Parens Patriae Essay

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Juvenile justice experts define parens patriae as the state’s duty and license to raise children. If the natural parents are not taking proper care of their children, the state is both obligated and authorized to intervene in the family’s life and to pursue this mission. Legal historians would counter that, although parens patriae is centuries old, this particular description dates back only to 1839, thanks to a Pennsylvania Supreme Court decision. In Ex parte Crouse, the Pennsylvania court invented the modern interpretation of parens patriae, which is critical because it allows juvenile courts to operate expediently compared to adult criminal courts. That is, parens patriae permits juvenile courts to function without all the constitutional rights that make criminal courts expensive and cumbersome.

Original Context of Parens Patriae in England

Parens patriae can be traced back to at least the 1300s in England when it dealt with the king’s appointment of a financial manager to oversee the property of orphans of noble rank. If these wealthy children lost their parents, the king appointed someone who exercised wardship. The king’s representative extended financial assistance to ensure the orphans would not be exploited. This management also guaranteed that the children would be reared and educated to evolve into adults of noble rank, who owed allegiance to the king. It was a mutually beneficial arrangement for noble orphans and the monarchy (as well as for the managers).

A Changing United States

A changing United States in the 19th century and the need for supporting legal doctrine brought about the serious transformation parens patriae experienced upon arrival in the United States. During the early 1800s, this country was evolving from a rural—agrarian to an urban—industrialized society. Cities were exploding with increasing populations, including many immigrants. This was no longer colonial or revolutionary America. Rather, it was becoming the nation it is today, marked by heavily populated cities and crime. Another trait was the accumulation of poor people in urban centers. These dramatic changes in America’s makeup caused concern among those who had witnessed earlier, more tranquil times. The most vocal and active in seeking a return to the “good old days” was a prominent social reform group, the Quakers.

The Quakers believed that rampant poverty would eventually lead to serious social problems, especially crime. They believed that education, including basic academic instruction and vocational and moral training, needed to be offered to the poor to prevent them from becoming criminals. The Quakers were also convinced that, while it was too late to work successfully with adults, children were susceptible to the change and positive development that education could secure. Important, however, was the Quakers’ thinking that this change could not occur unless children were separated from their parents. Until this time, poor children either were living at home with their family or, if extremely poor, were incarcerated with their family in a poorhouse or almshouse.

The Quakers believed that allowing these children to cohabitate with their parents would result in their growing up to live lives of poverty much like their parents. Consequently, the Quakers argued that the state was obliged to remove these children from their dysfunctional surroundings. The Quakers could then offer a productive living situation, providing the education needed to survive and prosper in America. In the 21st century, the Quaker beliefs would not be considered radical. In fact, the connection between poverty and crime is a major tenet or theory of criminology. In the early 1800s, however, what the Quakers proposed was indeed groundbreaking. The state had never been portrayed heretofore as the ultimate parent of all children (especially to those with parents of their own).

The Quakers launched their program in what was called a house of refuge. They easily obtained a charter from several state legislatures to open their schools by convincing the legislators that their ideas were sound. What proved more of a challenge, however, was convincing the courts that there was legal precedent or authority for the Quakers’ plan to incarcerate children in their facilities against the wishes of the children and their parents. In fact, the Quakers never offered any legal doctrine to support their idea.

Ex Parte Crouse and the Initial Transformation of Parens Patriae

The first significant legal challenge to the Quakers’ operation occurred in Ex parte Crouse. A young girl had been committed to a house of refuge by her mother; she had been granted no rights (such as a jury trial) before she was incarcerated. The girl’s father objected to the incarceration and the absence of rights. The Pennsylvania Supreme Court denied the father’s petition for release of his daughter based on its interpretation of parens patriae, which now meant the state had a superior right to intervene into family life when parents are perceived as incompetent or corrupt; parental control of children was described as a natural but not inalienable right. The Crouse description of parens patriae had nothing to do with its usage in England. However, desperately needing but certainly lacking any true legal precedent for the Quakers’ reform efforts, the Pennsylvania court simply created one via a misinterpretation of parens patriae. This filled the legal void and allowed the Quakers to keep their houses of refuge open.

Commonwealth v. Fisher and Further Transformation of Parens Patriae

The emergence of juvenile courts in the early 20th century brought about a version of parens patriae even more removed from its original meaning. For decades youths processed for crimes in juvenile court were denied constitutional rights (such as counsel and self-incrimination), even though state constitutions provided that those charged with crime were guaranteed these rights. Among other things, constitutional rights were considered unnecessary (juveniles were being helped not punished) and harmful (juveniles could escape the system and rights cost money). Juvenile courts had much at stake in denying rights to youths. Nevertheless, state constitutions were clear that age was not a factor in being afforded rights when facing criminal charges. The first appellate challenge to this processing occurred in Commonwealth v. Fisher, in 1905, delivered by the Pennsylvania Supreme Court. Just as in Crouse, the Fisher court announced that parens patriae served as the legal justification for its decision, stripping juveniles of their previously recognized constitutional rights. Parens patriae was now twice removed from its original context of estate management. Although Fisher lacked a true legal foundation, virtually all appellate courts thereafter agreed that juvenile courts could also operate without granting rights to defendants and cited Fisher and parens patriae as their authority. Undeniably, the Pennsylvania Supreme Court is responsible for establishing the contemporary definition of parens patriae.

In re Gault and Sanctioning the Misinterpretation of Parens Patriae

Eventually, in In re Gault (1967), the U.S. Supreme Court granted juvenile defendants a few constitutional rights and modified juvenile courts’ operation. The court seemed reluctant to grant juveniles all the rights adult defendants have because of a fear that equality of rights could lead to questioning the need to have two separate court systems; that could lead to the demise of juvenile courts. The court also seemed hesitant to destroy the legal foundation of juvenile courts (i.e., parens patriae) for fear that eliminating that foundation could also destroy juvenile court. At the same time, the court seemed to refuse to be “snowed” by the misinterpretation of parens patriae developed by the Pennsylvania Supreme Court. So, instead of lying (parens patriae is the true legal precedent for stripping juveniles of constitutional rights) or telling the truth (parens patriae has no relationship to such an action by juvenile courts), the court “fudged” by saying parens patriae has a “murky meaning,” “dubious relevance,” and “debatable constitutionality.” Although insulting, perhaps, this characterization of parens patriae is not fatal. Since Gault, the Supreme Court has never revisited parens patriae in the context of juvenile justice. But, in the end, the court revealed that parens patriae really has no historical connection to or legitimacy in denying constitutional rights to youths charged with crime in juvenile courts.


  1. Cogan, Neil H. “Juvenile Law, Before and After the Entrance of ‘Parens Patriae.’” South Carolina Law Review, v.22 (1970).
  2. Pickett, Robert S. House of Refuge: Origins of Juvenile Reform in New York State, 1815–1857. Syracuse, NY: Syracuse University Press, 1969.
  3. Rendleman, Douglas R. “Parens Patriae: From Chancery to the Juvenile Court.” South Carolina Law Review, v.23 (1971).
  4. Venable, Gilbert T. “The Parens Patriae Theory and Its Effect on the Constitutional Limits of Juvenile Court Powers.” University of Pittsburgh Law Review, v.27 (1966).

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