Document Type

Article

Publication Title

Wisconsin Law Review

Publication Date

1999

Page Number

185

Disciplines

Law

Abstract

The traditional juvenile court, focused on rehabilitation and "childsaving," was premised primarily on a parens patriae notion of State power. " Because of juveniles' immaturity and greater treatability, this theory posited, the State could forego the substantive and procedural requirements associated with the adult system of criminal punishment. As an historical and conceptual matter, however, the parens patriae power justifies intervention only for the good of the subject, not for society as a whole. " From the outset, then, the image of the juvenile delinquency system as a manifestation of the State acting as "parent" was an implausible one. This Article has argued that a much more persuasive reason for retaining a rehabilitation-oriented system for juveniles can be found by looking at the police power of the State, specifically its power to intervene to prevent harm by those who are relatively unaffected by the prospects of criminal punishment. This Article laid out some of the ramifications of adopting this theory of juvenile justice, as well as some modifications of these ramifications where they require reliance on our incomplete knowledge of human behavior and thus would threaten liberty interests. These proposals offer an alternative both to the juvenile justice system of the past, which was too immersed in child-saving, and the juvenile justice system of the present, which is becoming increasingly punishment-oriented. Our ultimate goal is a system that is both humane and just, at the same time it effectively protects society.

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