Left behind: the paternalistic treatment of status offenders within the juvenile justice system.

• Author: Kim, Julie J.

INTRODUCTION

In the last half century, the juvenile justice system has changed dramatically. Through changes to legislation, (1) various state and federal court decisions, (2) and attitudinal changes, (3) juvenile offenders are increasingly being afforded rights that were once reserved for adult offenders. Youth offenders are now given procedural due process rights, (4) the right to have their voices heard, (5) and, in some states, the right to a trial by jury. (6) Despite this overall shift in the approach to juvenile justice, there are still some parts of the system that have failed to make the adjustment. Status offenders are a primary example of such a group. (7) Status offenses are a classification of transgressions committed by juveniles "that would not be a crime if committed by an adult." (8) Typical examples of status offenses include: truancy, (9) running away, (10) curfew violations, (11) and ungovernability. (12) The nature of these offenses--that they are not considered criminal--makes it so that status offenders are afforded neither procedural due process rights nor the opportunity to voice their interests. Rather, the nature of status offenses allows courts to exercise paternalism (13) and use their discretion in determining the disposition of the child, including whether the child committed an offense and how the child should be treated. (14)

This Note examines the juvenile justice system's paternalistic attitude towards status offenders and observes that while the juvenile justice system as a whole has moved towards greater autonomy and voice for youth offenders, the system's treatment of status offenders has failed to keep up. Part I presents a broad overview of the history of the juvenile justice system, as well as a more detailed description of status offenders. Part II discusses various changes made to the juvenile justice system over the last fifty years and the overall shift towards greater autonomy for youth offenders. It describes changes made through federal legislation, federal and state court decisions, and general attitudinal changes. Part Ill addresses the ways status offenders have been left behind in the juvenile justice system's movement and how they are continually deprived of the same rights and autonomy as other youth offenders. It traces the history of status offenders within the juvenile justice system and presents a case study of female status offenders to demonstrate the ways in which status offenders are subject to paternalism at the discretion of juvenile court judges. Finally, Part IV offers suggestions to afford status offenders the same autonomy and rights as other youth within the juvenile justice system. The Note concludes that status offenders must either be provided greater rights and protections within the current structure or they must be removed as a whole from the jurisdiction of the juvenile justice system.

1. OVERVIEW OF THE JUVENILE JUSTICE SYSTEM

   1. Historical Background

      In the late eighteenth century in the United States, a single court system handled both adult and child criminal offenders. (15) Children age seven and older were considered competent to stand trial in criminal court and if convicted, subject to various "prison sentences or even the death penalty." (16) In the late nineteenth century, Progressives began pushing for reform in the criminal justice system. (17) In particular, "[a] specific group of Progressives, [referred to as] the 'child savers,'" concentrated on juvenile offenders because of their belief that "juvenile offenders as a group [were] in need of care and guidance, not punishment. (18)" This call for reform prompted the creation of the juvenile court system. (19)

      In 1899, Illinois established the first juvenile court in the United States. (20) The court was created with the goal of treating offending youth "in order to prevent future delinquent behavior rather than punish them for breaking the law." (21) The philosophy rested on the assumption that children were less developed than adults and thus should not be held to the same level of accountability. (22) Additionally, it was believed that children were more capable of change and could be treated. (23) Because of this focus on rehabilitation, the original juvenile court system adopted the principle of parens patriae. (24) This doctrine gave judges broad discretion to consider each child's needs individually and to determine the appropriate disposition and treatment for each offender. (25) By the late 1920s, almost every state had passed a statute similar to that of Illinois and created its own juvenile court system. (26)

      At their inception, the juvenile courts did not have any of the procedural protections of the adult criminal court because the proceedings were technically considered civil and because the advocates of the juvenile court system believed the protections to be unnecessary and undesirable. (27) Juvenile court personnel believed that the court's rehabilitative purpose made the formal protections of due process unnecessary. (28) The juvenile court advocates preferred for the court to be an informal atmosphere where the judge could speak with the child and determine the most appropriate disposition and treatment for the juvenile offender. (29) The process was intended to be "more of an information-gathering and problem-solving session to serve the best interests of the child, [rather] than an adversarial-type of proceeding as seen in a criminal court." (30)

   2. Status Offenders

      The civil, rehabilitation-focused nature of the juvenile justice system allowed the courts to assert jurisdiction over both criminal and noncriminal behavior. Youth classified as status offenders "fall under the jurisdiction of the juvenile courts because they have committed a noncriminal act that is considered unacceptable solely because of their age." (31) Despite the noncriminal nature of the offenses, juvenile courts have jurisdiction over status offenders because of the state's legitimate interest in protecting its youth, whether through punitive or rehabilitative treatment. (32) Additionally, juvenile courts believed jurisdiction over status offenders was proper based on an escalation theory that "status offenses will lead to more serious forms of delinquency" and "[e]arly intervention [was] needed to help children and prevent future delinquency." (33) Status offenses are often difficult to chronicle and assess as they are matters of state law. (34) There are, however, some common offenses that are likely to lead a court in most states to classify a child as a status offender. (35) These offenses include the specific offenses of truancy, running away, and curfew violations, as well as a more general "catch all" offense for "unruly," "incorrigible," or "disobedient" behavior. (36)

      Truancy refers to a youth's unexcused absences from school. (37) The rationale for punishing this behavior as a status offense is that truancy is often seen as a "gateway" to further criminal behavior as truants often skip school to participate in crime of some sort. (38) Additionally, if a student is habitually truant, it is more likely that the student will "drop out of school, which generally results in decreased economic opportunity." (39) Because of these results and the underlying public policies, truancy remains a criterion for adjudication as a status offender. (40)

      Another common status offense is running away. (41) The National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children defines a runaway as any one of the following:

      [a] child [who] leaves home without permission and stays away overnight; [a] child 14 years old or younger (or older and mentally incompetent) who is away from home chooses not to come home when expected to and stays away overnight; [or] a child fifteen years old or older who is away from home chooses not to come home and stays away two nights. (42) Running away is included as a status offense as it will often lead to more serious criminal activity. (43)

      Curfew violations are also considered a status offense in many localities. (44) Curfew violations occur when a minor breaks an ordinance that imposes restrictions on the hours during which the youth may be out in public. (45) Many cities enacted these laws "as a way to curb juvenile crime." (46) Research has demonstrated a correlation between active enforcement of these laws and a decrease in juvenile crime. (47)

      In addition to these specific offenses, many status offense statutes contain general "catch all" sections, referring to "disobedient," "incorrigible," or "ungovernable" children who are "beyond the control of their parents" (hereinafter "ungovernable"). (48) Although varying by state, a typical catch all provision will state that a parent can refer a youth for court supervision if he or she "is an habitual truant or is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of his parents, guardian or lawful custodian." (49) As demonstrated by the language of the statute, no specific criteria define the behaviors contained within the catch all sections of status offense laws, and, thus, parents can refer children as ungovernable for an assortment of behaviors, including "habitual disobedience of family rules about anything from staying out late to engaging in sexual relations." (50) Because the activities and behaviors constituting ungovernability are ill-defined, parents and judges have broad discretion in referral and enforcement of this status offense. (51)

2. CHANGES IN THE JUVENILE JUSTICE SYSTEM: A MOVE TOWARDS GREATER AUTONOMY

   Despite the best intentions of the founders and advocates of the juvenile justice system, by the 1960s there were calls to reform the system on account that it had failed in its goal of rehabilitating youth offenders. (52) Critics "questioned the effectiveness of the system's treatment techniques" and its "rehabilitative...