s turn in Gault left black children at the back of the bus.

Suggested Citation

Sterling, Robin, Fundamental Unfairness: In re Gault and the Road Not Taken (June 7, 2012). Maryland Law Review, Vol. 72, 2013; U Denver Legal Studies Research Paper No. 12-17. Available at SSRN:

Robin Sterling (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States


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