THE DOUBLE-EDGED SWORD OF PARENS PATRIAE: STATUS OFFENDERS AND THE PUNITIVE REACH OF THE JUVENILE JUSTICE SYSTEM.

• Author: Jams, Madison C.

INTRODUCTION

To many, ditching school, feuding with parents, and staying out late are hallmarks of adolescence. In 2014, however, these acts and other similar ones formed the basis of one out of every eleven juvenile court cases in America. (2) Adolescents convicted in these cases are known as status offenders--juveniles who have committed "a noncriminal act that is considered a law violation only because of [the] youth's status as a minor." (3) Although the particular offenses designated as status offenses vary by state, the most commonly adjudicated status offenses include truancy, ungovernability, and curfew violations, as well as running away from home and underage alcohol consumption. (4) Since status offenses are not technically criminal acts, those who commit these offenses are not classified as juvenile delinquents (5) by the juvenile justice system. As a result, states are not required to guarantee due process protections to status offenders during their initial disposition hearings--and many do not. (6) An adolescent accused of being a status offender will likely enter her disposition hearing without an attorney; (7) she will likely be adjudicated a status offender by a preponderance of the evidence rather than by beyond a reasonable doubt; (8) and the court that adjudicates her will likely prevent her from asserting due process rights like the right against self-incrimination. (9)

States often justify their refusal to guarantee status offenders due process by invoking the principle of parens patriae, which embodies the idea that, in the juvenile justice system, the state should look to rehabilitate juveniles rather than punish them. (10) Under parens patriae, the court is meant to be a guiding, almost parental, force rather than a punitive one. Despite this rationale, status offenders can still be subject to sanction by the court, (11) and therefore are often just as vulnerable to the punitive reach of the juvenile justice system as their delinquent counterparts. Indeed, status offenders are often subject to some of the same sanctions that juvenile delinquents receive: fines; probation; GPS monitoring; and, in some situations, incarceration, are all punishments that may follow disposition as a status offender. (12) As a result, status offenders often have little protection against punishment that may outstrip the severity of their actions.

This Note will argue that, despite the fact that adjudication as a status offender has the potential to lead to punitive outcomes, the rehabilitative rationale of parens patriae that lies behind the status offender designation ensures that juveniles charged under this category are not afforded the procedural protections that they are due under the Constitution's Due Process Clause. This conundrum--that the rehabilitative rationale meant to protect juveniles actually leaves them more vulnerable to punishment--is not confined to the status offender context. Instead, the juvenile system as a whole suffers from the failures that result from promises of rehabilitation made by a largely punitive system. And despite Supreme Court rulings that have provided due process to juvenile delinquents, the juvenile system's treatment of status offenders illustrates that any promise of rehabilitation from the juvenile justice system is functionally a dead letter. As a result, status offenders should not simply be afforded due process protections, but instead should be removed completely from a system that claims not to punish them and cannot successfully rehabilitate them.

Part I of this Note will provide a brief history of the juvenile justice system, its initial rehabilitative goals, and how these rehabilitative goals have survived despite legal and social shifts. Part II will discuss the tenuous position that status offenders occupy in the juvenile system and the punitive implications that result from this position. Part III will discuss the due process issues that stem from the juvenile system's treatment of status offenders. Finally, Part IV will discuss how the juvenile system's treatment of status offenders typifies the problems created by the juvenile system's adoption of the parens patriae rationale and why this requires that status offenders be removed from the juvenile system altogether. Part IV will then discuss what is likely to be the most successful replacement for juvenile justice system jurisdiction: the use of preexisting community resources that are better equipped to accomplish rehabilitative goals.

1. PARENS PATRIAE AND THE JUVENILE JUSTICE SYSTEM

   1. Inception: Why the Juvenile Justice System Was Different

      In the United States, adjudicating juveniles and adults as separate classes is a relatively recent phenomenon; the majority of states did not develop distinct juvenile justice systems until the early twentieth century. (13) At that time, societal beliefs about adolescence and the culpability of juveniles were changing, and certain groups began championing the idea that adolescents were fundamentally different from adults--"vulnerable, malleable, and in need of adult guidance." (14) These beliefs about adolescence ultimately formed the base rationale for the juvenile system: adolescents were less morally culpable than adults, and therefore required rehabilitation rather than punishment, in response to their wrongful acts. (15) The juvenile justice system was meant to provide this rehabilitation and guidance under the philosophy of parens patriae, literally "parent of the country." (16) Initially a chancery court principle that justified state authority over parentless children, parens patriae encompassed the idea that the government itself was meant to act as a parent to wayward youth. (17) Parens patriae oriented the juvenile justice system toward a primary goal of rehabilitation rather than retribution, with the ultimate objective of "mold[ing] wayward youths into good citizens." (18) Perhaps one of the best expressions of what the proponents of a separate juvenile system hoped to achieve comes from the Pennsylvania Supreme Court in Commonwealth v. Fisher.

      It is to save, not to punish; it is to rescue, not to imprison; it is to subject to wise care, treatment and control rather than to incarcerate in penitentiaries and jails; it is to strengthen the better instincts and to check the tendencies which are evil; it aims, in the absence of proper parental care, or guardianship, to throw around a child, just starting in an evil course, the strong arm of the parens patriae. (19) Because the juvenile system was founded on the fundamental idea that adolescents were a distinct class with distinct needs, it was designed to deal with adolescents in a way that was completely different from the way that the justice system at large dealt with adults. The rationale of parens patriae permeated every aspect of the juvenile system, informing the crimes with which juveniles could be charged, the structure of juvenile court proceedings, and the rights that juveniles were afforded in these proceedings. For example, because the state considered juvenile courts to be tasked with protecting rather than punishing adolescents, "juvenile court had a mandate to assume liberal jurisdiction over the wayward young, much as it might over other helpless and needy members of society." (20) This meant that juvenile court was not limited to pursuing crimes committed by juveniles; instead, adolescents could find themselves in a juvenile court proceeding for "[b]ehavior such as smoking, sexual activity, stubbornness, running away from home, swearing, and truancy." (21) The structure of juvenile proceedings differed from adult proceedings as well; juvenile proceedings were more casual than adult proceedings, and were often closed to the public. (22) Finally, juveniles were not provided with the due process protections afforded to adults in criminal trials. (23) In the minds of those who created and supported a distinct justice system for adolescents, there was simply no need for these protections. (24) The judge in a juvenile proceeding was not meant to be an agent of the state, wielding the power to take away a child's liberty. Instead, he was meant to be similar to a father figure or a social worker--an advocate. (25) For this reason, an adolescent in juvenile court was not seen as needing due process protections; because the aim of the juvenile system was to guide rather than punish her, there was nothing she needed protection from.

   2. Development: The "Superpredator" and Due Process Protection for Delinquents

      The early twentieth-century idea that juveniles were less morally culpable than adults and therefore required rehabilitation rather than punishment was only widely accepted for a little over fifty years. By the 1960s, parens patriae had fallen out of favor, (26) and the focus of the juvenile system had gradually shifted "from assessing the social needs of the offender to assessing the social harm that the offender caused." (27) Like in the early twentieth century, societal notions about adolescence--and societal notions about the type of adolescents who committed crimes--had shifted. Rather than viewing juvenile delinquents simply as "wayward" and in need of guidance, the juvenile system was increasingly concerned with the punishment of juveniles and the protection of the community. These social developments, however, were coupled with a complete lack of development in juvenile court proceedings. Although the focus of the juvenile justice system had arguably shifted from rehabilitation to retribution, juvenile proceedings were still largely informal. Juvenile delinquents faced the possibility of life sentences, but they were generally denied basic due process rights in these proceedings. (28) As a result, juvenile delinquents began to challenge the constitutionality of juvenile court proceedings; the judiciary responded in turn. Beginning in 1967 with In re Gault, the...