Parens Patriae and Juvenile Offenders - Term Paper Example

? Law Topic: Discuss the strengths and limitations of the philosophy. Provide a critical analysis of whether or not parens patriae should remain the standard in the processing of juvenile offenders. Student Number: Date: Among the many functions attributed to the Monarch in Medieval England and Scotland, he was also the “father of the country” or parens patriae. This philosophy that initially referred to the Monarch’s powers as the guardian of all his people, including the ones who were unable to take care of themselves, was later turned into a jurisdictional power whereby the courts could assume the role of guardians (of the infirm, mentally disabled persons and children) and could make decisions regarding their well-being, custody and maintenance on their behalf. In the words of Craig1 this power of parens patriae was “…strictly all pupils, lunatics and imbeciles are under the care and protection of his Majesty …[f]or he is “pater patriae”; and the care of all such persons belongs to him as protector of the helpless” and at another place he wrote2 “[b]y the law of England both the custody of the persons of lunatics and imbeciles and the preservation of their feudal estates belong to the king …”. Moreover the first mention of this prerogative powers was made in thirteenth-century De Praerogativa Regis, this prerogative powers were eventually shifted to the Court of Chancery exercised by Lord Chancellor. Subsequent legislation not only included this prerogative power of the King as law but also gradually expanded the premise. The following acts for example were vital in ensuring that parens patriae conferred proper jurisdiction on the courts to take decisions on behalf of persons unable to make their own decisions: The Curators Act 1585, Exchequer Court (Scotland) Act 1856, Custody of Infant Rights in 1839, The Tenures Abolition Act 16603 and others. More recently, this jurisdictional power of parens patriae was employed in Law Hospital NHS Trust v. Lord Advocate4 (1996) where the judges, acting as parens ruled in favor of withdrawing life-support machine of a woman who was in persistent vegetative state (PVS). This case was a rare one, as it sparked debates regarding euthanasia and also renewed debate about the scope and application of parens patriae .Initially, this philosophy of parens patriae was used in guardianship and custody cases, wardship situations, gradually, the chancery courts extended the scope of parens to general welfare of children, including control, custody, and proper care. This gave the court the right to act as a parent to such children, to act as loco parentis, and provide for their well-being. According to Abramowicz (1999) this ancient English Law doctrine is now used in United States and United Kingdom to protect the mentally ill; the law of juvenile courts etc. However, initially parens patriae was not used to confer such powers on the courts to act as guardians of the juvenile offenders. Juvenile offenders are those children who act against the law, induldge in crimes, and are likely to make it a habit to do so. The court, acting on their behalf, considers proper measures for them, for their rehabilitation and reinvention as responsible citizens. Parens patriae is one of the most integral component of the law on juvenile offenders. Whence, the major strength of parens patriae lies in the fact that the delinquents of the society get protection and refuge in society rather than being homeless and helpless. The welfare state recognizes that it is its responsibility to ensure that all citizens get the protection they demand from the former. According to the book, Juvenile Delinquency, An Integrated Approach5, it is the philosophy of parens patriae that bestows authority upon the Juvenile Courts. At this point in this paper, it is pertinent that a little light be shed on the history of Juvenile Courts. Initially, juvenile offenders were treated with adults and as adults; there were no special provisions, verdicts or courts. Before the creation of juvenile courts, however, special practices were incorporated in courts’ practices to accommodate the juvenile offenders, mentally ill or people who were unable to make sound decisions themselves6. The creation of Juvenile Court in America in 1899, according to Juvenile Delinquency An Integrated Approach7, “culminated a century-long evolution of thought and practice by which juveniles were differentiated from adults both in terms of development and control. The new juvenile court established a separate system that is noteworthy in terms of (1) structure and jurisdiction, (2) legal authority under the expansion of parens patriae, and (3) legal philosophy and process.” According to the aforementioned book, it was the Illinois Juvenile Court Act 1899 that first created the Juvenile Court in America, and that expanded jurisdiction of the courts over juvenile delinquents, and dependent and neglected children. In Britain however, it was Children Act 19088 that formally introduced juvenile courts and made several provisions regarding the welfare of the juvenile offenders such as infant life protection, the prohibition of juvenile smoking, refinement of industrial and reformatory schools etc. Juvenile courts therefore, were thought to be an important aspect in the legal system and it was parens patriae that gave them the authority, under the concept of ‘father of the country’, to adjudicate for the future of such children who would otherwise be helpless. Thus, it is one of the major strengths of this philosophy that by conferring such jurisdiction on the courts, it helps such children. Secondly, juvenile delinquency is quite a grave problem in many countries and this philosophy adopts a lenient, equitable approach in the treatment of such offenders who indulge in criminal activities. According to Siegel and Welsh9 this theory (of state guardianship) does not treat juvenile crime as “crime” in fact this treats crime as delinquent behavior, an aberration, that beckons proper treatment rather than harsh punishments. Therefore, children are not found guilty of crime and nor are treated as criminals or punished like adults. Instead, law makes such provisions for their ‘treatment’ whereby they are protected, taught, schooled, maintained and reformed into better human beings. Thirdly, according to ‘Juvenile Justice Philosophy and the Demise of Parens Patriae (From Criminal Justice in America: Theory, Practice, and Policy, P 321-332, 1996, Barry W Hancock and Paul M Sharp’ available on National Criminal Justice Reference Service (NCJRS) US State Department archives10, 220 judges were surveyed and asked questions about the effectiveness and benefit of juvenile courts, treatment programs and state intervention and rehabilitation, all under the over arching concept of parens patriae. According to the abstract available, these judges were in favour of state’s intervention, in fact early intervention, because court’s discretion gave the juveniles not only protection but also deterred them from turning into hardened criminals. These judges also claimed that they had the ability to spot where early intervention was needed and where intervention was needed at all: this helped the law take into its own hands what the society had left to survive on its own. This survey actually strengthened the view that the state was welfare-oriented in nature and intervention in the name of parens patriae was still very much alive in court practice. However, state intervention is not always appreciated in academic and legal circles. State intervention is often perceived as imposition of laws in an unfair and an unequitable manner. For example, Curtis11 argued that state, which is as much of a protector, could also be a tyrant as the philosophy of parens patriae is much-needed intervention on one hand, but on the other hand it is could also be a “sword of abuse”. Curtis further argued12 that this theory ignored the subjective element that related to the child himself: the court became insensitive to the demands of the child and considered his mind to be a “blank slate” that could be moulded or influenced whichever way the court wanted. He also argued that environmentalist psychology played a vital role in application of parens patriae, but research highlighted that this form of psychology could not provide answers to problems posed by juvenile delinquency. Moreover, Curtis also highlights the conflict between parens patriae and the constitutional fundamental right of ‘due process’. He provides two American cases to illustrate this, Kent v United States13 and re Gault14 whereby the US Supreme Court attempted to limit the scope of parens patriae. In re Gault15 Justice Abe Fortas held that all courts must respect due process law rights when dealing cases of juvenile delinquency. This case concerned a 15 year old boy detained for making an objectionable call to his neighbor: the court reiterated all fundamental rights that are available to juvenile offenders and also that the concerned case should be disposed off with due process rights in perspective. Curtis argued that the purpose of these two cases was to illustrate that juvenile law based on parens patriae had “failed miserably” where liberty of the individual was concerned. However, in his view the fruits of re Gault that should have been employed in restricting this doctrine of parens patriae were “not appreciated fully”16. Lastly Curtis argued regarding this conflict (between parens patriae and legal rights of due process) that the inconsistencies posed by this doctrine merit proper judicial attention because legal rights beckon more importance than the paternal powers of the state. Lastly, it must be argued whether it is suitable to employ the doctrine of parens patriae in the law of juvenile delinquency: the fact of the matter remains that where this philosophy has far reaching effects and expands the welfare role of the state, it also has a tendency to increase state intervention in private matters of the individuals: such as when it comes in between a parent and a child. State intervention, hence, has its own merits and demerits; where it acts as a protector and a guardian, it can also be a tyrant with little respect for human choice, dignity and sentiments. Therefore, it is arguable whether this doctrine should be used widely and should it be given the permission to trample over human freedoms and fundamental rights. It could be said in conclusion that a limited use of this doctrine must stay because it authorizes the state to perform its true role: which is to look after the well-being of citizens and preservation of the social order. The use of this doctrine not only limits the number of juvenile offenders in a society but also makes proper and reasonable orders for their maintenance and rehabilitation, because it treats juvenile delinquency as a psychological issue that merits due care and attention. Had it treated children equally as adults, it would be highly unfair for the individual child, who in such circumstances would need therapy and healing, rather than a retributive punishment. Therefore, the use of this doctrine should stay as far as juvenile delinquency is concerned, however, proper checks and balances must be employed to ensure that injustice or inequitable treatment is not rendered. The policy makers could start off with respecting the constitutional rights and due process requirements when dealing with such delinquents. BIBLIOGRAPHY: Law Hospital NHS Trust v. Lord Advocate (1996) SC 301 Kent v United States 383 US 541 (1966) Re Gault 387 US 1 (1967) Laurie, G. T., ‘Parens patriae jurisdiction in the medico-legal context: the vagaries of judicial activism’, Edin. L.R. 1999, 3(1), 95-107 James Burfeind, James W. Burfeind, Dawn Jeglum Bartusch, Juvenile Delinquency, An Integrated Approach, 2nd Edition, Jones and Bartlet Publishers, 2011. Abramowicz S., ‘English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal Custody’ Columbia Law Review, Vol. 99, No. 5 (Jun., 1999), pp. 1344-1392 Larry J. Siegel, Brandon C. Welsh, Juvenile Delinquency: Theory, Practice, and Law (2012, 2009) Curtis, George B., Checkered Career of Parens Patriae: The State as Parent or Tyrant, The; 25 DePaul L. Rev. 895 (1975-1976) Read More