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The Gault decision left an important mark on the system. Since this case was decided, state and federal governments alike have had to reform juvenile justice. Everywhere, proceedings in juvenile court have become more like proceedings in adult criminal courts—though never exactly the same. The Gault decision today seems unassailable; there is no turning back to the early days before Gault.

But there have been other changes in the world, which also affect juvenile justice. Criminals have been getting younger and younger in the post-World War II era. Young crime, like older crime, has become tougher, more violent, more dangerous—and more prevalent. The processing of juveniles is thus more serious, more of a social problem—and more like adult criminal justice. Backlash, moreover, has set in here, too. So, in New York, after a juvenile murdered two subway passengers in 1978, a cry went up for some action against underage hoodlums. The action turned out to be a statute that allowed juveniles who committed certain crimes to be tried as an adult—as young as thirteen for murder, fourteen and fifteen for other serious offenses.113 Similar statutes have been passed in other states.

Criminal Appeals

The last stage in the process, if a defendant lost, was the right of criminal appeal. It was, as we have seen (chapter 11), a right rarely exercised before the twentieth century. Few defendants appealed in the nineteenth century, and even fewer made use of constitutional arguments. This trend reversed itself in the twentieth century on both accounts, and the number of appeals grew tremendously. There was, however, considerable variation from state to state. In the twenties and thirties, for example, criminal appeals were a much higher percentage of the total load of high courts in the South than in the North. In New Mexico, Alabama, Tennessee, Georgia, and Mississippi, more than a fourth of all appeals were criminal appeals in 1912; in Kansas, in 1937, criminal appeals were 11.7 percent; in Rhode Island, in the late twenties, they were only 3 percent.114

Appeals were not usually successful; defendants generally beat against the doors of appellate courts in vain. In Kansas, in the decade ending in 1937, the high court affirmed over 80 percent of the cases appealed; in California, the affirmance rate in the 1930s approached 90 percent; and even in death penalty appeals, only one case out of fifty-eight was actually reversed.115 A study of criminal appeals in California showed, in fact, that the reversal rate had been dropping steadily between 1850 and 1926 (the last year studied). In the decade of the 1850s, half of all the cases were reversed; in the last decade of the nineteenth century, 38.9 percent; in 1910—19, 15.9 percent; in the 1920s, 14.7 percent.116dw

In the course of the century, criminal appeals seemed to show fewer and fewer horrible examples of “hypertrophy.” Texas, to be sure, continued to produce some amazing instances. In Gragg v. State (1945),118 the indictment had charged that Chesley Gragg killed his wife Flora “by ... drowning the said Flora Gragg.” Gragg had been in a boat with his wife and stepson. They died by drowning, and the question was, did Gragg drown them or did they die by accident? Gragg was convicted; but the Court of Criminal Appeals of Texas reversed the decision. The indictment had been defective; it did not say Flora Gragg was drowned in water; and, after all, there is “more than one means by which ... drowning may be accomplished.” (As an irate commentator put it, the indictment did not allege, according to the motion to quash, “whether the deceased was drown [sic] in water, coffee, tea or what.”)119 This, it seems, was a fatal flaw. dx

But the tide was running the other way. In some states, statutes introduced the concept of “harmless error.” An appeals court could affirm the trial court, even if that court had committed “errors,” so long as the errors were “harmless,” that is, they