Parents: The Real Problem

In sitting down and starting to put things on paper for my Child Advocacy Policy Workshop, I've come across an interesting trend. It seems that to effectively help children there needs to be a legal revolution -- a change of ideology, of approach and eventually of social values.

If we could manage to develop an approach to child welfare that does not clash with the privacy awarded to parents and to families (in Meyer v. Nebraska, Pierce v. Society of Sisters, etc.) then we wouldn't need such a revolution. It is unlikely that this will occur, so the privacy itself (which, by the way, is nowhere in the Constitutuion and developed during the much criticized Lochner era) must be addressed. Unfortunately, it is unlikely that there will be a successful social movement to address the needs of kids as contrary to the privacy "rights" of parents and families.

In that case, there have been a bunch of quasi-revolutionary creations to help children (and often others at the same time) that do not run contrary to general social sensibilities; Early Intensive Home Visitation, Shared Family Care and Family Treatment Courts for example. Each of these programs are quite different, but they have many similarities.

All three involve the indirect treatment of children by treating their parents. If we can manage to get parents off drugs, into parenting classes and out to steady jobs, then the lives of children will be better. While it is sad that society is not yet at the point to protect children directly, us child advocates will probably have to settle for this indirect (yet seemingly effective) prevention and treatment of abuse and neglect by focusing on the real problem: parents.

The Death and Life of Parens Patriae: How the Warren Court Killed It and Why It Might be Back

I've finally settled my research paper topic! I will be trying to decide if the Warren Court in Kent v. U.S. and In re Gault killed the role of parens patriae in juvenile delinquency proceedings. Further, I will be looking into if there has been a rebirth of parens patriae -- especially in light of the recent Roper v. Simons decision (juvenile death penalty).

I will be heading to the archives to look into Justice Abe Fortas' papers this coming week, and I am quite excited to see if I can figure out what logic went into the decision to award some due process rights to juveniles (In re Gault) and into the deeper consideration necessary for a removal trial to adult court (Kent).

I'm very excited to find out more about this topic -- especially because it will hopefully have temporal applications. I will keep the blog updated on my progress!

Boot Camps Revisited

It turns out that the youth discussed earlier in my post "Boot Camp" did not die of natural causes. The autopsy indicated that he was not a victim of a sickle disease, rather, perhaps he was a victim of the boot camp.

It is the time to look into the juvenile detention centers, the juvenile justice system, the education system and the general treatment of children in society. In cases such as Kent v. U.S., In re Gault, and In re Winship the Supreme Court has developed a set of procedural rights for youths. This past year, in Roper v. Simons, the Supreme Court decided that executing those who were juveniles (under 18) at the time of their offense violates the 8th Amendment, and thus awarded juveniles one more right.

This progress is fantastic, but it isn't enough. Most juveniles (thankfully) are not tried for capital offenses. Drugs, violence and theft dominate the juvenile docket. Often they are removed (by prosecutorial discretion or judicial waiver) to adult court and can then recieve adult punishments.

Even when juveniles are tried as juveniles, however, there seems to be a misconnect between the "rehabilitative" services they are supposed to be getting in theory and what they recieve in practice. Perhaps boot camp can really change people's lives. Maybe there is nothing better, but I find that hard to believe.

Is the real disservice to these youth their experiences before they get themselves into trouble? Are they bored, in need of adult influence/supervision, or could it be that some kids are just bad? It seems that the way to resolve the issue of juvenile crime is not to focus solely on awarding procedural safeguards, but maybe to take a look holistically to relaize that the problems at home and in school compound and eventually helps the youth to end up in boot camps.

Drug Treatment Courts -- a Lesson to be Learned from Old Juvenile Justice?

In my most recent Child Advocacy Policy Workshop we discussed the recent surge of community and family treatment drug courts around the nation, but most specifically in New York. In considering my recent reserach into the development of the juvenile courts and juvenile justice, especially as altered by the Warren Court's In re Gault decision, the modification of family courts in this way is intriguing.

The initial reasoning for these specialized juvenile courts was for the protection of society and the juvenile by a virtuous fatherly judge who would keep the juvenile on track. The reasoning behind the drug treatment courts is similar. The judge has frequent contact with the defendant (who had to admit to their drug use as a prerequisite for treatment) and the judge is a continous presence throughout drug treatment and parenting classes. The hope is that these drug-addicted parents (mostly mothers) will become wholesome parents and that this will help end the cycle of drug and child abuse.

The drug treatment courts seem fantastic. They are promising in their social scientifically proven results and the graduates are enthusiastic about their new lease on life (and their custody over their children). The foster care stays for these children are cut short and the children have the opportunity to see their parents overcome their addiction.

This all sounds promising. The concern is, however, that the juvenile court developments also sounded promising at institutuion. What happens, however, 10, 15, 20, even 50 years down the line when there has been a tradition instilled of leveraging a full admission of guilt for treatment with limited procedure?

Currently, there are great outcomes from these courts -- but danger lurks in hiding behind modern social science (which seems to constantly be replaced by more modern social science with more accurate and often contradictory resoluts).

Chief Justice Margaret Marshall

This past Thursday I had the fantastic opportunity to see Chief Justice Margaret Marshall of the Supreme Judicial Court of MA speak about children's issues. Further, I had the rare opportunity to accompany her and Professor Bartholet and Jessica Budnitz with other students to dinner after the presentation.

Justice Marshall had an intersting take on children's issues. She does not have a child advocacy background -- rather, she has an intellectual property background. Many assume, since she is a female justice, that she has a certain knowledge or interest in family and children's issues -- but she reiterated that the knowledge she has attained has been since her appointment to the SJC.

Since joining the SJC Justice Marshall has contributed to opinions that have approved same sex marriage in MA, allowed for same sex couples to jointly adopt children, upheld visitation orders for "de facto" parents and otherwise tried to ensure that the MA state courts pursue the best interest of the child.

In describing the work on behalf of children, Justice Marshall emphasized that the real impact for children cannot be made in the courts, rather, the legislature has the capacity to enact deep change. The courts are limited to the issues that can be brought via litigation, and the court has a limited ability to get and use outside knowledge.

Justice Marshall was an inspiring and impassioned speaker. She is corageous and has a unique view into the treatment of children under the law. It was an honor to meet her, and a pivitol educational experience to speak with her.

While Justice Marshall's job is not specifically to protect children -- she has managed to bring a pragmatism and optimism into the courts to work toward the best interest of all children in MA.

Paper Idea

In my first blog entry I indicated that part of the purpose of this blog is to help me develop a point of view in order to (hopefully) produce a piece of academic writing on the subject of juvenile law and children's rights.

I've narrowed in on In re Gault and the use of social science by the justices. I'm hoping to take a deeper look into the legal reasoning for the creation and alteration of the juvenile justice system.

Much work has been done in the area of social science and law. The debate was sparked by the surge of social science and the Supreme Court's use of it in footnote eleven of Brown v. Board of Education. Hopefully the consideration of the general uses of social science in court will shed light on the reasoning behind the creation of a separate court system for juveniles sans procedural norms.