Oregon Law Review
In Part I, this Article analyzes the "criminalization" of juvenile delinquency. The juvenile justice counter-reformation has made substantial headway in reversing the idea of special protections for children who are accused of committing serious crimes. But the debate over how to deal with violent youth has been drastically reshaped over the past century. Earlier reforms minimized punishment and emphasized therapeutic intervention in the children's lives. The current retributive juvenile justice movement, by contrast, features assertions about a dramatic increase in the present rate and malevolence of juvenile crime, demographic estimates that predict a coming flood of "super-predators,"1 and the thesis that violent youthful acts demonstrate both the maturity of the perpetrators and their defiance of the rehabilitative processes of the juvenile court.1 However, all three of these foundational propositions are demonstrably false. 2 This demonstration in Part I is critical to the next step of the analysis presented in this Article. Because the "super-predators" crisis is largely a myth, the criminal parental responsibility laws are unnecessary, and the alternative methods proposed in this Article to increase parental involvement in their children's delinquency cases can appropriately address the problem.
Part II analyzes the parental responsibility laws, which have become popular legal weapons deployed in an effort to force parents to control their children's anti-social behavior. These laws hold parents criminally responsible when their children commit delinquent acts. Their premise is the empirically unsubstantiated assumption that juvenile delinquency results primarily from improper parental supervision. These laws ignore the behavioral and developmental evidence that suggests a far more complex interrelationship between parents, their teenagers, and their deviance. Moreover, the laws frequently depend on strict liability in order to criminalize the unproven parental failure to properly supervise a wayward child. The statutory framework often determines that the child's commission of one or more delinquent acts entirely serves even in the absence of any formal adjudication of juvenile delinquency to prove their parents' neglect of the duty of proper supervision, thereby providing a sufficient predicate for the imposition of criminal sanctions. Punishing parents on the generalized and unproven assumption that they bear actual, causal responsibility for juvenile delinquency results in an unconstitutional violation of the parents' due process rights and effectively converts poor, or simply unlucky, parenting into a public welfare offense.
Part III proposes a reasoned approach to legal intervention in the relationship between parental supervision and juvenile crime, one that addresses the needs of community safety as well as the future course of the delinquent juvenile. Two possible avenues are evaluated. One direction suggests jettisoning a parental culpability analysis in toto. This first approach fully respects parents' prerogatives with regard to the raising of children. It suggests that the issue of parental involvement in juvenile court may best be addressed within the perspective of the emerging movement in therapeutic jurisprudence, including voluntary family group conferences, mediation, teen courts, and other forms of alternative dispute resolution emphasizing restorative justice. The second, and quite different option, assumes that policymakers will continue to insist on some version of culpability analysis for parental responsibility in juvenile delinquency cases. If so, this Article proposes that the law turn away from the inappropriate imposition of criminal jurisdiction over parents as conferred by the parental responsibility laws, and instead invest the juvenile court with the power to assert jurisdiction over parents in the dispositional phase of delinquency proceedings. The delinquency jurisdiction of family courts can more effectively serve to accommodate the legitimate concerns of the parental responsibility laws.
J. Herbie DiFonzo,
Parental Responsibility for Juvenile Crime, 80 Or. L. Rev. 1
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/214