by Aj Frost

Created on: December 07, 2008   Last Updated: March 08, 2012

A minor's right to counsel is a very tricky subject to understand. One the one hand, everyone in some capacity deserves proper representation in court, but on the other hand, minors are not yet full adults in American society. Another problem is the direct definition of "minor." Does it mean all people under eighteen years of age or seventeen and under or ages five to twelve, etc. These problems tends to complications in our understanding (or obviousness to) the American legal system and minor's rights under American jurisprudence.

Here are the facts: eleven states in the US define a minor (and its synonym juvenile) as being under the age of seventeen. However, a minor in most states is under the age of twenty-one (the established legal age to purchase alcohol). Three states define a minor as under the age of sixteen. All other states have the term "minor" as being under eighteen. This can cause confusion in terms of state to state extradition.

Therefore, if anyone under these ages is caught seriously breaking the law will then go off to juvenile court; while there, the young defendants may be able to procure individual protections i.e. parental or guardian involvement in police questioning.

The Supreme Court of the United States has definitively expressed the rights of minors. In In re Gault (387 U.S. 1) the Supreme Court set a precedent that minors, in accordance with the articles set out in the Fourteenth Amendment, do have a right to the same rights of due process that adults enjoy. This includes a right to counsel, against self- incrimination (as set by the Miranda case), and the important right of habeas corpus. These are all important matters when considering minor's right to counsel.

Now that minors have been afforded rights to counsel, how in fact will the lawyer represent the minor against such actions that could lead to the death penalty or any other severe punishment. It should be noted that in the one dissenting vote in the Gault case, Justice Potter argued that the entire role of juvenile court was correction and not [severe] punishment. This leads to a conundrum in terms of how far a court can go with sentencing.

It is a good time to point out that, whether the child as an attorney or not, makes the biggest difference in throwing out or keeping out a case.

The Supreme Court has, in part, struck down the death penalty for minors. The Justices prescribe that the execution of a minor violates the eighth amendment. So in terms of defendant leverage, counsel at least has the protection against execution for their client. Counsel for the minor also has a great deal of protection for their client against much prosecutorial aggressiveness, at least in part on the mental faculties of the young defendant.

The Constitution of the United States is such an important document concerning the rights of the accused. These protections are important to our judicial independence and are an important part of our democracy

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