70 U. Chi. L. Rev. 39 (2003)
The Missed Opportunity in Gault

handle is hein.journals/uclr70 and id is 49 raw text is: The Missed Opportunity in Gault
Emily Busst
A century ago, states established a separate system of juvenile
courts with a radical new mission. The aim of these courts was to help
juvenile offenders rather than punish them, in a context stripped of
the formalities of adult criminal court. By the middle of the century,
however, these courts were widely perceived as failures that offered
neither substantive nor procedural benefits to children. In 1967, the
Supreme Court declared the procedural failings unconstitutional in
the landmark case of In re Gault.'
While Gault should be celebrated for its recognition that chil-
dren, too, have constitutional rights, it should be mourned for its lim-
ited vision of those rights. In assuming that children's due process
rights would, at best, match those of adults, the Court foreclosed any
thoughtful consideration of the changes required to make the juvenile
justice system fair to children. The direct product of Gault is a set of
rights ill-tailored to serve either the aims of the juvenile justice system
or the interests of the children who hold those rights. More broadly,
Gault's error helped establish a pattern of analysis which has stunted
the development of children's constitutional rights overall.2
In 1899, Illinois enacted the first Juvenile Court Act,' and other
states quickly followed suit.! These new juvenile courts had interre-
lated substantive and procedural aims: The substantive aim was to re-
spond to juvenile offending with rehabilitative treatment rather than
retributive punishment.' The procedural aim was to replace the for-
t Professor of Law, The University of Chicago. Thanks to Tracey Meares for her helpful
comments on an earlier draft, to Sheila Beail for her excellent research assistance, and to the Ar-
nold and Frieda Shure Research Fund for its financial support.
1  387 US 1 (1967).
2  For a broader discussion of the Court's mishandling of children's constitutional rights,
see Emily Buss, Children's Rights on Children's Terms (draft 2002) (on file with author).
3  Illinois Juvenile Court Act, 1899 Ill Laws 131.
4  See Robert M. Mennel, Thorns and Thistles: Juvenile Delinquents in the United States,
1825-1940 132 (New Hampshire 1973) (reporting that by 1925, all but two states had separate
juvenile courts).
5  Elizabeth S. Scott, Criminal Responsibility in Adolescence: Lessons from Developmental
Psychology, in Thomas Grisso and Robert G. Schwartz, eds, Youth on Trial: A Developmental
Perspective on Juvenile Justice 291,294 (Chicago 2000) (The new juvenile court was grounded in
a commitment to the rehabilitation of young offenders and a rejection of retribution as a legiti-

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