Commentary : ‘Status’ Offenders: A Need for Adjustment Rather Than Punishment

In a recent 5-2 decision involving Michael G., the California Supreme Court ruled that a habitual truant, and, by implication, any “status” offender, can be incarcerated if he or she disobeys an order of the court. On the surface, that seems reasonable enough--one assumes that the Juvenile Court should have suitable coercive power in dealing with an unruly child. If a parent or guardian can punish a child severely, surely the Juvenile Court should be able to do so; after all, it was established to function in a parental mode.

But the issues are far more complex. A “status” offense is not criminal behavior but behavior in defiance of the directions of those with authority over a child. That defiance may be in the form of not attending school regularly, running away or staying away from home beyond a designated hour. Only those who have a certain status--childhood--may commit the offense.

Early justification for placing youngsters in locked facilities for disobedience came in 1838 when the Pennsylvania Supreme Court decided that it was constitutional to lock up little Mary Ann Crouse because her mother (but not her father) considered her unmanageable. Moreover, that commitment to an institution was allowed without the procedural safeguards to which a criminal was entitled (such as a trial by jury) because, it was argued, the state had special interest in the welfare of its children.

The process became solidly embedded when juvenile courts were established at the turn of the century. And while Mary Ann was institutionalized for being unmanageable, a child in California during the first half of the 1970s could be sent to a jail-like institution if he or she was considered “one who for any cause is in danger of leading an idle, dissolute, lewd or immoral life,” as well as for being disobedient, a runaway or a truant.

Perhaps most disturbing, however, was national data in the late 1960s and early 1970s that indicated that about 27% of boys and 65% of girls, who were incarcerated, were in locked facilities for status offenses. Moreover, close assessment of many cases indicated that the ultimate source of the difficulty leading to the incarceration may have been an unreasonably demanding parent rather than a wayward child.

In California, a youngster who ran away from home or was considered ungovernable could wind up in a Youth Authority facility, alongside young burglars, rapists, and murderers, by a process called “bootstrapping.” That was possible because juvenile law at the time allowed a status offender to be designated a criminal-type offender if he or she “failed to obey a lawful order of the Juvenile Court.” Thus, a youngster whose worst offense may have been running away from a difficult parent and then again from a foster home placement ordered by a court could have wound up as a Youth Authority inmate.

A change in California law occurred in 1977. The new legislation said that status offenders could be kept only in non-secure facilities such as shelter homes.

A challenge to the new law came just days after it went into effect when Superior Court Judge Raymond Vincent of Orange County reacted with considerable pique to the flight of several status offenders from a new unlocked reception center. Judge Vincent ordered any minor who left a court-designated facility without permission to be dealt with as a criminal offender because he or she willfully disobeyed a court order. Within a few months, the appellate court (4th District) decided that Judge Vincent’s procedures were unacceptable in view of the legislative decision to eliminate the language in juvenile law that allowed bootstrapping. That was the state of the law in California until the Michael G. case came along.

In that case, the Juvenile Court in Fresno imposed a 48-hour period of confinement in a secure facility for the failure of a youth to obey a court order to attend school regularly. The confinement was based on the power of a court to punish for contempt without escalating the nature of the offense to criminal (bootstrapping). The appellate court (5th District) decided that the judge acted properly to maintain “the dignity and authority of the court,” and so did the state Supreme Court.

Placing disobedient youngsters in locked facilities may contribute to the maintenance of the dignity (some of us would argue, less flatteringly, to the inflated egos of judges), but there is a more pressing concern about the welfare of the children in question. When imprisonment--whatever the euphemism for the process--of status offenders was allowed in the past, there was abundant evidence of excessive and inappropriate uses. Moreover, the consequences were not respect for the law and resulting compliant behavior but often rebellion and deterioration of behavior.

Consequently, the Michael G. decision makes it more important than ever that we change our outlook so that disobedience on the part of a child is considered a problem of adjustment rather than an offense. Disobedience then would fall within the domain of mental health, child guidance and family service agencies rather than the justice system. Of course, there will be major difficulties that result from particularly obstreperous youths, but the difficulties will be less than those of heavy-handedness. The issue is not compassion but sound social policy.