CRIMES OF "BEING"
Cohen, Cynthia Price
There is a group of citizens in our country who are subjected daily to flagrant denials of their fundamental rights. They are deprived of their liberty without notice, for acts that do...
...We have a network of public and private social welfare agencies, staffed with personnel trained to help the family in trouble...
...And, in the case of a girl, the problem often is pregnancy...
...Adults have historically considered the behavior of adolescents anathema...
...Yet nearly twice the proportion of PINS cases are put into training schools than an equivalent sample of juvenile delinquents...
...Prior to 1960, noncriminal juveniles were given the same treatment as those now designated juvenile delinquents...
...It is significant that in 1972 the law guardians of Rockland County, N.Y., presented guilty pleas before trial in every PINS case they handled...
...But "incorrigibility" is not an act, nor does the word give any indication of acts it supposedly includes...
...q 434...
...432 youngster is brought to court and is therefore retroactive...
...The New York Penal Code expressly allows the use of physical force to maintain parental discipline, regardless of psychological effects on the child...
...These are just some of the "acts" covered by the blanket definition of "incorrigible" or "ungovernable...
...privilege against self-incrimination...
...The Supreme Court has interpreted our Constitution to preclude any statute "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application...
...It is possible that the 433 upsurge in dangerous crinies committed by youths 14 years old and under will bring a reevaluation of these issues too...
...In New York they are designated "persons in need of supervision" or PINS, and more than one-third of all juvenile cases brought in New York annually are the result of PINS petitions...
...The average PINS statute indeed provides no warning...
...The future may force us to apply more of the standards of criminal law to juvenile cases...
...In a study of 337 college students who were presented with a list of 34 offenses typically cited in juvenile cases, all the students admitted committing 10 or more of these offenses, but only in rare cases was any action taken against them...
...Statistics relating to PINS adjudication provide further insight into court functioning...
...it also prevents an adequate defense...
...All this is important because our entire legal system is based on the behavior patterns of hypothetical reasonable people deemed to be making a free choice each time they engage in illegal activity...
...His "ailments" are common to many teenagers: staying out past curfew, refusing to do chores, talking back, hanging out with objectionable friends, fighting with brothers and sisters...
...Without sufficient notice of the acts charged, it is impossible to provide knowledgeable counsel...
...Supposedly, these children enjoy the rights of all citizens...
...The role of subjectivity is illustrated by the number of children who do not reach the family court...
...In practice, vagueness has allowed the use of the PINS statute to cover situations for which it was never intended...
...It is far easier, however, to proceed with a PINS petition, which the parent is willing to sign, than to mount a neglect case, which the parent will undoubtedly challenge...
...In reality, however, the PINS statute condones numerous constitutional violations...
...Surely, the paternalistic approach has failed...
...The only definite act listed in any PINS-type statute is truancy...
...Retaining the juvenile-court jurisdiction over crime-committing delinquents can be justified as a proper exercise of the state's police power in order to protect its citizens...
...Ironically, the juvenile delinquent is easier to live with at home, and less of a problem to institutions when sent away...
...And that would be highly desirable...
...In a typical situation, parents will bring a child to court as a last resort, expecting the court to supply the discipline they have been unable to provide themselves...
...The reasons for this appear to lie in the basic personality differences of the two groups...
...The most glaring springs from the use of such words as "incorrigible" and "ungovernable"—words almost impossible to define...
...Their only crimes are the crimes of "being": "being" truant, incorrigible, or ungovernable...
...In a jurisdictional change, the only loss for the child will be the stigma attached to a PINS adjudication...
...This trend has now begun with recent Supreme Court decisions that instituted the following requirements in juvenile cases: notice of specific charges...
...He comes from a deprived home, with parents who have too little energy and too many problems to be able to deal with a difficult child...
...In New York State, only two such acts are required for a child to be declared a PINS, and these acts need not occur within the same year...
...Subjectivity is not the only shortcoming of statutory vagueness...
...And the 19th-century social welfare movement, which began its thrust in the juvenile area by removing children from adult prisons, reached its apex with family-court legislation toward the end of that century...
...Social pressure forced the division into two groups and 431 promised separate placement as well...
...PINS direct their hostilities at annoying authority figures by talking back and disobeying orders...
...The philosophy that originally brought all juveniles under the jurisdiction of the family court sprang from the doctrine of parens patriae, which regarded the sovereign as the father of all the children in his realm...
...If we are to bring our juvenile courts into the 20th century, we must begin by asking what we can reasonably expect from them...
...This study compared students from three colleges in northern Texas with young people whose cases were tried in the local juvenile court...
...The very behavior these statutes seek to preclude may even be necessary to an adolescent's emotional growth...
...Incarceration is hardly the proper response to this age-old conflict...
...The child is removed from the home, at a tremendous price...
...There need only be provocation sufficient to trigger the adult to sign a PINS petition, and the youngster becomes enmeshed with the court...
...Once involved in the judicial process, a parent rarely has the option of backing out...
...This requirement insures that prospective wrongdoers will have adequate warning of acts to be avoided...
...The state considers them only in relation to their parents, who are their legal guardians, and the parents are responsible for their minor children's negligent acts...
...The rights of the child are sacrificed for the sake of simplicity...
...Any problem a PINS boy or girl faces can be handled far better by such an agency than in court...
...Investigation reveals that the case is actually one of parental neglect...
...We cannot expect to handle all the problems of youth through legal means...
...The upsurge in real crimes committed by juveniles demands the reevaluation of an unjust policy that clogs our courts with these children and thereby forces superficial handling of dangerous youths who require greater care...
...385, 391...
...All other listed acts are not acts at all but conditions or states of being: "ungovernable," "incorrigible," "wayward," etc...
...right to counsel...
...What the parent really wants is for the child to shape up, and this is beyond the court's power to ordain...
...However, an increasing number of jurisdictions now separates this group from bona fide delinquents by placing them in a special category...
...Perhaps even this goal is too optimistic...
...But the hoped-for benefits have failed to materialize...
...Barring a complete change in wording, the PINS statute, as it stands, also violates the Eighth Amendment protection against cruel and inhuman treatment...
...Such treatment of any other group would be denounced as intolerable, yet we continue to justify the handling of these citizens as "protective" rather than punitive...
...There can be no justification for the court's retention of PINS cases: these children do not represent such a threat, they are not criminals...
...But as we know, behavior annoying to one adult may be ignored by another or viewed as typically adolescent...
...Yet, according to the statute, "incorrigible" is something other than "delinquent"— and so these definitions are utter nonsense...
...The designation of PINS has developed a stigma similar to that attached to juvenile delinquency itself...
...A parent brings a child to court as an "incorrigible...
...They are deprived of their liberty without notice, for acts that do not constitute crimes...
...2 Children from middle- or upper-income families, as you might expect, are seldom involved in PINS proceedings...
...Yet children cannot take legal action against their parents for injuries they incur through parental neglect...
...But what appeared to be innovative and fair in 1900 now has become a method that sanctions preventive detention for indeterminate lengths of time, imposed behind closed doors, without jury or witnesses, and, until recently, without benefit of counsel...
...Without the guidance of an unambiguous statute, the judges will penalize most harshly those acts most distasteful to themselves personally...
...So the parent too becomes a victim—a victim of disappointment...
...They are the children we bring before our family courts, not as juvenile delinquents, but as "persons in need of supervision...
...rather, I would suggest that the court just is not the place to handle juvenile misbehavior...
...Finally, a vague statute is an exercise in ex post facto lawmaking, another constitutional prohibition: interpretation of the law occurs after the 2Austin L. Porterfield, Youth in Trouble (Fort Worth: Leo Potishman Foundation, 1946...
...For example, during the judicial year 1969-70, the New York Family Court handled 9,646 PINS petitions, compared with 14,404 delinquency proceedings...
...Court treatment of noncriminal youths varies from state to state...
...Even today, there are no trials...
...consider their behavior "too much...
...Remember that these prospective wrongdoers are under 16 and so the situation becomes even more absurd...
...Juvenile delinquents, having committed a crime, fully expect to "do some time," while the PINS' rage is fanned by what he sees as unjust, unreasonable punishment...
...Murder, burglary, and truancy they can understand...
...Instead, they are sent to psychologists or boarding schools...
...Given this view of parent-child relations, it is inconsistent to allow a parent who has played a major role in shaping the child's personality to use the court to punish the child for behavior the parent had a part in shaping...
...In our country, the state replaced the king...
...incorrigibility," never...
...Juvenile delinquents assert themselves by breaking laws, by stealing, mugging, and vandalizing...
...Then the problem of vagueness arises through the interpretation of a given judge...
...hearings are completely private, records confidential, length of placement is based on progress and the criteria for this placement are decided by the judge...
...Parents indeed have total control over their children's health and education, with the court stepping in only in matters of life and death...
...We can take a major step toward modernization of the juvenile court by removing from its jurisdiction all youngsters who have committed no crimes and therefore are not considered juvenile delinquents...
...The best we can hope for is some sort of rudimentary rehabilitation for those children who are dangerous to society...
...Approximately 39 percent of all juvenile cases coming before the court that year were noncriminal...
...Second, because it punishes not an act but a state of being...
...At least 13 states joined in this movement in an effort to eliminate problems resulting from the mixing of criminal and noncriminal youths in state training schools...
...The typical PINS child is 12 to 14 years old, male, and belongs to a minority group...
...In the training school they receive virtually no rehabilitation and are often exposed to criminalizing experiences...
...Still lacking are the right to jury trial and open, public hearings...
...The dictionary provides little assistance, for the word "delinquent" is used to define "incorrigible...
...Therefore, lawyers often make no effort at defense...
...There is simply no place for "incorrigibles" in the juvenile court...
...The result is a grave miscarriage of justice...
...Oddly, the PINS concept does represent a modernization...
...right to crossexamination of witnesses, and transcript of proceedings...
...Not all PINS children, of course, are boys...
...The court can offer no services that cannot be more readily obtained through social service agencies...
...These PINS indeed have committed no crimes—and yet, they stand in court, before a judge: for they are the victims of 19th-century morality...
...They are brought there by parents and teachers who 'Connally v. General Construction Co., 269 U.S...
...The teen years are a time of testing, of breaking away from parental control and values—values that may be reincorporated as the young person reaches maturity...
...The juvenile delinquent takes his problems to the streets, while the PINS acts out at home...
...Often they only expect the judge to issue a warning, not fully realizing the extent of the forces that have been put in motion...
...Parents who can't handle their children take them to family court and have them sent to a training school, where they can be legally kept until they are 21 years old...
...the gulf between generations seems a fact of life...
...Sheer numbers alone make the patriarchal type of administration impossible...
...It is absurd to expect Victorian legislation to solve today's juvenile problems...
...In order to guarantee this freedom of choice, laws must be formulated in language clear enough to prevent any claim of misunderstanding...
...On a practical level, the court is totally unequipped to provide any real help for PINS cases...
...If, however, one does examine the laws carefully, it becomes apparent that children under 16, or even 18, are not separate legal entities...
...HOW DO these children reach the courts, if they do not break the law in the ordinary sense...
...I do not advocate joint imprisonment of parents and children...
...The child therefore is at the mercy of the adults with whom he comes in contact...
...and this, for two distinct reasons...
...First, because it allows indeterminate sentencing, based on indefinite standards of progress...
...None of these had previously been required...
...As a result of the Family Court Acts of the 1880s, the cases of children under 16 still are handled only in a civil court...
...State training schools are the poor man's Choate...
Vol. 23 • September 1976 • No. 4
