Promoting parental guidance: an argument for the parent child privilege in juvenile adjudications.

• Author: Libson, Brittany

INTRODUCTION

On a humid July night in the District of Columbia, fifteen-year-old Devin and fourteen-year-old Michael board the green line train at the Chinatown metro station on their way home to Anacostia following a concert at the Verizon Center. (1) The youths stand by the metro exit during the crowded ride, joking and reciting lyrics from the show. An older man sits by the exit with his smartphone in his hand. When the train pulls up at the Anacostia station, Devin sucker punches the older man in the face, snatches his phone, and punches him again. Michael grabs onto Devin's arm and pulls him from the train. The older man follows behind them and flags down a Metro Transit police officer, who stops the two boys as they attempt to exit the station. The man tells the officer that Devin and Michael attacked him and stole his phone. The officer arrests Devin and Michael and transports them to the Juvenile Processing Center for booking.

After spending a frightening night in the Youth Services Center, without speaking with their parents, Devin and Michael are brought to the District of Columbia Superior Courthouse in the morning for arraignment. The boys speak with their court-appointed lawyers, who advise them not to speak with anyone about the offense--including their parents, who could be subpoenaed to testify against them in court. At the arraignment, Devin's mother is in tears, begging the court to release her son to her custody because he could never commit such an act. Michael's mother is furious and refuses to take her son home with her because of the allegations against him. Both of the boys attend school and neither have prior offenses, so the court releases Devin to his mother and sends Michael to shelter care, given that his mother objected to taking him home with her.

Over the course of the next several weeks, Devin's attorney advises him to plead guilty, while Michael considers taking the case to trial on the grounds that he intervened to prevent Devin from further punching the victim. Devin's mother is outraged at him for considering the plea offer and Devin is afraid to plead guilty without his mother's support. Because they are unable to discuss the details of the offense, she denies he committed the act and incorrectly advises him to take his case to trial despite the fact that multiple witnesses watched him commit the offense. Meanwhile, Michael's mother--unaware of the mitigating circumstances in her son's case--refuses to let him return home, believing he needs to learn a lesson. Her lack of support isolates Michael from his family and causes him to feel anger towards his mother. If Michael were able to discuss his case with his mother, their conversation could preserve the parent-child relationship at a time when Michael greatly needs his mother's support.

Both children are confused about how to proceed with their cases. Yet, neither can meaningfully consult his mother because the absence of a parent-child testimonial privilege means that everything either child says to his mother can be used against him in court. Recognizing a parent-child testimonial privilege would benefit both children by enabling them to discuss their cases with their mothers for guidance and support.

This Note argues that the absence of a parent-child testimonial privilege is incompatible with the juvenile justice system's goal of rehabilitating delinquent youth. Section I discusses juvenile justice history in the United States and the current purposes of state juvenile justice systems. Section II provides a brief overview of privilege laws in the United States and examines the current status of the parent-child testimonial privilege in federal courts, the fifty states, and the District of Columbia. In Section III, this Note argues that one of the primary aims of most juvenile courts--to rehabilitate and care for delinquent youth--will be best served by recognizing a parent-child testimonial privilege in juvenile proceedings. Specifically, this Note suggests that the privilege should cover confidential communications between minor children and their parents and should permit parents to refuse to testify against their minor children. It also explains why a limited form of the privilege should protect minor children in adult criminal proceedings in order for the privilege to effectively serve its purpose. Section IV encourages legislatures to recognize the proposed parent-child privilege and provides a model statute comprised of two sections: one covering confidential communications and the other covering parents' adverse testimony. Section IV also argues that, absent legislative action, juvenile courts should recognize the proposed privilege because compelling parents to testify against their children contradicts state juvenile justice systems' statutory purposes.

1. JUVENILE JUSTICE POLICY

   This Section discusses the history of juvenile justice in the United States, focusing on three distinct periods of reform: (1) the introduction of special juvenile institutions in the 1820s and 1830s, (2) the emergence of juvenile courts in the late nineteenth century and the first decades of the twentieth century, and (3) the due process revolution of the 1960s. This Section also examines the policy goals of current juvenile justice systems in each of the fifty states and the District of Columbia, highlighting that most systems focus on rehabilitation and many seek to preserve and strengthen families by involving parents in their children's rehabilitation.

   1. The History of Juvenile Justice in the United States

      1. The Emergence of Special Institutions to Care for Neglected Youth

         The first juvenile justice reforms in America occurred in the 1820s and 1830s, with states establishing special institutions for youth. (2) In 1824, the New York legislature initiated the reforms, granting a charter to the Society for the Prevention of Pauperism in the City of New York ("the Society") to establish a House of Refuge to care for the city's neglected youth. (3) The legislature granted the charter in response to a report the Society published in 1823 identifying the lack of parental guidance received by neglected youth as the source of their delinquent behavior. (4) While the Society also argued in a separate report that incarcerating children with adult criminal offenders corrupted the youth, (5) the House of Refuge was intended to prevent delinquency among neglected juveniles. Major offenders remained in the adult criminal system. (6) After the House opened in 1825, other states followed its model and approximately twenty-five similar institutions were opened throughout the country by the 1840s. (7)

      2. The First Juvenile Courts and the Parens Patriae Doctrine

         During the Progressive Era in the late 1890s and increasingly during the beginning decades of the 20th century, states established the first juvenile courts, which focused on treatment rather than punishment. (8) The Progressive reformers believed that children who committed crimes should be cared for by the state "not as an enemy but as a protector." (9) They viewed the state as "the ultimate guardian" of all dependents within its borders and considered its intervention in children's lives warranted when their parents were either unwilling or unable to guide them "toward good citizenship." (10) To care for delinquent youth, the reformers established juvenile courts that represented the parens patriae power of the state, (11) recognized in the courts of chancery in England. (12) Illinois enacted the first statute creating a juvenile court in 1899. (13) By 1925, all but two states used juvenile courts in some form to respond to youth offenders. (14)

         Juvenile courts were intended to serve youths' need for care, treatment, and guidance, while also protecting public safety. (15) Rather than determining whether a child was guilty or innocent, the judge's role was to ask, "[wjhat is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." (16) Judges were permitted wide discretion at sentencing, (17) which was justified, in theory, by the court's access through probation officers and special clinics to evidence on the juvenile's social and psychological factors. (18)

         The procedures followed in the early juvenile courts differed dramatically from the procedures followed in adult courts (19) on the basis that juvenile proceedings were "civil" rather than "criminal." (20) For example, the judge, the probation officer, the juvenile, and his or her parents sat together at a conference table or the judge's desk instead of appearing in a courtroom with the judge behind a bench. (21) The proceedings were informal and non-adversarial. (22) Because the judge and the probation officer theoretically advocated for the child's interests, (23) attorneys for juveniles were deemed unnecessary and disruptive due to their concern with "technicalities." (24)

         Also, a new vocabulary emerged to describe juvenile court proceedings. (25) Rather than putting youths on trial, juveniles faced adjudication; instead of labeling youths as "guilty," courts would find that a youth was "delinquent." (26) Courts referred to the sentencing phase as "disposition" and, regardless of the severity of the offense, a juvenile would be released when he or she was rehabilitated or reached the age of majority. (27)

         State supreme courts generally upheld the constitutionality of the Progressive Era juvenile courts. (28) For example, the Supreme Court of Pennsylvania noted, in upholding the state's first modern juvenile court law, that:

         To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the Legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts...