CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, November 30, 2021

Hong on The Parens Patriae Power

Esther Hong (Wake Forest University - School of Law) has posted A Reexamination of the Parens Patriae Power (Tennessee Law Review, Vol. 88, No. 277, 2021) on SSRN. Here is the abstract:
Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system—the theory of the state’s parens patriae power—is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors’ constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a developmental framework as the primary guide for state action.

This Article breaks from this emerging consensus.
It reexamines the theory of the parens patriae power and shows that far from being obsolete, it continues to have an impact in the juvenile legal system, particularly on the interpretation of minors’ constitutional rights in juvenile and criminal law. Moreover, parens patriae principles and ideals are increasingly appearing for adults in the criminal system.

The theory of this state power, therefore, should not be ignored, but rather modernized in conjunction with the developmental framework to address the contemporary concerns in juvenile and criminal law.

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