How parental liability statutes criminalize and stigmatize minority mothers.

• Author: Laskin, Elena R.

INTRODUCTION

During the past decade, approximately one-half of the states enacted or strengthened existing parental liability statutes that make parents criminally liable for the actions of their delinquent children.(1) These statutes, which traditionally imposed only civil liability,(2) were infrequently used(3) and appeared to be falling out of favor with state legislatures. Recently, however, parental liability statutes have reemerged as a method to attack juvenile delinquency as Americans attempt to address the violent nature of today's youth,(4) which is seemingly unparalleled by any preceding generation.(5)

Prosecutions under parental liability statutes appear to be, for all practical purposes, non-existent. This Note argues, however, that the mere existence of parental liability statutes criminalizes and stigmatizes black and Latina single mothers.(6) Part I considers the role of American legal history, the people, and politicians as causes for this current wave of parental liability statutes. Part II discusses the new laws, the goals they are intended to achieve, and criticism directed against them. Part III addresses how parental liability statutes contribute to the criminalization and stigmatization of minority women. Finally, Part IV advocates an alternative method of attacking juvenile delinquency through a program that targets both the parent and the minor.

1. RACE, WOMEN, PARENTING AND JUVENILE CRIME

   1. The Legal History

      Parental liability statutes were utilized frequently during the first half of the twentieth century, and then fell into disuse during the middle part of the mid-1900s, until their resurgence in the 1990s.(7) Establishing the reasons underlying this trend requires more than just a mere recitation of when the legal system(8) has altered the rights of parents. Rather, it requires an examination of larger trends, namely the expansion and subsequent restriction of the rights of other groups, such as minorities and women. I examine the rights of minorities and women, along with the rights of parents, because the rights of these three groups, historically, have been expanded and restricted during the same time periods. The recent restriction of the rights of minorities and women, illuminates the trend that has led society to accept the enactment of parental liability laws, which disproportionately burden minority women.

      In the early 1900s, the legal system restricted the rights of minorities, women, and parents. For example, the Supreme Court's decision in Plessy v. Ferguson(9) upholding the "separate but equal" doctrine, perpetuated the belief that the rights of black citizens were not commensurate with those of white citizens.(10) Minorities also faced discrimination at the state level through Jim Crow laws and statutes that forbade miscegenation.(11) Not surprisingly, women experienced similar difficulties overcoming restrictions on their rights, as demonstrated by Muller v. Oregon,(12) which found that gender is a reasonable basis for classification, because men and women differ in many respects, including the "functions to be performed by each."(13) Finally, further evidencing the legal system's restriction of the personal rights of minorities, women, and parents, the first laws imposing punishment on adults for contributing to the delinquency of a minor were also enacted during the early 1900s.(14) These laws were "extremely far-reaching" and criminalized acts such as "failing to provide a home" that normally were associated not with delinquency, but with poverty.(15)

      During the middle of the twentieth century, the law entered a period of cautious expansion of the rights of women, minorities, and parents. The Supreme Court's two Brown v. Board of Education decisions(16) prohibited separate educational facilities for black and white children, and the Court's 1967 decision in Loving v. Virginia(17) held that prohibitions against interracial marriage were unconstitutional. In addition, the Supreme Court reinstated some rights of women's autonomy previously restricted by the states, expanding the rights of women to make choices about pregnancy,(18) and child-rearing.(19) Consistent with these trends, parental liability statutes were not frequently utilized during this time,(20) indicating by its silence that the legal system was again granting parents wide autonomy.

      In the 1980s and 1990s, however, the Court moved away from this trend of broadening individual rights. Most notably, in Planned Parenthood v. Casey(21) the Court signaled a resurgence of paternalistic decision making by extending its approval of a state's limitation upon a woman's right to have an abortion.(22) Similarly, evidencing the Court's trend toward restricting rights during this era, the Court limited the scope of affirmative action in educational and employment contexts.(23)

      Restricting the rights of minorities and women after the expansion of rights in the middle of the century indicated that the legal system was ripe for the reintroduction of parental liability statutes. Thus, it is not surprising that over the past decade state legislatures enacted parental liability statutes and that a court would uphold them against constitutional challenges that the statutes were a limitless invasion into the traditional parent-child relationship.(24)

   2. The People: Media and Political Influences

      Americans believe that this is the most violent time in American history(25) and that our neighborhoods are "`killing fields' for youths ... [who] have learned to fear no punishment from a toothless juvenile justice system."(26) Of particular concern to state legislatures and police departments attempting to address juvenile crime are the gangs that pervade America's urban centers.(27) Law enforcement officials believe that combating gang violence is imperative because the crimes committed by gang members are "serious and violent offenses," which are committed "at a rate several times higher than non-gang" related crimes.(28) In addition, it appears that the gang problem is growing, as gangs increase in size and the territory they control.(29) These facts lead citizens to fear for their safety.

      In reality, however, the chance that an American will be a victim of a violent crime is small because violent crime is not the "leviathan it is purported to be."(30) Statistics released in 1999 indicate that violent crime rates for juveniles were declining,(31) while urban homicide dropped to its lowest rate in twenty-four years.(32)

      Yet, Americans still believe that crime, and particularly juvenile crime is a desperate problem, possibly because of the sensationalization of specific instances of juvenile crime by the media.(33) Juvenile violent crime receives countless hours of news coverage, particularly on television, while coverage of issues that may contribute to juvenile crime, such as child welfare and education, is sparse.(34) Compounding this problem is the media's presentation of such crime, which usually includes graphic dramatization of the juveniles' acts, without discussing the various factors that led to the behavior, thereby making the children seem all the more disturbed.(35)

      Politicians have further perpetuated America's fears of crime by using the "crime issue" in their campaigns. The first politician to effectively use the "tough on crime" stance as a significant campaign issue was Barry Goldwater.(36) While Goldwater never became President, the issue rose to the forefront of American politics and Richard Nixon later used the crime issue in his successful run for the White House in 1968.(37) By the 1970s, opinion polls revealed the effect of this rhetoric, showing that Americans believed that crime was one of the "most serious domestic problems facing the nation."(38)

      In 1988, George Bush capitalized on both the fear of crime that had become ingrained in white America during twenty years of socialization and the media's perpetuation of the stereotypes about minority criminals in his infamous Willie Horton campaign. The television advertisement targeted Michael Dukakis' prison furlough program, from which Horton, a black inmate, escaped and subsequently raped a white woman.(39) Bush's characterization of Horton's crime capitalized on the popular belief that race is linked to crime; the campaign would likely not have been as effective if Horton were white or Asian-American, or if, after escaping, Horton had raped a black woman.(40)

      Most recently, the Republicans used fear of crime as a political tool in the "Contract With America," which ushered a wave of Republicans into Congress in 1994. The Contract included the "Taking Back the Streets Act," an anti-crime proposal for hiring additional law enforcement and ensuring the safety of schoolchildren.(41) Republicans, "emboldened by the victories in the 1994 election," then endorsed parental liability statutes because they "speak to broad social worries about the formation of families and their ability to control their fate and to control their children."(42)

      These influences on public perception reveal themselves in the views of the populace. Citing crime and the "decaying moral situation," one parent said that the United States "must be willing to try any measures necessary to regain the family, and restore the country to where it should be."(43) In a 1996 New York Times/CBS News Poll, seventy-two percent of respondents believed that parents should be legally responsible for crimes committed by their children, demonstrating that Americans now believe that raising children is "too important to leave to the parents."(44)

   3. The Politicians: Rhetoric and Statistics

      The current trend toward criminalizing the parents of delinquent children started in California in 1988 when, in response to an all-time high of 328 gang-related homicides in Los Angeles, the legislature enacted the Street Terrorism Enforcement and Prevention Act.(45) The legislative findings accompanying...