Rutgers Law Journal (Rutgers-Camden)
Note, 26 (1995): 431.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
NEW JERSEY TAKES AIM AT GUN VIOLENCE BY MINORS:
PARENTAL CRIMINAL LIABILITY
Violence committed by children with firearms, while not a recent phenomenon, is receiving increased media attention. There is heightened public awareness of the prevalence of guns among children and a recognition of the numerous injuries and deaths resulting from the use of guns by juveniles. New Jersey ranks fourth in the nation in the arrest rate for serious juvenile violent offenders. The severity of the problem and its serious implications have spurred numerous proposals [Page 432] to address the crisis. Many of these suggestions have come from the scientific and legal sectors.
Juvenile delinquency has been the focus of many studies. While the family situation is a contributing factor in delinquency, the impetus for antisocial behavior may be any of a number of forces emanating either from within a child's nature or from his environment. Thus, juvenile delinquency has been linked to the child's personal characteristics, to outside conditions, and to other persons. While parents may be able [Page 433] to counteract a rebellious attempt by the child to assert his own personality, there are often other conditions which determine the child's behavior and which are outside the reach of the parents. For instance, one author has cited association with a delinquent peer group as the most important factor influencing juvenile delinquent behavior.
Lawmakers concerned with public safety have searched for means to reduce juvenile violence. Some have struck upon the idea of penalizing the parents of child offenders. Such statutes are attractive to legislators for several reasons. First, they represent a visible effort to combat offenses occurring in the streets and schools of their districts. Thus, legislators gain political support by advocating such measures. Secondly, implementation of these statutes effectively shifts the burden of controlling such violence from state government to the parents. Furthermore, the enactment of these statutes represents official recognition of the fact that parents are at least partially to blame for these crimes and that legislation alone will not control the problems of juvenile delinquency or misuse of firearms.
A parental criminal liability statute (Parental Responsibility Bill) is now under consideration in the New Jersey Legislature. Several cities [Page 435] and states have supported similar statutes,20] and a few have actually implemented them. However, with evidence that a disproportionate number of delinquent acts occur in "crowded inner-city areas where . . . (delinquency) exists side by side with problems of poverty, inferior education, poor housing, bad health, and high unemployment," there has been increasingly outspoken public concern that parents in these sectors of society will be unfairly affected by these criminal penalties.23] Moreover, there is a strong historic resistance to government interference with parental decisions and intrusions by the state into the family environment. Some authors have specifically noted¾without offering a resolution¾the existence of equal protection issues in parental criminal liability. These objections present obstacles to the implementation of the Parental Responsibility Bill.
This Note will analyze the implications of parental criminal liability statutes. First, it will introduce New Jersey's latest version of the Parental Responsibility Bill. Next, it will examine the concepts of parental responsibility as they have developed in the states, specifically New Jersey, focusing on the reasons for these efforts and their effectiveness. Because of the public and academic concern about the disparate effect that these statutes26] may have on certain groups and specific rights, an equal protection analysis will be undertaken. However, because equal protection does not provide effective opposition to these statutes, difficulties with the Bill will be assessed through a comparison of it to the tort concept of third-party liability and the accompanying policies. Finally, alternatives will be suggested which may negate adverse public sentiment and offer a more effective solution for the problem of juvenile gun violence in New Jersey.
II. PARENTAL RESPONSIBILITY
A. New Development in New Jersey
The latest legislative attempt in New Jersey to control the use of guns by minors through parental sanction was introduced in the New Jersey Senate on January 18, 1994. A companion bill was introduced [Page 437] in the New Jersey Assembly on February 7, 1994. Both versions provide that a parent is guilty of a crime if his child is convicted or adjudicated delinquent for the use or possession of a firearm during the commission of a crime or offense. The proposal requires the parent to have acted with criminal negligence. Thus, if the parent knew or should have known of the child's acquisition, possession, or access to the firearm, then the failure to exercise proper supervision and control over the child is a criminal offense. A parent's conviction could result in a maximum of eighteen months in prison or a criminal fine of up to $7500. [Page 438]
Though the Bill is a legitimate attempt to deter firearms violence by children, opponents voice several concerns with the proposal. First, the Bill constitutes substantial interference by the state with parental rights. Next, given the statistics on juvenile delinquency and the use of firearms, the Bill may also have a disparate impact on certain sectors of society. Another significant problem is whether the parent had the requisite knowledge of the child's behavior, and whether the parent was able to control the child in a given situation. The "use or possession" language is not limited to a firearm owned by, or under the control of, the parent. Concerns about "parental responsibility" call for an evaluation of the proposal in light of its impact.
B. The Basis for Parental Liability
1. Parental Liability Outside New Jersey
Just as juvenile delinquency is an age-old problem, proposals of parental responsibility laws are not novel. The traditional common-[Page 439]law rule is that no one is responsible for the negligent acts of another. However, an exception is made when a special relationship, such as that of parent and child, exists between the parties. In this situation, the law imposes an affirmative duty on parents to supervise and control their children. Legal recognition of "collateral liability" has developed through various statutory forms and judicial rules: the [Page 440] theories of agency, contribution to the delinquency of a juvenile, and strict liability.
Because of the increase in violence by children, some citizens have called for parents to be held criminally liable for their role in the delinquency. Some states have already passed laws to this effect. They seek to prompt parents to control their children, to provide a better example for them, and to offer an alternate source of support for their children.
These laws take various forms. In Montana, it is a misdemeanor to permit an unaccompanied child to carry or use a firearm in public, and the county attorney must prosecute every complaint of a violation. In New Mexico, a parent may be made a party to any complaint alleging a child's delinquency. If the child is found delinquent, the court may order the parent to enter counseling or to participate in a treatment program. If the child is institutionalized, the court may order the parent to participate in counseling or treatment at the institution. New Mexico also provides that the court shall order the parent to pay [Page 442] reasonable costs of the child's support, maintenance, and treatment. Wisconsin law charges parents in a similar manner, and courts are willing to reduce a parent's monthly welfare checks while the child is in the Juvenile Detention Center. In California, parents of delinquent gang-members may be held criminally liable, subject to imprisonment and/or a fine of up to $2,500, for failing to properly supervise and control their children.
Youth violence is, in fact, a subject of national concern and debate. A recent bill would make it a federal crime to leave a gun accessible to a minor.
2. Current Parental Liability in New Jersey
New Jersey law provides that a parent may be civilly liable for a child's willful, malicious, or unlawful destruction of property, should [Page 443] the parent fail to reasonably supervise the child. Moreover, a parent may be held vicariously liable, regardless of fault, for the child's damage of school property.60] The New Jersey Supreme Court has upheld these laws against due process and equal protection challenges.
As a basis for its Parental Responsibility Bill, the legislature refers to its statute which prohibits the purchase, acquisition, firing, use, or possession of firearms by minors. Support also exists in the form of judicial decisions finding parents civilly liable for injuries inflicted by their children with firearms if the parents had the ability to control the actions of their children, and if the parents had, or should have had, knowledge of the necessity and opportunity for exercising such control. Knowledge and opportunity can be proven by the existence [Page 444] of an unguarded firearm in the house and the parent's reasonable expectation that the child would find and use the firearm.
Civil liability for the acts of children was only a minor expansion from other accepted forms of "vicarious liability without fault." If an employer can be held civilly liable for actions of his employees, it may seem logical that a parent should have similar responsibilities for his or her child, even though parents lack the element of choice available in employment decisions. [Page 445]
Parents ought to have the opportunity to control the behavior of their children. This fact suggests that liability should adhere when parents fail to exert such control. Parents are expected to mold children into law-abiding adults. Imposing civil liability demonstrates public recognition of the importance of this responsibility.
Because parental civil liability is widely accepted, the step to criminal liability is relatively small, except for the disapproval of the concept of criminal liability for the acts of others. The failure to exercise the duties of discipline, guidance, and supervision were insufficient to uphold a criminal sanction in Doe v. City of Trenton. The municipal ordinance in Doe made parents responsible for repeat offenses by their children in disturbing the peace. The entire ordinance [Page 446] was found unconstitutional because of a presumption that repeat offenses were due to the wrongful acts or omissions of parents. The court noted that many other factors exist which may cause or contribute to delinquency, and which could intervene or override any parental wrongdoing or laxity. Because the city provided no evidence of an singular parental role in causing juvenile delinquency, the court found criminal sanctions inappropriate.
These same considerations should be kept in mind in attempting to control the acts of children by criminalizing neglect of parental duties. Children are individuals who control their own decisions and actions.74] They are subject to a variety of influences. Any regime that imposes absolute parental control over a child can be harsh and ultimately unproductive of the desired ends.
III. CONSTITUTIONAL CONCERNS
Many public and academic criticisms of parental criminal liability cite governmental interference in family affairs and the disparate impact of such an approach. Statistics indicate that juvenile delinquency is prevalent in identifiable sectors of society, including urban families, families from lower economic classes, single parent families, and families where both parents work during times when their children are [Page 448] not in school. These statistics suggest the potential that the Parental Responsibility Bill may have a disparate impact upon parents in these particular groups. These inequities lead some to conclude that the Bill fails to satisfy the Equal Protection Clause. An analysis of the proposed legislation demonstrates that it can qualify under both the United States and the New Jersey Constitutions.
The first inquiry in an equal protection challenge is whether the statute involves a suspect classification or violates a fundamental right. The answer will determine the level of scrutiny to be applied in such a challenge. If enacted, the Bill will disproportionately burden [Page 449] the poor and certain minorities. It will also impinge upon parents' fundamental rights in child-rearing.
One implication of the Bill is the likelihood of de facto discrimination against the poor. Such discrimination is examined under the rational basis test because indigence is not a suspect classification. The statute would, therefore, be presumed valid unless [Page 450] a challenging party could show that it rests on grounds wholly irrelevant to the achievement of any legitimate government objective. Here the state's aim is to ensure the safety and welfare of its citizens, certainly a proper government objective.
The Equal Protection clause does not require that the practical impact be equal upon all persons, but only that the same legislation apply to all similarly-situated persons and that it be consistently applied. It is merely incidental that the failure to supervise a delinquent child occurs more frequently among the poorest sectors of society. Furthermore, this Bill and similar existing statutory provisions require courts to consider the economic hardship brought upon convicted persons and their families before imposing sentences and fines.
B. The Right to Privacy in Raising One's Children
The Parental Responsibility Bill may also be challenged on the basis that it interferes with the right to rear children as a parent sees fit. This [Page 451] right is fundamental for equal protection purposes and deserves constitutional protection from state interference. A bill which defines the duties of a parent and imposes penalties on parental decisions cannot [Page 452] help but interfere with this right to some extent. Thus, the strict scrutiny test can be applied.
Strict scrutiny inquires into the intent of the legislation. While intentional interference with family rights may suffice to invalidate under the due process clause, a challenge based on equal protection will succeed only if the Bill intentionally differentiates between similarly-situated people in violation of a fundamental right.
A statute may be invalid under the Equal Protection Clause in one of the following ways: the statute may be burdensome on its face, in its intent, or in its application. While the proposed Bill is not problematic either on it face or in its intent, its application will tend to interfere with the rights of parents, especially certain groups of [Page 453] parents. However, many statutes similarly impose upon one or another right, and are tolerated because they are necessary.
If the legislature's purpose is to place an undue burden on the parent's right to rear children, then the statute is presumed to be invalid unless it is shown to be necessary to a compelling state interest. The Bill's sponsors purposefully imposed a duty on parents to deter future crimes by children with guns. Therefore, the consequent burden on parents must be weighed against the state's interest in promoting public safety.
The Bill would probably survive this scrutiny. First, the legislative intent is the protection of citizens, not the interference with privacy rights. Also, it treats similarly-situated parents in a similar fashion, since it sanctions any parent, regardless of race, class, or address, whose child uses a gun to commit a crime. The interference that the statute imposes upon child-rearing is the strongest challenge to this legislative effort, but it too may fail if the burden on parents is found to be either incidental in effect or a valid exercise of state police power.
Despite its anticipated success, the Parental Responsibility Bill still causes concern because of its potential to interfere with personal rights and to disproportionally impact certain segments of society. Therefore, the scope of the Bill should be closely examined and limited. One way to limit this scope, which has proven effective in other spheres, is to form strict application guidelines. [Page 454]
IV. LIMITATIONS ON PARENTAL CRIMINLA RESPONSIBILITY
It is unnecessary to develop an entirely new set of limitations for the Parental Responsibility Bill. First of all, since parental liability is already incorporated into New Jersey state law, the law itself places limitations on applicability. Also, parental civil liability laws in New Jersey and the Restatement (Second) of Torts both provide sufficient limitations, including requiring that parents have notice that a child needs to be controlled and that the parents be able to control the child.
A. Notice of the Need to Control the Child
Many cases interpreting the notice requirement of section 316 of the Restatement (Second) of Torts require that the parents have knowledge of a prior act identical to the act in question. Other cases require [Page 455] knowledge of a specific type of harmful conduct, which could be unrelated to the act in question. Finally, some cases require only general misbehavior by the child prior to the act in question. The parent must be aware of previous misconduct in each situation.
The Parental Responsibility Bill satisfies the requirement of notice to the parent by applying the "knew or should have known" standard. This standard is met if the parent acts knowingly, recklessly, or with criminal negligence in supervising his or her child. As applied to a [Page 456] child's possession or use of a firearm, notice exists if the parent knew that his or her child possessed the specific firearm prior to commission of a crime.
Uncertainty exists in cases which involve prior possession of a gun different than the one used to commit a crime. If a parent fails to act upon previous knowledge of the child's possession of a firearm, the "failure to supervise" is obvious. However, other situations are less clear-cut. For example, if the parent confiscates a gun and the child subsequently obtains another gun elsewhere, should liability apply? The "should have known" standard could be construed as a mandate for this parent to take strict action on the first occasion in order to deter subsequent delinquent behavior. Yet, even a parent who disciplines his or her child or teaches gun safety after the first confiscation may be statutorily "on notice" of the child's tendencies, and therefore, may be prosecuted. These difficulties need to be remedied by way of effectively-drafted regulations.
The "should have known" standard poses other problems as well. If a parent knows that the child has previously used a gun under proper adult supervision, the foreseeability of a subsequent gun-related crime may be imputed from the parent's knowledge of the child's familiarity with guns. Also, even if a parent safely stores a gun, it may be foreseeable that a child's interest in firearms would be aroused simply by having a firearm in the house. The same argument applies if a [Page 457] parent has knowledge that his or her child's friends either have guns or are knowledgeable about their use. Whether a parent can avoid liability in these situations or whether a parent would be strictly liable represent troublesome gray areas, which legislators should consider before the passage of the Parental Responsibility Bill.
B. Ability to Control the Child
As currently drafted, the Bill imposes liability whether or not a parent has the "ability to control" his or her child when the parent knows, or should know, that the child possesses a firearm. Some courts have noted that the ability, rather than the parent-child relationship, is the basis for the existence of a parent's duty to control his or her child. The Bill may merely presume that this ability exists. This presumption is reasonable with respect to younger [Page 458] children, who are normally under the care and supervision of either a parent or another person. However, as a child grows older, and is more often left unsupervised, a parent has diminishing ability to control the child.
The "ability" has been defined as containing the elements of the "opportunity" to control and the "knowledge" of an opportunity. The ability to control would be absent when a child obtains a gun elsewhere, or takes a gun and commits a crime when the parent is not present. If [Page 459] the ability is inferred in those instances, a parent would be required to go to extreme measures to avoid liability. This inference may be easily accepted by parents of well-behaved children, but it puts added burdens on those with "incorrigible" children.
The possibility that parents would take extreme measures to avoid liability impacts upon children's rights. Children are encouraged to [Page 460] report abusive actions by their parents. This leaves parents with a difficult dilemma. One law assumes that parents can control their children and that they must do so, or else criminal liability is imposed. By exercising physical control, however, the parent may be subject to a child abuse law. Both laws effectively empower outsiders to monitor child-rearing decisions. Furthermore, in a system which recognizes the independence of children when it tries them as adults for serious crimes, it is contradictory to hold parents criminally liable for a failure to supervise these independent actors. These inconsistencies may reduce public support of the statute, and thus its effectiveness at the enforcement stage.[Page 461]
V. ALTERNATIVE APPROACHES: A MORE EFFECTIVE TARGET FOR NEW JERSEY
Although there are many potential problems with implementation of the Parental Responsibility Bill in New Jersey, gun violence by minors remains a serious problem. Given this fact, the New Jersey legislature is perfectly justified in seeking solutions to juvenile violence, even if the solutions are questionable and partial. Furthermore, such solutions would probably survive constitutional challenges despite the initial doubts they raise.
Nevertheless, parental criminal liability statutes have proven to be ineffective elsewhere. Furthermore, these statutes have the potential to be unduly harsh, since they impose the stigma of a criminal record and the brand of "bad parents." This stigma can be avoided, and [Page 462] effectiveness can be improved, by adjusting the proposals aimed at parents or by implementing solutions which either target the child directly or focus on other causes. The following are some alternative solutions.
A. The "Parenting" Factor
For controls aimed at parents, law enforcement officials can rely on statutes already in existence. Additional regulations could be drafted, including the above-discussed "notice" and "ability to control" requirements, to guide authorities in their implementation of the Bill. Regulations can also be written to reduce the severity of sanctions imposed upon parents, particularly in situations where parents have taken specific actions to control their children, such as parental reacquisition or removal of the firearm, reporting the child's possession to the police, disciplining or lecturing the child, or sending the child to a gun safety course. Such regulations would provide parents with affirmative opportunities to avoid criminal liability.[Page 463]
Criminal sanctions are imposed primarily to punish and deter unlawful conduct. At issue here is the failure of the parent to prevent the wrongful actions of the child, through giving "silent approval," by ignoring certain acts, or by positively encouraging misbehavior. Several rationales for criminal sanctions exist.
Under a deterrence theory of punishment, statutes would be aimed at the prevention of further criminal activity by the particular defendant and at offering the defendant as an example to deter others from similar activity. To accomplish this goal, it would be more effective to impose fines than to mandate education or counseling. In theory, the defendant should want to avoid subsequent fines, and the fear of fines [Page 464] should deter others from failing to supervise or control their own children.
Deterrence can be achieved by other means as well. One alternative would be to require the education or detention of a child at the parent's expense. Such an approach would enable the parent to avoid the stigma of a criminal penalty, yet would still encourage "better parenting" because of the detrimental financial effects on the parent. This approach would also avoid the "collateral liability" situation, since parents would pay a fine and the children would endure the detention, as opposed to requiring the parents to pay for their own actions or to endure the punishment alone.
Laws already exist to punish direct actions by parents, such as "contributing to the delinquency of a child" or "endangering the welfare of a child." These laws usually include stricter standards of culpability and could be enforced to deter parental misconduct.[Page 465]
The Bill's reformative aspects should focus on helping parents to learn how to handle their children, by providing education and support groups for parents. However, reformation may treat parents of repeat juvenile offenders more harshly simply because a recidivist, by definition, has not reformed. This may be a short-sighted approach, failing to address a major component of the problem--the child.
Another option with a reformative focus would be to require modest action by the parents. For example, it could be mandatory for parents and children to perform community service together. This approach would instill a greater sense of responsibility in the parent and also offer time for the parent and child to reflect on the child's situation, thereby fostering the interaction which is necessary to overcome the child's problems. Finally, mandatory parental and juvenile counseling is a lesser penalty aimed at reformation.
The last theory of punishment focuses on retribution or compensation to victims or to society. The Parental Responsibility Bill provides for fines made payable to a Violent Crimes Compensation Board. Another possibility, which does not impose a financial burden, is to require a community service component in the education programs, by which victims and society can be "repaid" through the performance of needed services. Parent and child could perform such services together, so as to foster their relationship. [Page 466]
B. Other Causative Factors
Along with approaches targeting the parents, other policies should be implemented to address the co-existing causes of delinquency. Emphasis should be placed on the education of children. For example, elementary schools might be required to incorporate gun safety courses, or "Dangers of Guns" education units, into their curricula.
States could also aim legislative efforts at the sources of guns. Such acts could take the form of felony firearm statutes, which impose liability on parents and others for allowing children to have access to guns. States could also step up their regulation of gun sales.
Another approach is to encourage families to instill moral values in children at an early age. Intensive day-care and family services should be provided to families with incomes below the poverty line, in order to [Page 467] sever the link between poverty and delinquency. A study in Syracuse, New York, revealed that children who had received such services during the first five years of their lives had a markedly lower delinquency rate, did better in school, and remained in school for more years.
"Youth at Risk" programs, such as the recent one in Washington, D.C., focus on the rehabilitation of current delinquents through counseling and jobs programs. Counseling is widely supported. The California-based Mothers Against Violence in Schools (MAVIS) lobbies for more extensive counseling, as well as legislation which would allow children above the age of fourteen to be tried as adults in murder cases. Due to the serious nature of merely handling a gun, these programs and groups should extend their efforts regarding counseling and adjudication procedures to all gun-related crimes.
Fining and imprisoning parents will not solve the problem of gun violence by children. In some cases, this approach will only increase family hardships which lie at the core of the delinquency epidemic. Certain segments of our society will be particularly hard hit. The accompanying intrusion by the state into child-rearing decisions may ultimately serve only to frustrate parents, and disappoint the general public.
Legislators should consider more effective solutions, ones that target the causes of delinquency. At a minimum, legislators should formulate limitations on criminal liability. Guidelines in the enforcement of the [Page 468] Parental Responsibility Bill will serve to define the duties both of parents and of law enforcement authorities.
Parents are a logical target when the problem involves children, and the increasing threat posed by children with guns is a frightening concern. However, the burden on parental rights and the probable ineffectiveness of the Bill under consideration by the New Jersey legislature militate strongly against parental criminal liability. Legislators should take aim elsewhere.
Michelle L. Maute
1. The use of the term 'parent' in this Note refers to any person who is the parent, guardian, or individual with legal custody of a child.
2. See, e.g., Briefs, NEWSDAY, January 2, 1995, at A11 (reporting that gun charges against juveniles in the District of Columbia are increasing at three times the rate of their adult counterparts and that gun offenses are the fastest-growing category of crime in juvenile court); Christopher Kilbourne, Legal Experts Assail Parental Liability Bill, RECORD, August 31, 1994, at A3 (discussing New Jersey Bill as reaction to juvenile violence and noting criticisms from constitutional scholars and juvenile rights advocates); Larry Lewis, Chapel Overflows with Friends and Love for Amanda Grenier, PHILA. ENQUIRER, Oct. 30, 1993, at B1 (describing death of teen from Sicklerville, N.J. who was shot by friend with gun bought from another teen); 48 Hrs.: Our Kids: Armed and Dangerous (CBS television broadcast, Sept. 15, 1993) (highlighting the prominence of children using and being injured by guns, and the attitudes of children about violence) [hereinafter 48 Hrs.].
3. Every day 135,000 American children carry a gun to school. Youth and School Violence, CHILDREN'S DEFENSE FUND STATISTICAL DATASHEET. The Center for Disease Control reported in 1991 that one in 25 high school students carried a gun. Id.
4. Homicides committed by juveniles with handguns have increased 100% since 1987. Congressman Jim Saxton Reports to You, Winter 1994, at 1 [hereinafter Saxton Newsletter] (available from the author or from the office of United States Representative J. Saxton). Juveniles account for one in every five arrests in New Jersey¾a number which ranks the state fifth in the nation. Id. at 2.
Gunshot injuries kill one American child every two hours. Children's Defense Fund, THE STATE OF AMERICAN CHILDREN'S YEARBOOOK 1994, at 63-64 [hereinafter YEARBOOK]. They accounted for one in twenty deaths among children aged one to 14 in 1991. Firearms were the second leading cause of death for 10 to 14 year-olds, teenagers and young adults. Id. at 64.
5. Patricia Parente, Armed with Cash Burlco Begins Gun Crackdown, TRENTON TIMES, Feb. 16, 1994, at A1; SAXTON NEWSLETTER, supra note 4, at 2.
6. See Stephen Buka & Felton Earls, Early Determinants of Delinquency and Violence, HEALTH AFFAIRS, Winter 1993, at 46 (advocating intervention strategies aimed at the characteristics of children and their families which influence delinquent behavior); Barry C. Feld, The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes, 78 J. CRIM. L. & CRIMINOLOGY 471 (1987) (discussing changes to waiver statutes based on psychological research about values and reasoning capacity of juveniles); Daniel W. Webster, Commentary, The Unconvincing Case for School-Based Conflict Resolution Programs for Adolescents, HEALTH AFFAIRS, Winter 1993, at 126 (analyzing value of alternative dispute resolution programs to reduce juvenile violence); Christopher Scanlan, Link Between Teen Suicide and Guns Spurs Safety Effort, PHOENIX GAZETTE, June 25, 1993, at A19 (relating considerations by suicide prevention experts of strategies to decrease firearm use by teens); Wayne S. Wooden, Flames of Youth, PSYCHOLOGY TODAY, at 22, 28 (Jan. 1985) (noting growing number of youth arsonists and reasons for their delinquency).
7. See discussion infra at notes 36-43 and 49-58.
8. Buka & Earls, supra note 6, at 53-55 (parenting practices, abuse and neglect, poor marital relations, family criminal behavior, and parental absence are early predictors of delinquency). An unstable family life and family violence are risk factors correlated with youth violence. Hattie Ruttenberg, The Limited Promise of Public Health Methodologies to Prevent Youth Violence, 103 YALE L.J. 1885, 1894 (1994).
9. This differentiation of causal factors is often referred to as "nature vs. nurture." Michelle L. Casgrain, Note, Parental Responsibility Laws: Cure for Crime or Exercise in Futility?, 37 WAYNE L. REV. 161, 173 (1990).
10. America's Epidemic of Gun Violence, 1994: Hearings on the Brady Bill Before the Subcommittee on the Constitution of the Senate Comm. on the Judiciary (on file with author and at the office of the Children's Defense Fund) (statement of Marian Wright Edelman of the Children's Defense Fund) (hereinafter Edelman) (discussing characteristics such as pervasive drug and alcohol abuse and lack of education and skills); YEARBOOK, supra note 4, at 65 (discussing inadequate nutrition, developmental delays, and substandard educational levels); Buka & Earls, supra note 6, at 50-53 (discussing behavior problems, low cognitive ability, attention deficit and hyperactivity, learning disability, poor motor skill development, prenatal complications, physical anomalies, and head injury); Casgrain, supra note 9 (discussing educational level, drug abuse, antisocial values).
11. Edelman, supra note 10, at 4 (epidemic child and family poverty, increasing economic inequality, racial intolerance, violence in popular culture, easy access to firearms); YEARBOOK, supra note 4, at xiv (poverty, joblessness); Casgrain, supra note 9, at 173, 185-86 (social class, urbanization, living conditions, social instability). "(T)he most consistent and most powerful predictor of criminal activity among youths is economic hardship." YEARBOOK, supra note 4, at 65.
12. Edelman, supra note 10, at 4 (violence in the home, absentee parents, gang participation); YEARBOOK, supra note 4, at 65 (life in single-parent families, physical abuse, sexual abuse and neglect); Casgrain, supra note 9, at 172-75 (peer association, dysfunctional families, child abuse).
13. "Certainly, part of the problem lies with the fathers and mothers, but, clearly, they alone are not always entirely responsible." 3 CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY 1127 (Robert H. Bremner ed. 1974) [hereinafter CHILDREN AND YOUTH] (documenting the congressional hearings on the Juvenile Delinquency and Youth Offenses Act of 1961).
14. Kathryn J. Parsley, Note, Constitutional Limitations on State Power to Hold Parents Criminally Liable for the Delinquent Acts of Their Children, 44 VAND. L. REV. 441, 468 (1991).
15. For example, Colorado enacted the first law holding parents criminally liable for their children's delinquent acts in 1903. See Parsley, supra note 14, at 446. A New York statute holds parents guilty for endangering the welfare of their child if he "fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming . . . a 'juvenile delinquent' . . . ." N.Y. PENAL LAW § 260.10(2) (McKinney 1989). A statute in Kentucky provides for criminal liability of parents for "endangering the welfare of a minor . . . [by] fail[ing] or refus[ing] to exercise reasonable diligence in the control of such child to prevent him from becoming a . . . delinquent child." KY. REV. STAT. ANN. § 530.060(1) (Michie/Bobbs-Merrill 1990).
16. The motivating factor in legislating such parental responsibilities is "the frustration with (crime and violence involving the nation's youth because of) 1) the state's inability to contain juvenile lawlessness; and 2) the welfare of the children who are victims of violence and abuse." S. Randall Humm, Comment, Criminalizing Poor Parenting Skills as a Means to Contain Violence By and Against Children, 139 U. PA. L. REV. 1123, 1129-30 (1991).
17. Edward Licitra, Note, When Johnny Gets Your Gun: Felony Firearm Storage in Florida, 42 FLA. L. REV. 495, 524 (1990) (noting the possible motivation of legislators as being purely political). The subject of violence to children holds the attention of many citizens¾in a poll, 73% of children and 56% of parents stated that fear of violent crime was first on their list of worries. Children's Defense Fund, Violence, CDF REPORTS, at 6-7 (March 1994).
18. See Reiner Kraakman, Gatekeepers: The Anatomy of a Third Party Enforcement Strategy, 2 J.L. ECON. & ORG. 53 (1986) (discussing the imposition of liability on parties who may have been able to prevent misconduct, yet have not participated in the misconduct). This concept is termed "collateral" or "secondary" liability, and often arises in business settings as a means of preventing a third party, or "gatekeeper," from withholding some type of support from the primary wrongdoer. Id. at 53-54. The effort is practical in cases where direct deterrence fails due to the unresponsiveness of most wrongdoers. Id. at 56. For example, children tend to be unresponsive to direct deterrence because they "lack the capacity or information to make self-interested compliance decisions." Id. However, collateral liability has set-backs: the costs of administration, the possibilities of its misinterpretation, and the inflexible formulation of duties. Id. at 60-61, 81.
19. N.J. S. Bill 214, 206th Legis., 1st Sess. (1994) (sponsored by New Jersey Senators C. Louis Bassano and Gerald Cardinale and introduced in the Senate Committee on Judiciary); N.J. A. Bill 1285, 206th Legis., 1st Sess. (1994) (sponsored by Assemblyman Garcia and introduced in the Assembly Committee on Judiciary, Law, and Public Safety). The Assembly Bill provides:
1. In any case where a juvenile who used or possessed a firearm during the commission of an offense is adjudicated delinquent, the parent or guardian of the juvenile shall be guilty of a crime of the fourth degree if the parent or guardian knew or reasonably should have known that the juvenile acquired, possessed, or obtained access to a firearm in violation of law and as a result of the parent or guardian failing or neglecting to exercise proper supervision or control over the juvenile.
In addition to any other disposition authorized by law, the court may require the parent or guardian who is convicted pursuant to this section to perform 80 hours of community service and to participate in a course on firearm safety which shall be approved by the Superintendent of State Police.
2. a. In any case where a minor who used or possessed a firearm during the commission of an offense is convicted of a crime, the parent or guardian of the minor shall be guilty of a crime of the fourth degree if the parent or guardian knew or reasonably should have known that the minor acquired, possessed, or obtained access to a firearm in violation of law and as a result of the parent or guardian failing or neglecting to exercise proper supervision or control over the minor.
. . . .
b. As used in this section, "minor" means a person under the age of 18. . . . .
The Senate version is similar except that it explicitly provides for the court to consider the economic condition of the convicted persons and their families before imposing fines. N.J. S. Bill, (section)S 1(a), 2(a).
20. See, e.g., For the Record: Legal News Briefs, NAT'L L.J., May 4, 1992, at 6 (Oklahoma Legislature approves bill which would fine and/or sentence parents to community service if their child brings a weapon to school); Catherine L. Kissling, Patton Seeks Tougher School Gun Law, PLAIN DEALER, Apr. 8, 1993, at 1B (city councilman in Cleveland wishes to expand criminal liability of parents when child brings a gun to school); Gregg Krupa, New Gun Control Plans Could Tighten Local Law, BOSTON GLOBE, June 20, 1993, at 29 (mayor of Boston believes parents should be held responsible when child uses a gun); Benjamin Marrison, Child Safety Gun Bill Puts Onus on Parents, PLAIN DEALER, May 15, 1993, at 2B (state representative in Ohio wishes to impose criminal liability on the state level for not keeping loaded firearms away from children).
21. See, e.g., CAL. PENAL CODE § 272 (West Supp. 1994) (enacted 1988) (authorizing, in reaction to gang violence, jail terms and criminal fines for negligent supervision and control of child which causes, encourages, or contributes to the delinquency of the child); GENERAL NEWS, UPI, Sept. 10, 1992, available in WESTLAW, UPI database (reporting that a mother was charged under a Cleveland city ordinance which holds parents liable for negligent storage of weapons when they are used by the child). Several states hold any gun owner, including the parent, liable for negligent storage of a firearm if a child gains access to it. CAL. PENAL CODE § 12035 (West 1992); CONN. GEN. STAT. ANN. S 29-37i (West Supp. 1994); FLA. STAT. ANN. § 790.174 (West 1992); HAW. REV. STAT. ANN. (section)134-10.5 (Michie Supp. 1994); IOWA CODE ANN. § 724.22(7) (West 1993); MD. CODE ANN, CODE LAW § 36K (Supp. 1994); VA. CODE ANN. § 18.2-56.2 (Michie Supp. 1994); WIS. STAT. ANN. § 948.55 (West Supp. 1993).
22. CHILDREN YOUTH, supra note 13, at 1114.
23. "[N]ew liability laws often single out poor parents . . . ." Joseph P. Shapiro, When Parents Pay for their Kids' Sins, U.S. NEWS AND WORLD REP., July 24, 1989, at 26 (referring to Arkansas laws which fine parents or deny welfare payments for truancy by child, and Wisconsin law under which one mother lost her welfare payments, and subsequently became homeless, because her daughter had missed school). In any family, but especially those living hand-to-mouth, "[i]f the breadwinner goes to jail, who will care for the family?" If Child A Criminal Do We Jail Parent?, PHOENIX GAZETTE, July 8, 1993, at A13 [hereinafter If Child A Criminal]. Criminal prosecution may only make the situation worse. Id.
Delinquency has been largely associated with working-or lower-class children. Delbert S. Elliott & David Huizinga, Social Class and Delinquent Behavior in a National Youth Panel, 21 CRIMINOLOGY 149, 165 (1983). Children in lower economic classes were found more likely to be involved in both serious crimes and general delinquency. Id.
24. See cases and articles discussed infra, notes 95 and 97.
25. Humm, supra note 16, at 1127-28 (noting risk of equal protection violations); Toni Weinstein, Note, Visiting the Sins of the Child on the Parent: Legality of Criminal Parental Liability Statutes, 64 S. CAL. L. REV. 859, 900 (1990) (noting potential equal protection difficulties if California statute is applied in a discriminatory way).
26. See supra notes 23-25 and accompanying text.
27. N.J. S. Bill 214, supra note 19. Several members of the New Jersey Assembly have more recently introduced a parental responsibility bill. N.J. A. Bill 2086, 206th Legis., 1st Sess. (1994). However, that bill does not focus on crimes by juveniles involving guns. It is more general in that it imposes criminal liability on a parent for reckless supervision when the child is adjudicated delinquent, or convicted of any act that would constitute a third or fourth degree crime as an adult. N.J. A. Bill 2086, § 2(a).
28. N.J. A. Bill 1285, supra note 19. This is similar to the Senate bill except that it allows, in addition to any other disposition, that the court may require the convicted parent to serve 80 hours community service and to participate in a firearm safety course. Id. at (section)S 1-2. This concept is already incorporated into the New Jersey Code of Juvenile Justice. N.J. Stat. Ann. S 2A:4A-43b (15) (West Supp. 1994) (allowing court, when adjudicating a child delinquent, to order parents to participate in programs or services upon finding that omission or conduct was a significant contributing factor to the delinquent act).
29. N.J. A. Bill 1285, (section)§ 1, 2(a); N.J. S. Bill 214, (section)§ 1(a), 2(a). It is a crime of the fourth degree, which varies from more severe grades of crimes by its level of punishment: imprisonment not exceeding 18 months and/or a maximum fine of $7,500. N.J. STAT. ANN. (section)§ 2C:43-3,-6 (West Supp. 1994). The hardship and economic impact on the convicted person and his family are to be taken into account in the imposition of any sentence. N.J. STAT. ANN. (section)§ 2C:43-3.1(a)(1), 44-1(b)(11) (West Supp. 1994).
30. Criminal negligence is already defined under New Jersey law:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
N.J. STAT. ANN. 2C:2-2(b)(4) (West 1982) (effective Sept. 1, 1979) (adopting the definition of criminal negligence from the Model Penal Code, § 2.02(2)(d)).
31. N.J. A. Bill 1285, (section)§ 1, 2(a); N.J. S. Bill 214, (section)§ 1(a), 2(a).
32. N.J. S. Bill 214, (section)§ 1(b), 2(b). The Bill sets a minimal amount for the fine at the lowest amount assessable under New Jersey Statute 2C:43-3.1, which is $50 unless the person is convicted of a violent act which results in serious injury or death (at which point the amount set may range from $100 to $10,00). In determining the amount, the court must also consider the financial resources of the parent and the burden which will be imposed by the assessment. N.J. S. Bill 214, (section)§ 1(a), 2(a).
The fine is payable to the Violent Crimes Compensation Board. The Board maintains a separate account in the State Treasury, to be used to satisfy claims made by victims of crime under the Criminal Injuries Compensation Act of 1971, N.J. STAT. ANN. § 52:4B-1 to-49 (West 1986 & Supp. 1994). See generally In re Carr, 136 N.J. Super. 344, 346 A.2d 406 (App. Div. 1975) (stating purpose of the Act). The Board also allocates money to the Criminal Disposition and Revenue Collection Fund and the Victim and Witness Advocacy Fund. N.J. STAT. ANN. § 2C:43-3.1 (West Supp. 1994). The latter supports the development and provision of services to victims and witnesses of crimes, such as medical and legal advocacy, crisis response, hotlines, community education, psychiatric treatment, and counseling and support groups. N.J. STAT. ANN. § 52:4B-43.1 (West Supp. 1994).
33. See infra notes 95-97 and accompanying text.
34. See infra notes 76-80, 86 and accompanying text.
35. See infra notes 109-127 and accompanying text.
36. See N.J. STAT. ANN. 2A: 53A-14 (West 1987) (effective June 15, 1965):
The Legislature finds . . . that such (vandalism is) frequently attributable to lack of care, custody and control exercised by the parent; that parents should have some responsibility for the conduct of their children; that . . . there should be some legal deterrent to juvenile acts of vandalism and to parental neglect of child supervision. The Legislature therefore finds it desirable to establish a civil procedure for the recovery of damages for such acts from the neglectful parent . . . .
Id. See also, N.Y. PENAL LAW § 260.10(2) (McKinney 1989) (establishing guilt for endangering welfare of child if parent fails or refuses to reasonably control child to prevent him from becoming delinquent) and KY. REV. STAT. ANN. § 530.060(1) (Michie/Bobbs-Merrill 1990) (same); Board of Educ. v. Caffiero, 86 N.J. 308, 315-16, 431 A.2d 799, 802-03 (1981), appeal dismissed, 454 U.S. 1025 (1981) (discussing original 1867 statute which imposed parental liability for the discipline of pupils in schools, and its successor, which is used both to compensate school districts and to deter delinquent behavior).
37. Skeen v. Brazil, 566 F. Supp. 1414, 1419 (D.D.C. 1983); Robertson v. Wentz, 232 Cal. Rptr. 634, 637 (Ct. App. 1986); Horton v. Reaves, 526 P.2d 304, 306 (Colo. 1974); Lanterman v. Wilson, 354 A.2d 432, 436 (Md. 1976); Lamb v. Randall, 618 P.2d 379, 380-81 (N.M. Ct. App. 1980); Lane v. Chatham, 111 S.E.2d 598, 600 (N.C. 1959); RESTATEMENT (SECOND) OF TORTS § 314 (1966) (Duties of Affirmative Action); WILLIAM L. PROSSER, LAW OF TORTS § 123, at 913 (5th ed. 1984) (common law has never made parent vicariously liable for the conduct of the child and there is no legal responsibility for the child's torts). The parent is, however, responsible if he directs, encourages, or ratifies the behavior. Id. at 871-72.
38. Skeen, 566 F. Supp. at 1419; Robertson, 232 Cal. Rptr. at 637; Caffiero, 86 N.J. at 320, 431 A.2d at 805; Davis v. Dubosch, 583 P.2d 1133, 1135 (Or. 1978); RESTATEMENT (SECOND) OF TORTS § 315 (1965) (Duty to Control Conduct of Another); PROSSER, supra note 37, at 913. Several states have imposed vicarious liability on parents to assure that victims will be adequately compensated. Id. Some states now hold parents liable on the theory that the parent has a duty to reasonably exercise his special power of control over the conduct of the child, if there is notice and an opportunity to control, in order to protect other parties. Id. at 914-15.
39. Skeen, 566 F. Supp. at 1419; Williams v. Garcetti, 853 P.2d 507, 512, 514 (Cal. 1993); Horton, 526 P.2d at 306; Moore v. Crumpton, 295 S.E.2d 436, 440 (N.C. 1982); Lane, 111 S.E.2d at 601, 603; Gerlat v. Christianson, 108 N.W.2d 194, 196 (Wis. 1961); Seibert v. Morris, 32 N.W.2d 239, 240 (Wis. 1948). Section 316 of the Restatement (second) of Torts provides that
[a] parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.
RESTATEMENT (SECOND) OF TORTS § 316 (1965).
40. Kraakman, supra note 18, at 53.
41. PROSSER, supra note 37, at 914. Some courts have gone to lengths to interpret the child's conduct as within the scope of the agency of the parent so as to compensate any victims. Id.
42. CAL. PENAL CODE § 272 (West Supp. 1994); see Brockmueller v. Arizona, 340 P.2d 992 (Ariz. 1959) (application of a statute prohibiting the contribution to, or encouragement of, the delinquency of a minor), cert. denied, 361 U.S. 913 (1959); Pennsylvania v. Randall, 133 A.2d 276 (Pa. Super. Ct. 1957) (application of statute prohibiting the corruption of the morals of a minor), cert. denied, 355 U.S. 954 (1958); Scott Armstrong, Antigang Law Targets Parents, CHRISTIAN SCIENCE MONITOR, May 9, 1989, at 8 (describing California's parental criminal liability statute as an expansion of "contributing-to-the-delinquency-of-a-minor" statute which prohibits participation in child's crime). See generally Gilbert Geis & Arnold Binder, Sins of Their Children: Parental Responsibility for Juvenile Delinquency, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 303 (1991) (analyzing statutes which prohibit "contributing to the delinquency of a minor").
43. See infra note 60 and accompanying text; see also Pennsylvania v. Koczwara, 155 A.2d 825 (Pa. 1959) (applying strict liability to employer for actions by employee), cert. denied, 363 U.S. 848 (1960).
44. Many citizens of the Phoenix area reacted after being informed of the local and national dilemma. Roberto Sanchez, 'Our Streets . . . are Covered with Blood' Deconcini Hears from Valley Residents on Juvenile Crime, ARIZONA REPUBLIC/PHOENIX GAZETTE, June 2, 1993, at B5 (reporting meeting held by U.S. Senator to discuss the rise in juvenile crime). Some citizens feel that the "[p]arents are totally responsible . . . [and] should pay compensatory money to victims and serve jail time with their 'children.'" Community Letter, No Doubt about It, ARIZONA REPUBLIC/PHOENIX GAZETTE, July 26, 1993, at 2. "They should have to appear in court . . . and reimburse . . . the judicial system for monies spent for apprehension and prosecution. If a murder is committed, parents should receive like treatment." Community Letter, Penalties Proposed, Arizona Republic/Phoenix Gazette, July 12, 1993, at 2. "Until [children become adults], the adults who brought them into this world, claim them as a tax exemption and put bumper stickers on their cars saying, 'My child is an honor student,' must also stand up and be accountable when their kids harm others." Community Letter, State is Lousy Parent, ARIZONA REPUBLIC/PHOENIX GAZETTE, June 30, 1993, at 2. Mayor Flynn of Boston believed that "something should be done 'to hold parents responsible for their children's acts' when they use guns," and his police commissioner appointed "a six-member Task Force on Family Responsibility for Handgun Violence" to review the matter. Krupa, supra note 20, at 29 (quoting Mayor Flynn). Cleveland City Councilman Charles L. Patton felt that, "[w]hen a . . . student totes a gun to school, his or her parent should be held liable," beyond the scope of the current criminal charges that they face from a city law if the gun belongs to them. Kissling, supra note 20, at 1B. Ohio State Representative Jane Campbell wants a law on the state level which would impose "jail time and fines [on parents] for not keeping [their own] loaded firearms away from children under the age of 16" Marrison, supra note 20, at 2B.
45. See statutes cited supra note 21. Police in Elgin, Illinois, have interpreted a 1973 state law to hold parents criminally responsible for failing to control the criminal actions of their children, especially regarding gang activities. Joseph Kirby, Cops Lay Down the Law on Parents of Gang Youth, CHI. TRIB., June 14, 1993, at 1. The law "holds custodial individuals responsible for permitting a [minor] to knowingly 'associate with known thieves, burglars, felons . . . or other persons of ill repute.'" Id. (citing the law).
46. See Robin P. Malloy, Market Philosophy in the Legal Tension Between Children's Autonomy and Parental Authority, 21 IND. L. REV. 889, 891-92 (1988). There are "four primary sources of power available to parents in exercising effective coercive interference and authority over their children" Id. First, there sometimes is the "mere presence of superior physical strength." Id. Second, the parent has the economic "control over the family wealth that determines how scarce resources will be allocated within the family." Id. Third, there exists the potential for "superior reasoning power and mental manipulation" due to "age, experience, education, and physical development . . . ." Id. The last source is the law, which "recognizes the authority of the parent to exercise . . . control over the everyday choices available to their children." (e.g., religion, school, clothing, extracurricular activities). Id.
47. Parents can do so in their capacity as role models for their children. Ann-Marie White, Comment, A New Trend in Gun Control: Criminal Liability for the Negligent Storage of Firearms, 30 HOUS. L. REV. 1389, 1426 n.276 (1993).
48. "'Many kids join gangs for a sense of belonging. . . . A gang becomes a family of sorts. You have to find a way to fill that gap.'" Kirby, supra note 45, at 1 (quoting a lieutenant in the Cook County, Ill., Sheriff's Dept.).
49. MONT. CODE ANN. (section)S 45-8-344, 45-8-345 (1993) (requiring an affirmative action or approval of the gun use on the part of the parent).
50. N.M. STAT. ANN. § 32A-2-28(a) (Michie 1993) (enacted 1993 and similar to statute enacted 1978).
53. Id. However, parents are not liable for any fines imposed by the court upon the child. N.M. STAT. ANN. § 32A-2-28(c) (Michie 1993).
54. World News Tonight: American Agenda (ABC television broadcast, Sept. 16, 1993) (hereinafter World News Tonight); see WIS. STAT. ANN. § 895.035 (West 1993) (holding parents liable for up to $1,000 for personal injuries caused by minor children); WIS. STAT. ANN. § 48.275 (West 1993) (holding parents liable for court costs and legal services).
55. CAL. PENAL CODE § 272 (West Supp. 1994).
56. Recent discussions about an anti-crime bill have highlighted this concern. President Clinton, in urging governors to support his bill, called for provisions to outlaw possession of handguns by minors. President Clinton is Asking the Nation's Governors . . ., UPI, Jan. 31, 1994, available in WESTLAW, UPI database. Carroll Campbell, Governor of South Carolina, added that the states are concerned with the "epidemic of juvenile crime" and have their own goals to reduce it. Id.
57. See PROVIDING FOR THE ESTABLISHMENT OF THE SELECT COMMITTEE ON CHILDREN, YOUTH & FAMILIES, H.R. REP. NO. 3, 103d CONG., 1st Sess. (1993); OMNIBUS CRIME CONTROL ACT OF 1991, H.R. REP. NO. 242, 102d CONG., 1st Sess., pt. 1A (1991) (recognizing the lack of safety for children and teachers in schools); COMMITTE ON THE JUDICIARY, §. 2792, A BILL TO AMEND AND AUTHORIZE APPROPRIATIONS FOR THE CONTINUED IMPLEMENTATION OF THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT OF 1974, S. REP. NO. 393, 102d CONG., 2d Sess. (1992) (providing for development of a model family preservation program to prevent or treat juvenile delinquency based on those in South Carolina which are combined with job training and education); HOUSE COMMITTEE ON EDUC. AND LABOR, JUVENILE JUSTICE AND DELINQUENCY PREVENTION AMENDMENTS OF 1992, H.R. REP. NO. 756, 102d CONG., 2d Sess. (1992), reprinted in 1992 U.S.C.C.A.N. 4229 (ordering a study of the incidence of violence committed by or against juveniles in urban and rural areas).
58. See 140 CONG. REC. S2023-05 (daily ed. Feb. 28, 1994) (statement of Sen. Metzenbaum).
59. N.J. Stat. Ann. S 2A:53A-15 (West 1987).
60. Board of Educ. v. Caffiero, 86 N.J. 308, 312, 431 A.2d 799, 801 (1981), appeal dismissed, 454 U.S. 1025 (1981) (interpreting N.J. STAT. ANN. 18A:37-3 (West 1989)). The damage must result from the willful or malicious act of the pupil, so as to maintain the purpose of deterrence of such actions. Id. at 317, 431 A.2d at 803. The liability can only be on those who can be charged with responsibility for the child. Id. at 316, 431 A.2d at 803.
61. Caffiero, 86 N.J. at 318-25, 431 A.2d at 804-08. In Caffiero, the court held that the statute is not a violation of due process because its purposes§the deterrence of delinquent behavior and the compensation for damages§are reasonable, and the method of effecting these purposes§holding parents liable§is rationally related to the purposes, in light of the parent-child relationship and the "guiding role" of the parent. Id. at 319-20, 431 A.2d at 804-05. Additionally, the statute survived equal protection analysis because its classification of parents of public school pupils is rationally related to the objective of maintaining the discipline and protection of public school property. Id. at 324, 431 A.2d at 807. This classification does not restrict a fundamental right, id. at 323, 431 A.2d at 806, namely the fundamental right to a free public education. Levine v. New Jersey Dept. of Inst., 84 N.J. 234, 258, 418 A.2d 229 (1980) (establishing right under the state constitution).
62. Both Assembly Bill 1285, supra note 19, §§ 1, 2(a) and Senate Bill 214, supra note 19, §§ 1(a), 2(a), effectively require violation of this statute by the minor as a basis for the criminal liability of the parent. N.J. STAT. ANN. § 2C:58-6.1(a), (b) (West 1982). This statute has been cited in at least one civil suit brought against parents on the basis of negligence. See Mazzilli v. Selger, 13 N.J. 296, 300, 99 A.2d 417, 419 (1953). The only exceptions involve the use or possession of the firearm while the minor is under competent supervision of a parent or a holder of a firearm permit or purchaser identification card, or while the minor is supervised in a legally recognized military drill. N.J. STAT. ANN. § 2C:58-6.1b(1)-(4).
63. Mazzilli, 13 N.J. at 302, 99 A.2d at 420. The court adopted the view from the Restatement of Torts § 316 (1934) (negligence). Id. at 302, 99 A.2d at 420 (similar to section 316 in RESTATEMENT (SECOND) OF TORTS, supra note 39).
64. Mazzilli, 13 N.J. at 304-05, 99 A.2d at 421; see also Stoelting v. Hauck, 32 N.J. 87, 159 A.2d 385 (1960) (finding sufficient evidence for the jury to have decided that the parents were negligent in the supervision of their child and in the storage of a firearm within her access).
65. The common-law rule of respondeat superior imposes a "duty . . . upon every man, in the management of his own affairs, whether by himself or his servant or agent, to conduct them in such a manner as to not cause injury to another, and if he fails to do so, he shall answer for damage." Snell v. Murray, 117 N.J. Super. 268, 272, 284 A.2d 381, 384 (Law Div. 1971), aff'd, 121 N.J. Super. 215, 296 A.2d 538 (App. Div. 1972). See also, e.g., Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 591 A.2d 959 (App. Div. 1991) (recognizing the public policy which requires that employers not be held liable for employee's criminal actions unless employer reasonably could have foreseen employee's actions), certif. denied, 126 N.J. 386, 599 A.2d 163 (1991); Gotthelf v. Property Management Sys., 189 N.J. Super. 237, 459 A.2d 1198 (App. Div. 1983) (holding that principals and employers could not be liable for employee's theft since it would have been outside the scope of employment), certif. denied, 95 N.J. 219, 470 A.2d 435 (1983); Roth v. First Nat'l State Bank, 169 N.J. Super. 280, 404 A.2d 1182 (App. Div. 1979) (recognizing that an employee's consciously criminal act may be within the scope of employment, thereby making the employer liable, if done for the employer's purpose or reasonably expected by the employer, although the court held that the particular employee's actions were unauthorized and outside the scope of employment), certif. denied, 81 N.J. 338, 407 A.2d 1212 (1979).
66. The liability of employers is based on their active participation in the hiring and approval of employees. DiCosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982) (recognizing tort of negligent hiring); Pacifico v. Froggatt, 249 N.J. Super. 153, 591 A.2d 1387 (Law Div. 1991) (stating that an employer can be liable for an employee's criminal acts which are outside scope of his or her employment, if the employer did not use reasonable care in the selection of the employee). The tort of negligent hiring provides a cause of action in those situations where the employee was not acting for the employer (i.e. within the scope of employment). DiCosala, 91 N.J. at 172-73, 450 A.2d at 515. It is based upon the principles of negligence, foreseeability, agency, and vicarious liability. Id. at 170, 450 A.2d at 514. The elements include: (1) the knowledge of the employer of the applicant's incompetence, unfitness or dangerous characteristics and the foreseeability of harm to third persons, and (2) the showing that through the employer's choice of this applicant, those characteristics were the proximate cause of injury to the third person. Id. at 173-74, 450 A.2d at 516. It follows from the idea that the employer should exercise reasonable care in selecting and/or retaining an employee to do the particular job which would bring him into contact with third persons. Id. at 171, 450 A.2d at 514.
Any comparison of this situation to that of parents is logically marred by the fact that a parent does not have such an opportunity to assess a child in order to "choose" one who is well-behaved. Also, a parent cannot always overcome a child's tendencies to misbehave despite sincere attempts at guidance and discipline. See Bieker v. Owens, 350 S.W.2d 522, 524 (Ark. 1961) (referring to question of parent's liability for son's assault, and noting that "each human mind and personality is exclusively that of the individual possessing it . . . ."); Stuart N. Hart, From Property to Person Status, 46 AM. PSYCHOLOGIST 53, 55-57 (Jan. 1991) (encouraging trend toward the recognition of the self-determination rights of children to validate their "person" status); Ted Byfield, The New Enlightenment is Crazy and Dangerous, FIN. POST, Aug. 14, 1993, at S3 (noting that health-education classes now encourage children to challenge and question their parents' beliefs and values, and that hotlines are in place for children to report spankings). But see Seleina v. Seleina, 93 N.Y.S.2d 42 (Dom. Rel. Ct. 1949), discussed infra note 121 and accompanying text (father's training, influence, and example had caused child's delinquency); Malloy, supra note 46, at 891-92 (noting that one source of power by which parents can exercise coercive interference and authority over their children is their superior mental power by which they can manipulate desirable behavior).
67. See Board of Educ. v. Caffiero, 86 N.J. 308, 315-16, 431 A.2d 799, 802-03 (1981), appeal dismissed, 454 U.S. 1025 (1981); Mazzilli, 13 N.J. 296, 304, 99 A.2d 417, 421 (1953).
68. However, the acceptability of civil liability may stem from the strong financial reason for civil responsibility to be placed on the parent. See Randall K. Hanson, Parental Liability, WISCONSIN LAWYER, Sept. 1989, at 24-25. "[M]inors are responsible for their own actions . . . [but] they often have insufficient assets to meet their obligation." Id. In comparison to the child, the parents represent the deeper pockets.
69. See Weinstein, supra note 25, at 866 (analyzing parental responsibility under the criminal law, the goal of which "should not be to make people virtuous").
70. 143 N.J. Super. 128, 362 A.2d 1200 (App. Div. 1976), aff'd, 75 N.J. 137, 380 A.2d 703 (1977).
71. Id. at 130-31, 362 A.2d at 1201-02. The parental responsibility ordinance made it unlawful for parents "to assist, aid, abet, allow, permit, suffer or encourage a minor to commit a violation of the public peace" even by lack of supervision and control over the minor. Id. at 131 n.1, 362 A.2d at 1202 n.1. It required that the police notify the parents of any adjudication of delinquency against their child, and of their responsibilities to prevent repeat offenses from occurring within the year. Id. If any such repeat adjudications occur, the ordinance provided that the parents would be presumed, subject to rebuttal by competent evidence, to have allowed, permitted or suffered the minor to commit the offense. Id.
72. Id. at 132-33, 362 A.2d at 1203. There must be substantial assurance that the presumed fact is more likely than not to flow from the base fact. Id. (citing Leary v. United States, 395 U.S. 6, 36 (1969)). The court found that a second adjudication of delinquency was not 'more likely than not to flow' from any active or passive wrongdoing by the parents. Id.
73. Id. The court recognized that many interrelated factors contribute to delinquency, including effects of the family, quality of schools, housing conditions, recreational activities, community life, employment, and the juvenile justice system. Id. at 133 (citing Penelope D. Clute, Comment, "Parental Responsibility" Ordinances¾Is Criminalizing Parents When Children Commit Unlawful Acts a Solution to Juvenile Delinquency?, 19 WAYNE L. REV. 1551, 1577 (1973)). See also L. Edward Wells & Joseph H. Rankin, Direct Parental Controls and Delinquency, 26 CRIMINOLOGY 263, 263-64 (1988) (discussing multiple variables contributing to delinquency). It could also be considered that economics plays a role: "[C]hildren growing up in urban poverty areas are those most likely to be identified as juvenile delinquents." Doe, 143 N.J. Super. at 132-33, 362 A.2d at 1203 (citing THE CHALLENGE OF CRIME IN A FREE SOCIETY, A REPORT BY THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATON OF JUSTICE 57 (1967)).
74. See Hart, supra note 66, at 54-55. In response to a newspaper's poll which asked whether the parents of juveniles who set a man on fire should be held accountable for their sons' actions, one citizen stated, "you can only supervise (your children) so much. They're going to do what (they want) to do anyway." Citizens' Poll, Atlantic City Press, August 16, 1993. Another reader responded by saying that "parents don't always have control over their kids. Parents can think their children are angels and they could be out killing someone." Id.
75. See supra notes 9-12 and accompanying text.
76. See supra notes 22-23 and accompanying text.
77. Kirby, supra note 45, at 1 (noting difficulty in implementing parental liability statutes in large metropolitan areas with "dense gang populations and large number of cases"); 48 Hrs., supra note 2 (Chicago police officers report that the Juvenile Detention Centers cannot hold all the juveniles arrested for gun offenses); Washington News, UPI, Nov. 16, 1990, available in WESTLAW, UPI database (reporting that the problem of gun violence by children is most severe in big cities and is increasing in small and mid-size cities).
78. YEARBOOK, supra note 4, at 65 ("the most consistent and most powerful predictor of criminal activity among youths is economic hardship"); Shapiro, supra note 23, at 26 (noting that the criminal liability laws often isolate poor parents, including one Wisconsin mother who lost her welfare payments, and whose family subsequently became homeless, because her daughter had missed school). "If there is consensus at all in the field, it is on the proposition that the children growing up in urban poverty areas are those most likely to be identified as juvenile delinquents." Doe v. City of Trenton, 143 N.J. Super. 128, 132-33, 362 A.2d 1200, 1203 (App. Div. 1976), aff'd, 75 N.J. 137, 380 A.2d 703 (1977). The number of children in these economic classes has been increasing: "Over the last twenty years, the number of children living in poverty increased by more than thirty-seven percent, with nearly four million more children in poverty in 1991 than in 1970 . . . ." H.R. No. 103-3, supra note 57.
79. YEARBOOK, supra note 4, at 65 ("living in a single-parent family . . . [is] correlated with youth violence and crime"); Ruttenberg, supra note 8, at 1900 (noting that juvenile delinquency has been found to correlate with growing up in a single-parent household, and that single-parent families tend to be "more likely to have children . . . exhibit deviant behavior" even after controlling for socioeconomic status). Some studies report that 70% of juvenile offenders come from single-parent homes. Id. Some believe that incarcerating a parent in this situation would only create additional social difficulties, and thus, a greater tendency toward delinquency for the child. Abraham Abramovsky, Bias Crime: Is Parental Liability the Answer?, 1992/1993 ANN. SURV. AM. L. 533 (1993).
80. Barrett v. Pacheco, 815 P.2d 834, 835 (Wash. Ct. App. 1991) (both parents of 14-year-old child who had shot officer during burglary worked the "graveyard" shift); Kirby, supra note 45 (stating that these laws are "simplistic and short-sighted in today's complex world of single parents, two-income families, and changing relationships"); Ed Davis, A Parental Presence Prevents Delinquency, L.A. TIMES, Feb. 25, 1990, at 4 (noting studies which all indicated that "[c]hildren from broken homes, . . . without parents to guide their destiny, tend more toward criminality than children who have at least one parent present"); Bob Sipchen, Kids Out of Control: When Teen-Agers Run Wild, L.A. TIMES, May 18, 1989, at 1 (noting the increasing pressures on single parents, and somewhat on "yuppie" parents who are straining to make BMW payments and are drained from modern life).
81. The Fourteenth Amendment requires that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1.
82. Right to Choose v. Byrne, 91 N.J. 287, 305, 450 A.2d 925, 934 (1982) ("This court has frequently applied a similar standard of review, whether the guarantee arose from the state or federal constitution.").
83. A statute uses a suspect classification when it distinguishes based upon some impermissible criteria, such as race, see Loving v. Virginia, 388 U.S. 1 (1967), or ethnicity, see Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886). A fundamental right is one which is "explicitly or implicitly protected by the Constitution." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
84. If the statute affects a fundamental right or uses a suspect classification, review will be conducted under the "strict scrutiny" test. The statute will be invalidated as a violation of equal protection if it intentionally discriminates against a suspect class, Washington v. Davis, 426 U.S. 229 (1976) (race), or unduly burdens a fundamental right, Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation), unless it promotes a compelling state interest.
If neither a fundamental right nor a suspect classification is implicated, the "rational basis" test will be applied. Harris v. McRae, 448 U.S. 297, 322 (1980). The statute will be upheld as valid if it is rationally related to a proper state interest. Id. Because the state has wide latitude under its police powers, e.g., Gilman v. Newark, 73 N.J. Super. 562, 581, 180 A.2d 365, 375-76 (Law Div. 1962), which constitutes one of its "interests," a statute must be shown to be wholly arbitrary or capricious to be invalidated under this test. Harris, 448 U.S. at 322.
85. The proposal would also affect the ownership of firearms. This Note will not discuss the implications, if any, on the 'right to bear arms.' For a general treatment of the right to bear arms issue, see Licitra, supra note 17 (dealing with parental responsibility); James D. Weill, Making Sense of the Second Amendment, CDF REPORTS, Mar. 1994, at 17 (dealing with the Second Amendment in general).
In any event, the parental responsibility proposed by New Jersey's bill would have little effect on the right to bear arms because it would only prohibit the right of minors to keep arms. N.J. A. Bill, supra note 19, §§ 1, 2(a); N.J. S. Bill, supra note 19, §§ 1(a), 2(a) (applying statute in connection with the sentencing, or adjudication as delinquent, of a minor for use or possession of a firearm in commission of a crime). Adults would only be restricted in that they could not allow minors to use or possess the firearms. N.J. A. Bill, supra note 19, § 1 ("if the parent . . . knew or reasonably should have known that the juvenile acquired, possessed, or obtained access to a firearm in violation of law and as a result of the parent . . . failing or neglecting to exercise proper supervision or control").
86. Many sources have recognized the implications of such a statute for the poor segments of society. See Shapiro, supra note 23, at 26. Parents who miss work in order to counsel their children or attend school conferences could sacrifice income needed to feed those children. Sipchen, supra note 80. Other states have or may impose jail sentences: California fines or jails parents who allow children to participate in gangs under a statute upheld by its supreme court, Florida incarcerates parents when their child injures another with a gun left accessible by the parent, and a county in Ohio will fine or jail parents for encouraging drug use or when a child skips school. Shapiro, supra note 23, at 26. Jail sentences increase financial hardships and make the required supervision impossible, and community service by the parent alone takes time away from this supervision also. Punishing Parents Not Cure, TIMES-PICAYUNE, February 17, 1995, at B6. Criminal prosecution can only make the situation worse. Id.
87. Harris, 448 U.S. at 323 (overruling district court's holding that selective statutory subsidization of abortions was violation of equal protection); Right to Choose v. Byrne, 91 N.J. 287, 305, 450 A.2d 925, 934 (1982) (noting that poverty does not give rise to membership in a suspect class). The primary impact of the statute was upon the indigent, and poverty alone is not a suspect classification. Id. "Although poverty is not in and of itself a 'suspect classification' for the purposes of the Equal Protection Clause, . . . the constitutional principles of basic fairness do impose limitations upon the power of a state legislature to enact statutes that directly discriminate between the rich and the poor." Moscone v. Manson, 440 A.2d 848, 852-53 (Conn. 1981) (involving more favorable calculation of prisoners' good time credits for those who had been out on bail, which was challenged by those who could not afford bail); See also LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, §§ 16-33 to 16-57 (1978).
88. Statutes are strongly presumed constitutional unless no objective could reasonably justify it, or those grounds are "wholly irrelevant to the achievement of (any) legitimate governmental objective." Harris, 448 U.S. at 322 (bracket omitted in original) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)); Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 218, 160 A.2d 265, 274 (1960) (noting that this burden is "extremely formidable").
89. The police power allows the state to regulate regarding the protection of lives, health, morals, comfort, and general welfare of the people. Weinstein, supra note 25. It is one of the "most essential of powers . . . and always one of the least limitable of the powers of government." Gilman v. Newark, 73 N.J. Super. 562, 581, 180 A.2d 365, 376 (Law Div. 1962).
90. Guempel v. State, 159 N.J. Super. 166, 192, 387 A.2d 399, 412 (Law Div. 1978).
91. See supra note 78.
92. N.J. S. Bill, supra note 19, §§ 1(a), 2(a); N.J. STAT. ANN. §§ 2C:43-3.1(a)(1) and 2C:44-1(b)(11) (West Supp. 1994).
93. See, e.g., Williams v. Garcetti, 853 P.2d 507, 516 (Cal. 1993) (defendant challenged law, in part, as interfering with parents in child-rearing decisions). The Williams court recognized the need for flexibility to make child-rearing decisions, but found that the law was meant only to reach egregious breaches of parental duties to supervise and control. Id. at 513.
The parental right to "'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.'" Lassiter v. Department of Social Serv., 452 U.S. 18, 27 (1981) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). "[The] courts [have] recognized . . . family autonomy and freedom from state interference . . . [and t]he Constitution affords parent's wide latitude in deciding how to raise their children . . . ." Humm, supra note 16, at 1127. Other parental criminal statutes have been criticized for "intrud[ing] into parent-child relationships and allow[ing] police and prosecutors . . . second-guess parents' child-rearing decisions." State Court Holds Parents to Account, S.F. CHRONICLE, July 2, 1993, at A1 (referring to the California Supreme Court's upholding of CAL. PENAL CODE § 272 (West Supp. 1994) which charges parents of delinquents with a misdemeanor offense). "[M]ost troublesome is that the state often stumbles when it tries to pass judgment on how parents raise their children . . . . [There is] dangerous Big Brotherism in the . . . laws because they allow an intrusive state to second-guess how kids are reared." Shapiro, supra note 23, at 26.
94. The right to privacy has been recognized as a protected liberty. Roe v. Wade, 410 U.S. 113 (1973); Right to Choose v. Byrne, 91 N.J. 287, 303, 450 A.2d 925, 933 (1982). A statute which burdens the right to privacy is subject to strict scrutiny under the Equal Protection Clause, as interfering with a fundamental right. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (holding that a state's interference with the right to marry does not survive strict scrutiny and therefore violates the Equal Protection Clause); Skinner v. Oklahoma, 316 U.S. 535 (1942) (holding that the classification of 'habitual criminal' subject to sterilization interfered with the right to procreate and failed strict scrutiny under the Equal Protection Clause).
95. See Parham v. J.R., 442 U.S. 584, 602 (1979) ("[O]ur constitutional system . . . asserted that parents generally 'have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.'") (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)); Wisconsin v. Yoder, 406 U.S. 205, 213 (1972) (stating that parents have the right to direct the upbringing of their children); Stanley, 405 U.S. at 651 ("the interest of a parent in the companionship, care, custody, and management of his . . . children 'comes to this Court with a momentum of respect . . .'"); Griswold v. Connecticut, 381 U.S. 479, 495-96 (1965) (Goldberg, J., concurring) ("fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family . . . surely does not show that the Government was meant to have the power to do so"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("decisions [of the Supreme Court] have respected the private realm of family life which the state cannot enter"); Skinner, 316 U.S. at 541 (using equal protection clause to maintain integrity of the family unit); Pierce, 268 U.S. at 534-35 (recognizing parents' liberty interest in guiding children's intellectual and religious development); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (recognizing parents' ability to control children's education).
96. See supra note 84 and accompanying text.
97. The United States Constitution ensures against the deprivation of "life, liberty, or property, without due process of law . . . ." U.S. CONST. amend. XIV, § 1. The clause has invalidated state actions that infringe upon the liberty interest of family relationships. See generally Moore v. City of East Cleveland, 431 U.S. 494 (1977) (right to live with related persons). See also Pierce, 268 U.S. at 535 (right to choose private education for child); Meyer, 262 U.S. at 399 (1923) (right to have children learn language other than English).
98. See Washington v. Davis, 426 U.S. 229, 239 (1976) (requiring intentional discrimination and not mere disproportionate impact).
99. If a statute which is neutral by its language is proven to have had a legislative motive to discriminate on the basis of race or ethnicity, then it will be invalid. Id. at 240-41 (1976). This motive can be established from the effect of the law, but usually requires an inquiry into other factors, such as the historic background of the area of law, the sequence of events leading to the enactment, and statements by legislators. Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-66 (1977). Since the intent of the New Jersey statute is to attack problems of juvenile violence and to provide for the safety and welfare of the citizens of the state, it does not seem to have a discriminatory purpose and may survive equal protection analysis.
100. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (state authority consistently refused licenses to Chinese applicants and could offer no racially neutral explanation). In order to prevail in an allegation of this type of discrimination, the plaintiff must prove that the discrimination was intentional, although a showing of a disparate impact can shift the burden of proof to the state. See, e.g., Castaneda v. Partida, 430 U.S. 482, 494-95 (1977). In cases of racial discrimination, laws may be declared invalid even without proof of purposeful discrimination when the statute gives uncontrolled discretion to an administrator to engage in such discrimination, when it has been enforced in a discriminatory manner in the past, and when the courts cannot otherwise remedy such enforcement. Louisiana v. United States, 380 U.S. 145, 152-53 (1965) (considering a statutory literacy test for voting).
101. See supra text accompanying note 24. Such a statute gives "unfettered discretion to administrative officials, police and courts . . . [and] lends itself to selective enforcement, which in turn denies equal protection of the law." Clute, supra note 73, at 1568. However, to effectively challenge such discriminatory application, one must show a pattern of selective enforcement. Id. See also Yick Wo, 118 U.S. at 373 (noting a pattern of discriminatory application against those of Chinese descent); Furman v. Georgia, 408 U.S. 238, 255 (1972) (Douglas, J., concurring) (noting discriminatory implementation of the death penalty against the poor).
CAL. PENAL CODE § 272 (West Supp. 1994), described supra note 21, has been feared to have great potential for discriminatory enforcement. Claire Cooper, Justices Uphold "Gang Mom" Law, SACRAMENTO BEE, July 2, 1993, at A1. The ACLU has interpreted the California Supreme Court's decision which limits the use of the statute to cases involving "an 'aggravated, culpable, gross or reckless' breach of parental duty," as "'a caution to prosecutors and police' not to apply the statute haphazardly." Id.
102. See supra note 84, for a discussion of the strict scrutiny test.
103. See N.J. A. Bill 1285, supra note 19, at §§ 1, 2(a); N.J. S. Bill 214, supra note 19, at §§ 1(a), 2(a).
104. See supra notes 22-23, 77-80 and accompanying text.
105. See N.J. STAT. ANN. 2A:4A-43b (15) (West Supp. 1994) (allowing court, when adjudicating a child delinquent, to order parents to participate in programs or services upon finding that the omission or conduct was a significant contributing factor to the delinquent act).
106. See supra notes 59-67 and accompanying text.
107. RESTATEMENT (SECOND) OF TORTS, supra note 39, S 316.
109. According to one federal court, the duty of a parent to control a child is very narrow. In Skeen v. Brazil, 566 F. Supp. 1414, 1419 (D.D.C. 1983), the court stated that this duty arises when the parent knows of the need to control the child and can do so "at the time of the tort." Id. In Wyatt v. McMullen, 350 So. 2d 1115, 1117 (Fla. Dist. Ct. App. 1977), the court held that a negligence action could be maintained if the parents knew or should have known that their child had or might obtain a gun. Id. In Cooper v. Meyer, 365 N.E.2d 201, 203 (Ill. App. Ct. 1977), the court upheld the dismissal of a claim for failing to state a cause of action, despite the fact that the parents had knowledge of their son's propensity for physical violence, because there was no evidence that the parents knew that the particular plaintiff would be visiting their house on the day in question. Id.
Another court focused on the category of the crime, finding that the parents were not liable when their son assaulted a police officer, despite his history of burglaries. Barrett v. Pacheco, 815 P.2d 834, 837-38 (Wash. Ct. App. 1991). The court reasoned that the child's prior criminal behavior effectively put the parents on notice of the child's tendency toward crimes against property, not crimes against persons. Id. at 838.
The court in Costello v. Hart, 100 Cal. Rptr. 554 (Cal. Ct. App. 1972), held that an action could be maintained against a child's grandmother, since she knew that the child had been running around a store and getting into trouble immediately before the mischief. Id. at 555-56. Another court relied, in part, on the fact that the minor had done the exact same act on a prior occasion, and that the parent had been informed at that time. Duncan v. Rzonca, 478 N.E.2d 603, 605-06, 613-14 (Ill. Ct. App. 1985) (son set off silent bank alarm, and police officer was injured while responding to the alarm).
110. PROSSER, supra note 37, at 915. For example, a New York court noted the significance of the father's knowledge of his son's prior unsupervised use of a motorcycle in violation of the father's instructions. Costa v. Hicks, 470 N.Y.S.2d 627, 630, 633 (App. Div. 1983). This knowledge constituted sufficient notice to hold a father liable for his son's actions in injuring the plaintiff with a motorcycle, even though the son had never hit anyone with a motorcycle in the past. Id. at 633.
In determining whether the trial court could properly find that the actions of a couple's son were foreseeable, a Minnesota court focused on the son's previous delusions, hallucinations, and threats to his victim. Silberstein v. Cordie, 474 N.W.2d 850, 854-56 (Minn. Ct. App. 1991), adhered to on reconsideration, 1992 Minn. LEXIS 176 (Feb. 12, 1992). Another court found that the parents' awareness of their son's tendency to beat smaller boys was sufficient to prove that the parents knew of their child's propensity to attack the plaintiff. Bieker v. Owens, 350 S.W.2d 522, 523-24 (Ark. 1961).
111. Some courts hold that parents must know, or should have known, of their child's prior misuse or specific propensity to misuse guns. See, e.g., Robertson v. Wentz, 232 Cal. Rptr. 634, 635 (Ct. App. 1986); Sabantelli v. Butler, 296 N.E.2d 190, 193 (Mass. 1973). In finding for the father in Sabantelli, the court noted the importance of the fact that he had no knowledge of any violent acts by his son. Id. at 193.
112. N.J. A. Bill 1285, supra note 19, (section)S 1, 2(a); N.J. S. Bill 214, supra at note 19, §§ 1(a), 2(a) (requiring that parent knew, or should have known, of child's possession of a gun).
113. New Jersey law defines acting "knowingly":
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.
N.J. STAT. ANN. § 2C:2-2(b)(2) (West 1982); see also MODEL PENAL CODE § 2.02(2)(b) (1985) (similar wording). Recklessly is defined as:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
N.J. STAT. ANN. § 2C:2-2(b)(3) (West 1982) (adopting exact wording of MODEL PENAL CODE § 2.02(2)(c) (1985)).
114. PROSSER, supra note 37, at 914-15.
115. One author lists factors which courts consider in suits involving a minor's misuse of a firearm in order to determine whether the parent reasonably should have known of the probability of misuse: "prior use of a gun by the minor; experience, disposition and age of the minor, whether the gun was loaded, or in the case of an unloaded gun, the accessibility of shells." White, supra note 47, at 1407-08.
116. New Jersey law has several exceptions to the general prohibition on the possession or use of a firearm by a minor. The exceptions include the use "[f]or the purpose of competition or target practice in and upon a firing range" and the licensed use "for the purpose of hunting during the . . . hunting season." N.J. STAT. ANN. 2C:58-6.1b (3), (4) (West 1982).
117. See also N.J. S. Bill 213, 206th Legis., 1st Sess. (1994) (sponsored by Senators Bassano and Bubba and awaiting consideration by the Senate Committee on the Judiciary). This bill establishes a fourth degree crime for a parent's failure to prevent his or her child from gaining access to an unsecured firearm owned or possessed by the parent. Id. at § 1. This bill alone, if enacted, would cover cases where the parent's gun is used. As for cases where the parent's possession of a gun merely arouses the child's interest in obtaining a gun elsewhere, there may be little a parent can do to control the situation. Imposing criminal liability in this instance would be especially severe.
118. A system of strict liability in criminal law poses problems because it ignores the requirement of mens rea in the commission of a crime. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., 1 SUBSTANTIVE CRIM. LAW § 3.4, at 296 (1986). In the present context, a strict liability standard assumes that a child is not able to think for himself, or to learn from sources outside the home, and that he merely follows his parent's wishes, directives, or examples. One state court summed up the absurdity of this view: "Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for the acts of another on any person." Bieker v. Owens, 350 S.W.2d 522, 524 (Ark. 1961). Such responsibility would be unjust because the parent receives the stigma of a conviction without direct moral blameworthiness. LAFAVE & SCOTT, supra, § 3.8, at 348. A criminal sanction is inappropriate for a parent who lacks mens rea, and it is an ineffective means of achieving the goals of deterrence or retribution. Id.; see infra notes 143-55 and accompanying text.
119. N.J. A. Bill 1285, supra note 19; N.J. S. Bill 214, supra note 19.
120. Robertson v. Wentz, 232 Cal. Rptr. 634, 638 (Ct. App. 1986) (citing Poncher v. Brackett, 55 Cal. Rptr. 59 (Ct. App. 1966)). "The absence of such ability is fatal to a claim of legal responsibility." Id.
121. Such presumptions present problems in criminal statutes. See supra notes 70-73 and accompanying text. This inference also ignores other causes of delinquency which may intervene and affect the parent's ability to control the actions of the child. See supra notes 9-12 and accompanying text.
Nevertheless, parents arguably have not only physical control over their children, but developmental control as well. Some argue that:
children are not born criminals nor are they born delinquents . . . . Children are what we make them. If we influence them properly, we can develop in them those characteristics which are a credit to themselves and an asset to the community, or we can start them down the path of anti-social conduct, ultimately resolving their conduct into delinquent acts.
. . . [M]an's conduct is responsive to attitudes of mind, . . . which justify or disregard anti-social conduct and so accept it to be the natural and normal thing.
Seleina v. Seleina, 93 N.Y.S.2d 42, 43 (Dom. Rel. Ct. 1949) (finding a father guilty of contributing to the delinquency of his daughter because his training and examples caused her delinquency).
122. It has been proposed that such "ability . . . may be inferred as to a very young child, and usually is inferred as to a minor child . . . ." Joan Morgridge, Comment, When Does Parental Liability End?: Holding Parents Liable for the Acts of Their Adult Children, 22 LOY. U.CHI. L.J. 335, 341 (1990). See also Duncan v. Rzonca, 478 N.E.2d 603, 612 (Ill. App. Ct. 1985) (inferring that a mother had the ability to control her son because he was three years old). However, the inference "may be disproved by the circumstances surrounding the particular situation." Robertson, 232 Cal. Rptr. at 638 (citing Poncher v. Brackett, 55 Cal. Rptr. 59 (Ct. App. 1966)).
123. Age of the child has been recognized as a relevant factor in determining the ability of the parent to exercise control. See, e.g., Sabantelli v. Butler, 296 N.E.2d 190, 192 n.3 (Mass. 1973). The problem which remains involves determining the age at which control should be inferred. As children progress into their teens, it is more difficult to control them as they increasingly resist authority. While common law presumptions may be helpful as to whether the ability to control a child exists, the ability differs among individual children, making bright-line rules unwieldy.
124. See Bieker v. Owens, 350 S.W.2d 522, 524 (Ark. 1961); Williams v. Garcetti, 853 P.2d 507, 514 (Cal. 1993); Duncan, 478 N.E.2d at 613; Silberstein v. Cordie, 474 N.W.2d 850, 855-56 (Minn. Ct. App. 1991), adhered to on reconsideration, 1992 Minn. LEXIS 176 (Feb. 12, 1992); Moore v. Crumpton, 295 S.E.2d 436, 440 (N.C. 1982). See also RESTATEMENT (SECOND) OF TORTS, § 316 (1965); Armstrong, supra note 42 (reporting California prosecutor's contention that 99 percent of parents investigated under parental liability statute were either unaware of their children's criminal actions or wanted to help their children).
125. Robertson v. Wentz, 232 Cal. Rptr. 634 (Ct. App. 1986) (mother had no effective control at time of shooting since son was staying at, and had obtained gun from, father's home). But see Spivey v. Sheeler, 514 S.W.2d 667 (Ky. Ct. App. 1974) (jury could rightly find negligence despite parents' absence from the home because they kept key on top of gun case); Silberstein, 474 N.W.2d at 850 (parents kept gun unlocked despite knowing child's mental problem). However, ability to control may be inferred from the "mental control" a parent is expected to have over the child whether the child is in the company of the parent or absent from it. See supra notes 122-23, and Malloy, supra note 46.
126. One case states that, short of 24-hour-a-day surveillance or physical restraint of the child's movements, the parent could have done little to prevent his 17 year-old son from going out in the very early morning hours to commit a crime. Moore, 295 S.E.2d at 442.
In Barrett v. Pacheco, 815 P.2d 834, 836 n.5 (Wash. Ct. App. 1991), the parents had known that their child had possession of Ninja weapons and ammunition. They had sent him to a gun safety course, required him to stay home, kept watch, and even tied him up once; nevertheless, he would still sneak out the window or go out while his parents worked the night shift. Id. at 835-36. A police officer who had been shot by the son during the commission of a burglary brought the action against the parents. The court inferred that the parents had taken sufficient steps to control their child, though it decided that they should not be held liable for his actions because they lacked knowledge of these particular tendencies. Id. at 838 & n.9.
Another case involved an injury inflicted after a mentally ill son had taken the family car. Mitchell v. Allstate Insurance Co., 534 P.2d 1235, 1236 (Colo. Ct. App. 1975). According to the facts, hiding the car key had not been enough to prevent the son from using the vehicle. Id. The evidence was sufficient to send the issue of the liability of the parent to the jury, id. at 1237, but it is difficult to contemplate what further actions the mother could have taken.
127. One court noted that:
negligence in controlling one's child should not, of itself, be reason to find parental liability, as it "would be extending the hardships of harassed and exasperated parents too far to hold them liable for general incorrigibility, a bad education and upbringing, or the fact that the child turns out to have a nasty disposition.
Lanterman v. Wilson, 354 A.2d 432, 436 (Md. 1976) (quoting WILLIAM L. PROSSER, THE LAW OF TORTS § 123, at 873 (4th ed. 1971)). However, another opinion notes that the instances in which a child is incorrigible are rare. Bieker, 350 S.W.2d at 526 (Harris, C.J., concurring).
128. State v. Walker, 845 P.2d 1, 21 (Kan. 1993) (fact that mother was not stable, warm, and nurturing is not a mitigating factor for son's subsequent criminal behavior); Bieker, 350 S.W.2d at 524 ("Each human mind and personality is exclusively that of the individual possessing it . . ."). The children's rights movement is based on the idea that children are their own person with their own minds. Hart, supra note 66, at 54 (noting that children have been declared 'persons' under the law and have been recognized as competent and worthy of limited freedoms).
The U[nited] N[ations] Convention on the Rights of the Child is a strong indicator of the increased, formal, societal emphasis being given to participation and autonomy . . . for children . . . . Nearly one fourth of the substantive articles are participation and self-determination rights, assuring access to information; freedom of movement, association, belief, expression; privacy; liberty; and development toward independence.
Id. at 55. This position opposes the assumption in parental liability statutes that the actions of the child are a result of nurturing and are subject to absolute control by parents.
129. Byfield, supra note 66, at S3 (noting that hotlines are in place for children to report spankings). "[I]n today's world, if parents try to discipline the child they are immediately reported to the state Health and Rehabilitative Services Department." Don't Always Blame the Parent for Children's Faults, ST. PETERSBURG TIMES, July 21, 1993, at 2. But see State v. Hamilton, 501 A.2d 778, 779 (Del. Super. Ct. 1985) (noting that state law "provides that a parent may use reasonable force or discipline to enforce his or her decisions as to that child's upbringing and be free of any criminal liability for the use of such physical force"), aff'd, 515 A.2d 397 (Del. 1986).
130. See CAL. PENAL CODE § 272 (West Supp. 1994); N.J. A. Bill 1285, supra note 19; N.J. S. Bill 214, supra note 19.
131. See supra note 93 and accompanying text. One court recognizes that it is a question for the trier of fact to decide whether affirmative measures taken by a parent to prevent wrongful behavior by the child are adequate to comply with the duty of care. Mitchell v. Allstate Insurance Co., 534 P.2d 1235, 1237 (Colo. Ct. App. 1975).
132. N.J. STAT. ANN. § 2A:4A-26 (West Supp. 1994). Jurisdiction over a juvenile may be waived from the family court to the appropriate adult court if the juvenile is at least 14 years old at the time of the allegedly delinquent act and there is probable cause that the juvenile committed one of several enumerated acts. Id. The list of acts includes possession of a firearm, and the provision also encompasses any act committed when the juvenile had previously been incarcerated or adjudicated delinquent for a serious offense. Id.
133. See supra notes 2-5.
134. Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) (finding that legislatures may address one phase of a problem at a time). Parents are understandably the primary target, since society still regards the family as primarily responsible for the care and education of young children. Buka & Earls, supra note 6, at 47.
135. See supra Section III.
136. Lynn Smith, Can We Really Legislate Good Parenting?, L.A. TIMES, Jan. 18, 1995, at E1 ("of about 1,000 juvenile delinquency cases reviewed by the Los Angeles city attorney last year (under the law), fewer than half a dozen parents were charged with a crime"). New Jersey officials forecast similar results. One official believes that the proposed statute would "have little if any effect. If the standard is beyond reasonable doubt I can see few successful prosecutions." Letter from of Harold Kasselman, Chief Grand Jury Prosecutor, Office of the Prosecutor, Camden County, New Jersey (Mar. 10, 1994) (on file with author). Another official noted the mixed success of such laws in the past:
Delinquents . . . generally come from dysfunctional families where responsible parenting is not a hallmark of the family situation. . . .[A]dding liability to parents who are already unable to cope with life's situations is not going to do much good. In urban areas where the ability to obtain a gun on the street is so prevalent, it is unlikely that any type of reasonable parental supervision can deter a youngster . . . [from possessing a gun] if they so choose.
Response of Martin C. Mooney, Chief of Family Court Unit, Office of the Prosecutor, Burlington County, New Jersey (Mar. 22, 1994) (on file with author).
Criminal penalties are "more likely to disrupt the possibility for rehabilitation than to punish a parent's permissive blindness to violence." Abramovsky, supra note 79, at 539 (suggesting that financial liability is a more effective means of encouraging parents to restrain their children).
137. "I know my son did something very wrong, but I feel like a criminal myself." World News Tonight, supra note 54 (quoting mother whose welfare check was cut to $157 per month during her son's sentence). These laws will give parents the stigma of a criminal record for acts which are essentially the fault of another person. It adds to the shame of having of a child in a detention center. Furthermore, the punishment is vastly disproportionate to the actions of the parent. Abramovsky, supra note 79, at 538-39. As if the stigma and shame are not bad enough, "[f]or a parent who's ever lost a child through their own negligence, no criminal punishment is as strong as the anguish they must carry. Is it any different for parents of children who kill strangers?" If Child A Criminal, supra note 23. While the fear of criminal stigma may generally be an effective tool in prompting desired behavior, this tool is less effective when it is used to prompt one party to control another. See supra note 18, 73.
138. See supra note 28 discussing N.J. STAT. ANN. § 2A:4A-43b (15) (West Supp. 1994), which allows courts which adjudicate child delinquency cases to order parents to participate in programs or services upon finding that the parents' omission or conduct was a significant contributing factor in the delinquent act. This statute, along with the existing law for civil liability, can be enforced to better prompt parents to supervise their children. See Abramovsky, supra note 79, at 538-39 (arguing that financial responsibility will more effectively encourage parents to restrain the violent behavior of their children).
139. See generally part IV (discussing the requirements that parents know the need to control the child and have the ability to do so, and discussing the route taken by the Restatement in using these requirements).
140. City Attorney Parenting Program Procedure (CAPP) (Sept. 9, 1989) (referenced in Humm, supra note 16, at 1132-33 n.41). The procedures establish vague and discretionary factors by which the Los Angeles District Attorney's Office reviews evidence and refers cases for hearing or prosecution of the parents under the statute:
1. A detailed description of the acts or circumstances [of juvenile] . . . ;
2. A detailed description of the acts or omissions of duty on the part of the parent which caused or encouraged the juvenile to come within the . . . provisions;
3. The number and type of warnings given to the parent and by whom;
4. Whether any parenting programs have been offered to the parents;
5. The statements and attitude of parents and the juvenile during the investigation;
6. The parents' present actual ability or inability to supervise and control the offending juvenile . . . ;
7. The experience and training of the officers involved in the investigation;
8. Neighborhood complaints or other corroboration of the problem with the juvenile and/or the parents . . . .
Id. The fourth factor refers to a program of "parental diversion" whereby "the probation department may recommend the diversion of [charged] parents . . . to an education, treatment, or rehabilitation program prior to trial." Williams v. Garcetti, 853 P.2d 507, 508 (Cal. 1993). Completion of the program can lead to dismissal of the criminal charges. Id.
141. See White, supra note 47, at 1421-23 (discussing theories of punishment: retribution, deterrence, and rehabilitation).
142. Bieker v. Owens, 350 S.W.2d 522, 524 (Ark. 1961), cites the old adage that "an ounce of prevention is worth a pound of cure" to justify the responsibility placed upon the parents.
143. In Seleina v. Seleina, 93 N.Y.S.2d 42, 45 (Dom. Rel. Ct. 1949), the judge viewed the incarceration as a time for the defendant to reflect upon what he had done to his child through his negative influences, and the judge expressed hope that reflective period would make the defendant a better father in the future.
144. White, supra note 47, at 1421-22.
145. See infra notes 157-64 and accompanying text (discussion of alternative solutions of education and counseling).
146. However, a penalty on the parent, whether in the form of a fine or prison, may not affect the behavior of the child. See Kirby, supra note 45, at 1 (woman had "done everything in her power to steer her son away from a life of crime," including discussing his behavior with him, taking him to church, encouraging him to find better friends, and sending him to live temporarily with a family in Mexico; yet, he still got in trouble upon his return, and she was arrested).
147. World News Tonight, supra note 54 (reporting that several states require parents to pay the expenses for the detention of their children in juvenile facilities). Financial deterrents have been tried in several places. Wisconsin reduces the checks of welfare recipients if their children have too many absences from school. Id. South Carolina courts order parents to pay for the cost of detention, and prosecutors seek reductions in welfare checks if the parents contend that they cannot afford to pay for the costs of detention themselves. Id. Prosecutors see this method as a financial incentive for parents to become more involved in their children's lives; but critics see it as an additional burden for parents who are already struggling to support their family. Id. See supra notes 23, 86.
148. See supra note 18.
149. N.J. STAT. ANN. § 9:2-9 (West 1993). See Brockmueller v. Arizona, 340 P.2d 992 (Ariz. 1959) (application of a statute prohibiting the contribution to, or encouragement of, the delinquency of a minor), cert. denied, 361 U.S. 913 (1959); Pennsylvania v. Randall, 133 A.2d 276 (Pa. Super. Ct. 1957) (application of statute prohibiting the corruption of the morals of a minor), cert. denied, 355 U.S. 954 (1958); Geis & Binder, supra note 42, (analysis of statutes which prohibit "contributing to the delinquency of a minor").
150. See Kirby, supra note 45, at 1 (proposed Aurora city ordinance would give the parent as many hours of community service as the child is given in his punishment).
151. The child might place less importance on peer or gang approval if he or she has more support and interaction at home.
152. H.R. REP. NO. 756, supra note 57 (allowing for: grants from or contracts with public agencies to provide individual, peer, family, and group counseling; educational and social services to address the social and developmental needs which juveniles otherwise may seek to meet through gang membership; organization of community groups to work with parents, police, and agencies; and promotion of participation in lawful activities and organizations). Prosecutors in California want to use the parental liability statute to get parents into counseling, and will only use penalties of jail terms and fines in the most outrageous cases. See Armstrong, supra note 42, at 8.
153. N.J. S. Bill 214, supra note 19, §§ 1(b), 2(b).
154. Such punishment would comply with the constitutional provision stating that "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . . . ." U.S. CONST. amend. XIII, § 1 (emphasis added).
155. See supra note 150-51 and accompanying text.
156. See also Armstrong, supra note 42, at 8. A new program in New Jersey takes an alternate route, targeting the illegal possession of handguns by juveniles. Parente, supra note 5, at A1 (describing gun-exchange program implemented by U.S. Representative James Saxton). Rewards are given to informants whose anonymous tips to a toll-free hotline lead to the acquisition of an illegal gun and/or to the arrest of the possessor. Id. at A6. Funds come from citizens' groups and from funds forfeited to the county from illegal activities. Id.
157. Some professionals believe that the long-term solution is education. White, supra note 47, at 1392 (stating that education is the best overall approach to the problem of juveniles with guns); Washington News, UPI, Nov. 16, 1990, available in WESTLAW, UPI database (citing Dennis Smith, Director of Public Education for Washington-based Center to Prevent Handgun Violence). Educational programs can teach children the dangers of playing with guns by showing them videotaped interviews with students who were injured by guns. Id. Educational programs can also aim at gun owners who have children. A program in Miami includes adult education because 86% of guns possessed by children come from the home. Id. White recommends that education start with gun owner-parents, then focus on classroom and community teaching. Id.
158. See, e.g., Webster, supra note 6, at 127-31 (describing popular programs which teach and encourage students to use nonviolent dispute resolution by teaching them the risks of injury and death by violence, the ways to recognize and cope with anger, and that the negative consequences of fighting outweigh the positive ones).
159. See, e.g., FLA. STAT. ANN. § 784.05(3) (West 1992); N.J. S. Bill 213, supra note 117.
160. See, e.g., N.J. STAT. ANN. §§ 2C:39-10, 2C:58-2, 2C:58-3 (West 1982 & Supp. 1994); N.J. S. Bill 492, 206th Legis., 1st Sess. (1994).
161. Spencer Rich, Preschool Care Linked to Drop in Delinquency, WASH. POST, Nov. 10, 1987, at A11. No institution equivalent to public schools are available to reach preschool children to assume their care and education during those years when early determinants of violence arise. Buka & Earls, supra note 6, at 47-48. One author suggests the creation of a system for infants and preschool children analogous to public schools in order to decrease the risks of delinquency. Id. at 59-60 (citing Infant Health and Development Program, Enhancing the Outcomes of Low-Birthweight, Premature Infants, 263 JAMA 3035-42 (1990)).
162. The delinquency rate had decreased from 22 percent to six percent. Rich, supra note 161, at A11.
163. See Dana Thomas, Pulling Teens Back From the Edge; Volunteers Work to Help Youths Found at Risk, WASH. POST, Sept. 8, 1988, at J1.
164. Josh Meyer, Fighting Hurt With Hope, L.A. Times, Aug. 31, 1993, at B1