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THE Back GROUND AND DEVELOPMENT OF
STATus OFFENSES

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MAHENDRA PAL SINGH

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THE BACKGROUND AND DEVELOPMENT
OF STATUS OFFENSES

By

Mahendra Pal Singh

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

Department of Criminal Justice

1979

ABSTRACT

THE BACKGROUND AND DEVELOPMENT
OF STATUS OFFENSES

By

Nahendra Pal Singh

State legislators have long wrestled with the status
offense controversy to be in tune with the Federal guide-
lines. Research on aspects of status offenses is scant and
has failed to project them in their proper perspective. By
exploring the background and development of status offenses,
efforts have been made to establish a viable and credible
rapport with the ongoing research and to provide a way out
of the present impasse. The study has attempted to highlight
the controversy by examining the pros and cons of it in its
historical, philosophical, sociological, and legal
perspectives.

The non-criminal chapter of the Juvenile Code needs to
be redrafted to provide for services not only to the child
but to the family as well in the most suitable environment.
Provisions must be incorporated into the revision of the law
to settle disputes over rights and privileges. Besides,
further research must face the uphill task of clarifying

problems facing status offenses.

ACKNOWLEDGMENTS

I express my gratitude and prayers to the Almighty,
the Benevolent, the Merciful, whose protection and affection
I seek and enjoy.

Professor Robert Trojanowicz, Chairman of my Thesis
Committee has been much more than a teacher to me. He has
been the guiding light that shows the way, the Spirit that
inspires and the ideal that exalts. my heartiest and
sincerest thanks to him and to Professor Ralph Turner and
Professor Vincent Hoffman, members of the Committee, whose
valuable suggestions/modifications and guidance helped me
immensely in refining my thesis.

Professors Louis Radelet, Zolton Ferency, Hoyt Coe
Reed, Peter K. Manning were very kind and considerate to me
throughout and I owe them a lot. I am very thankful to Lynn
Jondahl, Representative, State Legislature, who spared no
valuable time to make records available to me.

I specially thank Mr. Ranji Lal, Inspector of Police,
Delhi (India), and Dr. Usha Devi Tribhuvan for their constant
and inexhaustible goodwill and support to me.

My wife and my children deserve all the credit for
the exceptional courage and patience with which they tolerated
my absence in a foreign land. Without their encouragement
and emotional endearment this venture would not have even
started.

Last, but not the least, I am grateful to my Department
which inspired and encouraged me for this work in higher
education.

ii

TABLE OF CONTENTS

Chapter Page

I. INTRODUCTION OOO0.0000000000000000000000000 1
The PrOblem 0.0..0....OOOOOOOOOOOOOOOOOOOO 10

Objective of the Study .................... 12
Significance of the Study ................. 13

II. HISTORICAL AND PHILOSOPHIC PERSPECTIVE .... 15
III. REVIEW OF THE LITERATURE .................. 24
IV. SOCIOLOGICAL AND LEGAL CONSIDERATIONS ..... 38
V. CONTROVERSY ............................... 53
VI. DISCUSSION ................................ 85

VII. CONCLUSION OOOOOOOOOOOOOOOOOOOCOO0.0.0.0... 94

iii

CHAPTER I
INTRODUCTION

Status offenses are peculiar in form, strange in
understanding, and controversial in nature, and coercive in
operation. They are an inevitable part of every State's
juvenile code and a unique expression of adolescent acts not
known in many parts of the world. These juvenile laws were
possibly a culmination of the overwhelming concern of the
"child-savers" to control immigrant children. They may be
a remnant or projection of Anglo-Saxon laws of Colonial
days. Whatever be the reasons or causes, these are
admittedly a product of Nineteenth Century legislation.
However, in one form or the other, these offenses are facing
and have survived the hottest controversy.

The other side of the coin with regard to the status
offenses is "neglect," "abuse," and other legal lapses by
parents. The design of the laws does not appear to be the
containment of the generation gap but to control the
corrosion of family cohesion and an attempt to channelize

a child's behavior.

Every society views its young with a mixture
of hope and trepidation. The young are a
society's future, for good or ill, and are
the focus of special efforts to educate, to
protect, and to transmit culture from one
generation to the next.1

To appreciate the dimensions of the situation posed by
status offenses, a glimpse at the whole problem is necessary.
The National Council on Crime and Delinquency did make an
effort in that direction.

Every year in the United States over 100,000
children from seven to seventeen inclusive
are held in jails and jail-like places of
detention. The significance of this situa-
tion is not merely the large number so held,
or the fact that most of the jails in which
they are detained are rated unfit for adult
offenders by the Federal Bureau of Prisons'
Inspection Service, but rather that many of
these youngsters did not need to be detained
in a secure facility in the first place.2

Another assessment of the situation records that

Estimates by the National Council on Crime
and Delinquency indicates that 1000,000
youngsters under 18 will be held in correc-
tional institutions by juvenile courts in
1975. Of these children, 23 percent of the
boys and 70 percent of the girls will not be
guilty of any crime for which an adult would
be arrested or prosecuted,3

 

1Zimring, Franklin 3., Twentieth Century Fund Task Force

on Sentencing Policy Toward Young Offenders, Confrontin Youth
Crime, Holmes and Meier Publishers, Inc., New York, 1§78, p. 31.

2National Council on Crime and Delinquency, Standards and
Guides for the Detention of Children and Youth, New York, 1951,
p. xxi.

3National Council on Crime and Delinquency, "Fact Sheet
No. 2," April 10, 1975.

and furthermore,

Detained against their will, having committed
no crime, and seldom dangerous to themselves
or others, thousands of these young people
food our juvenile detention centers annually.
The cost of feeding, clothing, housing, and
supervising these children in security-
facilities is tremendous (sometimes $30 a day
or more). The cost in terms of the potential
negative impact on adolescents is beyond
calculation.4

Rosemary Sarri basing her survey on juvenile courts
found that "using the national study of juvenile courts, we
can estimate the proportion at 30 percent" and “can expect
approximately 600,000 status offense causes to be processed
or served through the juvenile courts and correctional programs
of the U.S. each year."5

Evaluating PINS (Persons in Need of Supervision) per-

formance, Andrews and Cohn mention that:

Over 10 thousand young people are processed
each year in New York State family courts as
'persons in need of supervision (PINS) be-
cause they have committed offenses illegal
only for persons under sixteene-staying out
late, disobeying parents, running away,
skipping school.6

 

4Latina, Jane 0., and Schembera, Jeffrey L., "Volunteer
Homes for Status Offenders: An Alternative to Detention," in

Status Offenders and the Juvenile Justice S stem, National
CounciI on Crime and DeIinquency, N.J., 1§78, p. 183.

5Sarri, Rosemary 0., "Status Offenders: Their Fate in
the Juvenile Justice System," Status Offenders and the Juvenile

Justice System, National CounciI on Crime and DeIinquency, 1§7S,
p. o

6Andrews, Jr., R. Hale, and Cohn, Andrew H., "PINS Pro-
cessing in New York: An Evaluation," Be ond Control, Teitel-
baum, Lee 3., and Cough, Aidan R., BaiELL—fiT—nger b ishing
Company, Massachusetts, 1977, p. 45.

 

In the same context, Rector referring to the fact adds
that "more than 66,000 youth are confined in State training
schools or their equivalents, and that between 45 and 55 per-
cent of them are status offenders,"7 and

The issue is that status offenses are offenses

against our values....As long as it offends

our values, be sure that police, or the Church

or vigilante groups or somebody is going to do

something about it.8

Status offenses pose multi-facet problems and transcend
inter—disciplinary dimensions. One wonders why such a vital
issue is being debated by only some sociolegal experts and
involved professionals. Very little research has been done
and offhand conclusions presented.

Behaviors of children, below a specified age, branded
as offensive are punishable as status offenses. "Status" is
a category based on age. Status offenses are described but
not defined, rustically written but not refined. Kassebaum
in his overview reflects:

So broad are the powers of the public agencies

with respect to youth, so limited are the legal

rights of children, and so diffuse are the

specific laws dealing with juvenile dependency,

delinquency, and youth crimes, that it is imp

possible to set forth the statutes defining
offenses of youth in any simple test.9

 

7Rector, M., "PINS: An American Scandal," National
Commission on Crime and Delinquency, 1974.

8Hunter, Hurst, "Juvenile Status Offenders," a Speech

Given to New Mexico Council on Crime and Delinquency, in Crime
and Delin uenc , April 1977, Vol. 23, No. 2, p. 121.

9Kassebaum, Gene, Delinquency and Social Policy, Prentice-
Hall, Inc., mgleWOOd, N.J., 1974’ p. o

In fact, we have all violated some law some time when
we were adolescents. Does that make any difference? Is that
behavior at that age worthy of indictment? The following
quotation addresses itself to the situation:

An American adolescent, struggling with the
biological and psychological pressures of
growth, seeks status and reassurance in the
company of his peers. Rebellion against
parental authority and restrictions is
combined with pressure to conform to the
expectations of other adolescents. The teen
years are a period of experiment, risk-
taking, and bravado.10

And paradoxically,

In American life, adolescents are physically
strong before they are emotionally mature,
enjoy physical mobility and freedom from
supervision before they can make responsible
life choices, and have the ability to do
serious harm long before they fully realize
their capacity to follow the rules and
restrictions that society expects adults to
obey. It is thus not surprising that youth
crime is a growth industry in the U. S. and
that dealing with the youthful offender
presents a set of complex and difficult
policy issues that can never be resolved in
a totally satisfactory manner,11

and whatever may be the case, "either for their own protection
or for that of the community, young people in the United States
also are typically denied privilege available to adults."12

 

10Twentieth Century Fund Task Force on Sentencing Policy
Toward Young Offenders, Confrontin Youth Crime, Holmes and
Meier Publishers, Inc., New York, 1978, p. 3.

11Ibid., p. 31.

121mm, p. 83.

 

Nobody can quarrel with Senator Birch Bayh when he
said that "raising a child is one of the most difficult and
important challenges any person can ever face, and this is
so "because the collective success or failure that we confront
in raising young peOple actually determines the future of the
country."13 Bayh continued, "but you know and I know that
when young people first confront the American system of
juvenile justice, the net result is often more injustice than
equity."14

The juvenile justice system suffers from judicial
paternalism, discriminates on the basis of sex and inflicts
harsh penalties on dissenting youth. Meddling with intra-
family problems, enforcing school discipline and controlling
adolescent behavior are a few of the role patterns of the
juvenile courts which adjudicate over status offenses. That
juveniles are stigmatized is another allegation against the
system. Status offenses are not delinquent behaviors or
violations of any criminal code, but they are violations of
established norms.

The philosophy governing the policy laid down for the

Michigan probate courts, under the Juvenile Code is:

 

13Bayh, Birch, in Foreword for the National Council on
Crime and Delinquency, Status Offenders and the Juvenile
Justice S stem, N.J., 1978, p. ix.

14Ibid.

that each child coming within the jurisdic-
tion of the court shall receive such care,
guidance and control, preferably in his own
home, as will be conducive to the child's
welfare and the best interest of the State
and that when such child is removed from
the control of his parents the court shall
secure for him care as nearly as possible
equivalent to the care which should have
been given to him by them.15

Status offenses are governed by the Juvenile Code and tried
in a probate court. The same Code classifies status offenses
as pertaining to a child:

(1) who has violated any municipal ordinance
or law of the State or of the United
States; or

(2) who has deserted his home without suffi-
cient cause or who is repeatedly dis-
obedient to the reasonable and lawful
commands of his parents, guardian or
other custodian; or

(3) who repeatedly associates with immoral
persons, or who is leading an immoral
life; or is found on premises occupied
or used for illegal purposes; or

(4) who, being required by law to attend
school, wilfully and repeatedly absents
himself therefrom, or repeatedly violates
rules and regulations thereof; or

(5) who habitually idles away his or her time;
or

(6) who repeatedly patronizes or frequents
any tavern or place where the principal
purpose of the business conducted is the
sale of alcoholic liquors.16

Section 712A.2(d) of the Code applies to a child:

(1) who is repeatedly addicted to the use of
drugs or the intemperate use of alcoholic

 

15Michigan Juvenile Code, MCL712A1-712A28, Juvenile
Court Rules, Sec. 712A.1

16Ibid.

liquors; or

(2) who repeatedly associates with criminal,
dissolute or disorderly persons; or

(3) who is found of his own free will and
knowledge in a house of prostitution or
assignation or ill-fame; or

(4) who repeatedly associates with thieves,
prostitutes, pimps or procurers; or

(5) who is wilfully disobedient to the
reasonable and lawful commands of his
parents, guardian or other custodian and
is in danger of becoming morally depraved;

(6) Sic habitually idles away his or her time.17

In the same context it may be mentioned that "the pro-
blem of reaching a general description of childhood crimes by
aggregating the standards of separate criminal justice agencies
across the country is further complicated by variation from
district to district."18 Moreover, "there is no consistent
policy governing the actions of law enforcement agencies in
different areas toward juvenile or adult offenders or citizens
as awhole."19

However, Kassebaum.has summarized the common elements
that constitute the proscribed behaviors in a child, when the
child

violates any law or ordinance; engages in
immoral or indecent conduct around school;

 

171bid.

18Kassebaum, Gene, Delin uenc and Social Polio ,
Prentice-Hall, Inc., Englewood, New Jersey, 1974, p. 1%.

19Ibid., p. 18.

associates with vicious or immoral persons;
grows up in idleness or crime; knowingly
enters, visits house of ill-repute;
patronizes, visits public shops or gaming
places; patronizes saloons or houses where
intoxicating liquor is sold; patronizes
public poolroom or bucket shops; wanders in
street at night, not on lawful business
(curfew); (habitually) wanders about rail-
road yards or tracks; jumps train or enters
a car or engine without authority;
habitually lays truant from school; in-
corrigibly habitually) uses vile, obscene
or vulgar language in public places;
absents self from home without consent;
loiters, sleeps in alleys; refuses to obey
his parent, guardian; uses intoxicating
liquors; is found in place for the per-
mitting of which adult may be punished;
smokes cigarettes (around public places);
engages in occupations or situations
dangerous to sglf or others; begs or
receives alms. O

The general nature of these words does not define the
limits of specified actions characterized as status offenses,
thus leading to vagueness._ Mere lack of clear definition, and
vagaries of interpretation and application not only detracts
one from the desired objective but also makes one implement
such laws oppressively. "Therefore, a large number of
children are brought before the court because of laws couched
in a language far more diffuse than would be tolerated in
adult criminal procedure."21 Once the children happen to fall
in the net, they "may have greater problem in securing release,22

and are likely to suffer long-range stigmatization.

 

Ibid., p. 3.
Ibid., p. 40
Ibid., p. 15.

10

Statement of the Problem

Evidently, status offenses are the most pertinent and
pressing problem of the juvenile justice system today. It
touches every home, affects adolescents, and creates a con-
frontation between society and State. About 70 percent of
girls and 33 percent boys are categorized as "status offenders."
In Michigan the total comes to around 40 percent. The
question is whether status offenses: should exist, and if
so, whether these should be processed through courts and
housed in non-secure facilities? A wide ranging controversy
hangs around some states' experimental diversionary programs
or projects to save adolescents from court processes. The
controversy over status offenses remains as acute as ever.
The implications are far-reaching. The juvenile justice and
Delinquency Prevention Act of 1974 is already in existence-
at the Federal level. The Act is:

designed to prevent young people from enter~

ing our failing juvenile justice system, to

assist communities in developing more sensible

and economic approaches for youngsters already

in the juvenile justice system and to provide

$600 million through fiscal year 1980 to

strengthen, continue and stabilize the 1974

congressional-citizen initiative which

established juvenile crime prevention as the
federal priority.23

 

23Birch Bayh, in Foreword for the National Council on
Crime and Delinquency, Status Offenders and the Juvenile
Justice System, N.J., 1978, p. ix.

11

The Act stipulated a period of three years for States to
submit plans for deinstitutionalizing and decriminalizing
the status offenses. However, the period was further
extended to provide ample time and opportunity for the States
to develop their plans. At the time of signing the Juvenile
Justice Act extension into law, President Carter stated:

Unfortunately, in our country there has been

an absence of adequate distinction between

those juveniles who commit serious crimes,

such as murder, rape, and robbery, on the

one hand, and those who commit crimes that

are no threat to their neighbors, like

being a runaway child."24
Speaking in a similar vein, in his IACP speech, Senator
Edward Kennedy called for the elimination of less-than-adult
penalties for the most serious violent juvenile offenders:
"Age cannot justify treating the 17 year old rapist or
murderer differently from his adult counterpart."25 He urged
that "the law permit photographing and fingerprinting of
juvenile offenders, as well as make their criminal records
available to judges for sentencing decisions."25 On the other
hand, Kennedy favored maximum.efforts "to take the juvenile
courts out of the business of punishing status offenders or
jailing the ‘problem child.'"26

John Rector of the Office of Juvenile Justice and

Delinquency Prevention was quoted as saying that:

 

24Ibid.

 

25Criminal Justice Newsletter, Vol. 9, No. 21, Oct. 23,
1978, p. 3.

26Ibid.

12

The current overreach of the juvenile

system in its reliance on detention and in-

carceration is particularly shocking as it

affects so-called status offenders....Many

status offenders are arrogant, defiant and

rude--and some are sexually promiscuous.

Detention or incarceration, however, helps

neither them nor us. Some of these children

cannot be helped, and others do not need

help. Real help, for those who need it,

might best take the form of diverting them

from the vicious cycle of detention, in-

carceration and crime."27

Amidst this controversial atmosphere most of the States
appear to be adopting a cautious approach. There is more
radicalism in words and writings, than in legislation. Every
one of the States has almost the same problem and therefore

they are waiting for and watching each other's actions.

Objective of the Study
The main object of this study is to fill the void by

assembling all the relevant information together in one work
and examine the nature and rationale for supporting, removing
or retaining status offenses. In this context, Chapter II
‘will trace and provide historical and philosophical perspec-
tive, which will be followed by a review of the literature in
Chapter III.

Chapter IV will present sociological and legal con-

siderations involved in various aspects of status offenses.

 

27Criminal Justice Newsletter, Vol. 9, No. 9, April 24,
1978, p. 2.

13

Chapter V will highlight specifically the poignant
points of the controversy over status offenses. It will give
an insight and limitations of the various cures prescribed
for the problem.

Chapter VI will summarize the discussion by putting
up a coherent and consistent case, and exploring the implica-
tions for possible program development.

Chapter VII will include the conclusion and future

directions to delineate areas for further study.

Significance of the Study

The study seeks to establish a viable, and credible
rapport with ongoing research. It supports the inbuilt
strength of the sociological structure by compiling, analyzing
and summarizing the data. Facts, principles, various arguments,
opinions, observations and research findings are brought to a
confluence so as to provide a way out of the present impasse.
Specifically, it will be informative and broad based and try
to level the oddities obscuring the view. It will usher in a
new approach to the whole issue and enable reform of the
rudimentary rubric of the juvenile justice system, regarding
status offenses.

The study will help in developing new programs and
perspectives in framing the mechanisms of new legislation.
It will also focus prominently in on the otherwise low-lying

aspects of status offenses. It will re-kindle and rejuvenate

14

the interest and involvement of persons and organizations
vitally necessary for the growth and development of the

existing juvenile justice system.

CHAPTER II
HISTORICAL AND PHILOSOPHIC PERSPECTIVE

Status offenses, historically and philosophically,
grew out of the desire to treat the children legally as a
special category. The process of immigration and local
problems of settlers put a premium on the development and
socialization of the children. The beginning of the laws in
the U.S. is itself an interesting story and will provide an
insight into the existing legislation. "In its early history,
the Anglo American legal system developed more by trial and

28

error than by plan." This speaks of the phenomenon that

most of the executive-cum-judicial offices are common law
offices and do not possess statutory sanction or constitu-
tional validity for a long time.

An enlightened background survey was provided by Paul
Isenstadt and Rosemary Sarri:

The creation of the juvenile court and

related statutes governing the legal pro-

cessing of children grew out of concerns as

well as aspirations of Nineteenth Century

social reformers. They sought to advance
the welfare of the children by removing them

 

28Richard A. Myren, and Lynn D. Swanson, Police Work
with Children, U.S. Dept. of H.E.W., Washington, D.C., 1962, p.1.

15

16

from the jurisdiction of the criminal court
and providing new institutional mechanisms
whereby the State would intervene for re-
habilitative rather than punitive purposes.
But at the same time, these reformers were
also concerned about social control and the
moral development of immigrant and working
class children who were flooding the cities.
They believed that the State had the right
to intervene benevolently to see that
children were 'properly' socialized to assume
the adult roles needed in an industrializing
society.29

It is no wonder that "the juvenile court emerged from
the convergence of several streams of social philosophy and
legal practice,30 and that ”the creation of a specialized
court for youth was viewed as one means of humanizing criminal
law."31 The undercurrent of this prevalent thinking is
portrayed by Schlossmen on the belief that:

The great majority of Americans, judges
included, believed that universal education
was a social panacea, that children, speci-
ally children of the poor, had few legal
rights, that impoverished parents lacked
moral character and were incapable of
providing healthy conditions for childrear-
ing, and that anything which the government
could do to instill their children with
proper values was for the better.32

 

29Isenstadt, Paul and Sarri, Rosemary C.,"Juvenile
Court: Legal Context and Policy Issues," Bro ht to Justice,
by Sarri, Rosemary C., and Hasenfeld, YehesEeI, Ufiiversity
of Michigan, Ann Arbor, 1976, p. 2.

 

30Ibid., p. 2.

31Ibid., p. 2.

32Schlossmen, Steven L., Love the American Delinquent,
The University of Chicago Press, Chicago, 1977, p. 17.

17

Before the establishment of juvenile courts and the
juvenile justice system, laws regarding children were
primitive and punitive in character. Most of the Puritan
legislation bore testimony to this effect: The Puritans of
Massachusettes prescribed death ”I

if any childe or children above sixteen years
old and of sufficient understanding shall

curse or smite their natural father or mother...
unless it can be sufficiently testified that
the parents have been very unchristianly
negligent in the education of such children.33

According to these laws:

If any man have a stubborn or rebellious
sonne of sufficient yeares and understanding,
viz. sixteene years of age, which will not
obey the voice of his father or his mother,
and that when they have chastened he will not
hearken unto them; then may his father and
mother, being his naturall parents, lay hold
on him and bring him to the Magistrates
assembled in Courts and testifie unto them,
that theire sonne is stubborn and rebellious
and will not obey their voice and chastise-
ment, but lives in sundry notorious crimes,
such a sonne shall be put to death.34

The juvenile court movement was viewed in a much wider

perspective by Schlossmen:

 

33Lee E. Teitelbaum, and Harris J. Leslie, "Some
Historical Perspectives on Governmental Regulation of Children
and Parents," in Be and Control by Lee E. Teitelbaum, and
Aégan R. gough, BEIIinger Puinshing Company, Massachusetts,
1 , p. .
(The General Laws and Liberties of the Massachusetts
’Colony E1672) in Juvenile Offenders for a Thousand Years,
318-19 W. Sanders; ed. 1970)

34 id.

18

The efforts to establish juvenile courts
and probation departments in the early
twentieth century were part of a broader
social movement to accomodate urban institu-
tions to an increasingly industrial base and
a predominantly immigrant population; to
introduce control and planning into diverse
aspects of city life previously monopolized
by entrepreneurs, and to apply recent dis-
coveries in psychology, sociology, medicine,
and businggs management to the education of
children.

And that was the reason why the juvenile courts considered to
bring about reform and expected to achieve whatever remained
to be desirable of them. An overview says:
The Court inevitably became the ultimate

proving ground for many other reform

measures, such as child labor laws, indus-

trial education, compulsory school attendance,

visiting nurses and teachers, the establish-

ment of kindergartens, and so forth.36

The whole philosophic rationale behind the extension
of State power of intervention was to protect the children
as well as the integrity of the family and, in a way, to
balance the interests of both judiciously. In other words,
they were also safeguarding the society and the foundations
of the State. The rationalists and environmentalists took a
whole new look at the situation and believed that there was

a need for proper correctional, educational and legal programs.

 

35Schlossmen, Steven L., Love the American Delinquent,
The University of Chicago Press, Chicago, 1977, p. 57.

36Ibid.

19

The year 1899, when Illinois passed an Act creating
statewide court jurisdiction over children, is a landmark
year. The cases of dependency, delinquency and incorrigibility
were brought under court control. Other States gradually
followed suit and there came into existence the juvenile
justice system which includes in its fold a category of status
offenses. As indicated, "on the basis of the concept of
parens patriac, the juvenile court was authorized to intervene

whenever a juvenile behavior was problematic for the child,

family or society.“37

Similarly tracing its history and philosophy Meda
Chesney Lind gave a new dimension to the issue:

In 1899, the first juvenile court was
established in Chicago, culminating a long
campaign to create a separate judicial
system for youthful offenders. While using
rhetoric about protecting children from
horrors of the adult system, the court
founders were actually interested in a
system.which.would shore up traditional
American institutions like the family.
Imagining these to be threatened by foreign
immigration and urbanization, the largely
middle class, Anglo Saxon conservative set
up a court to reinforce their definition of
appropriate adolescent deportment.38

 

37Rosemary C. Sarri, and Paul Isenstadt, "The Juvenile
Court: Legal Context and Policy Issues," in Broqght to
Justice by Rosemary C. Sarri and Yeheskel Hasenfe d, Ann Arbor,
1976, p. 3.

380hesney-Lind, Meda, "Judicial Paternalism and the
Female Status Offender," in Status Offenders and the Juvenile
Justice System, by the National Council on Crime and Delin-
quency, Hackensack, N.J., 1978, p. 111.

20

It took quite some time for the people to evaluate the
performance of the juvenile courts in particular and the
juvenile justice system as a whole. As late as 1960 the
realization of a subdued debate started taking shape which
became more audible in the Nineteen Seventees. A number of
U.S. Supreme Court decisions changed the focus, and there
grew a widespread feeling that all was not well with the
juvenile justice system. The criticism of the juvenile courts
and of the laws pertaining to children became the obvious
target. A phenomenal increase of runaways, rising index of
juvenile crime, dropouts and vandalism in schools attracted
the attention of social thinkers, educators, publicmen and
legal functionaries.

Status offenses were treated at par with other criminal
offenses and there was no differentiation in the treatment of
the two in the Juvenile Code. Status offenders were similarly
detained, processed and punished as any other juvenile criminal.
This was a very late realization. In 1961 New York specifically
brought out the legislation for the first time separating the
status offenses from the categories of delinquency. California
did it in 1962 and then other States reluctantly followed suit.
In fact the pace was quickened because of the declaration of
status offenses statutes as void by the courts on the grounds
of "vagueness," "due process," and "fairness." California
Juvenile Statute was void "because it failed to give fair

warning of proscribed conduct or information to the fact finder

21

to enable accurate recognition of such conduct (Gonzalez V.
Mailliard, 1971)."39

Earlier, the case of Kent versus the United States
(1966) for the first time posed a major challenge to the
juvenile courts on the grounds of "due process." The court
gave its judgement in favor of "due process guarantees" to
the juveniles and declared that "there is no place in our
system of law for reaching a result of such tremendous con-
sequences without ceremony--without hearing, without effective
assistance of counsel, without a statement of reasons (383 U.S.
at 554)."40

In re Gault (1967), the U.S. "Supreme Court imposed
procedural safeguards that set minimum standards in proceedings
for delinquents who, having violated criminal statutes, might
be committed to an institution."41

In re Winship (1970), the Supreme Court gave another
important decision requiring the standard of "proof beyond

t"42 in juvenile proceedings. In another

a reasonable doub
case (Breed V. Jones, 1975), "the Court has ruled that

subjecting a child to a criminal trial after a delinquency
adjudication in a juvenile court for the same offense con-

stitutes double jeopardy."43

 

39Rosemary C. Sarri and Paul Isenstadt, "The Juvenile
Court: Legal Context and Policy Issues," in Bro ht to Justice,
by Rosemary C. Sarri and Yeheskel Hasenfeld, Ann Arbor, 197 ,p.7.

401-bido’ Po 9.

41Rido’ pp. 9-10.

42Ibid., p. 10.

43Ibid.

 

 

22

Still there are large numbers of legal issues related

to status offenses repeatedly invoking Federal and State courts

jurisdi

ground

ction to revoke or reform statute provisions, on one
or the other.

Issues related to a right to abil, a hearing
to test pretrial confinement, and
admissibility of confessions and evidence
procured during investigatory process--issues
that for adults have been decided in Map N.
Ohio (1961) and Mirande V. Arizcgi (1966)--
remain unanswered for juveniles.

At the Federal level, the Task Force Report of 1967

discussed, in detail, the policy implicationa and favored

elimination of juvenile court jurisdiction over status offenses.

It advocated development of alternative services for status

offenders, instead of processing and incarcerating them as

delinquents. Eventually, in 1974, the U.S. Congress enacted

the Juvenile Justice and Delinquency Prevention Act which

provided that

States

a State must, within two years from the date

of submission of a plan for funding, treat
juveniles who are charged with or who have
committed offenses that would not be criminal
if committed by an adult in shelter facilities
and cease placing them in juvenile correctional
or detention facilities.45

The Act expressed the "clear legislature intent that
be offered the incentive to move toward minimizing

 

44Ibid., p. 11.
45Lee E. Teitelbaum and Harris J. Leslie, "Some His-

torical Perspectives on Governmental Regulation of Children
and Parents," in Beyond Control by Lee E. Teitelbaum and Aidan
R. Cough, Ballinger Publishing Company, Massachusetts, 1977,

p. 279.

 

23

contact between law enforcement personnel and non-criminal
juvenile offenders, specially runaways."46
An amendment to the Act has been accorded Presidential
approval, extending the time limit for the States for three
more years to enable them to develop the alternatives for the
status offenders, through federal grants. The Federal Govern-
ment, perhaps, wants to act as a catalyst, an agent of change
and provide federal funding as an instrument to affect that
change. The States are attempting to change their juvenile

code regarding status offenses substantially, if not totally,

because that is the price or condition of the change.

 

4°Ibid., p. 279.

 

CHAPTER III
REVIEW OF LITERATURE

There is a scarcity of available literature on status
offenses. Much literature has come out and is found under
the references on juvenile delinquency, deviancy, youths,
youth problems, youth crime and the like. Very little has
been written so far specifically on status offenses. The
reason obviously being that it was not in focus. It was only
in 1967 that the President's Commission's Task Force Report
on Juvenile Delinquency and Youth Crime attracted attention
to noncriminal offenses. The issue was discussed in depth
and in detail in the Seventees when the controversy to
eliminate these offenses caught fire. This generated interest
in academic and professional circles and some of the studies
were done both at the macro and micro levels. I have
cautiously excluded the literature pertaining to delinquency,
deviancy, youth crime, etc. unless and until it has directly
impinged status offenses. Had I not done so, the focus on
status offenses would have been lost and the main issue
concerning status offenses would have got drowned in the all-

pervading generality of the delinquency sea.

24

25

The Task Force Report asserted:

One frequent consequence has been the use
of general protective statutes about leading
an immoral life and engaging in endangering
conduct as a means of enforcing conformity--
eliminating long hair, Levis, and other
transitory adolescent foibles so unsettling
to adults. One need not expound the tradi-
tional American virtues of individuality and
free expression to point out the wrongheaded-
ness of so using the juvenile court; it is
enough to reflect that the speed with which
such fads come and go is equaled only by the
strength of their resistance to outside attack.47

Further clarifying its views, the report added:

It must be recognized, however, that the
most earnest efforts to narrow broad juris-
dictional bases, in language or practice,
will not altogether remove the possibility
of our extension. Statutory drafting deals
necessarily in the general; applying legis-
lation is in the last analysis subject to
its administrator's views. Therefore, and
in view of the serious stigma and the un-
certain gain accompanying official action,
serious considerations should be given
complete elimination from the court's juris-
diction of conduct illegal only for a child.
Abandoning the possibility of coercive
power over a child who is acting in a
seriously self-destructive way would mean
losing the opportunity of reclamation in a
few cases. It is hard to contemplate having
no way of preventing a teenage girl from
damaging her life with an illegitimate child
when a sufficiently strong hand might have
gotten her through the belligerent years
without so permanent a blight. But in de-
clining to relinquish power over her, we
must bluntly ask what our present power
achieves and must acknowledge in answer that

 

47The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: Juvenile De-
linquency and Youth Crime, U.S. Government Printing Office,
Washington, D.C., 1967, p. 25.

26

at the most we do not really know, and in
at least some cases we suspect it may do
as much harm as good.48

The review of literature will pursue the part which
touches on the subject in general and highlights the
controversy. The review will have general literature on the
subject as well as the one which deals with the controversy.
The literature which specifically addresses itself to various
offenses like running away, dropping out, incorrigibility,
ungovernability, curfew, etc. has been excluded because it
would have blurred the focus of this paper. Status offenses
have been taken as a whole and not parts of it as a separate
entity, because each one of it is a subject in itself. I
have maintained the totality of the problem and viewed it
objectively as well as subjectively.

In the Nineteen Seventees, the subject of status
offenses got its sailwind and very soon blew into a full-
fledged controversy. Then, there have been semblances of
reforms, revlauations of the same, and finally the Act of 1974
at the Federal level. The Juvenile Justice and Delinquency
Prevention Act of 1974 envisaged the provision of federal
funding to those States which planned alternate infra-
structure to decriminalize or deinstitutionalize status

offenses.

 

481bid., p. 27.

27

The main exponent of the course of decriminalization
and deinstitutionalization has been the National Council on
Crime and Delinquency. The National Council on Crime and
Delinquency (NCCD) in October 1974, through its Board of
Directors, laid down a policy for removing status offenses
from the jurisdiction of the juvenile courts. The policy
statement of the Board of Directors, giving various weighty
reasons, came to the conclusion that

The juvenile court should be the agency
of last resort for anti-social--i.e.,
oriminal--conduct. Its efforts and sanctions
should be reserved for serious criminal
conduct. Although a matter for community
concern, non-criminal conduct should be
referred to social agencies, not to courts
of law.49

The policy statement gave rise to a barrage of articles
for and against the elimination of juvenile courts' jurisdic-
tion over status offenses.-

Other national organizations which concur
with the NCCD policy include the National
Americanism and children and youth divi-
sion of the American Legion, the National
Alliance for Safer Cities, the National
Association of Counties and the National
Council of Jewish Women.50

 

49Board of Directors, National Council on Crime and
Delinquency, "Jurisdiction Over Status Offenses Should Be
Removed from the Juvenile Court--A Policy Statement," Crime
and Delin uenc , 21(2): 97-99, 1975.

50William L. Hickey, "Status Offenses and the Juvenile
Court," in Status Offenders and the Juvenile Justice System,
NCCD, 1978, p. 124.

28

The Juvenile Justice Standards Project (Institute of
Judicial Administration/American Bar Association), commonly
known as Standards, in its Noncriminal-Misbehavior Volume

has specifically mentioned:

A juvenile's acts of misbehavior, ungovern-
ability, or unruliness which do not violate
the criminal law should not constitute a
ground for asserting juvenile court juris-
diction over the juvenile committing them.51

The Controversy on Deinstitutionalization and
Decriminalization

The Office of Juvenile Justice and Delinquency
Prevention (OJJDP), established by the Act,
has funded over $14 million worth of special
emphasis projects for the deinstitutionaliza—
tion of status offenders.52

It provided the rationale for deinstitutionalization and also
gave the necessary guidelines for the purpose. It quickened
up the slumbering paces of States toward the goal of deinstitu-
tionalization. States separated the category of status
offenses, wrapped it under new nomenclatures, formulated dis-
tinct adjudicatory process and evolved alternate services

instead of seeking courts' coercion.

 

51Juvenile Justice Standards Project (Institute of
Judicial Administration and American Bar Association), Non-
criminal Misbehavior (Cambridge, Mass., Ballinger Press), 1977,
p. 35.

52William L. Hickey, "Status Offenses and the Juvenile
Court," in Status Offenders and the Juvenile Justice S stem,
NCCD, 1978,-pl 1232 ‘

29

There is also evidence to show that statewide studies
are being undertaken to collect data and other research
material by various States to separate the problem of status
offenses from the rest of the delinquency offenses and other
statutory crimes. An analysis conducted by the National
Assessment of Juvenile Corrections, based on laws that were
in effect on January 1, 1972, found twenty-five jurisdictions,
including the District of Columbia, to have separate categories
for status offenders at that time.53

The failure of PINS laws and the like, convinced the
people that mere dressing differently would not automatically
upgrade the system of reform, but some substantial efforts
were needed to mend the fences. Michigan's House Bill 4704
and the Model Juvenile Court Act by the National Juvenile Law
Center are some of the attempts in this direction. There has
been similar legislative activity in other States too.

A study of various juvenile codes in the U.S. was made
by Mark M. Levin and Rosemary C. Sarri, and its findings form
part of a book entitled Juvenile Delinquency which presented
findings on six crucial dimensions of the Juvenile Codes:
jurisdiction, detention, adjudication, disposition court

structure, and records.54

 

53The National Center for Juvenile Justice, Juvenile

Court Or anizations and Status Offenses: A Statutory_Profile
Pittsburg, Pa., 1974).

54Mar1c M. Levin, and Rosemary c. Sarri, Juvenile Delin-
quency: A Study of Juvenile Codes in the U.S., Nation Assess-
ment of Juvenile Corrections, University of Michigan, Ann Arbor,
1974, p. 62.

 

 

30

A much broader focus on the problem was introduced in
another research work edited by Rosemary C. Sarri and Yeheskel
Hasenfeld wherein the writers addressed key policy issues
facing the juvenile courts. Studying the juvenile courts in
legal and environmental context, viewing structural and staff
characteristics, assessing case processing:. intake, adjudi—
cation and disposition, evaluating service technologies:
diversion, probation and detention and reexamining the court
performance in the light of due process, it perceptively
provided feedback information about the impact of court
decisions on the issue.55

The theory and practice of juvenile justice was
discussed by Steven L. Schlossmen in his book Love and the
American Delinquent. It made a selective historical enquiry
into the American juvenile justice from 1825 to 1920.56

The Report of the Twentieth Century Fund Task Force
on Sentencing Policy Toward Young Offenders considered the
sentencing policy for young offenders in detail. It was
concluded in the words of Francis Allen that "the process of

the (juvenile) court, with all their limitations may still

 

55Rosemary C. Sarri, and Yeheskel Hasenfeld, Bro ht
to Justice?--Juveniles, the Courts, and the Law, NationEI
Assessment of Juvenile Corrections, University of Michigan,
Ann Arbor, 1976.

56Steven L. Schlossmen, Love and the American Delin-
quent, the University of Chicago Press, Chicago, 1977.

31

represent the best and least harmful method that our civili-
zation has devised to handle these problems."57

Allan J. Couch, in his article "Diverting the Status
Offender from the Juvenile Court," considered the realities
of the system: failures of the parents, disinterested
citizenry, failure of schools, short-sightedness of legisla-
tion, imposition of the police, prosecution orientation of
the district attorney and strongly suggested keeping the
status offenders out of the juvenile court's jurisdiction.58

Judge Lindsay G. Arthur, in an article, very strongly
defended the jurisdiction of juvenile courts over status
offenders. Comparing status offenses category with other
generic categories like chemical category, control category,
education category and family category, Lindsay maintained
that status offenses were as serious as any other offenses
of the category and deserved court attention. The essence
of his argument centered round the assertion that

we should divert when we can divert. But if

the child or the family cannot or will not

accept needed treatment, and if the need for

treatment is more important than the stigma

of the court record, then the court should be
there to impose the needed treatment.59

 

57Francis Allen, "The Borderland of Criminal Justice"
(Chicago:University of Chicago Press, 1964), pp. 52-53, in

Confrontin Youth Crime, Twentieth Century Fund, Task Force on
Sentencing PoIicy Toward Young Offenders, Holmes and Meir
Publishers, Inc., New York, 1978, p. 104.

58Alan J. Couch, "Diverting the Status Offender from
the Juvenile Court," Juvenile Justice, November 1974, pp. 18-22.

59Arthur G. Lindsay, "Status Offenders Need Help Too,"
Juvenile Justice, February 1975, pp. 3-7.

32

Justice Thomas D. Gill, in his speech to the New

England Council of Juvenile Court Judges held in March 1976,

discussed, in detail, the position of status offenders in the

juvenile justice system. He said:

In view of the demonstrable differences

between children and adults, fundamental
fairness demands that these differences
should be reflected in the judicial yard-
stick by which children's obligations to
society are measured, but there then follows
notable differences of opinion concerning
where the line of demarcation between the
child's world and that of the adult is to be
fixed.60

Discarding the administrative coercive power in place of

courts' jurisdiction, and acknowledging the utility of

voluntary agencies to handle status offenders, he defended

the juvenile court as a proper forum for adjudicating juvenile

offenders. Judge Gill contended:

1977).

The children, then, who through the
efforts of the court are returned to school,
wedded to new programs, placed in new educa-
tional settings, given solid work experience
through vocational probation, and who receive
tutoring and other remedial help, are not in
the hgadlines, but there are thousands of
them.

The Criminal Justice Newsletter (Vol. 8, Number 20,

earlier, summarized the details of the Senate hearings

 

August

60Thomas D. Gill, "Status Offender," Juvenile Justice,
1976, PP. 3-10.

61Ibid., p. s.

33

regarding the problems and the progress toward status offender
deinstitutionalization.62
Christopher A. Martin, in an article, "Status Offenders
and the Juvenile Justice System: Where Do They Belong?"
traced the philosophic and structural origins of the juvenile
court which allowed the court to establish authority over
juveniles. Referring to the controversy regarding deinstitu-
tionalization and decriminalization, he suggested that "these
changes not be implemented until such time as various research
studies and pilot projects offer some significant degree of
validation justifying those changes."63
In "Status Offenders Belong In Juvenile Court," Anthony
A. Guarne took an opposite view to that of the National Coun-
cil on Crime and Delinquency. He argued in favor of retaining
juvenile courts' jurisdiction over status offenders and main-
taining that "the juvenile court will not be the court of last
resort but will continue to be the best resort."64
While studying the problem and the process in detail,
Rosemary C. Serri pinpointed the main issues in the

controversy:

 

62Criminal Justice Newsletter, Vol. 8, Number 20,
October 10, 1977.

63Christopher A. Martin, "Status Offenders and the
Juvenile Justice System: Where Do They Belong?" Juvenile
Justice, February 1977, pp. 7-17.

64Anthony A. Guarna, "Status Offenders Belong in Juvenile
Court," Juvenile Justice, November 1977, pp. 35-37.

34

Status offenders are still processed as
juvenile delinquents in most States. In
1972, 1,112,500 juvenile cases, excluding
child abuse and neglect, were processed by
the juvenile courts in the United States.
When the juveniles in non-reporting counties
plus those held in jails, institutions, and
detention facilities are added, the estimate
exceeds 2,000,000 cases. It is also esti-
mated that 30 percent of juvenile court
cases are status offenders. Thus, approxi-
mately 600,000 status offense cases can be
expected to be processed or served each year
through juvenile courts and correctional
programs. The study of juvenile correctional
programs by the National Assessment of
Juvenile Corrections revealed that there is
not yet any real separation in programs of
status offenders and juvenile delinquents.55

Defining the role of the juvenile court, Edward Pabon
did not approve of the "revolving door policy" of the courts
and the referring agencies. Pointing out the difference not
in the category but in the handling, he said:

Running away from home, using alcohol and
drugs, and having numerous problems not
limited to a special category of youth
officially detected and processed as status
offenders. The author suspects that youth in
correctional programs for status offenses are
not intrinsically different from most
adolescent youth in the behavior which resulted
in their commitment. Rather, the differences
lie in the handling of thesg youth by the
juvenile justice system.... 5

 

65Rosemary C. Sarri, "Status Offenders: Their Fate in
the Justice System and an Alternate Proposal," Criminal
Justice Abstracts, September 1978, p. 294.

66Edward Pabon, "Serving the Status Offender," Juvenile
.gnd Family Court Journal, May 1978, pp. 41-48.

35

Spotlighting the elimination of status offenses,
Robert L. Drake, Judge of Probate and Juvenile Court posed
such questions as: what do children want from the adult
‘world and what is needed? Exposing a number of fallacies,
Judge Drake suggested for a unified and coordinated system
by providing facilities, mandatory diversion for voluntary
action, notice to the responsible non-court agency, screen-
ing by the Prosecuting or District Attorney, limitations on
detention, education and training, counseling programs for
children and families in need of specific services and an
interdisciplinary in-service training.67

Elizabeth W. Vorenberg in her letter to LEAA gave a
glimpse of how Massachusetts has shifted care of status
offenders to social service unit.68

Similarly, a survey of ten States found progress in
status offender deinstitutionalization. The study made by
Arthur D. Little, Inc., under federal funding, showed progress
toward deinstitutionalization by collecting data from ten

States representing a mix of size, youth service systems, and

 

67Robert L. Drake, "Elimination of Status Offenses:
The Myth, Fallacies and More Juvenile Crime," Juvenile and

Family Court Journal, May 1978, pp. 33-40.

68Elizabeth W. Vorenberg, "How Massachusetts Has Shifted
Care of Status Offenders to Social Service Unit," Criminal
Justice Newsletter, Vol. 9, Number 2, January 16, 1978, pp. 1-2.

36

approaches to deinstitutionalization: Arkansas, California,
Connecticut, Florida, Iowa, Maryland, New York, Oregon, Utah,
and Wisconsin.69
The issue of status offenses and the controversy re-
garding decriminalization and deinstitutionalization was
thoroughly thrashed in the book entitled Beyond Contyql,
edited by Lee E. Teitelbaum and Aidan R. Gough. Dealing with
historical perspectives, PINS processing and its evaluation,
sex-based discrimination, vagueness doctrine, rule of law and
the controversy over juvenile court's jurisdiction over status
offenses, it attempted to focus the theory and practice of
"beyond control" jurisdiction. It traced strategies and
analyzed attitudes with respect to family concerning parent-
child relationship. It highlighted the provisions stipulated
by standards (IJA/ABA) relating to non-criminal behavior.7O
An anthology under the name Status Offenders and the
Juvenile Justice Sygygg published by the National Council on
Crime and Delinquency discussed various issues relating to
status offenses. There was more emphasis on the controversy

over status offenses, evaluation of diversionary programs and

other socio-legal aspects of the issue. It also contained a

 

69Arthur D. Little, Inc., "Cost and Service Impacts of
Deinstitutionalization of Status Offenders in Ten States,"
Status Offenders and the Juvenile Justice System, National
CounciI on Crime and Delinquency, 1978, pp. 155-163.

70Lee E. Titelbaum and Aidan R. Gough, Beyond Control,
Ballinger Publishing Company, 1977.

 

37

report on the 1977 Senate Hearing on the subject and the

salient recommendations of Standards (IJA/ARA).71

Summqyy

The States, under federal funding, are moving slowly
towards de-institutionalization but trying to evolve some
sort of safeguards in the form of court intervention. There
is no clear-cut consensus over total elimination of courts'
jurisdiction but there are no two opinions about handling
and providing services to status offenders by other volunteer

or specialized agencies to avoid labelling as far as possible.

 

71Richard Allison (Ed.), Status Offenders and the
Juvenile Justice System, NationaI Council on Crime and De-
linquency, Hackensack, N.J., 1978.

CHAPTER IV
SOCIOLOGICAL AND LEGAL CONSIDERATIONS

Social

Status offenses are the punitive product of
sociological and legal problems. But the problems are not
new nor temporary or insoluble. These are embedded in
adolescence and are signs of turbulence during growth years.
In non-aggravated form these violations surface, though
varying in nature and degrees. It is a part of socialization
process.

Neither the Spartan_gymnasium, nor the Russian

creches, nor the Israeli Kibbutz nurseries,

nor scientifically run children's homes have

been found to successfully duplicate the socio-

psychological mystique which nurture children

into stable adults. 2

The relationship of the child with parents, society
and State is not based on one set of principles but consists
of various considerations, explanations and implications.

All those angles and points of views are to be looked into
both in detail and in-depth.

 

72Edwin M. Lemert, "Juvenile Court--Quest and Realities,"
in Task Force Report: Juvenile Delinquency and Youth Crime,
The President's Commission on Law Enforcement, 1967, p. 92.

38

39

Youth Family Relationship

Had homes been "sweet homes" children would not have
untied themselves by uprooting the whole relationship so
'vital for any youth to grow as a normal being. It does not
put blame on homes but only signifies its focal importance.
There is no substitute for a family. With all attractions
and amenities hotels cannot be homes. Why natural parents
cannot be replaced by any other person or institution is a
common knowledge. Parent-like or parens patriae is a poor
substitute for parents. The environment at home is important
but neither home nor parents per se make or mar juvenile
delinquency.

There is another way of rational analysis:

The family, like other social units or

systems, is a power system. Force or its

threat, money, respect, and love underlie

the family structure and are the four sources

of power by which people can move others to

serve their ends. Socialization and control

of children involves a pattern of exchange in

which the adult gives positive revgrds to
the child for compliant behavior.

There are various reasons for the parents to go to
juvenile courts to petition against their children. Few of
these include: (1) getting rid of the child, (2) inability

to exercise control over the child, (3) failure to cope with

 

73Anne R. Mahoney, "PINS and Parents," in Be ond
Control by Titelbaum, Lee E., and Gough, Aidan R., Be inger
Pfiinshing 00., Massachusetts, 1977, p.

40

the child's needs to gain autonomy and freedom of movement,
(4) to avoid public embarrassment and (5) maladjustment.

Schlossmen has rightly remarked that "the poor family
had become an ally as well as an.enemy in the crusade against
juvenile crime."74

With the advent of industrialization, mobility and
economic pressures, family homogeneity loosened and parental
control got lost. Parents became helpless and so did the
children. To take the family out of the dilemma, legal
doctrine of parens patriae was adopted from the British
Chancery Courts.

The change in outlook demanded a new approach to family
problems:

Circumstances now suggested grounds for

doubt about the capacity of many families

to rear children in the way necessary for

them to become good citizens. At the same

time, social, political and intellectual

views had also changed in ways that justified

and even required adoption of new Sprategies

for dealing with family breakdown.
Children on the one hand and the parents on the other are
responsible and answerable to the juvenile courts. The court
controlled the children under status offenses while the parents
were punishable under "neglect" and "abuse." This brought the
judicial intervention too deep into the family life and too

wide in the life of a child.

 

74Steven L. Schlossmen, Love and the American Delinquent,
The University of Chicago Press, Chicago, 1977, p. 78.

75Lee E. Teitelbaum and Harris J. Leslie, "Some Histori-
cal Perspectives cn Governmental Regulation of Children and
Parents," in Beyond Control by lee E. Teitelbaum and Aidan R.
Gough, Ballinger Publishing Company, Massachusetts, 1977, p. 20.

41

Child and Society Relatiopgggp

"The theory of society's relationship to children and
parents developed during the last century is both forward
and backward looking."76

The social system of earlier times was in the hands
of those who got settled and established themselves. They
framed their own rules and promoted the philosophy which they
wanted. It was mainly based on their experience and
expediency. In spite of the liberal and rational approach,
the hangover of the Victorian era and Puritanism continued.

Society was aware of the need for imparting education
to children. The only way to force a reluctant child to go
to school and attend classes was through courts. There
appeared to be an apprehension that wayward and uneducated
children would go towards criminality or commit acts of
delinquency.

The Child's Relationship With the State

The State empowered the juvenile courts and gave them
the Juvenile Code, with a view and intention that everything
would be set right and courts would be able to render required
services for the fallen child. Parens patriae philosophy was
enough to move. It was later on realized that the Code

 

76Ibid., p. 31.

42

changed its wording to PINS (Person in Need of Supervision),
CHINS (Child in Need of Supervision), JINS (Juvenile in Need
of Supervision), and FINS (Family in Need of Supervision)

and they brought out new rehabilitative and diversionary
programs. States move slowly and still proper type of legis-
lation and treatment program is not in the making. There is
more pressure from the Federal Government to decriminalize

and deinstitutionalize the status offenses.

General Considerations

The jurisdiction over unruly children is
thus a kind of moral thumbscrew by which.we
seek to demand of our communities' children
a greater and more exacting adherence to
desired norms than we are willing to impose
upon ourselves. And infirmities of constituv
tional law aside, the jurisdiction in opera-
tion is otherwise maladroit in several major
respects.77

There were also talks of cultural crisis and value
‘vacuum:

The rise of our youth culture to a posi-
tion of such prominence is a symptom of
grave default on the part of adults. Trapped
in frozen posture of befuddled passivity which
has been characteristic of our society since
the end of World War II, the mature generations
have divested themselves of their adulthood.78

 

77Ibid., pp. 276-277.

78Theodore Roszak, "Youth and the Great Refusal," in
The Politics and Anti-Politics of the Young, Michael Brown
Glencoe Press, California, 1969, p. 8.

43

The growing affluence in some societies while poverty
among others created a sort of imbalance, making it difficult
for youth to rationalize their societal role in the real
world of discrepancy and discrimination. The predicament was
poignantly new for the new generation. "So the young are
faced with creating values out of a cultural void. They must
face the radically new question of what to do with affluence."79

The adult failed to set any satisfactory example for
their life style before the young ones and that led to deeper
confusion. The Task Force Report observed:

This extended socialization is accompanied
by the problem of poor adult models. Through-
out the social classes, it appears that the
search for the adult to be emulated is often a
desperate and futile quest. Part of the rear
son for this futility is due to the very rapid
social and technological changes occurring in
our society which make it more difficult for
the adult to perform his traditional role of
model and mentor to-youth.80

The impact of getting richer was also focused on by
the Task Force Report:

Our youth in general are richer today than
they have ever been and have more alternatives
of action and more privileges. The list of
privileges usurped by youth has not only

 

- 79Michael Brown, The Politics and Anti-Politics of the
zqug, Glencoe Press, 0 ifornia, 19 9, p. 3.

80The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: Juvenile
Delinquency and Youth Crime, U.S. Government Printing Office,
Washington, D.C., 1967, p. 148.

44

increased but has shifted downward in age.

The high school student of today has the

accoutrements of the college student of

yesteryear--cars, long pants, money, and

more access to girls. 1

The Task Force Report does realize that "times and
viewpoints shift rapidly and many of our children resemble
worldeweary and jaded adults at age fourteen."82

The growing state of misunderstanding or lack of
understanding between children and their parents is also a
point under consideration. It is said that the generation
gap has always remained and will remain inevitable.

Parents have almost been accused of not

understanding their children. What may

be new is that more parents either do not

care that they do not understand or that

it is increasingly impossible for them to

understand.83
It is not only a one-sided difficulty but parents also have
similar complaints that their children do not understand them.
It is obvious that something is lacking in communication and
both sides feel handicapped. Can the crisis of communication
be resolved by a third party intervention? Should it be
counseling, expert advice or coercion? Court intervention is
thought to be the ideal agency of resolution and change. Now
the trend is toward expert advice, counseling, and crisis

intervention strategies.

 

 

 

43

Another aspect of the problem is pointed out by
McLuhan:

Suddenly today the child is merging with
the total adult environment under elective
information processing and is disappearing
from the scene as child. It is absurd to ask
us to pursue fragmentary goals in an electric
world that is organized integrally and totally.
The young today reject goals--they want roles--
that is, involvement. They want total involve-
ment, they don't want fragmented specialized
goals or jobs....84

On the other hand there are different considerations:

The gravity of time pulls hard on our
muscles and too often the earlier triumph of
principle gives way to the triumph of
expedience. The once lambent minds of youth
are frequently corroded by conformity in
adulthood, and a new flow of youth into the
culture is needed to involve their own
standards of judgement on our adult norms.85

Explaining the drift and the reasons for falling into

gangsterism, the Task Force Report adds:

Lacking word skills, he will not be able
to distinguish among nuances of feeling and
‘will respond only to the most primitive, most
basic stimuli. Such a young man or woman in
a slum.neighborhood is obviously unable to
benefit from the customary social facilities
designed to impart middle class 'virtues' or
values. Instead, he will naturally drift to
the gang or to narcotics or any lifestyle
that gives him immediate gratification and

 

84Herbert Marshall McLuhan, Address at "VISION 65,"

The American Scholar, 35: 2 (Spring 1966), p. 205.

 

85Marvin E. Wolfgang, "The Culture of Youth," in Task

Force Re ort, p. 154.

46

even temporarily, a scene that he is master
of his environment.8

Legal

From a sociological and legal consideration, status
offenses are indefensible. Due to lack of social awareness
and legal onslaught, status offenses survived all these years
as a necessary evil and served as a whip in the hands of
parents or society against non-criminal offenders. Socio-
logically and legally, status offenses remained an anachronism
in the juvenile justice system. In other words:

The jurisdiction over unruly children is

thus a kind of moral thumbscrew by which we

seek to demand of our communities' children

a greater and more exacting adherence to

desired norms than we are willing to impose

upon ourselves. And infirmities of constituv

tional law aside, the jurisdiction in opera-

tion is otherwise maladroit in several major

respects.8 '

For more than forty years, literature about juvenile
justice emphasized the treatment aspect of the juvenile court

but rarely mentioned the juvenile law, legal procedures, and
88

 

rights of youth.

86The President's Commission on Law Enforcement and

Administration of Justice, Task Force Report: Juvenile De-
linquency and Youth Crime, U.S. Government Printing Office,
Washington, D.C., 1967, p. 341.

87Lee E. Titelbaum and Aidan R. Cough, Be ond Control,
Ballinger Publishing Company, 1977, pp. 276-277.

88Mark M. Levin and Rosemary C. Sarri, Juvenile
Delinquency: A_Study of Juvenile Codes_in the U.S., National
.Assessment of Juvenile Corrections, University of Michigan,
Ann Arbor, 1974, p. 2.

47

There is another problem with these juvenile codes
and the juvenile courts:

All 51 codes bring within the purview
of the juvenile court conduct that is il-
legal only because of the child's age--status
offenses. Youth so charged have not violated
a law applicable to adults. With the excep-
tion of truancy and curfew violations,
juveniles really come under the courts' juris-
diction because of their condition, not
because of specific conduct. These status
offenses are defined in highly subjective
terms--'incorrigibility,' 'immorality,'
'idling,‘ 'beyond reasonable parental control,‘
'unruliness,' 'waywardness,' and 'in need of
supervision.‘ In many States, status offenses
are defined so broadly that any and all
children could be brought within the juvenile
court's jurisdiction if the judge were so
inclined.89

Moreover:

The juvenile codes are relatively silent
about the substantive or constitutional
rights of juveniles. Rather, they tend to
emphasize the rights of society and the rights
and duties of parents for more than those of
the child. To a considerable extent, the law
tends more to view the child as an inert
object than as a human being with inherent
rights equal to those of all other human beings.90

According to Sarri the "challenges to status offenses have
arisen most frequently for (1) vagueness (2) punishment and

(3) over-extension."91

 

48

Vaggeness

Status offenses cannot withstand the test of void for
vagueness doctrine. They are so vague that a man of common
intelligence cannot guess the meaning or could make nothing
out as to what he has to avoid. Supreme Courts have struck

down quite a number of status offenses for vagueness.

Punishment of a Condition

The decision in Robinson v California,92

supports the
argument that a status must be differentiated from a criminal
act and that punishment for a status violates the Eight
Amendment.93

The New York Wayward Minor Statute was struck down on
this ground. There are conflicting versions of the definition
of "status" and it still needs a standardized legal

interpretation.

Over-Extension
Over-extension is another ground to invalidate a statute.
The principle of over-extension has not been properly developed

in status offense cases and there is enough scope to challenge

 

92Robinson v California, 370 U.S., 660 (1962).

93Rosemary C. Sarri, "Status Offenders: Their Fate in
the Juvenile Justice System," in Status Offenders and the
Juvenile Justice S stem, MCCD, 1978, p. 4.

49

these statutes on this ground. Over-extension exists in
various forms and its interpretation also needs legal
validity.

As we have seen there is one more ground for legal
attack, and that is "discrimination." Status offenses suffer
from sex, class and status infirmities and the violators are
being punished on account of discrimination and not due to
crime-connection. It has already been established that girls
are more victims of status offenses than boys and that they
have to suffer more than their other counterparts. The
disproportionate institutionalization of females is apparent.
There is also a disproportionate number of nondwhites and
most of them come from large, poor communities and broken
homes.

There is another dilemma that the "neglected" were
classified as "ungovernable" though obstinacy of parents
transforms them into "incorrigible." In this type of over-
reaching, overbearing and over-punishing situation, it is no
wonder that it would shock any conscience. Sarri remarked:

It is shocking to see this level of punitive

social control being exercised over these

youths. Even a police state would not func-

tion properly if it had to maintain forcible
control over 90 percent of the population.94

 

94Ihid., p. 68.

50

Do the kids from affluent families not have these
infirmities or do they escape the attention of law enforce-
ment? It obviously leads to the conclusion that one can avoid
these consequences if there are necessary resources to avoid
them.

A belated Act of 1974 at the federal level is the '
attempt in the right direction. There is still a long way
for the States to go.

Status offenses are indications more of a sociological
problem than of a legal one. As R. Mahoney indicated:

Over half of the youths came from families
supported by welfare. More then 85 percent
of the youths were from racial minority
groups. 79 percent of the youths came from
broken families, and 14 percent of them
lived with neither parent.95

Mahoney compared "child alienation" with parents with
"marital alienation," leading to the dissolution of marriages,
except that no relief to the child like that is available.

Birdwhistell clarified the family position:

It requires but little reflection to see
that American family, as idealized, is an
overloaded institution. It is easy to see,
too, that the goals set by the concept are
unattainable and have people falling both
as spouses and as parents. This can have
even more tragic results if the people who
find it impossible to live in such a situa-
tion, because they are human and have human
needs, seek help to escape and are directed

 

95Anne R. Mahoney, "PINS and Parents," Beyond Control,
Tietelbaum, Lee E. and Gough, Aidan R., Bellinger Publishing
Company, Cambridge, Mass., 1977, p. 166.

51

back into the pathological situation. The
counselor, the therapist or the legal
advisor who accepts the ideal becomes the
reinforcer of the pathology.96

At one point in this effort, everyone seems to be help-
less: children, parents, Courts, society, the State, the
powerful and the powerless.

Referring to PINS jurisdiction, vagueness doctrine and
the rule of law, Al Katz and Tietelbaum observed that "in
real sense, the juvenile court was originally conceived as a
system of 'substantive justice' rather than 'legal justice.”97

The curbing of desires, acceptance of rules are part
of socialization. Adaptations are to be made while one is in
the process of socialization. Adjustments through legal
process are poor substitutes for socialization.

The problem of parental disobedience, truancy, sexual
deviance, runaways are to be decided more on a sociologiCal
plane than by legal injunction. So much emphasis on sociali-
zation is to demonstrate a preference for sociological
remedies and not to preclude the judicial concern.towards

social problems. The thin line of demarcation indicating

 

96Birdwhistell, "The Idealized Model of the American
Family," 51 Social Casework 197 (1970), in Be ond Control,
Bellinger Publishing Company, 1977, p. 173.

97Al Katz and Tietelbaum, "PINS Jurisdiction, the Vague-
ness Doctrine and the Rule of Law," Beyond Control, p. 208.

52

where to stop and where to intervene, form part of a con-
tinuous process of making and unmaking of laws. Ultimately
it will come to value judgements, to societal responses,

to its norms, and to what is acceptable as a way out. What
is the need and concern of a society in one country may not
be the same elsewhere and these variations are bound to be
there. The remedies also lie within the ambit of the same
society in which the problems originate. Transplantation
of remedies is not a very healthy cure and occasionally
leads to reaction. Therefore the sociological and legal
considerations are very important to visualize the various
aspects of a particular issue. The controversy can be
resolved, keeping these factors in reference to their con-

text in mind.

CHAPTER V
CONTROVERSY

Status offenses are highly controversial and one of
the hotly debated issues. The controversy ranges from
maintaining the status quo to decriminalization and de-
institutionalization. The problem is that in the present
system there is more of punitive treatment, detention,
stigmatization, decrimination, and excessive judicial inter-
vention, but less of rehabilitation. If the reforms are made
in the area of decriminalization or deinstitutionalization,
there is no surety that another agency would do better than
the courts, and an opportunity to help the juvenile or serve
the family and society might be lost forever.

‘ The controversy over decriminalization or deinstitu-
tionalization will be presented in two parts, viz (1) argu-
ments pleading for status quo (2) arguments in favor of
decriminalization.

Before coming to the controversy, I would pause, for
a while, to examine the background perspective. Tietelbaum

thought:

53

54

Perhaps the most important changes
affecting societal views of the family are
associated with changes in general philo-
SOphy....Among the most important of these
was the innate wickedness of man, which
assured that there would always be sin and
negated any general theory of progress on
earth. The function of civil government
was to repress, as far as possible, that
evil, its entire removal was never thought
possible.9

And then came the theory of societal response according to
which

That response lay in mainpulation of
the environment, generally through place—
ment of child in an institution where
proper attitudes could be instilled and
encouraged. Through education, houses of
refuge, reformatories, and the like, poor
and wayward children could be molded 'into
the form and character which the peculiar
nature of the edifice (of American society)
demands, and in due time the youth specially
may become intelligent, enterprising and
liberal minded supporter of free institution.'99

The change in the philosophy and sociological researches gave
rise to reforms, bringing juvenile codes and courts into
existence. The movement spread and every State accepted and
implemented the new law. The reform was the major achievement
of the era. It was thought that everything will go well with
the courts. As described in The Task Force Report:

 

98Lee E. Titelbaum and Aidan R. Gough, Beyond Control,
Ballinger Publishing Company, 1977, p. 14.

99Ihid., p. 20.

55

The practicality of a 'stitch in time'

combined with an idealistic faith in the

social sciences and treatment to give them

a zealous desire to extend the juvenile

court's helping hand as far as it could

reach and a somewhat uncritical conviction

that whatever the court did, as long as it
meant well, was in the child's best interest.100

But everything and everyone did not go well with the
juvenile courts. The widening gap between philosophy and
practice brought the juvenile courts into disrepute. As
described by Schlossmen:

Ideally the court was a missionary agent

for the educational and moral uplift of the

poor. In practice it functioned, more often

than not, as a source of arbitrary punitive

authority, and an arena for the evocation of
hostile emotions on all sides.101

In the light of this background, we come down to the

controversy itself.

Advocates of Status Quo or Those Not in Support of
Decriminalization and Deinstitutionalization

Main advocates of status quo or opponents of deinstitur
tionalization or decriminalization are judges of juvenile
courts, and other officials of the establishment. Thomas D.

 

100The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: Juvenile De-
linquency and Youth Crime, U.S. Government Printing Office,
Washington, D.C., 1967, p. 23.

101Schlossmen, Love thplAmerican Delin uent, The
University of Chicago Press, Chicago, 1977, p. 188.

56

Gill agreed that "the law, as it generally does and properly

should, did but conform to and embody the mores of the

‘02 Gill indicated:

times."
What emerges from this statutory melting

pot, then, is a unanimous subscription to
the conclusion which constitutes the basic
philosophical undergirding of the court.
That is, in view of the demonstrable dif-
ferences between children and adults, funda-
mental fairness demands that these diffe-
rences should be reflected in the judicial
yardstick by which children's obligations
to society are measured, but there then
follows notable differences of opinion con-
cerning where the line of demarcation
between the child's world and that of the
adult is to be fixed. It is this cloudiness
of jurisdictional conviction bespoken both
by these age differentials, as well as the
confusing withholding of certain serious
offenses from the juvenile court's juris-
diction in many states that makes it possible
for those who would divert status offenders
from the court to argue, as they seemingly
do, that fourteen-~and fifteen-year old
children are sufficiently mature to break
away from the familiar moorings of home and
school and become self-directing without
seriously endangering their own well-being,
even as equally eloquent voices are protesting
the diversion of children of similar age to
criminal courts as being patently unready for
the rigors of the adult justice system.1 3

Criticizing the Federal approach and the enactment of
Juvenile Justice and Delinquency Prevention Act of 1974,
Gill contends:

 

102Thomas D. Gill, "Status Offender," Juvenile Justice,
August 1976, p. 4.

103Ibid., p. 5.

57

to avoid the erasure of the status juris-
diction of the juvenile court through action
that succeeds in negating the statutory
implementation of the juvenile justice
standards pertaining to status offenders in
our respective states will indeed prove to
be a pyrrhic victory if the carrot of the
federal grants in aid dangled before the
states under the terms of that Act compel us
to yield to the big stick of the Act's man-
date which demands the deinstitutionalization
of all status offenders, including therein
children who have violated a lawful order of
the juvenile court.10

Referring to the guidelines, under the Act, regarding
the delimitation of juvenile court's authroity, Gill said
that "...every judge is transformed into a judicial wizard of
Oz, a pitiful humbug, loud in words but equipped with nothing
but legal blank cartridges."105

Returning to voluntary agencies and other alternatives,
Judge Gill felt that these agencies are not tried ones and
that there needs to be coordination between these agencies
and governmental institutions. The judge differed with the

dispositional criterion of the Act:

The act also assumes that the offense of
record at the time of confinement is the
only one that determines the child's suit-
ability for confinement in a particular type
of facility. This presumption totally dis-
regards the fact that disposition decisions
in juvenile court are most often based on a

 

1O4Ibid., p. 5.
105Ibid., p. 6.

58

child's total situation, rather than his
offense. Many, if not all, juvenile court
judges would consider it entirely inappro-
priate to exclusively use offense as the
sole basis for determining a proper disposi-
tion. They recognize the superficial, often
purely technical nature of the charge that
immediately precedes the decision to incar-
cerate. Usually, the decision to confine is
based upon a sequence gf events, not just
the most recent one. 0 .

The judge differed in many ways but partially agreed
to the few:

The author believes, too, that the judges
of the juvenile courts have not, do not, and
will not oppose the handling of status
offenders by voluntary agencies, either exist-
ing or to be created, whenever and wherever
such agencies prove themselves effective in
their efforts on behalf of these children.
What, however, must be contended is that
experience to date clearly demonstrates that
the great majority of status offenders re-
present children who are having inherent
problems with authority, problems which in
turn can but rarely lend themselves to succes-
ful resolution save through the proper use of
authority. The best evidence for the support
of this truism is found in any court's case
histories of those children who time and again
have run the gauntlet of voluntary, non-
authoritative a encies before referral to the
legal setting.1 7

In the same context he differentiated between the
authority of the court and that of an agency by saying:

It would be our contention that unbridled
coercive administrative power is far more

 

106Ibid.,‘p. 6.

 

1°7Ibid., p. 7.

59

threatening to children than the authority
of the court, encased as it is in the
scabbard of due process, and even more
importantly, we fail to see how the signifi-
cant rights and duties which characterize
every child-parent relationship and which
are by no means terminated by the rebellion
or running away of a child can be left
dangling in a legal void.108

He maintained that only the courts are competent and
"equipped to adjudicate the divergent rights and duties which

inevitably present themselves as by-products of the confronta-

tion between parent and child."109

Counteracting the criticism that courts do not provide
constructive solution to errant child, he mentioned:

The children, then, who through the
efforts of the court are returned to school,
wedded to new programs, placed in new
educational settings, given solid work
experience through vocational probation and
who receive tutoring and other remedial
help, are not in the headlines, but there
are thousands of them.110

But in this context, he also referred to the predica-
ment faced by those who do not have court experience:

Juvenile courts, being legal forums
concerned with protecting the privacy of
children and their families who come within
the court setting, cannot publicize their
successes. A scientist can and does tell
exactly what he discovers in his probing of
the unknown, but the boy next door is not
going to recite what the court did for him,

 

 

108mm, p. 7.
109 ido, pa 8.
11o

Ibido , P. 8.

60

The court's successes fade into merciful
obscurity which is part of the fabric of
rehabilitation. This is as it was designed
and should be. How to preserve the fabric

and yet resolve the doubts, the misunder-
standings, the confusion of those who will
never have first hand experience with the
court is both the dilemma and the challenge.“1

He was of the view that the courts can do much more if the

community and the State were so disposed toward the courts

by providing them enough resources and alternatives.

Focussing on stigmatization, he alleged that any agency

or program dealing with problematic children, as the courts,

would

soon be seen by the realistic eye of the
community as a sanctuary for difficult
children, for failures, and consequently
such stigma as inevitably attaches itself
to programs and facilities servicing such
children will speedily be imputed to that
agency or school.112

Discounting the charge of discrimination against the

juvenile courts, he argued that

few disadvantaged parents encountered by
judges have really resented the efforts of
the court to help their children return to
school; they did not talk of discrimination;
they were grateful for the help they needed
and had not found elsewhere.11

 

1“Ibid., p. 8.

 

112

 

113Ibi

p.

o, p. 9.

 

61

He justified the treatment of children on the grounds
that they were different from adults

because children are not adults, distinctions
predicted upon the patent emotional, physical,

and social difference of the child and the

adult are rationally and reasonably related to

the State's laudable purpose of protecting a
group which is not yet ready to protect itself.114

Shifting the onus of providing a solution on to the

legislature, he concluded by flashing a formidable question:

It is a changing world, and the law which
after all is but the codification of our most
cogent social and moral convictions, cannot
long sustain a position divorced from these
convictions. Do we still believe that child-
ren must be accountable to adult direction
and that such direction finds its best expres-
sion in a strong cohesive family unit? Do
we still believe in the American Dream, a
mandated education for all? If a legislature
believes that the home and the school, as the
basic social institutions responsible for the
molding of children, no longer need to draw
upon the court for support, or equally
important, be made answerable to the court
for their respective stewardships in the lives
of these children; or if the legislature
concludes that the judicial process is after
all not best equipped to determine, as someone
must clearly do, where the genesis of the
child's crisis rests, whether in the purpoted
excessiveness of the parental or academic
demand or the alleged willfulness of the
child's response, it should be responsive to
the proposed justice standards.115

And lastly,

 

“41mm, p. 9.
“51mm, p. 9.

62

If, however, the legislature does not
so believe, if it chooses to adhere to the
long sustained and strongly held credos of
the past, then it seemingly has no choice
but to reject the position of the Standards
Commission as embodied in its proposal for
the status offender, for that position is
an explicit negation of the very convictions
which the lggislature would be striving to
reaffirm.1

Similarly, Judge Arthur took an exception to the
"Standards of Juvenile Justice" and made scathing remark
that "the function of judges is to find solutions to problems
and the function of professors is to find problems with the
solutions."117 Over deinstitutionalization recommendation
by the "Standards," he remarked that it is "based on a faulty
analysis of the problems associated with the administration
of juvenile justice" and that "it would result in severe costs
to the child, the family and the community...."118

He clarified the standpoint of the juvenile courts:

Juvenile courts are not anxious for cases,
nor do they demonically desire to exert power.
They realize--as do the Standards—-that
voluntary help is better than involuntary.

But juvenile courts also realize that
involuntary help is better than none-—better
for the child, better for the family, better

 

1161bid., p. 10.

117Arthur G. Lindsay, "Status Offenders Need a Court
of Last Resort," in Status Offenders and Juvenile Justice
System, N.C.C.D., New Jersey, 1978, p. 19.

“81mm, p. 19.

63

for the public. They also realize that there
are some children who need help, such as a
correctional service, that they cannot get
without a court order. Moreover, there are
some children who need help that they cannot
effectively get without parental participa-
tion, and experienced judges know that parents
often will not participate without a court
order.119

He enumerated the following factors responsible for compulsion:

(1)
(2)

(3)

(4)

(5)

(6)

(7)

Some children are simply intransigent.

Some parents are unable to discipline themselves or their
children unless they are compelled. Inertia is a common
parental failing.

Family may not want the stigma of "treatment."

Some decisions must be made for children, and there must

be compulsion to back up these decisions.

Court compulsion is necessary to assist these parents, to
rebuild a family structure, and to prevent undisciplined
children from plaguing a social structure founded on
respect for others.

Compulsion may be the only alternative that can effectively
prevent uneducated children from burdening a culture that
requires an educated demos.

If compulsion is necessary to protect this country's future,
then the proper institution for exercising this authority

is the courts.

 

1191bid., p. 20.

64

Disapproving the various provisions of the Standards

favoring the child, Judge Arthur observed that

the thrust of the Standards is to denigrate
parents and family, to give any child at

any age full control of his environment, and
to protect children from juvenile courts
that are pictured as somehow anxious to im-
prison children in heartless homes at the
mere behest of a parent.120

Justifying the court coercion, he argued:

But coercion does work, every day. It
holds suicidal and runaway children until
help can arrive; it maintains the status
quo until the help can cool pressures; it
compels medical and mental diagnoses that
identify and solve root problems; it leads
the horse to water.121 '

Replying to the "labelling theory" and stigmatization
problem, he was of the view that "returning a child to the
control of beneficent parents is certainly worth the price

of some teasing the child might receive from his peers for

being a 'J.D.'"122

Regarding availability and efficacy of alternative
services suggested by the Standards, he contended:

These services might exist in an ideal
world, and they are being developed by
juvenile courts in many metropolitan centres.
But they do not now exist at every 'con-
venient' location throughout the length and

 

120Ibid., p. 24.
121

 

Ibid., p. 25.

122Ibid., p. 25.

65

breadth of this land, and not every community
will--or can afford to--provide them simply
because the Standards eliminate juvenile court
jurisdiction over status offenses.123

Extending the logic, he pointed out that "by eliminating the
court's jurisdiction over the juveniles, the Standards

drastically curtailed the most meaningful surveillance over

rehabilitative institutions."124

Rejecting the accusation of arbitrariness and lack of
due process in the courts, he maintained that other alter-
native administrative agencies will develop their own
standard of fairness and propriety, no better than the courts.

He upheld the ground of unequal protection on the
premise that "Americans insist that their children have un-
equal protection."125

Main contentions of Judge Arthur Lindsay are:

Children are not small adults. They lack
experience; by definition they lack maturity.

They cannot choose intelligently between

options, because they do not know the options

or the consequences of the options. Children
should not be emancipated wholesale.126

In conclusion, he summarized:

Finally, courts are able to resolve many
family problems that would not be resolved
without a court's involuntary intercession.

 

123Ibid., p. 26.
1241mm, p. 27.
125Ibid., p. 29.

 

Ibid., p. 31.

 

66

Courts have demonstrated this ability time
and again, in juvenile cases, in divorce
cases, in alcoholism cases. Every possible
case should be diverted, and every possible
resource should be develoPed to allow
maximum diversion; but courts should be,
they must be, available to require needed
help when it is refused or ignored. The
focus of this intervention should not be
shifted from the culpability of children to
the culpability of parents, it should be
shifted away from anyone's culpability, so
far as the Constitution permits.127

The same writer, in an article in 1975, divided status
offenses in four categories: (1) The Chemical Category
(2) The Control Category (3) The Education Category, and
(4) The Family Category. Discussing each category, he
justified court intervention as the only valid intervention
necessary for the child, family and society. Lindsay

observed:

I believe that status offenses are among
the most serious matters that come before
our courts, as serious certainly as car theft
and shoplifting and possibly burglary. Status
offenses are the tip of the iceberg, or may
be more appropriately, the tip of the volcano.
What little we see on the surface: skipping
some school, staying out late, dating boys
the father doesn't like, looks rather small
and harmless. But for those who get as far as
the court, there is usually much under the
surface. Status offenses are an indication of
some serious trouble. That this is the place
where we can help, where we can help, where
we can reduce the crime rates of the future.128

 

127Arthur G. Lindsay, "Status Offenders Need Help Too,"
Juvenile Justice, February 1975, p. 5.

128Rido , p. S.

 

67

Lindsay thought that "only a court can enforce
conduct with proper protection of civil liberties" 129 and

that "we cannot afford to have two sets of institutions, one

for the nice children and one for the not so nice ones."130

He warned: "let's not phase out the courts until we have
phased in the new alternatives, and let's retain the court
for those who refuse the new alternatives."131

In conclusion, he observed:

The essence of this issue is that the
court should be available when it is needed
regardless of the misconduct, but it should
not be used when it is not needed. We
should divert when we can divert. But if
the child or the family cannot or will not
accept needed treatment, and if the need for
treatment is more important than the stigma
of a court record, then the court should be
there to impose the needed treatment.132

Another, Judge Robert L. Drake, discussing the case

of elimination of status offenses gave out:

The proposal to eliminate status offenses
misinterprets the fundamental reason for
increasing crime, and, rather than decreasing
it, will result in a further increase. It
limits society's response to treatment of
crime as a symptom, while accentuating its
true cause: the widespread disease in contem-
porary society of liberation without respon-
sibility and family breakdown. Its end
result is unlimited permissivism.133

figIbid., p. 6.
130

Ibid.
131
132

 

 

Ibid., p. 7.
Ibid.

133‘Rohert L. Drake, Juvenile and Family COW.
May 1978, p. 34.

 

68

Drake asked "What do children want from the adult
world?" Answering, he agreed with Dr. Mario Pei "that
quality is not buddyism, permissivism, sympathy, or even as
perceived by many today, 'love'" but "he believed the best
term is 'justice.'"134 Drake believed that

full liberation for children will result

in more social breakdown and welfare costs;

also in more abandonment, loneliness, mental
illness, and, for those who strike out

against their desolution, violence and crime.135

He suggested

more facilities, mandatory diversion for
voluntary action, notice to the respon-
sible non—court agency, screening by the
Prosecuting or District Attorney, limi-
tations on detention, recording of edu-
cational priorities, counseling programs
for children and families in need of
specific services and interdisciplinary
in-service training.13

Finally, he stated:

For a system of justice for children to work
it must first be believed in and practiced
by the adult world. It must also offer
positive alternatives, with fair rules which
are consistently applied, and which have
certainty. 37

Anthony A. Guarna supported the view that status of-
fenders belong in juvenile courts and argued:

 

134Ibid., p. 38.
135Ibid.
136Ibid., pp. 39-40.

1371bid., p. 40.

69

We cannot quarrel with the philosophy
that whenever possible, the juvenile court
process should not be invoked. Also, we
cannot find any opposition against adjudi-
cating the status offender non-delinquent.
The opposition is against removing this
child completely from the jurisdiction of
the juvenile court. In addition, we cannot
find any strong opposition against the
current philosophy that status offenders
should not be institutionalized with adjudi-
cated delinquents.138 '

Expressing his disenchantment with other social agencies,

he compared private and public social agencies:

We can also place many of the public
child welfare agencies in the same category
as the private social agencies. Again,
many probation officers will recognize that
many of the status offenders who find their
way into the juvenile court are the failures
or rejects of public and private social
agencies.

He rounded off his conclusion with the remark that "the

juvenile court will not be the court of last resort but will

continue to be the best resort."140

Another point put forward by Martin and Snyder is

that no one can show that children who are
neglected by parents and society make better
and happier citizens. Nor can anyone show
that promiscuous teenagers are happier,
better adjusted, and more adequate parents

 

 

138Anthony A. Guarna, "Status Offenders Belong in
Juvenile Court," Juvenile Justice, November 1977, p. 36.

1391bid.

140

Ibid., p. 37.

70

than teenagers whose sexual activities are
curtailed by internal and external res-

traints. No one can show that ignoring
runaways will make them feel wanted or loved.141

They believed that if the status offenses are taken
out of the court and community resources are not placed at
the disposal of the court, then "we are putting the burden
of change on those who have shown that they can bear it

least well."142

The Case for Deinstitutionalization or Decriminalization

Decriminalization involves elimination of status
offenses from the Juvenile Code. Naturally it eliminates
juvenile courts' jurisdiction. In other words, it would
place a burden on other alternate agencies specifically and
on the community generally. Again, the advocates argue in
favor of decriminalization on the basis of the labeling
theory, stigmatization and other socio-legal concepts.

The controversy over status offenses was simmering
for quite some time but the first authoritative dissent was
heard in the President's Commission's Task Force Report in

1967 which stressed the narrowing of juvenile courts'

 

141Lawrence H. Martin, Phyllis R. Snyder, "Jurisdic-
tion Over Status Offenses Should Not Be Removed from the
Juvenile Court," in Status Offenders and Juvenile Justice

§ystem, NCCD, 1978, p. 9.
142Ibid., p. 9.

71

jurisdiction:
Any act that is considered a crime when
committed by an adult should continue to
be, when charged against a juvenile, the
business of the juvenile court...but...
serious consideration should be given to the

complete elimination of the court's power
over children for non-criminal conduct.143

More forthright comments and criticisms were audible
in the Nineteen Seventees. The Board of Directors, National
Council on Crime and Delinquency, in their policy statement,
demanded that the "jurisdiction over status offenses should
be removed from the juvenile court." In the Board's view
"subjecting a child to judicial sanction for a status offense--
a juvenile crime--helps neither the child nor society; in-
stead, it often does considerable harm to both."144
The Board agreed that "imprisonment of a status
offender serves no humanitarian or rehabilitative purpose"
and that "it is, instead, unwarranted punishment, unjust

because it is disproportionate to the harm done by the child's
non-criminal behavior."145

 

143The President's Commission on Law Enforcement and
Administration of Justice, Challenggiof Crime in a Free
Society, U.S. Government Printing Press, Washington, D.C.,
19 7, p. 85. ,

144Board of Directors, National Council on Crime and
Delinquency, "Jurisdiction Over Status Offenses Should Be
Removed From the Juvenile Court," Status Offenders and Juvenilg
Jugtice System, National Council on Crime and Delinquency,
1978, p. 3.

1451pm.

72

Referring to a California Legislative Committee

report, which mentioned:

No one can prove that truants who become
wards of the court end up better educated
than those who do not. No one can show that
promiscuous teenagers who are institutionalized
have fewer illegitimate children than those
who are not. Nor can anyone show that runaways
who become wards of the court end up leading
better adjusted lives than those who do not.
Finally, no one can prove that unruly, dis-
obedient minors who come under court super-
vision end un in prison less often then those
who do not.1

The Board believed that the

juvenile court system can utilize its
coercive powers fairly and efficiently
against criminal behavior that threatens
the safety of the 'community' and that
effort of the juvenile court to correct

a non-criminal behavior, it has frequently
resulted in misapplication....1

They quoted Judge David BaZelon as saying:

The situation is truly ironic. The argument
for retaining beyond-control and truancy
jurisdiction is that juvenile courts have to
act in such cases because 'if we don't act,
no one else will.' I submit that precisely
the opposite is the case: because you act,
no one else does. Schools and public agencies
refer their problem cases to you because you
have jurisdiction, because you exercise it,
and because you hold out promises that you
can provide solutions.1

 

146Ibid., p. 4.

147Ibid.

148David L. Bazelon, "Beyond Control of the Juvenile
Court," Juvenile Court Journal, Summer 1970, p. 44.

73

Regarding labelling, the Board contended that "whether we
label children status offenders or delinquents, once

introduced into the juvenile court process they become

stigmatized."149

The Board further affirmed that "weighing the costs
of the status offenders' involvement in the juvenile court

process persuades us that this jurisdiction should be

eliminated.150

The Board proclaimed that "rebelliousness and

resistance to authority are characteristic of adolescent

151

growth," and it concluded that

The juvenile court should be the agency
of last resort for antisocial--i.e.,
criminal--conduct. Its efforts and sanctions
should be reserved to serious criminal con-
duct. Although a matter for community concern,
noncriminal conduct should be referred to
social agencies, not to courts of law.152

The federal legislation of Juvenile Justice and Delinquency
Prevention Act of 1974 speeded up the pace of deinstitu-
tionalization and endorsed the concern of the people about

status offenses. The Act demanded that

 

149Board of Directors, National Council on Crime and
Delinquency, "Jurisdiction Over Status Offenses Should Be
Removed From the Juvenile Court," Status Offenders and the
Juvenile Justice System, National Council on Crime and
Delinquency, 1978, p. 4.

150Ibid.
151Ibid., p. 5.
1521nm.

74

Juveniles who are charged with or who have
committed offenses that would not be
criminal if committed by an adult, shall not
be placed in juvenile detention or correc-
tional facilities, but must be placed in
shelter facilities.153

The Act provided time span to the States and asked for the
development of alternative services and a monitor system to
review the progress achieved toward deinstitutionalizing
status offenses, to enable the States for federal grant.

"The mainstream of current thinking within the field
of juvenile corrections feels that the present juvenile
institutions have proven unsuccessful, specially when dealing
with status offenders."154

The Standards for Noncriminal Misbehavior proposed
by the Institute of Judicial Administration and the American
Bar Association Joint Commission on Juvenile Justice
Standards recommended the elimination of status offenses
from juvenile court jurisdiction. It stated that

A juvenile's acts of misbehavior, ungovern-

ability, or unruliness which do not violate

the criminal law should not constitute a

ground for asserting juvenile court juris-
diction over the juvenile committing them.155

 

153Christopher A. Martin, "Status Offenders and the
Juvenile Justice System: Where Do They Belong?" in Juvenile
Justice, February 1977, p. 11.

154Ibid.

155Board of Directors, National Council on Crime and
Delinquency, "Jurisdiction Over Status Offenses Should Be
Removed From the Juvenile Court," Status Offenders and the
Juvenile Justice Systgm, National Council on Crime and De-
linquency, 1978, p. 15.

 

75

Judge Orman W. Ketcham of the Superior Court of the
District of Columbia defended the recommendations, sugges-
tions and observations made by the IJA/ABA (Institute of
Judicial Administration/American Bar Association) Joint
Commission of the Juvenile Justice Standards Project. The
elimination of the jurisdiction was emphasized on the grounds

that

parents who bring complaints against their
children are not always reasonable; inde-
pendent and unruly youths are not necessarily
antisocial and headed for criminal careers;
and juvenile court intervention rarely re-
medies the interpersonal family conflicts
that are at the root of such adolescent
deviance.156

Ketcham indicated that "lawyers cite constitutional
infirmities such as vagueness, lack of due process and un-

equal protection of the laws."157 He contended that

under our American Constitutional principles,
coercive judicial action is not justifiable
unless a vital State purpose is concerned and
then only if judicial intervention equitably
applied will carry out the defined purpose of
the State,

and "by such measurements, juvenile court intervention into

status offenders is neither justifiable nor effective."158

 

156Orman W. Ketcham, "Why Jurisdiction Over Status
Offenders Should Be Eliminated from Juvenile Courts," in
Status Offenders andgthe Juvenile Justice System, NCCD, 1978,
p. 34.

157Ibid.
158Ibid., p. 35.

m

76

Ketcham rejected court intervention from sociological
points of view such as labeling, stigmatization and inter-

ference in family autonomy. He said that

court management and judicial administration
allege administrative costs and inefficiency,
overloaded court dockets and retardation of
the growth 9f needed voluntary social
agencies. 5

Ketcham advocated that the "coercive intervention by
a juvenile court is an unprincipled use of judicial
authority."16o He maintained, "A juvenile court's juris-

diction over status offenses violates these well established

“161

legal maxims. He argued:

Repeatedly, the juvenile court coercively
intervenes into the lives and family affairs
of juveniles for the private purpose of
restoring a parent's control or returning a
runaway child--like a chattel--to a parent.
In matters of truancy, sexual promiscuity, or
the use of alcohol or drugs, the juvenile
court intervenes to enhance the private and
individual best interests of the child by
supervising his or her education, morals,
manners, or health.152

He observed that the courts' "assertions are pretentions and

overly ambitious."163

 

159K.~Bur1chart, "The Child and the Law--Helping the
Status Offender," in Status Offender and the Juvenile Justice

§zstem, NCCD, 1978, p. 35.

Orman W. Ketcham, "Why Jurisdiction Over Status
Offenders Should Be Eliminated from Juvenile Courts," in
Status Offenders ang_Juvenile Justice System, NCCD, 1978, p.35.

“this... 36.
1622hid.
163Ibid., 37.

77

Referring to education and court jurisdiction over

truancy, he remarked:

Nothing can be more valuable to a young
person in today's world than a good educa-
tion. But forced attendance at a public
school, without motivation and personal in-
volvement by the juvenile, does not assure
an education. 'You can lead a horse to
water, but you can't make it drink....' Too
often juvenile court intervention in truancy
cases is merely punitive and counterproduc-
tive in educational terms.1

Ketcham viewed that "coercive intervention by a
juvenile court is an unwise and uneconomic use of public
funds."165 He was of the opinion that "if there were no
status offense cases, juvenile courts could devote most of

their time and attention to the most pressing problem of the

"166

decade--juvenile crime, because "status offenders under

the jurisdiction of the juvenile court consume a far greater

amount of social services than other types of cases, all at

very substantial cost to the public."167

He further held that

coercive intervention by a juvenile court
damages juveniles instead of providing re-
habilitation and socialization. In this

context, be compared the juvenile justice

 

164Ibid09 Pp. 37-38.

165Ibid., p. 38.
166

 

 

Ibid., p. 39.
167mm.

 

78

system with hospitals and observed that like
unsanitary hospitals, the juvenile justice
system seems to be contagious and likely to
infect its clients with further social
deviance.1

He agreed that status offenders remain in jail for
greater length of time and the social and behavioral problems
cannot be solved by dictation. In the same connection, he
said that the juvenile court judges should "humbly accept
the limitations of judicial process"169 because "no doctor
should attempt to perform surgery with a garden spade."170

Ketcham alleged that "coercive intervention by a
juvenile court is legally unwarranted and possibly unconstitu-

171

tional." He referred to "the void for vagueness doctrine,"

"prevention judicial action," "discrimination" were appli-
cable and therefore status offenses legislation was
unconstitutional.

He agreed that

the original foundations of the juvenile
status offense jurisdiction were infirm,
and the long history of abuse of discre-
tion, mismanagement, and misguided opera-
tion are so ingrained in the process that
proposed reform is unlikely to succeed.172

 

 

168Ibid., p. 41.
169Ibid., p. 42.
170

19.3.15;- 9 P- 43-
Ibid., p. 44.
Ibid., p. 49.

79

A different level attack on the jurisdiction of
juvenile courts was launched by Meda Chesney-Lind. Referring
to "judicial paternalism" and "enforcement of patriarchal
authority," it was maintained that "like good parents, police
and court personnel respond differently to the indiscretions
of young men and women."173 It was observed that "the court
involves itself in the enforcement of adolescent morality

and parental authority through the vehicle of status

offenses."174

Reiterating Meda maintained that

The evidence is clear that girls charged
with status offenses receive harsher treat-
ment than girls suspected of crimes at the
level of referral to court, pretrial deten-
tion, and incarceration. It is also appa-
rent that girls are far more likely than
boys to be brought into the court system as
status offenders despite evidence that boys
commit as much of this type of behavior as
girls.175

Continuing the arguments, it was added:

Putting this another way, status offenses
have allowed the construction of a double
standard of juvenile justice. These vague
offense categories coupled with the court's
commitment to Operate in loco parentis

 

173Meda Chesney-Lind, "Judicial Paternalism and the
Female Status Offender," in Status Offender and Juvenile

Justice System, NCCD, 1978, p. 111.
174Ibid., 112.

1751bid., 118.

80

encourage the court to involve itself in the
maintenance of traditional sex roles which
require women to be obedient and chaste whi%e
encouraging young men to 'sow wild oats.'1'7

Meda pleaded that "these abuses of judicial discretion make
it imperative that the courts' authority over the status
offender be limited and other sort of responses to youth in
trouble be sought."177 Concluding, Meda declared that "the
juvenile justice system has engaged in the violation of the
civil rights of most of the females who have come into its
jurisdiction."178

While measuring and analyzing the cost and service
impacts of deinstitutionalization of status offenders in ten
States, Arthur D. Little, Inc., observed that "in any event,
our analysis indicates that the total net increase would not
be prohibitive for any State that wished to move toward de-
institutionalization."179 .

Success of Sacramento County 601 Diversion Project
and Santa Clara County's Diversionary Program for '601'
offenders, provided a boost to the exponents of deinstitu-

tionalization.

 

176Ibid.
177Ihid.
178Ibid., p. 199.

179Arthur D. Little, Inc., "Cost and Service Impacts
of Deinstitutionalization of Status Offenders in Ten States,"
in Status Offender and the JuvenilgyJustice System, NCCD, 1978,
p0 1590

81

Re-evaluation of PINS (Persons in Need of Supervision)

and the like, indicate that "court action may seriously

intensify rather then alleviate parent-child alienation."180

Regarding the role of the courts in parent-child relation-
ship, the following graphic description is very revealing:

Often parents and child are sent home
together and told to come back another day.
Nothing seems to have changed, no remedies
have been provided and neither parent nor
child feels that he has really had a chance
to explain his side of the story to anyone....
Families that bring PINS petitions come to
court with some kind of expectations....It
is hard to envision how such public dis-
plays of family hostility and rejection can
improve relationships among family members....
Court intervention may also intensify
competition among family members.181

According to a California Legislature Report:

Not a single shred of evidence exists
to indicate that any significant number of
beyond control children) have benefited
by juvenile court intervention). In fact,
what evidence does exist points to the
contrary.182

 

180Anne R. Hahoney, "PINS and Parents," in Be ond
Control, Tietelbaum Lee and Gough, Aidan, Ballinger Publish-
ing Company, 1977, p. 161.

1811mm, p. 167.

182Lee E. Tietelbaum and Leslie J. Harris, "Some His-
torical Perspectives on Government Regulation of Children
and Parents," in Beyond Control, by Tietelbaum and Gough,
Ballinger Publishing Company, Massachusetts, 1977, p. 272.

82

Aidan R. Gough described the juvenile justice system

as unfair because

a system which allows the same sanction for
parental defiance as for armed robbery--
often with only the barest glance at the
reasonableness of parental conduct--can only
be seen as inept and unfair.183

Gough maintained that

the studies appear to support the following
points which underscore the feasibility of
curtailing the juvenile courts' status
offenses jurisdiction:

(1) Runaway, beyond-parental-control, and
other forms of non-criminal misbehavior can
be successfully dealt with outside the
'uvenile justice system.

22) Formalized detention in such cases can
be avoided through counseling services and
alternative residential placements that are
non-secure, temporary and voluntary.

(3) Youths involved in non-criminal behavior
who are handled in this way, rather than by
induction into the intake and adjudication
processes, are likely to have fewer subse-
quent brushes with the law and to have a
better general adjustment to life and its
problems than those drawn into the juvenile
’ustice system.

24) Though many resources which do not now
exist will have to be created, and many of
those existent will have to be strengthened
and re-directed, a start on handling non-
criminal behavior cases outside the juvenile
justice system can feasibly be made in most

 

183Lee E. Tietelbaum and Leslie J. Harris, "Some
Historical Perspectives on Governmental Regulation of
Children and Parents," in Be ond Control, by Tietelbaum and
Gough, Ballinger Publishing Company, Massachusetts, 1977.
p. 273.

83

cases, with resources now available. And
at least to some notable extent, the
services now lacking may be created when
the demand is created.1 4

Edward Pabon depicted how referers and the court
pursue a revolving door policy to the detriment of the youth.
He said:

Hence, while the courts cannot stop the
inflow of referrals, they certainly can
attempt to exit them.with minimal or no
court intervention. By this revolving door
policy, the referring agencies can show that
they at least tried to cope with the problem
youth, and the court can display its bene-
volent-~in the best interest of the child--
posture. The only victim of this policy,
unfortunately, are the youth themselves,
because they are not likely to receive
needed services from either the referring
agencies or the court.185

Pabon further contended:

Running away from home, using alcohol
and drugs, and having numerous problems with
school are problems not limited to a special
category of youth officially detected and
processed as status offenses are not intri-
sically different from most adolescent youth
in the behaviors which resulted in their
commitment. Rather, the difference lie in
the handling of these youth by the juvenile
justice system, rather than by community,
neighborhood, parents, relatives, or friends.186

 

184Ibid., p. 282.

185Edward Pabon, "Servicing the Status Offender," in
Juvenile and Family Court Journal, May 1978, p. 43.

186Ibid., p. 47.

84

And finally he said that "from our observation of the con-
temporary juvenile court in the United States, comprehensive
societal action toward enhancing the conditions for growing

up in this country are long overdue."187

 

187.13.131.’ 9 Po 48.

CHAPTER VI
DISCUSSION

Controversy around status offenses remains acute but
still there are areas of agreement. It has been acknowledged
that there should be minimum or no stigmatization, more and
more use of alternate service facilities, adequate provision
of community-based diversion, correctional and rehabilitative
programs, overall improvement in school system, urban.living,
and in the juvenile justice system. Juvenile courts are to
be used as courts of last resort. It is no more conclusive
to say that poverty, broken homes, alcoholism, sexual im-
morality, etc. are by themselves causes of delinquency. We
shall utilize a two-pronged approach to deal with the whole
segment of status offenses, to know where all these arguments
are leading. First, we will deal with the importance of
status offenses and whether they should be decriminalized/
deinstitutionalized. Secondly, the availability of other
alternatives and their usefulness will be assessed.

Answer to the first is not far to seek. It is mostly
a matter of perception and perceptions may and do change with
time. There was a time when status offenses were thought
necessary and became part of the social change. Now its

relevance is being exposed.

85

86

What is needed, as Judge Justine Polier has
suggested, is nothing less than a major
reorientation in American attitudes toward
children--all children—~to bring public
policy in line with our much-touted conceit
of being a 'child-centered' society.188

After all, the child is himself in a difficult situation to
adjust. He or she is caught in the process of socialization
and problems of growth. A child has to travel that awry
alley connecting youthful adolescence with adult maturity.
That is the time of unchilled desires, of awakened self, of
feeling the world anew, crossing the contradictions, facing
the social order, hobnobbing with norms and feeling suscep-
tible to innumerable nuances of inner and outer stimuli. If
we go back to our own times, it will be easy to comprehend
whether the adolescent journey was eXhilarating or tortuous.
At that age punishment can be benevolent and benevolence can
be punishment. It matters a lot what, why and how you
administer the punishment. Judging from many corners, status
offenses look punitive. I think the difference lies in
viewing, perceiving, handling and recycling the behavioral
pattern. The behavior of a status offender does deserve
seriousness and attention but not to the extent that deviant
be turned into a detenu. For more care and guidance they
need not pass through adjudication and preventive detention.
No amount of differentiation and incarceration would be
helpful to correctional and rehabilitative process. The
inherent capacity of the child must expand and we have to
188

Steven L. Schlossmen, love and the American Delin-
uent, The University of Chicago Press, Chicago, 1977, p. 192.

 

87

make adequate room for it. That is what we try to do through
education and other social institutions. We should, there-
fore, shoulder our failures and share the agonies rather than
treat the child as an appendix.

Societies differ and what is good to one at a certain
stage may not be good to the other or vice versa. Therefore,
whatever we have to say should be in the context of that
society and that culture at that point of time. Thereby, it
will be unwise to ignore the functioning pattern of American
society while viewing status offenses which happen to be the
by-product of existing social change. Before we move ahead,
I will like to quote August Aichhorn:

The path.which the child must traverse
from the unreal pleasure--the world of his
nursing period to the real world of adult,
parallels that of mankind from primitive
times to the present. It may be longer or
shorter according to the particular cultural
level, but must be traversed by the child
in those few years during which he ripens
to maturity.1 9

That is a human tendency or what do we do? Do we
as adults not always try to shift the blame? Do we not
always try to quarrel, fight and struggle? Do we not
sermonize to others all the time while violating the same

principles we preach, under some sort of pretext or

 

189August Aichhorn, Wayward Youth, Viking Press, New
York, 1966, p. 6.

88

justification? Do we ever do introspection? What is the
difference? The President's Commission in the Task Force

Report described the difference in this way:

But the prescribed rules for street
fighting produce more deadly quarrels with
weapons of guns and knives than do competi-
tions among males who use brush, a disserta-
tion, or a contract.190

Therefore, the difference lies in kind, degree, quality and
so on. The idea of raising children through other agencies
except the home is preposterous, exceptions notwithstanding.
It does not mean a case for full liberation--liberation in
an anarchic sense. The utopian liberation is as counter-
productive as subservience and irrational restrictions on
human behavior. Both extremes result in social breakdown,
welfare costs, mental illness, more violence and revolt
against the establishment..

There is need for assimilation and consistent coherence
to match and neutralize every effect of deviancy. The
availability of a benign juvenile justice system based on
parens patriae doctrine or mere correctional system, is not
enough. All arguments favoring status offenses more or less

are misplaced and sound like prescriptions of discarded

 

190
The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: Juvenile De-
linquency and Youth Crime, U.S. Government Printing Office,
Washington, D.C., 1967, p. 25.

89

medicines. The use of the word "offenses" is in itself
offensive. It in no way communicates societal concern for
wavering kids. 'Why use coercion for correction? That
reflects ills of the social system. The process of decrimina-
lization is of course taking shape but in a subtle form.
Social reforms are not to be dictated but should
emerge out of the combined and general will of the people.
The spirit of social reform, which brought status offenses
to juvenile courts, should move ahead and not get clogged or
lose momentum. What's needed is consensus for a suitable
legislation at the State level. Some of the States are
already coming up. The Federal government has timely given
a catalyst in the form of the Juvenile Justice and Delinquency
Prevention Act of 1974. -
There are more heated arguments whenever the question
of deinstitutionalization comes up, especially the elimina-
tion of the juvenile court's jurisdiction over status offenses.
Judges feel that courts are the proper forum to adjudicate
status offenses and can render valuable services to the needy
ones. There is validity in those arguments put forward to
demonstrate the utility of the courts. There is also validity
in the criticism of the courts' performance too. At the
first instance, how far is it proper for the courts to inter-
fere in intra—family problems. The issue is debatable. The
golden rule could be minimum interference is better. When

courts become the "dumping grounds" for the problems which

90

do not belong to them, the juvenile justice suffers. Narrow-
ing down of courts' jurisdiction is essential to make them
effective as judicial bodies. Because courts adjudicate,
schools, families and other agencies do not solve their
problems at their level but follow escape route leading to
courts. Let them face the challenge which the courts are
facing. If police, courts and corrections have to regulate
the families, schools and private environment of social life,
then it will be more a police state rather than a welfare
state. Inner strength or spirit to overcome deve10ps when
outside help is rationed. Social organisms grow healthy when
they are allowed to function. Inexperience and immaturity
may go with age. It may be tolerated and tempered rather
than adjudicated. How can the courts say that their decisions
are the best for the problematic child? There are better
equipped agencies to take care of those problems. The court
has no problem solving function. In an adversary type of
system, the parties with a motive, with expectations and more—
over with a desire to get a favor. Do the parties get satis-
faction in the court's decisions? Can the court satisfy
everybody? Is it its role? No wonder the courts have been
the sole target of attack and have had to face all sorts of
criticism whether it belonged to them or not. Too much
responsibility and too much visibility is their vulnerability.
The limitations of the courts are obvious. They may not get
what they require and fail to accomplish what they desire.

91

Their image goes down not on account of what they do or per-
ceive but their failure to do what others expect and perceive
them to do. Courts are not in a predicament per se but their
position has become controversial. Some of the judges
rightly feel that they cannot legislate and their duty is to
apply the law. If the people feel that the law is bad why

do they not get it changed?

Much of the criticism.levelled by the advocates of
change may be valid but that is not enough for a change.
Where is a constructive framework for an alternative? There
should not only be an atmosphere conducive for a change, there
should also be a will to change. In this case what is missing
is a better alternate system. The Report or final draft of
Standards IJA/ABA has not been approved. Drafts by other
Committees lack unanimity._ So long as there is no acceptable
alternative program change cannot come. Patchwork may be a
good political expedient policy but won't bring a change.
Courts are at least the tested forums but they cannot bring
change. Who should be the prime mover to bring about change?
Should it be the Supreme Court or the State Legislature, the
bureaucracy or social artifacts, academecians or social
astronauts? Everyone means no one. A combined effort some-
times lacks functional viability. Some forums move slowly.
We have to wait and see what the State legislatures do. They
are trying to work out legislation to get federal grants.

Time will tell us about their achievements.

92

Yet there is another viewpoint:

Neither the omnibus theory of delinquency
nor the total hands-off policy of the tenta-
tive Juvenile Justice Standards volumes fit
all cases comfortably. The Omnibus theory
casts its net too widely into the pool of
youth misconduct. But a policy of 'benign
neglect,' abandoning all bases for coercive
State intervention, seems irresponsible.
Public policy should seek a workable middle
ground. But those who would use the juvenile
court to protect the rebellious young must
bear in mind that, often, coercive State
power may simply be too blunt as instrument
for the purpose.1

An interesting aspect of the whole issue is:

In the 1840s, America established insti-
tutions for delinquents. In the 19708,
America is talking about dismantling those
very same institutions. Why, after almost
130 years, is the United States turning its
back on what was once believed to be the
savior of the nation's wayward youth?192

Look back on the society and consider the Task Force
Report's observation:

In some ways it is an intensely sensual
society; its members are preoccupied with
the sensations they can obtain from surfing
or drag racing or music or drugs. In some
way it is an intensely moralistic society;
its members are preoccupied with independence

 

191Francis Allen, "The Borderland of Criminal Justice"
(Chicago, university of Chicago Press, 1964), pp. 52-53, in
Confrontin Youth Crime, Twentieth Century Fund, Task Force
on Sentencing Policy Toward Young Offenders, Holmes and Meir
Publishers, Inc., New York, 1978, p. 86.

192Clemens Bartollas, Stuart J. Miller, and Simon

Dggétz, ngenile Victimization, Sage Publications, Inc.,
9P0 0

93

and honesty and equality and courage. On
the whole it is a rebellious, oppositional
society, dedicated to the proposition that
the grown-up world is a sham. 93

After viewing a variety of arguments/comments, the
discussion is wrapped up in the words bf Sir Henry Maine
that "the progress of civilized society was marked by the
transition from status to contract." Let us keep up this

progress of civilization in the context of status offenders.

CHAPTER VII
CONCLUSION

"Man was born free but everywhere he is found in
chains." These words of a political philosopher never
struck me that hard as when I was studying status offenses.
Under status offenses, not the man but the child was in
chains. Then, there flashed to my mind the Marxian slogan
raised by workers of the world that they have nothing to
lose but their chains. The children find themselves in a
similar position. They have nothing to lose but their
chains.

The noncriminal behavior of kids is punishable under
the Juvenile Code as "status Offenses" and in those
proceedings parents, teachers and guardians of the law are
the complainants. Is youth really guilty of those acts?

Yes, because

Youth bears law and order grudgingly. It is
asked to be quiet when noise is its vital
medium; it is asked to be passive, when it
longs for action; it is asked to be sober and

94

95

judicious, when its very blood makes youth
'a continuous intoxication.’ It is the
age of abandon....194

We expect from youth a wise behavior without realizing that

"the tragedy of life is that it gives us wisdom only when

it has stolen youth."195
But, do children deserve judicial punishment? Yes,

because by "discovering the world, youth discovers evil, and

196 The irony for

is horrified to learn the nature of man."
the kids is that parents feel offended, parens patriae-based-
courts adjudicate, and they are lodged in homes away from
home for rehabilitation. We also know what Dr. Karl
Menninger said: "What a mother and father mean to them is
more than any psychiatrist can ever mean" but we fail to
practice it. We also failed when we placed more faith in
artifical substitutes then in natural ones because as Karl

Menninger says:

Neither the modern state nor an harassed
juvenile court judge is a father, a halfway
house is not a home; a reformatory cell is
not a teenager's bedroom, a juvenile hall
counselor is not a dutch uncle, and a cottage
matron is not a mother. This does not mean
that the peOple referred to should not be or
are not kindly and dedicated, but rather that

 

194Will Durant, Pleasures of Philosophxp Simon and
Schuster, New York, 1953. p. 399.

1952mm.
196Ihid., p. 400.

96

they are first and foremost members of organi-
zations, bound by institution controls and
subject to its exigencies, they are enforcers

of super-imposed rules. Where conflict arise
between the interests of a youth and those

of the organization to which these functionaries
are bureaucratically responsible there is no
pattern of action which can predict that they
will observe an order of value satisfaction
favourable to the youth's interest.

We also forgot what Shelley said in the Preface to
ggpmetheus Unbound that

Until the mind can love, and admire, and
trust, and hope, and endure reasoned prin-
ciples of moral conduct are seeds cast upon
the highway of life which the unconscious
passenger tramples into dust, although they
would bear the harvest of his happiness.

Hard realities of life are difficult to face through tender
emotional sentimentalism and simplistic solutions do not hold
good for complex problems. The caution lies in the words of

Professor Trojanowicz that:

Mere removal of the offense from the books
may cut the 'crime' rate, but this is too
simplistic an approach to a complex problem.
Without a means, a handle to justify interven-
tion, and without alternative services to deal
with the problem, the status offender would
merely be left to proceed to committing more
serious offenses, thereby losing an important
and vital Opportunity to intervene at a more
benign level. The problem may stem from
difficulties within family relationships or
problems in relating to the community, but if
the young person's problem is not dealt with,
intervention is just delayed 3ntil the time a
more serious offense occurs.1 7

197Robert C. Trojanowicz, Juvenile Delin uenc : Conce t
anngontrol, Prentice-Hall, Inc., Englewood Cliffs, N.J., 1978,
P0 30

 

97

Considering the socio-cultural background of this
country where a system of checks and balances is in vogue,
where the family has broken down and where society is more
legal, a different approach of understanding is needed. In
countries where status offenses are not legally enforceable
but socially tackled, it does not attract much attention.

Why is the pace of legal reform through legislation
so slow in State legislatures? I came to know the answer
through a State legislator: because the status offenders
belong mostly to minority communities, and the poor sections
of society, who, though greater in number, do not work as
pressure groups, and fail to impress their representatives
to move the matters in civic halls. Moreover, a sense of
apathy, a low key approach, lack of awareness are other
reasons for a lack of clamor for reform. Ironically, those
who are rarely affected by status offenses are greatly in-
volved but those who are really affected display hardly any
concern.

To paraphrase Bernard Shaw: the tragedy of life is
that we get what we don't need and we don't get what we need.
In the case of status offenses, we don't get the services we
need but we get the coercion which we don't need.

Taking a very realistic and practical view of the in-
dividualistic and fragmented society, I think it would be
very difficult to escape courts altogether. Institutionwise,

courts are the superior agencies. When rights, claims and

98

freedom are in jeopardy, who else except courts can adjudi-
cate? Concluding, I may add that one should let there be
"services" in place of offenses in the Juvenile Code, not only
in words but in a real sense of the term. Let the agencies
work because society does not. Let the State bind us together
because our relationships do not. Let the courts be our rear-
guard and safeguard while faith, love and confidence be our
enlightened vanguard.

Future Directions

The Juvenile Code is to be rewritten especially the
part comprising status offenses. The effect of decriminali-
zation and deinstitutionalization can be studied objectively
after provision for various services is made. Quite a good
amount of research is needed to focus in detail various
aspects of juvenile problems, viz runaways, dropouts, dis-
obedience, alcoholism, drug addicts, vandalism.... Socio-
economic and cultural influences are to be identified and
measured.

There is great dearth of data in this problematic area
which could be collected and analyzed. After detailed
analysis of various aspects, a comprehensive approach could
provide valuable material for the legislative wing to
coordinate its efforts with other professional and academic
agencies to bring around a functional set of laws based on

the social mandate.

BIBLIOGRAPHY

BIBLIOGRAPHY
Books
Allison, Richard (Ed). Status Offenders and the Juvenile

Spptice System. Natlon Counci on Crime and
Delinquency, Hackensack, N.J., 1978.

Brown, Michael. The Politics and Anti-Politics of the Yoggg.
Glencoe Press, Beverly HIIls, California, 9 9.

Durant, Will. The Pleasures of Philoso h . Simon and
Schuster, New York, 1953.

Romig, Dennis A. Justice for Our Children. Lexington, Mass.,
Lexington Books, 1978.

 

Sarri, Rosemary. Under Lock and Key: Juveniles in Jail and
Detention. Ann Arbor: University of Michigan, 1974.

pt Status Offenders: Their Fate in the Justice

S stem and an AIternate Pro osaI. Ann Arbor, MicHigan,
UfiiversIty of MIchIgan, 197$.

Sarri, Rosemary, and Hasenfeld, Yeheskel. Spought to Justice?
Juveniles the Courts and the Law. Ann Arbor,
Michigan, niversity of Michigan, National Assessment

of Juvenile Corrections, 1976.

Sarri, Rosemary, and Levin, Mark. Juvenile Delinguency: A
Comparative Analysis of Legal—Codes in the United
States. Ann Arbor, chigan, University of Michigan,

National Assessment of Juvenile Corrections, 1974.

 

Schlossmen, Steven L. love and the American Delinquent. The
University of Chicago Press, Chicago, 1977.

 

Tietelbaum, Lee E., and Gough, Aidan R. (Ed) Beyond Control.
Ballinger Publishing Company, Cambridge, Mass., 1977.

Trojanowicz, Robert C. Juvenile Delin uenc : Conce t and
Control. Prentice-Hall, Inc., EngIewood Cliffs, N.J.,
1978.

Twentieth Century Fund Task Force on Sentencing Policy Toward

Young Offenders. Confrontin Youth Crime. Holmes &
Meier Publishers, Inc., New York, 1978.

99

 

Periodicals

Arthur, Lindsay G. "Status Offenders Need Help Too," Juvenile
Justice, February 1975.

Carpenter, Kenneth S. Halfway Houses for Delinquent Youth,
Department of H.E.W., Washington, D.C., 1963.

Cernkovich, Stephen A. "Value Orientations and Delinquency
Involvement," Criminology, Beverly Hills, California,

1978.

Couch, Alan J. "Diverting the Status Offenders from the
Juvenile Court," Juvenile Justice, November 1974.

Criminal Justice Newsletter, July 11, 1977.

Criminal Justice Newsletter, Vol. 8, Number 20, October 10,
1977.

Criminal Justice Newsletter, Vol. 9, Number 6, March 13, 1978.

Drake, Robert L. "Elimination of Status Offenses: The Myth,
Fallacies and More Juvenile Crime," Juvenile and Family
Court Journal, May 1978.

Gill, Thomas D. "The Status Offender," Juvenile Justice,
August 1976.

Guarna, Anthony A. "Status Offenders Belong in Juvenile Court,"
Juvenile Justice, November 1977.

Hepburn, John R. "The Impact of Police Intervention upon
Juvenile Delinquents," Criminolo , 1977.

Hunt, A. Lee, Weiner, Ken. "The Impact of a Juvenile Curfew:
Suppression and Displacement in Patterns of Juvenile
Offenses," Journal of Police Science and Administration,
Gaithersburg, Md., 1977.

 

Kehoe, Charles J., and Freer, Richard. "Cooperative Services
for Runaway Youth," Juvenile Justice, February 1977.

Martin, Christopher A. "Status Offenders and the Juvenile
Justice System: Where Do They Belong?" Juvenile
Justice, February 1977.

Pabon, Edward. "Serving the Status Offender," Juvenile and
Famil Court Journal, May 1978.

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