The Parens Patriae Model and the Due Process Model
Published 17 Aug 2016
Table of content
The Juvenile Justice System was actually created in the latter part of 19th Century. Prior to its creation, juvenile offenders were tried in the same procedure as adults in criminal courts. Those below 7 years are conclusively presumed to be incapable of committing a criminal offense while children above 7 but below 14 are only presumed to be incapable of committing a criminal offense. For children 14 years old and above they are to be tried in the same manner as an adult.
As a result of this system, there were a lot of executions during the 19th Century involving juvenile offenders. Some were hanged in front of large crowds while some death inside prisons. The first known juvenile offender who was executed in the United States in 1642 was Thomas Granger of Plymouth Colony, Massachusetts. He was the servant to Love Brewster of Duxborrow who was charged with buggery with a mare, cow, two goats, two calves, and a turkey. He was found guilty and sentenced to death by hanging. In a study conducted by Victor L. Streib (2003), he found that since 1642 at least 366 juvenile offenders have been executed. 22 of these executions happened between the periods of 1973 – 2003(Streib)
Some groups thought that the incarceration of juvenile offenders together with adult offenders and imposing upon them the same punishment as an adult do more harm than good not just to the juvenile offenders but to the society as well.
As a result, the Society for the Reformation of Juvenile Delinquents was formed which accepted all children who have committed the crimes such as sexual behavior, alcohol abuse, and running away.
In the 1938 case of Ex parte Crouse(4 Wharton 9), Mary Ann Crouse was committed to the House of Refuge by virtue of a complaint. Her father filed a petition for habeas corpus before the Supreme Court. The Supreme Court upheld the legality of the actions of this institution. It ruled that based on the doctrine of parens patriate the state may refuse to intervene and inquire into the procedure for her commitment and the duration of her incarceration, to wit:
“May not the natural parents, when unequal to the task of education or unworthy of it, be supplanted by the parens patriae, or common guardianship of the community?…The right of parental control is a natural, but not an unalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation; and it consequently remains subject to the ordinary legislative power, which, if wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted.”
This decision was considered as the very first principle for the creation of the juvenile justice system. The informal procedure adopted by the said institution coupled with the paternalism in dealing with juvenile offenders later paved the way for the creation of the juvenile courts and the juvenile justice system.
Illinois Juvenile Court
In 1899 the Illinois Juvenile Court Act was passed which was considered a significant breakthrough for those who advocated the rehabilitative approach to juvenile crimes. Under this law, a special court was created for juvenile offenders. This juvenile court adopted the parent’s partial philosophy in dealing with juvenile offenders which involved the use informal proceedings in its hearing.
Under Section 132 of the Illinois Juvenile Court Act, the juvenile court shall have jurisdiction over the following: “Any child who for any reason is destitute or homeless or abandoned; or dependent on the public for support; or has not proper parental care or guardianship; or who habitually begs or receives alms; or who is living in any house of ill fame or with any vicious or disreputable person; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such a child; and any child under the age of 8 who is found peddling or selling any article or singing or playing a musical instrument upon the street or giving any public entertainment.”
This is based on the principle that, insofar as punishment is concerned, children were developmentally different from adults and are more amenable to treatment and rehabilitation. Thus, placing juvenile offenders in the same confinements and treating them in the same manner as adults will not be good for their rehabilitation and transformation. The policy, therefore, is to make use of personal, individualized and treatment-focused approach as a long-term solution to the problem of juvenile offenders.
Defects in the Juvenile Justice System Approach
There were certain hindrances to achieving the personal, individualized, and treatment focused approach. The first is that the informality of the procedures in juvenile courts became susceptible to abuse by Judges. Judges at times abused their discretion in incarcerating children for petty offenses without requiring the same standards of proof which the adult defendants are entitled. Until now, sad to say, juveniles are still being denied the due process that they deserve which seriously compromises their right to life, liberty, and property. In a 1993 survey conducted by the American Bar Association Juvenile Justice Center, they found that there are frequent incidents of questionable “waiver” of counsel; crushingly high defender caseloads; missed opportunities to interview, investigate and intervene when services might have helped a child.
Another barrier to the success of this philosophy of rehabilitation and treatment of juvenile offenders under parents partial philosophy is the reality that the juvenile courts and agencies are often underfunded and understaffed. Also, during the early period of the juvenile courts, staff and personnel performing these functions were mainly volunteers who were not trained for this specialized function. As a result, maltreatment of juvenile offenders was common. This was a serious obstacle that affected the efficiency of the programs for rehabilitation and treatment of juvenile offenders.
Objections against the Proceedings in the Juvenile Courts
The juvenile courts’ focus on treatment without so much emphasis on the requirements of due process and the reports of the maltreatment and abuses the juvenile offenders suffered in the hands of erring judges gave rise to many objections. Some opposed in on the ground that the juvenile courts were incapable of handling juvenile offenders while some argued that the rights of the juvenile offenders were being disregarded by judges. They proposed that if only juvenile courts will be allowed to adopt the proceedings used in adult criminal courts then the degree of discretion by judges will be reduced and the incidence of abuses against juvenile offenders will also be lessened.
Kent v. the United States
Facts: Petitioner, a 16 years old, was arrested for housebreaking, robbery, and rape. The petitioner’s counsel filed a motion in the Juvenile Court for a hearing on the question of waiver, and for access to the Juvenile Court’s Social Service file. The Juvenile Court did not, however, rule on these motions. Instead, it issued an order waiving jurisdiction over the petitioner saying that this was done with the required “full investigation.” Petitioner was later on indicted in the District Court. He moved to dismiss the indictment on the ground that the Juvenile Court’s waiver was not valid. The District Court overruled the motion, and petitioner was tried in a criminal court. As a result, he was convicted on six counts of housebreaking and robbery. He was acquitted on two rape counts by reason of insanity.
Issue: whether the order waiving the jurisdiction over the petitioner was valid
Ruling: The order of the Juvenile Court waiving jurisdiction over the petitioner and remitting him for trial in the District Court was held invalid. Since the trial court judge failed to conduct a hearing prior to issuing an order transferring the petitioner to criminal court for trial and because he did not grant the request of petitioner’s lawyer to gain access to the social information record, the petitioner was denied due process.
In a parallel case of In re Gault (387 US 1), Geral Gault was taken into custody based on a complaint that he had made lewd telephone calls. After conducting hearings, Gault was ordered committed to the State Industrial School as a juvenile offender until he reaches the age of majority. They subsequently brought a habeas corpus action to challenge the constitutionality of the proceeding on his case. In this case, the Supreme Court ruled that the proceeding was unconstitutional because of violation of due process. The Supreme Court upheld the due process right of Gerald Gault and ruled that juvenile offenders are entitled to the following rights: a) the right to receive notice of charges; b) the right to obtain legal counsel; c) the right to confrontation and cross-examination; d) the privilege against self-incrimination; e) the right to receive a transcript of the proceedings, and f) the right to appellate review.
I wish to cite the statements made by Justice Steward in the case of In re Gault. He said that “Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding’s whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is the correction of a condition. The object of the other is conviction and punishment for a criminal act.
With the shift to the due process model of the juvenile justice system, juvenile courts are now at a serious dilemma. Slowly they are once again being converted slowly to a criminal court. It is to be emphasized that the purpose of juvenile justice system is to rehabilitate not to punish these youthful offenders thus the grant of the said rights does not serve the purpose and intent of the juvenile justice system. It is possible that in the future we may again revert back to our original situation where the juveniles are no longer entitled to leniency and protection under the juvenile courts.