A Reexamination of the Parens Patriae Power

58 Pages Posted: 18 Nov 2021 Last revised: 6 Feb 2023

See all articles by Esther Hong

Esther Hong

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: October 29, 2021

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.

Keywords: juvenile law, criminal law, parens patriae power

Suggested Citation

Hong, Esther, A Reexamination of the Parens Patriae Power (October 29, 2021). 88 Tennessee Law Review 277 (2021), Available at SSRN: https://ssrn.com/abstract=3952716

Esther Hong (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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