Excerpt from-
The
Ethics of Liberty
By Murray N. Rothbard
(Excerpted from Chapter
14)
The present state of juvenile law in the
United States
, it might be pointed out, is in many ways nearly the reverse of our desired
libertarian model. In the current situation, both the rights of parents and
children are systematically violated by the State.
First, the rights of the parents. In present law,
children may be seized from their parents by outside adults (almost always, the
State) for a variety of reasons. Two reasons, physical abuse by the parent and
voluntary abandonment, are plausible, since in the former case the parent
aggressed against the child, and in the latter the parent voluntarily abandoned
custody. Two points, however, should be mentioned: (a) that, until recent years,
the parents were rendered immune by court decisions from ordinary tort liability
in physically aggressing against their children—fortunately, this is now being
remedied;
and (b) despite the publicity being given to the “battered child syndrome,”
it has been estimated that only 5 percent of “child abuse” cases involve
physical aggression by the parents.
On the other hand, the two other grounds for seizing
children from their parents, both coming under the broad rubric of “child
neglect,” clearly violate parental rights. These are: failure to provide
children with the “proper” food, shelter, medical care, or education; and
failure to provide children with a “fit environment.” It should be clear
that both categories, and especially the latter, are vague enough to provide an
excuse for the State to seize almost any children, since it is up to the State
to define what is “proper” and “fit.” Equally vague are other,
corollary, standards allowing the State to seize children whose “optimal
development” is not being promoted by the parents, or where the “best
interests” of the child (again, all defined by the State) are promoted
thereby. A few recent cases will serve as examples of how broadly the seizure
power has been exercised. In the 1950case of In re Watson, the state
found a mother to have neglected three children by virtue of the fact that she
was “incapable by reason of her emotional status, her mental condition, and
her allegedly deeply religious feelings amounting to fanaticism.” In its
decision, fraught with totalitarian implications, the court stressed the alleged
obligation of parents to bring up children respecting and adjusting to “the
conventions and the mores of the community in which they are to live.”
In 1954,in the case of Hunter v. Powers, the court again violated
religious freedom as well as parental rights by seizing a child on the ground
that the parent was too intensely devoted to a nonconformist religion, and that
the child should properly have been studying or playing, rather than passing
out religious literature. A year later, in the case of In re Black, a
Utah
court seized eight children from their parents because the parents had failed
to teach the children that polygamy was immoral.
Not only religion, but also personal morality has
been dictated by the government. In 1962, five children were seized from their
mother by a court on the ground that the mother “frequently entertained male
companions in the apartment.” In other cases, courts have held parents to have
“neglected” the child, and thereupon seized the child, because parental
quarrelling or a child’s sense of insecurity allegedly endangered the
child’s best interests.
In a recent decision, Justice Woodside of the
Pennsylvania Superior Court trenchantly warned of the massive coercive potential
of the “best interest” criterion:
A court should not take the custody of a child from their parents solely on
the ground that the state or its agencies can find a better home for them. If
“the better home” test were the only test, public welfare officials could
take children from half the parents in the state whose homes are considered to
be the less desirable and place them in the homes of the other half of the
population considered to have the more desirable homes. Extending this
principle further, we would find that the family believed to have the best
home would have the choice of any of our children.
The rights of children, even more than those of
parents, have been systematically invaded by the state. Compulsory school
attendance laws, endemic in the
United States
since the turn of this century, force children either into public schools or
into private schools officially approved by the state.
Supposedly “humanitarian” child labor laws have systematically forcibly
prevented children from entering the labor force, thereby privileging their
adult competitors. Forcibly prevented from working and earning a living, and
forced into schools which they often dislike or are not suited for, children
often become “truants,” a charge used by the state to corral them into penal
institutions in the name of “reform” schools, where children are in effect
imprisoned for actions or non-actions that would never be considered
“crimes” if committed by adults.
It has, indeed, been estimated that from one-quarter
to one-half of “juvenile delinquents” currently incarcerated by the state
did not commit acts that would be considered crimes if committed by adults
(i.e., aggression against person and property).
The “crimes” of these children were in exercising their freedom in ways
disliked by the minions of the state: truancy “incorrigibility,” running
away. Between the sexes,
it is particularly girl children who are jailed in this way for “immoral”
rather than truly criminal actions. The percentage of girls jailed for
immorality (“waywardness,” sexual relations) rather than for genuine crimes
ranges from 50 to over 80 percent.
Since the U.S. Supreme Court’s decision in the
1967case of In re Gault, juvenile defendants, at least in theory, have
been accorded the elementary procedural rights of adults (the right to notice of
specific charges, the right to counsel, the right to cross-examine witnesses),
but these have only been granted in cases where they have actually been
accused of being criminals. As Beatrice Levidow writes, the Gault and
similar decisions:
do not apply to any adjudicatory hearings except those in which the offense
charged to the juvenile would be violation of the criminal laws if committed
by an adult. Therefore, the safeguards of
Kent
, Gault, and Winship do not protect the due process rights of
juveniles who are dependent, neglected, in need of supervision, truant, run
away, or accused of other offenses of which only juveniles can be guilty such
as smoking, drinking, staying out late, etc.
As a result, juveniles are habitually deprived of
such elemental procedural rights accorded to adult defendants as the right to
bail, the right to a transcript, the right to appeal, the right to a jury trial,
the burden of proof to be on the prosecution, and the inadmissability of hearsay
evidence. As Roscoe Pound has written, “the powers of the Star Chamber were a
trifle in comparison with those of our juvenile courts.” Once in a while, a
dissenting judge has levelled a trenchant critique of this system. Thus, Judge
Michael Musmanno stated in a 1954
Pennsylvania
case:
Certain constitutional and legal guarantees, such as immunity against
self-incrimination, prohibition of hearsay interdiction of ex parte and secret
reports, all so jealously upheld in decisions from
Alabama
to
Wyoming
, are to be jettisoned in
Pennsylvania
when the person at the bar of justice is a tender-aged boy or girl.
Furthermore, the state juvenile codes are studded
with vague language that permits almost unlimited trial and incarceration for
various forms of “immorality,” “habitual truancy,” “habitual
disobedience,” “incorrigibility,” “ungovernability,” “moral
depravity,” “in danger of becoming morally depraved,” “immoral
conduct,” and even associating with persons of “immoral character.”
Moreover, the tyranny of indeterminate sentencing
(see our chapter above on punishment) has been wielded against juveniles, with
juveniles often receiving a longer sentence than an adult would have suffered
for the same offense. Indeed the rule in contemporary juvenile justice has been
to impose a sentence that may leave a juvenile in jail until he reaches the age
of majority Furthermore, in some states in recent years, this evil has been
compounded by separating juvenile offenders into two categories—genuine
criminals who are called “delinquents,” and other, “immoral” children
who are called “persons in need of supervision” or PINS. After which, the
PINS “offenders” receive longer sentences than the actual juvenile
criminals! Thus, in a recent study, Paul Lerman writes:
The range of institutional stay was two to twenty-eight months for
delinquents and four to forty-eight months for PINS boys; the median was nine
months for delinquents and thirteen months for PINS; and the average length
of stay was 10.7 months for delinquents and 16.3 months for PINS. . . .
The results of length of stay do not
include the detention period; the stage of correctional processing prior to
placement in an institution. Analyses of recent detention figures for all five
boroughs of New York City revealed the following patterns: (1) PINS boys and
girls are more likely to be detained than delinquents (54 to 31 percent); and
(2) once PINS youth are detained they are twice as likely to be detained for
more than 30 days than are regular delinquents (50 to 25 percent).
Again, it is mainly female juveniles that are
punished for “immoral” offenses. A recent study of Hawaii, for example,
found that girls charged merely with running away normally spend two weeks in
pretrial detention, whereas boys charged with actual crimes are held for only a
few days; and that nearly 70 percent of the imprisoned girls in a state training
school were incarcerated for immorality offenses, whereas the same was true of
only 13 percent for the imprisoned boys.
The current judicial view, which regards the child
as having virtually no rights, was trenchantly analyzed by Supreme Court Justice
Abe Fortas in his decision in the Gault case:
The idea of crime and punishment was to be abandoned. The child was to be
“treated” and “rehabilitated and the procedures, from apprehension
through institutionalization, were to be “clinical” rather than punitive.
These results were to be achieved, without coming
to conceptual and constitutional grief, by insisting that the proceedings were
not adversary, but that the State was proceeding as parens patriae (the
State as parent). The Latin phrase proved to be a great help to those who
sought to rationalize the exclusion of juveniles from the constitutional
scheme; but its meaning is murky and its historical credentials are of dubious
relevance.
. . . The right of the State, as parens patriae,
to deny the child procedural rights available to his elders was elaborated by
the assertion that a child, unlike an adult, has a right “not to liberty but
to custody.” . . . If his parents default in effectively performing their
custodial functions—that is if the child is “delinquent”—the state may
interfere. In doing so, it does not deprive the child of any rights, because
he has none. It merely provides the “custody” to which the child is
entitled. On this basis, proceedings involving juveniles were described as
“civil” not “criminal” and therefore not subject to the requirements
which restrict the State when it seeks to deprive a person of his liberty.
It may be added that calling an action “civil”
or “custody” does not make incarceration any more pleasant or any less
incarceration for the victim of the “treatment” or the “rehabilitation.”
Criminologist Frederick Howlett has trenchantly criticized the juvenile court
system, and placed it in a wider libertarian context. He writes of
the denial of certain basic rights of individuals—the right to associate
with those of their choice and to engage voluntarily in acts that harm no one
but themselves. The drunk who clogs, our courts should have the right to get
drunk; the . . . prostitute and her client should not have to answer to the
law for an act that is their personal decision. The misbehaving child likewise
has a fundamental right to be a child, and if he has committed no act that
would be considered criminal were he an adult, why seek recourse through the
courts . . .? Before rushing to treat or “help” a person outside the
justice system, should not the community first consider the alternative of
doing nothing? Should it not recognize the child’s right, as a person, to
nontreatment and noninterference by an outside authority?
A particularly eloquent judicial defense of the
rights of children occurred in an 1870
Illinois
decision, years earlier than the modern assertion of state despotism in the
juvenile court system, beginning with the turn of the century Progressive
period. In his decision in People ex rel. O’Connell v. Turner, Justice
Thornton declared:
The principle of the absorption of the child in, and its complete
subjection to the despotism of, the State, is wholly inadmissible in the
modern civilized world. . . .
These laws provide for the “safe keeping” of
the child; they direct his “commitment,” and only a “ticket of leave,”
of the uncontrolled discretion of a board of guardians, will permit the
imprisoned boy to breathe the pure air of heaven outside his prison walls, and
to feel the instincts of manhood by contact with the busy world. . . . The
confinement may be from one to fifteen years, according to the age of the
child. Executive clemency cannot open the prison doors, for no offense has
been committed. The writ of habeas corpus, a writ for the security of
liberty can afford no relief, for the sovereign power of the State, as parens
patriae, has determined the imprisonment beyond recall. Such a restraint
upon natural liberty is tyranny and oppression. If, without crime, without the
conviction of any offense, the children of the State are thus to be confined
for the “good of society” then society had better be reduced to its
original elements, and free government acknowledged a failure. . . .
The disability of minors does not make slaves or
criminals of them. . . . Can we hold children responsible for crime; liable
for their torts; impose onerous burdens upon them, and yet deprive them of
their liberty, without charge or conviction of crime? [The Illinois Bill of
Rights, following upon the Virginia Declaration of Rights and the Declaration
of Independence, declares that] “all men are, by nature, free and
independent, and have certain inherent and inalienable rights—among these
life, liberty, and the pursuit of happiness.” This language is not
restrictive; it is broad arid comprehensive, and declares a grand truth, that
“all men,” all people, everywhere, have the inherent and inalienable right
to liberty Shall we say to the children of the State, you shall not enjoy this
right—a right independent of all human laws and regulations. . . . .Even
criminals cannot be convicted and imprisoned without due process of law.