WEBVTT

NOTE 14. Children and Rights

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CHAPTER XIV CHILDREN AND RIGHTS

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We have now established each man's property right in his own person and in the virgin

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land that he finds and transforms by his labor, and we have shown that from these two principles

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we can deduce the entire structure of property rights in all types of goods.

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These include the goods which he acquires in exchange or as a result of a voluntary

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The Theory of Money and Credit

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Children, I confess, are not born in this full state of equality, of right to their

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natural freedom, though they are born to it.

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Their parents have a sort of rule and jurisdiction over them when they come into the world and

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for some time after, but tis but a temporary one.

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The bonds of this subjection are like the swaddling clothes they are wrapped up in and

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Supported By in the Weakness of Their Infancy.

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Age and Reason as they grow up loosen them till at length they drop quite off and leave

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a man at his own free disposal.

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But this poses a difficult problem.

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For when or in what way does a growing child acquire his natural right to liberty and self-ownership?

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Gradually or all at once?

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At what age?

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And what criteria do we set forth for this shift or transition?

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First, let us begin with the prenatal child.

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What is the parent's, or rather the mother's, property right in the fetus?

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In the first place, we must note that the conservative Catholic position has generally

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been dismissed too brusquely.

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This position holds that the fetus is a living person, and hence that abortion is an act

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of Murder and must therefore be outlawed as in the case of any murder.

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The usual reply is simply to demarcate birth as the beginning of a live human being possessing

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natural rights, including the right not to be murdered.

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Before birth, the counter-argument runs, the child cannot be considered a living person.

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But the Catholic reply that the fetus is alive and is an imminently potential person then

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One comes disquietingly close to the general view that a newborn baby cannot be aggressed

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against because it is a potential adult.

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While birth is indeed the proper line of demarcation, the usual formulation makes birth an arbitrary

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dividing line and lacks sufficient rational groundwork in the theory of self-ownership.

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The proper groundwork for analysis of abortion is in every man's absolute right of self-ownership.

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This implies immediately that every woman has the absolute right to her own body, that

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she has absolute dominion over her body and everything within it.

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This includes the fetus.

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Most fetuses are in the mother's womb because the mother consents to this situation.

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But the fetus is there by the mother's freely granted consent.

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But should the mother decide that she does not want the fetus there any longer, then

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the fetus becomes a parasitic invader of her person, and the mother has the perfect

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right to expel this invader from her domain.

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Abortion should be looked upon not as murder of a living person, but as the expulsion of

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an unwanted invader from the mother's body.

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What we are trying to establish here is not the morality of abortion, which may or may

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not be moral on other grounds, but its legality, that is, the absolute right of the mother

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to have an abortion.

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What we are concerned with in this book is people's rights to do or not to do various

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things, not whether they should or should not exercise such rights.

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Thus, we would argue that every person has the right to purchase and consume Coca-Cola

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from a willing seller, not that any person should or should not actually make such a

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purchase.

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Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers.

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It has been objected that since the mother originally consented to the conception, the

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The mother has therefore contracted its status with the fetus, and may not violate that contract

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by having an abortion.

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There are many problems with this doctrine, however.

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In the first place, as we shall see further below, a mere promise is not an enforceable

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contract.

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Contracts are only properly enforceable if their violation involves implicit theft, and

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Clearly no such consideration can apply here.

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Secondly, there is obviously no contract here, since the fetus, fertilized ovum, can hardly

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be considered a voluntarily and consciously contracting entity.

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And thirdly, as we have seen above, a crucial point in libertarian theory is the inalienability

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of the Will and therefore the impermissibility of enforcing voluntary slave contracts.

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Even if this had been a contract then, it could not be enforced, because a mother's

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will is inalienable, and she cannot legitimately be enslaved into carrying and having a baby

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against her will.

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Another argument of the anti-abortionists is that the fetus is a living human being,

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is therefore entitled to all of the rights of human beings.

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Very good.

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Let us concede for purposes of the discussion that fetuses are human beings, or, more broadly,

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potential human beings, and are therefore entitled to full human rights.

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But what humans, we may ask, have the right to be coercive parasites within the body of

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an unwilling human host?

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Generally no born humans have such a right and therefore, a fortiori, the fetus can have

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no such right either.

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The anti-abortionists generally couch the preceding argument in terms of the fetuses

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as well as the born human's right to life.

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We have not used this concept in this volume because of its ambiguity and because any proper

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Her rights, implied by its advocates, are included in the concept of the right to self-ownership,

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the right to have one's person free from aggression.

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Even Professor Judith Thompson, who in her discussion of the abortion question, attempts

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inconsistently to retain the concept of right to life, along with the right to own one's

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own body, lucidly demonstrates the pitfalls and errors of the right to life doctrine.

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In some views, having a right to life includes having a right to be given at least the bare

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minimum one needs for continued life.

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But suppose that what in fact is the bare minimum a man needs for continued life is

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something he has no right at all to be given.

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If I am sick unto death and the only thing that will save my life is the touch of Henry

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Fonda's cool hand on my fevered brow, then all the same I have no right to be given the

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In short, it is impermissible to interpret the term right to life to give one an enforceable

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claim to the action of someone else to sustain that life.

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In our terminology, such a claim would be an impermissible violation of the other person's

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right of self-ownership.

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Or as Professor Thompson cogently puts it, having a right to life does not guarantee

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having either a right to be given the use of, or a right to be allowed continued use

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of, another person's body, even if one needs it for life itself.

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Suppose now that the baby has been born, then what?

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First we may say that the parents, or rather the mother, who is the only certain and visible

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parent, as the creators of the baby, become its owners.

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A newborn baby cannot be an existent self-owner in any sense, therefore either the mother

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or some other party or parties may be the baby's owner.

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But to assert that a third party can claim his ownership over the baby would give that

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person the right to seize the baby by force from its natural or homesteading owner, its

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mother.

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The mother, then, is the natural and rightful owner of the baby, and any attempt to seize

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the baby by force is an invasion of her property right.

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But surely the mother or parents may not receive the ownership of the child in absolute fee

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be simple, because that would imply the bizarre state of affairs that a 50-year-old adult

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would be subject to the absolute and unquestioned jurisdiction of his 70-year-old parent.

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So the parental property right must be limited in time, but it also must be limited in kind,

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for it surely would be grotesque for a libertarian who believes in the right of self-ownership

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to advocate the right of a parent to murder or torture his or her children.

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We must therefore state that even from birth the parental ownership is not absolute but

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of a trustee or guardianship kind.

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In short, every baby as soon as it is born and is therefore no longer contained within

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his mother's body possesses the right of self-ownership by virtue of being a separate entity and a

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by a potential adult. It must therefore be illegal and a violation of the child's rights

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for a parent to aggress against his person by mutilating, torturing, murdering him, etc.

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On the other hand, the very concept of rights is a negative one, demarcating the areas of

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a person's action that no man may properly interfere with. No man can therefore have

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Man has a right to compel someone to do a positive act, for in that case the compulsion

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violates the right of person or property of the individual being coerced.

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Thus we may say that a man has a right to his property, that is, a right not to have

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his property invaded.

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But we cannot say that anyone has a right to a living wage, for that would mean that

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But someone would be coerced into providing him with such a wage, and that would violate

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the property rights of the people being coerced.

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As a corollary, this means that in the free society, no man may be saddled with the legal

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obligation to do anything for another, since that would invade the former's rights.

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The only legal obligation one man has to another is to respect the other man's rights.

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Following our theory to parents and children, this means that a parent does not have the

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right to aggress against his children, but also that the parent should not have a legal

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obligation to feed, clothe or educate his children, since such obligations would entail

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positive acts coerced upon the parent and depriving the parent of his rights.

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The parent therefore may not murder or mutilate his child, and the law properly outlaws a

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parent from doing so.

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But the parent should have the legal right not to feed the child, that is, to allow it

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to die.

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The law therefore may not properly compel the parent to feed a child or keep it alive.

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Again, whether or not a parent has a moral, rather than a legally enforceable obligation

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to keep his child alive is a completely separate question.

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This rule allows us to solve such vexing questions as should a parent have the right to allow

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a deformed baby to die, for example by not feeding it?

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The answer is of course yes, following a fortiori from the larger right to allow any baby, whether

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deformed or not, to die.

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So as we shall see below, in a libertarian society, the existence of a free baby market

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will bring such neglect down to a minimum.

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Our theory also enables us to examine the question of Dr. Kenneth Edelman of Boston

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City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die,

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at the wish, of course, of the mother, after performing an abortion.

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If parents have the legal right to allow a baby to die, then a fortiori they have the

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same right for extrauterine fetuses. Similarly, in a future world where babies may be born

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in extrauterine devices, test tubes, again the parents would have the legal right to

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pull the plug on the fetuses, or rather to refuse to pay to continue the plug in place.

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Let us examine the implications of the doctrine that parents should have a legally enforceable

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obligation to keep their children alive.

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The argument for this obligation contains two components, that the parents created the

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child by a freely chosen purposive act, and that the child is temporarily helpless and

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not a self-owner.

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If we consider first the argument from helplessness, then first we may make the general point that

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is a philosophical fallacy to maintain that A's needs properly impose coercive obligations

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on B to satisfy these needs. For one thing, B's rights are then violated. Secondly, if

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a helpless child may be said to impose legal obligations on someone else, why specifically

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on its parents and not on other people? What do the parents have to do with it? The answer,

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The first argument, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation.

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Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive, who was the result of an act of rape, since this was not a freely undertaken act.

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It also rules out any such obligation by a step-parent, foster-parent or guardian who didn't participate at all in creating the child.

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Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult?

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As Evers states, the parents are still the creators of the child. Why aren't they obliged to support the child forever?

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It is true that the child is no longer helpless, but helplessness, as pointed out above, is

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not in and of itself a cause of binding obligation.

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If the condition of being the creator of another is the source of the obligation, and this

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condition persists, why doesn't the obligation?

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And what of the case, in some future decade, when a scientist becomes able to create human

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life in the laboratory?

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The scientist is then the creator.

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Must he also have a legal obligation to keep the child alive?

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And suppose the child is deformed and ill, scarcely human.

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Does he still have a binding legal obligation to maintain the child?

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And if so, how much of his resources, his time, energy, money, capital equipment, should

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he be legally required to invest to keep the child alive?

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Where does his obligation stop, and by what criterion?

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This question of resources is also directly relevant to the case of natural parents.

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As Evers points out, let us consider the case of poor parents who have a child who gets

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sick.

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The sickness is grave enough that the parents, in order to obtain the medical care to keep

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the baby alive, would have to starve themselves.

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Do the parents have an obligation to lessen the quality of their own lives even to the

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point of self-extinction, to aid the child?

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And if not, we might add, at what point does the parent's legal obligation properly cease?

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And by what criterion?

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Evers goes on,

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One might want to argue that parents owe only the average minimal care, heat, shelter, nutrition,

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are necessary to keep a child alive.

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But if one is going to take the obligation position, it seems illogical, in view of the

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wide variety of human qualities and characteristics, to tie obligation to the Procrustian bed of

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the human average.

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A common argument holds that the voluntary act of the parents has created a contract

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by which the parents are obligated to maintain the child.

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A. This would also entail the alleged contract with the fetus that would prohibit abortion.

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And B. This falls into all the difficulties with the contract theory as analyzed above.

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Finally, as Evers points out, suppose that we consider the case of a person who voluntarily

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rescues a child from a flaming wreck that kills the child's parents. In a very real

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In the legal sense, the rescuer has brought life to the child.

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Does the rescuer then have a binding legal obligation to keep the child alive from then

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on?

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Wouldn't this be a monstrous involuntary servitude that is being foisted upon a rescuer?

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And if for the rescuer, why not also for the natural parent?

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The mother then becomes at the birth of her child its trustee-owner, legally obliged only

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not to aggress against the child's person, since the child possesses the potential for self-ownership.

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Apart from that, so long as the child lives at home, it must necessarily come under the

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jurisdiction of its parents, since it is living on property owned by those parents.

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Certainly the parents have the right to set down rules for the use of their home and property

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for all persons, whether children or not, living in that home.

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But when are we to say that this parental trustee jurisdiction over children shall come

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to an end?

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Surely any particular age, 21, 18 or whatever, can only be completely arbitrary.

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The clue to the solution of this thorny question lies in the parental property rights in their

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home.

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For the child has his full rights of self-ownership when he demonstrates that he has them in nature.

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In short, when he leaves or runs away from home.

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Regardless of his age, we must grant to every child the absolute right to run away and to

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find new foster parents who will voluntarily adopt him, or to try to exist on his own.

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Parents may try to persuade the runaway child to return, but it is totally impermissible

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enslavement and an aggression upon his right of self-ownership for them to use force to

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to Compel Him to Return.

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The absolute right to run away is the child's ultimate expression of his right of self-ownership,

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regardless of age.

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Now if a parent may own his child within the framework of non-aggression and runaway freedom,

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then he may also transfer that ownership to someone else.

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He may give the child out for adoption, or he may sell the rights to the child in a voluntary

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In short, we must face the fact that the purely free society will have a flourishing free

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market in children.

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Superficially this sounds monstrous and inhuman, but closer thought will reveal the superior

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humanism of such a market.

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For we must realize that there is a market for children now, but that since the government

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prohibits sale of children at a price, the parents may now only give their children away

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00:21:45.780 --> 00:21:53.740
to a Licensed Adoption Agency free of charge. This means that we now indeed have a child

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00:21:53.740 --> 00:22:00.420
market, but that the government enforces a maximum price control of zero and restricts

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the market to a few privileged and therefore monopolistic agencies. The result has been

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a typical market where the price of the commodity is held by government far below the free market

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Price, An Enormous Shortage of the Good.

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The demand for babies and children is usually far greater than the supply, and hence we

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see daily tragedies of adults denied the joys of adopting children by prying and tyrannical

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adoption agencies.

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In fact, we find a large unsatisfied demand by adults and couples for children, along

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Along with a large number of surplus and unwanted babies neglected or maltreated by their parents.

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00:22:46.040 --> 00:22:51.540
Allowing a free market in children would eliminate this imbalance and would allow for an allocation

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of babies and children away from parents who dislike or do not care for their children

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00:22:57.540 --> 00:23:02.920
and toward foster parents who deeply desire such children.

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00:23:02.920 --> 00:23:07.820
Everyone involved, the natural parents, the children and the foster parents purchasing

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00:23:07.820 --> 00:23:16.980
Some years ago the New York City authorities proudly announced that they had broken up

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00:23:16.980 --> 00:23:24.340
an illegal baby ring. Babies were being imported for a price from Greece by enterprising merchants

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00:23:24.340 --> 00:23:30.980
and then sold to eager parents in New York. No one seemed to realize that everyone involved

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00:23:30.980 --> 00:23:37.500
in this supposedly barbaric transaction benefited. The poverty-stricken Greek parents gained

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00:23:37.500 --> 00:23:41.700
and money, as well as the satisfaction of knowing that their babies would be brought

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00:23:41.700 --> 00:23:44.740
up in far more affluent homes.

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00:23:44.740 --> 00:23:50.100
The new parents gained their heart's desire of having babies, and the babies were transferred

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00:23:50.100 --> 00:23:56.500
to a far happier environment, and the merchants earned their profits as middlemen.

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Everyone gained.

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00:23:58.060 --> 00:24:00.020
Who lost?

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00:24:00.020 --> 00:24:06.120
In the libertarian society, then, the mother would have the absolute right to her own body,

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00:24:06.120 --> 00:24:11.920
and therefore to perform an abortion, and would have the trusty ownership of her children,

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00:24:11.920 --> 00:24:17.600
an ownership limited only by the illegality of aggressing against their persons and by

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their absolute right to run away or to leave home at any time.

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00:24:23.560 --> 00:24:27.480
Parents would be able to sell their trusty rights and children to anyone who wished to

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buy them at any mutually agreed price.

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The present state of juvenile law in the United States, it might be pointed out, is in many

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ways nearly the reverse of our desired libertarian model.

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In the current situation, both the rights of parents and children are systematically

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violated by the state.

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First, the rights of the parents.

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00:24:51.640 --> 00:24:57.580
In present law, children may be seized from their parents by outside adults, almost always

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00:24:57.580 --> 00:25:01.000
the state, for a variety of reasons.

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00:25:01.000 --> 00:25:07.000
Two reasons physical abuse by the parent and voluntary abandonment are plausible, since

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00:25:07.000 --> 00:25:13.000
in the former case the parent aggressed against the child and in the latter the parent voluntarily

279
00:25:13.000 --> 00:25:15.240
abandoned custody.

280
00:25:15.240 --> 00:25:17.760
Two points, however, should be mentioned.

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00:25:17.760 --> 00:25:23.900
A, that until recent years the parents were rendered immune by court decisions from ordinary

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00:25:23.900 --> 00:25:28.600
tort liability in physically aggressing against their children.

283
00:25:28.600 --> 00:25:32.000
Fortunately, this is now being remedied.

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00:25:32.000 --> 00:25:38.340
And B, despite the publicity being given to the battered child syndrome, it has been estimated

285
00:25:38.340 --> 00:25:45.640
that only 5% of child abuse cases involve physical aggression by the parents.

286
00:25:45.640 --> 00:25:50.280
On the other hand, the two other grounds for seizing children from their parents, both

287
00:25:50.280 --> 00:25:57.180
coming under the broad rubric of child neglect, clearly violate parental rights.

288
00:25:57.180 --> 00:26:02.460
These are, failure to provide children with the proper food, shelter, medical care or

289
00:26:02.460 --> 00:26:08.500
education, and failure to provide children with a fit environment.

290
00:26:08.500 --> 00:26:13.400
It should be clear that both categories, and especially the latter, are vague enough to

291
00:26:13.400 --> 00:26:19.020
provide an excuse for the state to seize almost any children, since it is up to the state

292
00:26:19.020 --> 00:26:23.220
to define what is proper and fit.

293
00:26:23.220 --> 00:26:28.360
Notably vague are other corollary standards allowing the state to seize children whose

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00:26:28.360 --> 00:26:34.040
optimal development is not being promoted by the parents, or where the best interests

295
00:26:34.040 --> 00:26:40.240
of the child, again all defined by the state, are promoted thereby.

296
00:26:40.240 --> 00:26:45.360
A few recent cases will serve as examples of how broadly the seizure power has been

297
00:26:45.360 --> 00:26:47.040
exercised.

298
00:26:47.040 --> 00:26:53.520
In the 1950 case of Inri Watson, the state found a mother to have neglected three children

299
00:26:53.520 --> 00:26:59.600
by virtue of the fact that she was incapable by reason of her emotional status, her mental

300
00:26:59.600 --> 00:27:06.020
condition and her allegedly deeply religious feelings amounting to fanaticism.

301
00:27:06.020 --> 00:27:11.520
In its decision, fraught with totalitarian implications, the court stressed the alleged

302
00:27:11.520 --> 00:27:17.980
and obligation of parents to bring up children respecting and adjusting to the conventions

303
00:27:17.980 --> 00:27:22.380
and the mores of the community in which they are to live.

304
00:27:22.380 --> 00:27:29.320
In 1954, in the case of Hunter v. Powers, the court again violated religious freedom,

305
00:27:29.320 --> 00:27:35.360
as well as parental rights, by seizing a child on the ground that the parent was too intensely

306
00:27:35.360 --> 00:27:41.760
be devoted to a non-conformist religion, and that the child should properly have been studying

307
00:27:41.760 --> 00:27:46.480
or playing rather than passing out religious literature.

308
00:27:46.480 --> 00:27:52.500
A year later, in the case of Henry Black, a Utah court seized eight children from their

309
00:27:52.500 --> 00:27:59.680
parents because the parents had failed to teach the children that polygamy was immoral.

310
00:27:59.680 --> 00:28:05.100
Not only religion but also personal morality has been dictated by the government.

311
00:28:05.100 --> 00:28:11.380
In 1962, five children were seized from their mother by a court on the ground that the mother

312
00:28:11.380 --> 00:28:16.020
frequently entertained male companions in the apartment.

313
00:28:16.020 --> 00:28:21.780
In other cases, courts have held parents to have neglected the child and thereupon seized

314
00:28:21.780 --> 00:28:28.620
the child because parental quarreling or a child's sense of insecurity allegedly endangered

315
00:28:28.620 --> 00:28:31.220
the child's best interests.

316
00:28:31.220 --> 00:28:36.740
In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned

317
00:28:36.740 --> 00:28:41.860
of the massive coercive potential of the best interest criterion.

318
00:28:41.860 --> 00:28:47.380
A court should not take the custody of a child from their parents solely on the ground that

319
00:28:47.380 --> 00:28:52.100
the state or its agencies can find a better home for them.

320
00:28:52.100 --> 00:28:57.180
If the better home test were the only test, public welfare officials could take children

321
00:28:57.180 --> 00:29:02.540
from Half the Parents in the State, whose homes are considered to be the less desirable,

322
00:29:02.540 --> 00:29:06.740
and place them in the homes of the other half of the population, considered to have the

323
00:29:06.740 --> 00:29:09.700
more desirable homes.

324
00:29:09.700 --> 00:29:13.780
Extending this principle further, we would find that the family believed to have the

325
00:29:13.780 --> 00:29:18.340
best home would have the choice of any of our children.

326
00:29:18.340 --> 00:29:24.180
Even more bizarre and totalitarian in its implications is the often proposed concept

327
00:29:24.180 --> 00:29:27.600
of a Child's Right to Be Wanted.

328
00:29:27.600 --> 00:29:33.380
Apart from the impossibility of using violence to enforce an emotion on someone else, such

329
00:29:33.380 --> 00:29:39.940
a criterion would arm outside parties, in practice the state, with the power to determine

330
00:29:39.940 --> 00:29:46.120
when wanting exists, and to seize children from parents who don't meet that scarcely

331
00:29:46.120 --> 00:29:48.960
definable criterion.

332
00:29:48.960 --> 00:29:55.280
Since Hilary Rodham of the Children's Defense Fund has challenged this criterion, how should

333
00:29:55.280 --> 00:30:00.040
a right to be wanted be defined and enforced?

334
00:30:00.040 --> 00:30:05.760
The necessarily broad and vague enforcement guidelines could recreate the hazard of current

335
00:30:05.760 --> 00:30:12.280
laws, again requiring the state to make broad discretionary judgements about the quality

336
00:30:12.280 --> 00:30:14.440
of a child's life.

337
00:30:14.440 --> 00:30:19.520
The rights of children, even more than those of parents, have been systematically invaded

338
00:30:19.520 --> 00:30:21.360
by the state.

339
00:30:21.360 --> 00:30:26.360
Compulsory school attendance laws, endemic in the United States since the turn of this

340
00:30:26.360 --> 00:30:31.520
century, force children either into public schools or into private schools officially

341
00:30:31.520 --> 00:30:33.960
approved by the state.

342
00:30:33.960 --> 00:30:40.280
Supposedly humanitarian child labor laws have systematically, forcibly prevented children

343
00:30:40.280 --> 00:30:45.840
Children from entering the labor force, thereby privileging their adult competitors.

344
00:30:45.840 --> 00:30:50.520
Forcibly prevented from working and earning a living, and forced into schools which they

345
00:30:50.520 --> 00:30:57.280
often dislike or are not suited for, children often become truants, a charge used by the

346
00:30:57.280 --> 00:31:03.440
state to corral them into penal institutions in the name of reform schools, where children

347
00:31:03.440 --> 00:31:10.060
are in effect imprisoned for actions or non-actions that would never be considered crimes if committed

348
00:31:10.060 --> 00:31:12.100
by Adults.

349
00:31:12.100 --> 00:31:17.520
It has indeed been estimated that from one quarter to one half of juvenile delinquents

350
00:31:17.520 --> 00:31:23.500
currently incarcerated by the State did not commit acts that would be considered crimes

351
00:31:23.500 --> 00:31:29.220
if committed by adults, that is, aggression against person and property.

352
00:31:29.220 --> 00:31:35.380
The crimes of these children were in exercising their freedom in ways disliked by the minions

353
00:31:35.380 --> 00:31:41.340
of the State, Truancy, incorrigibility, running away.

354
00:31:41.340 --> 00:31:46.800
Between the sexes, it is particularly girl children who are jailed in this way for immoral

355
00:31:46.800 --> 00:31:49.980
rather than truly criminal actions.

356
00:31:49.980 --> 00:31:56.160
The percentage of girls jailed for immorality, waywardness, sexual relations, rather than

357
00:31:56.160 --> 00:32:01.640
for genuine crimes, ranges from 50 to over 80 percent.

358
00:32:01.640 --> 00:32:08.880
Since the U.S. Supreme Court's decision in the 1967 case of Henry Galt, juvenile defendants,

359
00:32:08.880 --> 00:32:14.440
at least in theory, have been accorded the elementary procedural rights of adults, the

360
00:32:14.440 --> 00:32:20.580
right to notice of specific charges, the right to counsel, the right to cross-examine witnesses.

361
00:32:20.580 --> 00:32:25.240
But these have only been granted in cases where they have actually been accused of being

362
00:32:25.240 --> 00:32:27.060
criminals.

363
00:32:27.060 --> 00:32:33.520
As Beatrice Levido writes, the GALT and similar decisions do not apply to any adjudicatory

364
00:32:33.520 --> 00:32:39.060
hearings except those in which the offense charged to the juvenile would be violation

365
00:32:39.060 --> 00:32:42.700
of the criminal laws if committed by an adult.

366
00:32:42.700 --> 00:32:49.200
Therefore, the safeguards of Kent, GALT and Winship do not protect the due process rights

367
00:32:49.200 --> 00:32:55.420
of juveniles who are dependent, neglected, in need of supervision, truant, runaway or

368
00:32:55.420 --> 00:33:02.100
are accused of other offenses of which only juveniles can be guilty such as smoking, drinking,

369
00:33:02.100 --> 00:33:05.100
staying out late, etc.

370
00:33:05.100 --> 00:33:10.900
As a result, juveniles are habitually deprived of such elemental procedural rights according

371
00:33:10.900 --> 00:33:16.860
to adult defendants as the right to bail, the right to a transcript, the right to appeal,

372
00:33:16.860 --> 00:33:22.940
the right to a jury trial, the burden of proof to be on the prosecution and the inadmissibility

373
00:33:22.940 --> 00:33:25.380
of hearsay evidence.

374
00:33:25.380 --> 00:33:30.820
As Roscoe Pound has written, the powers of the Star Chamber were a trifle in comparison

375
00:33:30.820 --> 00:33:33.620
with those of our juvenile courts.

376
00:33:33.620 --> 00:33:38.740
Once in a while, a dissenting judge has leveled a trenchant critique of this system.

377
00:33:38.740 --> 00:33:46.420
Thus, Judge Michael Musimano stated in a 1954 Pennsylvania case, certain constitutional

378
00:33:46.420 --> 00:33:52.860
and legal guarantees such as immunity against self-incrimination, prohibition of hearsay,

379
00:33:52.860 --> 00:34:07.860
The interdiction of ex parte and secret reports, also 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.

380
00:34:07.860 --> 00:34:19.860
Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of immorality, habitual truancy,

381
00:34:19.860 --> 00:34:33.860
Habitual disobedience, incorrigibility, ungovernability, moral depravity, in danger of becoming morally depraved, immoral conduct, and even associating with persons of immoral character.

382
00:34:33.860 --> 00:34:48.860
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.

383
00:34:48.860 --> 00:34:59.860
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.

384
00:34:59.860 --> 00:35:08.860
Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories,

385
00:35:08.860 --> 00:35:19.860
Genuine criminals, who are called delinquents, and other immoral children, who are called persons in need of supervision, or PINs, P-I-N-S.

386
00:35:19.860 --> 00:35:26.860
After which, the PINs offenders receive longer sentences than the actual juvenile criminals.

387
00:35:26.860 --> 00:35:30.860
Thus, in a recent study, Paul Lehrman writes,

388
00:35:30.860 --> 00:35:39.860
The range of institutional stay was 2-28 months for delinquents and 4-48 months for PINs boys.

389
00:35:39.860 --> 00:35:44.860
The median was 9 months for delinquents and 13 months for PINs,

390
00:35:44.860 --> 00:35:52.860
and the average length of stay was 10.7 months for delinquents and 16.3 months for PINs.

391
00:35:52.860 --> 00:35:57.860
The results of length of stay do not include the detention period.

392
00:35:57.860 --> 00:36:03.180
The Stage of Correctional Processing Prior to Placement in an Institution

393
00:36:03.180 --> 00:36:08.460
Analyses of recent detention figures for all five boroughs of New York City revealed the

394
00:36:08.460 --> 00:36:13.780
following patterns 1. PINS boys and girls are more likely to be

395
00:36:13.780 --> 00:36:21.620
detained than delinquents, 54 to 31 percent, and 2. Once PINS youth are detained, they

396
00:36:21.620 --> 00:36:27.620
They are twice as likely to be detained for more than 30 days than are regular delinquents,

397
00:36:27.620 --> 00:36:30.620
50 to 25 percent.

398
00:36:30.620 --> 00:36:36.620
Again, it is mainly female juveniles that are punished for immoral offenses.

399
00:36:36.620 --> 00:36:42.620
A recent study of Hawaii, for example, found that girls charged merely with running away

400
00:36:42.620 --> 00:36:49.660
normally spend two weeks in pre-trial detention, whereas boys charged with actual crimes are

401
00:36:49.660 --> 00:36:55.980
are held for only a few days, and that nearly 70% of the imprisoned girls in a state training

402
00:36:55.980 --> 00:37:03.860
school were incarcerated for immorality offenses, whereas the same was true of only 13% for

403
00:37:03.860 --> 00:37:05.980
the imprisoned boys.

404
00:37:05.980 --> 00:37:11.980
The current judicial view, which regards the child as having virtually no rights, was trenchantly

405
00:37:11.980 --> 00:37:18.500
analyzed by Supreme Court Justice Abe Fortas in his decision in the Galt case.

406
00:37:18.500 --> 00:37:22.740
The idea of crime and punishment was to be abandoned.

407
00:37:22.740 --> 00:37:28.620
The child was to be treated and rehabilitated, and the procedures from apprehension through

408
00:37:28.620 --> 00:37:34.280
institutionalization were to be clinical rather than punitive.

409
00:37:34.280 --> 00:37:39.660
These results were to be achieved without coming to conceptual and constitutional grief

410
00:37:39.660 --> 00:37:45.300
by insisting that the proceedings were not adversary, but that the state was proceeding

411
00:37:45.300 --> 00:37:50.140
as Parents Patrii, The State as Parent.

412
00:37:50.140 --> 00:37:55.740
The Latin phrase proved to be a great help to those who sought to rationalize the exclusion

413
00:37:55.740 --> 00:38:01.340
of juveniles from the constitutional scheme, but its meaning is murky and its historical

414
00:38:01.340 --> 00:38:04.660
credentials are of dubious relevance.

415
00:38:04.660 --> 00:38:10.780
The right of the State as Parents Patrii to deny the child procedural rights available

416
00:38:10.780 --> 00:38:17.340
to his elders was elaborated by the assertion that a child, unlike an adult, has a right

417
00:38:17.340 --> 00:38:24.460
not to liberty but to custody. If his parents default in effectively performing their custodial

418
00:38:24.460 --> 00:38:32.120
functions, that is, if the child is delinquent, the state may interfere. In doing so, it does

419
00:38:32.120 --> 00:38:38.120
not deprive the child of any rights because he has none. It merely provides the custody

420
00:38:38.120 --> 00:38:40.960
to which the child is entitled.

421
00:38:40.960 --> 00:38:47.000
On this basis, proceedings involving juveniles were described as civil, not criminal, and

422
00:38:47.000 --> 00:38:51.560
therefore not subject to the requirements which restrict the state when it seeks to

423
00:38:51.560 --> 00:38:54.360
deprive a person of his liberty.

424
00:38:54.360 --> 00:39:00.240
It may be added that calling an action civil, or custody, does not make incarceration any

425
00:39:00.240 --> 00:39:07.800
more pleasant, or any less incarceration, for the victim of the treatment or the rehabilitation.

426
00:39:07.800 --> 00:39:13.220
Psychologist Frederic Howlett has trenchantly criticized the juvenile court system and placed

427
00:39:13.220 --> 00:39:16.480
it in a wider libertarian context.

428
00:39:16.480 --> 00:39:22.200
He writes of the denial of certain basic rights of individuals, the right to associate with

429
00:39:22.200 --> 00:39:28.600
those of their choice and to engage voluntarily in acts that harm no one but themselves.

430
00:39:28.600 --> 00:39:33.400
The drunk who clogs our courts should have the right to get drunk.

431
00:39:33.400 --> 00:39:37.780
The prostitute and her client should not have to answer to the law for an act that is their

432
00:39:37.780 --> 00:39:39.900
and their personal decision.

433
00:39:39.900 --> 00:39:45.740
The misbehaving child likewise has a fundamental right to be a child, and if he has committed

434
00:39:45.740 --> 00:39:51.340
no act that would be considered criminal were he an adult, why seek recourse through the

435
00:39:51.340 --> 00:39:53.220
courts?

436
00:39:53.220 --> 00:39:59.100
Before rushing to treat or help a person outside the justice system, should not the community

437
00:39:59.100 --> 00:40:02.940
first consider the alternative of doing nothing?

438
00:40:02.940 --> 00:40:08.860
Did it not recognize the child's right as a person to non-treatment and non-interference

439
00:40:08.860 --> 00:40:11.260
by an outside authority?

440
00:40:11.260 --> 00:40:17.020
A particularly eloquent judicial defense of the rights of children occurred in an 1870

441
00:40:17.020 --> 00:40:22.180
Illinois decision, years earlier than the modern assertion of state despotism in the

442
00:40:22.180 --> 00:40:27.620
juvenile court system beginning with the turn-of-the-century progressive period.

443
00:40:27.620 --> 00:40:34.340
In his decision in People X Rel O'Connell v. Turner, Justice Thornton declared,

444
00:40:34.340 --> 00:40:40.820
The principle of the absorption of the child in, and its complete subjection to, the despotism

445
00:40:40.820 --> 00:40:46.580
of the State, is wholly inadmissible in the modern civilized world.

446
00:40:46.580 --> 00:40:50.220
These laws provide for the safe keeping of the child.

447
00:40:50.220 --> 00:40:56.140
They direct his commitment, and only a ticket of leave, of the uncontrolled discretion of

448
00:40:56.140 --> 00:41:02.060
of a Board of Guardians will permit the imprisoned boy to breathe the pure air of heaven outside

449
00:41:02.060 --> 00:41:08.800
his prison walls, and to feel the instincts of manhood by contact with the busy world.

450
00:41:08.800 --> 00:41:14.880
The confinement may be from one to fifteen years, according to the age of the child.

451
00:41:14.880 --> 00:41:20.320
Executive clemency cannot open the prison doors, for no offense has been committed.

452
00:41:20.320 --> 00:41:25.640
The writ of habeas corpus, a writ for the security of liberty, can afford no relief,

453
00:41:25.640 --> 00:41:31.720
For the sovereign power of the state, as parents' patrii, has determined the imprisonment beyond

454
00:41:31.720 --> 00:41:33.480
recall.

455
00:41:33.480 --> 00:41:38.040
Such a restraint upon natural liberty is tyranny and oppression.

456
00:41:38.040 --> 00:41:42.980
If without crime, without the conviction of any offense, the children of the state are

457
00:41:42.980 --> 00:41:48.360
thus to be confined for the good of society, then society had better be reduced to its

458
00:41:48.360 --> 00:41:53.180
original elements, and free government acknowledged a failure.

459
00:41:53.180 --> 00:41:58.040
The disability of minors does not make slaves or criminals of them.

460
00:41:58.040 --> 00:42:03.920
Can we hold children responsible for crime, liable for their torts, impose onerous burdens

461
00:42:03.920 --> 00:42:10.440
upon them, and yet deprive them of their liberty without charge or conviction of crime?

462
00:42:10.440 --> 00:42:14.680
The Illinois Bill of Rights, following upon the Virginia Declaration of Rights and the

463
00:42:14.680 --> 00:42:20.960
Declaration of Independence, declares that all men are by nature free and independent,

464
00:42:20.960 --> 00:42:26.700
and have certain inherent and inalienable rights among these life, liberty and the pursuit

465
00:42:26.700 --> 00:42:28.600
of happiness.

466
00:42:28.600 --> 00:42:34.840
This language is not restrictive, it is broad and comprehensive and declares a grand truth

467
00:42:34.840 --> 00:42:42.000
that all men, all people everywhere have the inherent and inalienable right to liberty.

468
00:42:42.000 --> 00:42:47.560
Shall we say to the children of the state, you shall not enjoy this right, a right independent

469
00:42:47.560 --> 00:42:54.280
of all human laws and regulations, even criminals cannot be convicted and imprisoned without

470
00:42:54.280 --> 00:42:55.760
due process of law.