Regulation of Non-Criminal Adolescent Behaviors (Status Offenses)

1. Regulation of Non-Criminal Adolescent Behaviors (Status Offenses) Class 9

2. Case of the Day • The “Hooky Party” • April 2003: Washington Heights • Facts: • Five girls (ages 13-14) at Intermediate School 164 who skipped school to attend a hooky party were forced to take tests for pregnancy and sexually transmitted diseases. • The girls were suspended from school and not permitted to return until they provided school officials with doctor’s notes and test results.

3. The Hooky Party (Cont.) • Five months later: NYCLU files suit against the City of New York, the Department of Education, and the school’s principal and administrator. • Claim: Violation of privacy, bodily integrity, equality, and due process. • Issues: • State  School  Parent Relationship? • Limits of state authority on behavior? • Health concern covered under caselaw?

4. The Hooky Party (Cont.) • January 2004: Settlement • School officials can no longer demand that students take tests for pregnancy or sexually transmitted diseases, nor can school officials demand to see the results of such tests or even make students reveal whether they are pregnant or infected with a disease. Sources: Susan Saulny & Abby Goodnough, Suit Says School Ordered Girls Tested For Diseases After Party, The New York Times, July 9, 2003 Alan Feuer, City Settles Suit by Girls Forced Into Sexual Disease Tests After Skipping School, The New York Times, February 1, 2004

5. Status Offenses and the Origins of the Juvenile Court • The Court envisioned a broad reach to any form of juvenile misbehavior, not just criminal behavior? • The court acted “for the state, as a parent,” to protect children who were abused or abandoned, living with “disreputable adults,” beggars, found gambling or drinking in saloons, wandering the streets (at night) • Rationale for state control when children engage in developmentally injurious behavior • Parenting children accused of criminal conduct was almost an afterthought in the original juvenile courts • The early court called children to account for any misbehavior, whether legal (if done by an adult) or illegal. It substituted for parents to correct the behavior of unruly children

6. What is a “Status Offense”? • Embedded in early Juvenile Court statutes • Behaviors that are law violations only if committed by juveniles. • Running away from home • Ungovernability; Incorrigibility • Truancy • Prohibited conduct: Smoking, Drinking, Sexual Behavior • Curfew violations • Social class dynamics • More problem-behavior – cultural – focus in recent decades

7. Typical Statutes • California W&I Code §601 • Minors habitually disobedient or truant – “beyond control” • Runaways • Petty offenses – misdemeanors, mostly • Alcohol, controlled substances • Ohio Stat. §2151.022 • Unruly behavior – defiance of parental control • Truant • Self-endangerment, moral health (very broad) • Visit disreputable places • Minnesota Stat. §260.015 • Specific definitions of prohibited misconduct • Includes some misdemeanors, alcohol and ‘controlled substances’ • South Carolina §20-7-6605 • Any offense that is not a misdemeanor or felony if committed by an adult • “Billiard Halls”? • Texas • “Habitually associates with vicious and immoral persons”

8. Rationale for Intervention • Should the state respond to children who are in conflict with its institutions, including family? • When children break the law, no matter how minor, should they be permitted to return home when the home may be implicated in their behavior? • If there is risk of injury, can we justify state coercion? • Isn’t this just a case of the court enforcing “other people’s rules”? • Can and should courts intervene to prevent minor misconduct from ripening into criminal behavior? • Risks? Prediction?

9. Status Offenses: 1985-2002

10. National Statistics (1997) • In 1997, juvenile courts formally processed an estimated 158,500 status offense cases. • These cases accounted for about 14% of the courts’ formal delinquency and status offense caseload. • Liquor and truancy offenses accounted for the greatest proportion of status offense cases. • Runaway: 24,000 • Truancy: 40,500 • Ungovernability: 21,300 • Liquor law violations: 40,700 • Miscellaneous (Curfew, Smoking, etc.): 32,100 • (Source: Juvenile Justice Bulletin, October 2000)

11. Gender Differences (1997)

12. Age & Status Offenders (1997)

14. Race & Status Offenses

15. Adjudicated v. Not Adjudicated

16. Supreme Court Rationale • Bellotti v. Baird, 443 U.S. 622 (1979) • ‘Peculiar vulnerability of children’ • Children’s inability to make crucial decisions in an informed manner (Competence? Immaturity?) • Importance of parental role in child rearing • In short: Protecting kids from being kids • State cases – are status offenses a pathway to criminality? • What should the state do when the parents lose control?

17. Juvenile Court Responses to Status Offenders • Gender dynamics – see, Hagan, “Power Control Theory” -- thread from “immorality” to pregnancy, girls were often detained • “Gendered administration” of status offenses (see Feld) • Detention as “front end” punishment, largely unregulated both in its use and its conditions for several decades • Conflict with diversionary theory of juvenile court ? • Court-ordered restrictions on freedom of movement • Violation of “valid court order” is delinquency, subject to full force of juvenile court sanctions and interventions

18. Modern Reforms • Tied to rights movements in 1960s • Context of constitutional activism and change in juvenile court setting (Gault, Kent) challenged wisdom and fairness of procedural informality • Skepticism about efficacy of rehabilitation generally • Segregation of “status offenders” from other juvenile offenders in detention and correctional placements • Influence of “labeling theory” or secondary deviance on reforms

19. Modern Reforms • Push back: • Runaways and child prostitutes seen as victims of violence in families and other family pathologies or inadequacies – shift of legal attention to sanctions on parents • Increasing use of mental health placements to circumvent prohibition of ‘status offenders’ in the juvenile court • Theoretical tension between control of children and fostering developmental progress toward “autonomy” • Tension between parent and child over autonomy and rights • Tensions between parent and state when parents allocate rights to children that the state might not (e.g., Ramos v Town of Vernon) • Missing children as animator of popular concerns about need for stronger public protection of children

20. Cases • S.S. and L.B. v. State (299 A.2d.560 (Me.1973)) • Due process guarantees cannot be equated with vagueness concerns • Rejection of some aspects of Gault? Due process not required here despite possibility of loss of liberty • Huh? No equal protection claim? Not when ‘salvation’ is the aim instead of punishment • “These standards are not vague when applied to this class” • “Salvation” not punishment • It’s ok to be concerned with prediction (true? Does vice predict robbery or car theft?)

21. Cases • E.S.G. v. State (447 S.W.2d (Tex. Ct. Civ. App. 1969)) • Facts (female) • Confined indefinitely in state correctional agency to age 21 • Vague standard? Child-specific standard of conduct (concern for health and morals of child is heart of statute) • Rights of child are protected by careful mapping of alleged conduct to the danger to health and morals

22. Cases • Qutb v Bartlett, 11 F.3d.488 (5th Cir. 1993) • Persons under 17 banned from public places or “establishments” from 11PM to 6AM unless accompanied by parent or guardian. Doesn’t apply to religious, school or civic organizational events • Parents sued, claimed that statute violated children’s First Amendment rights, plus Equal Protection violation • Is age a suspect classification? No, so there is no compelling interest in government regulation of freedoms • But “compelling interest in promoting safety and decreasing juvenile crime” would allow narrowly tailored statute to be constitutional -- supported by data • District Court rules that it is sufficiently narrow so as to avoid constitutional infringement for juveniles • Statute does not violate parents’ rights – is state supplanting parental discretion?

23. Cases • See, also, Ramos v. City of Vernon (254 Conn. 799, 761 A.2d 705, Conn., 2000) • Crime control rationale • Opens door to searches based on allegation of curfew violation or other status offense violation • But see Nunez v City of San Diego(114 F.3d.935,950 [9th Cir.1997]) • curfew ordinance restricts access to public forums, fails both intermediate and strict scrutiny standards

24. Legislation JJDPA (42 U.S.C. 5601) • The Federal Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 mandated that states receiving any federal (JJDP) funds are shall comply with three specific requirements contained in the Act: • Deinstitutionalization of Status Offenders (DSO) • Status offenders may not be held in secure detention or confinement. (Status offenses are non-criminal offenses that only apply to children under 18, such as skipping school, running away, and breaking curfew.) There are several exceptions to this rule that allow for temporary confinement for up to 24 hours. • This provision seeks to ensure that status offenders who have committed no criminal offenses are not placed in jails and prisons, including adult jails and prisons, for extended periods of time. These children need community responses – including alternative schools, residential homes, counseling, mentors, and jobs – not jail.

25. Separation • Children may not have any type of contact with adult offenders in confinement. This prohibition includes both "sight" and "sound" contact. • This provision protects children from abuse - physical and verbal - and physical assault. Under this provision, children can not be put in adjoining cells with adults, or placed in circumstances that allow them to be subject to threats and verbal abuse from adults in dining halls, recreation areas, and other common spaces. • Removal • Children may not be detained in adult jails and prisons, except for limited times before or after a court hearing (6 hours), in rural areas (24 hours plus weekends and holidays), and in unsafe travel conditions (24 hours.) • This provision protects children from abuse – physical and verbal – and physical assault because children housed in adult prisons are 8 times more likely to commit suicide; 5 times more likely to be sexually assaulted; 2 times more likely to be assaulted by staff; and 50% more likely to be attacked with a weapon compared to children in juvenile facilities.

26. Cases Involving Detention

27. Private v. Public Facilities

29. Curfews, Loitering, and Other Side Doors into Status Offenses • The Logic of Bellotti v. Baird as standard for analysis of curfew and other status offender statutes: • The ‘peculiar vulnerability of children’ • Adolescents’ inability to make crucial decisions • Importance of parental role in child rearing • Reassertion of Status Offense Logic as Crime Control • Ramos v. City of Vernon (254 Conn. 799, 761 A.2d 705, Conn., 2000) • Curfew statutes endorse pretextual stops? Is Fourth Amendment nullified • A Broken Windows idea – authorize proactive police response? • Parental liability statutes – incentivizing parents to increase their use of authority • Status offense laws as strategy to empower parents to use law as auxiliary for parental authority