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85 Ind. L.J. 1445 (2010)
Unfettered Discretion: Criminal Orders of Protection and their Impact of Parent Defendants

handle is hein.journals/indana85 and id is 1453 raw text is: Unfettered Discretion: Criminal Orders of Protection and Their Impact on Parent Defendants DAVID MICHAEL JAROS* INTRODU CTION ..................................................................................................... 1446 I. THE EVOLUTION OF ORDERS OF PROTECTION ................................................... 1449 A. ORDERS OF PROTECTION AS A WEAPON AGAINST DOMESTIC VIOLENCE 1450 B. THE CRIMINAL JUSTICE SYSTEM'S HISTORIC FAILURE TO PROTECT BATTERED W OMEN .................................................................................... 1451 C. THE OMISSION OF PROCEDURAL PROTECTIONS FOR ACCUSED BATTERERS FACING PROTECTIVE ORDERS: THE NEW YORK EXPERIENCE ..................... 1453 D. THE ORDER OF PROTECTION IN CRIMINAL NEGLECT CASES ................... 1457 E. CRIMINAL COURT ORDERS SUBJECT TO FAMILY COURT MODIFICATION 1459 II. THE INCREASING CRIMINALIZATION OF NEGLECT AND ITS DISPROPORTIONATE IMPACT ON POOR M INORITY W OMEN .................................................................. 1460 III. THE CONSTITUTIONAL RIGHT OF A PARENT TO CARE FOR HER CHILD ............ 1464 A. UNFETTERED DISCRETION AND SUBSTANTIVE DUE PROCESS ................. 1465 B. UNFETTERED DISCRETION AND PROCEDURAL DUE PROCESS ................. 1466 IV. APPLYING THE LESSONS OF FAMILY COURT TO CRIMINAL ORDERS OF PROTECTION ......................................................................................................... 1469 A. MODERATE REFORM: MIRROR THE STATE-SPECIFIC FAMILY COURT RE G IM E ....................................................................................................... 1470 B. AMBITIOUS REFORM: ADOPT THE NAC STANDARDS FOR REMOVAL ...... 1473 C ONCLUSION ........................................................................................................ 1475 The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent- child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child. I argue that procedures for issuing protective orders that were once justified by the challenges of fighting domestic violence cannot constitutionally be applied to parents charged with criminal neglect. Instead, criminal courts and legislatures should look to family court, the forum traditionally empowered to police neglectful parents, for guidance on how to properly intervene on behalf of neglected children. * Acting Assistant Professor, New York University School of Law; J.D., Yale Law School; M.P.P., Harvard University, John F. Kennedy School of Government. I am grateful for the help and insightful comments of Michael Wald, Anthony Thompson, Marty Guggenheim, Jeannie Suk, David Garland, Jim Jacobs, Peggy Cooper-Davis, Donald Braman, Miriam Baer, Josh Bowers, Adam Zimmerman, Alexa Rosenbloom, Jorge Cisneros, Chanelle McCoy and all the members of the NYU Lawyering Scholarship Colloquium. I also owe a special debt to my wife for her insightful edits and endless patience with this project. The errors are all my own.

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