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SUPREME COURT OF THE UNITED STATES
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No. 91-905
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JANET RENO, ATTORNEY GENERAL, ET AL.,
PETITIONERS v. JENNY LISETTE FLORES ET ____
AL.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
[March 23, 1993]
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins, concurring.
I join the Court's opinion and write separately simply to clarify that in my
view these children have a constitutionally protected interest in freedom from
institutional confinement. That interest lies within the core of the Due
Process Clause, and the Court today does not hold otherwise. Rather, we reverse
the decision of the Court of Appeals because the INS program challenged here, on
its face, complies with the requirements of due process.
"Freedom from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action." Foucha ______
v. Louisiana, 504 U. S. ___, ___ (1992) (slip op., at 8). "Freedom from bodily _________
restraint" means more than freedom from handcuffs, straitjackets, or detention
cells. A person's core liberty interest is also implicated when she is confined
in a prison, a mental hospital, or some other form of custodial institution,
even if the conditions of confinement are liberal. This is clear beyond cavil,
at least where adults are concerned. "In the substantive due process analysis,
it is the State's affirmative act of restraining the individual's freedom to act
on his own behalf - through incarceration, institutionalization, or other
similar restraint of personal liberty - which is the `deprivation of 91-905 - CONCUR
2 RENO v. FLORES ____
liberty' triggering the protections of the Due Process Clause . . . ." DeShaney ________
v. Winnebago County Social Services Dept., 489 U. S. 189, 200 (1989). The ______________________________________
institutionalization of an adult by the government triggers heightened,
substantive due process scrutiny. There must be a "sufficiently compelling"
governmental interest to justify such action, usually a punitive interest in
imprisoning the convicted criminal or a regulatory interest in forestalling
danger to the community. United States v. Salerno, 481 U. S. 739, 748 (1987); _____________ _______
see Foucha, supra, at ___-___ (slip op., at 8-9). ______ _____
Children, too, have a core liberty interest in remaining free from
institutional confinement. In this respect, a child's constitutional "freedom
from bodily restraint" is no narrower than an adult's. Beginning with In re _____
Gault, 387 U. S. 1 (1967), we consistently have rejected the assertion that "a_____
child, unlike an adult, has a right `not to liberty but to custody.'" Id., at ___
17. Gault held that a child in delinquency proceedings must be provided various _____
procedural due process protections (notice of charges, right to counsel, right
of confrontation and cross-examination, privilege against self-incrimination),
when those proceedings may result in the child's institutional confinement. As
we explained,
"Ultimately, however, we confront the reality of . . . the Juvenile Court
process . . . . A boy is charged with misconduct. The boy is committed to
an institution where he may be restrained of liberty for years. It is of no
constitutional consequence - and of limited practical meaning - that the
institution to which he is committed is called an Industrial School. The
fact of the matter is that, however euphemistic the title, a `receiving home'
or an `industrial school' for juveniles is an institution of confinement in
which the child is incarcerated for a greater or lesser time. His world
becomes a building with whitewashed walls, regimented routine and
institutional hours. Instead 91-905 - CONCUR
RENO v. FLORES 3 ____
of mother and father and sisters and brothers and friends and classmates, his
world is peopled by guards, custodians, [and] state employees . . . ." Id., ___
at 27 (footnote and internal quotation marks omitted).
See also In re Winship, 397 U. S. 358 (1970) (proof-beyond-reasonable-doubt _____________
standard applies to delinquency proceedings); Breed v. Jones, 421 U. S. 519 _____ _____
(1975) (double jeopardy protection applies to delinquency proceedings); Parham ______
v. J. R., 442 U. S. 584 (1979) (proceedings to commit child to mental hospital _____
must satisfy procedural due process).
Our decision in Schall v. Martin, 467 U. S. 253 (1984), makes clear that ______ ______
children have a protected liberty interest in "freedom from institutional
restraints," id., at 265, even absent the stigma of being labeled "delinquent," ___
see Breed, supra, at 529, or "mentally ill," see Parham, supra, at 600-601. In _____ _____ ______ _____
Schall, we upheld a New York statute authorizing pretrial detention of dangerous______
juveniles, but only after analyzing the statute at length to ensure that it
complied with substantive and procedural due process. We recognized that
children "are assumed to be subject to the control of their parents, and if
parental control falters, the State must play its part as parens patriae." 467 ______________
U. S., at 265. But this parens patriae purpose was seen simply as a plausible ______________
justification for state action implicating the child's protected liberty_____________
interest, not as a limitation on the scope of due process protection. See ibid. _____
Significantly, Schall was essentially a facial challenge, as is this case, and ______
New York's policy was to detain some juveniles in "open facilit[ies] in the
community . . . without locks, bars, or security officers where the child
receives schooling and counseling and has access to recreational facilities."
Id., at 271. A child's placement in this kind of governmental institution is___
hardly the same as handcuffing her, or confining her to a cell, yet it must
still satisfy heightened constitutional scrutiny.
It may seem odd that institutional placement as such, 91-905 - CONCUR
4 RENO v. FLORES ____
even where conditions are decent and humane and where the child has no less
authority to make personal choices than she would have in a family setting,
nonetheless implicates the Due Process Clause. The answer, I think, is this.
Institutionalization is a decisive and unusual event. "The consequences of an
erroneous commitment decision are more tragic where children are involved.
[C]hildhood is a particularly vulnerable time of life and children erroneously
institutionalized during their formative years may bear the scars for the rest
of their lives." Parham, supra, at 627-628 (footnotes omitted) (opinion of ______ _____
Brennan, J.). Just as it is true that "[i]n our society liberty [for adults] is
the norm, and detention prior to trial or without trial is the carefully limited
exception," Salerno, supra, at 755, so too, in our society, children normally _______________
grow up in families, not in governmental institutions. To be sure, government's
failure to take custody of a child whose family is unable to care for her may
also effect harm. But the purpose of heightened scrutiny is not to prevent
government from placing children in an institutional setting, where necessary.
Rather, judicial review ensures that government acts in this sensitive area with
the requisite care.
In sum, this case does not concern the scope of the Due Process Clause. We
are not deciding whether the constitutional concept of "liberty" extends to some
hitherto unprotected aspect of personal well-being, see, e.g., Collins v. ____ _ _______
Harker Heights, 503 U. S. ___ (1992); Michael H. v. Gerald D., 491 U. S. 110______________ __________ _________
(1989); Bowers v. Hardwick, 478 U. S. 186 (1986), but rather whether a ______ ________
governmental decision implicating a squarely protected liberty interest comports
with substantive and procedural due process. See ante, at 9-13 (substantive due ____
process scrutiny); ante, at 13-17 (procedural due process scrutiny). _____
Specifically, the absence of available parents, close relatives, or legal
guardians to care for respondents does not vitiate their constitutional interest
in freedom from institutional 91-905 - CONCUR
RENO v. FLORES 5 ____
confinement. It does not place that interest outside the core of the Due
Process Clause. Rather, combined with the Juvenile Care Agreement, the fact
that the normal forms of custody have faltered explains why the INS program
facially challenged here survives heightened, substantive due process scrutiny.
"Where a juvenile has no available parent, close relative, or legal guardian,
where the government does not intend to punish the child, and where the
conditions of governmental custody are decent and humane, such custody surely
does not violate the Constitution. It is rationally connected to a governmental
interest in `preserving and promoting the welfare of the child,' Santosky v. ________
Kramer, 455 U. S. 745, 766 (1982), and is not punitive since it is not excessive______
in relation to that valid purpose." Ante, at 10. Because this is a facial ____
challenge, the Court rightly focuses on the Juvenile Care Agreement. It is
proper to presume that the conditions of confinement are no longer "`most
disturbing,'" Flores v. Meese, 942 F. 2d 1352, 1358 (CA9 1991) (en banc) ______ _____
(quoting Flores v. Meese, 934 F. 2d 991, 1014 (CA9 1990) (Fletcher, J., ______ _____
dissenting)), and that the purposes of confinement are no longer the troublesome
ones of lack of resources and expertise published in the Federal Register, see
53 Fed. Reg. 17449 (1988), but rather the plainly legitimate purposes associated
with the government's concern for the welfare of the minors. With those
presumptions in place, "the terms and conditions of confinement . . . are in
fact compatible with [legitimate] purposes," Schall, supra, at 269, and the ______ _____
Court finds that the INS program conforms with the Due Process Clause. On this
understanding, I join the opinion of the Court.