Last week a New York jury found Pedro Hernandez guilty of the murder of Etan Patz, the six-year-old boy who disappeared from his SoHo neighborhood almost forty years ago. The name “Etan Patz” might only ring a distant bell for Millennials, but mention the case to anyone in our parents’ generation and they will involuntarily shudder. Etan was abducted while walking to his bus stop alone—every parent’s nightmare.

Even if my peers cannot recall the details of this particular crime, we’re familiar with the seismic effect it had on our lives. Etan was one of the first children to be depicted on the side of milk cartons, and “stranger danger” programs soon sprang up around the country. Fears about child abduction skyrocketed. The culture of parenting changed.

Another effect of the Etan Patz tragedy is that it led to more expansive definitions of “neglect” and “abandonment,” leading to a different kind of fear for some parents.

Last year, Child Protective Services (CPS) investigated a Maryland couple for neglect after they allowed their ten-year-old son and six-year-old daughter walk from their home to a nearby park. In a similar situation, a Florida mom was arrested in 2014 for neglect after the police spotted her 7-year-old son playing at the neighborhood park without adult supervision. These cases exemplify the rise in “inadequate supervision cases” against otherwise-innocent parents, as The Family Defense Center, Chicago-based nonprofit organization, has documented. The Center notes that, under Illinois law, there is no specific statute or policy that produces these results, since “the Illinois system labels parents neglectful based on the discretion of an investigator and supervisor, and there is no required court process to review the basis for that finding.” This suggests that parenting culture – changing ideas of what “good” and “bad” parenting looks like – is driving legal outcomes.

Some parents wrongfully deemed neglectful have successfully challenged those findings. The Maryland couple initially found guilty of “unsubstantiated child neglect” for allowing their kids to walk through their neighborhood unattended appealed and won. In response to the case, which received national attention, Maryland’s Social Services Administration issued a new policy directive clarifying that “[c]hildren playing outside or walking unsupervised does not meet the criteria for a CPS response.”

Child abuse and neglect is a real problem, and some might argue that zealous investigation is better than systematic under-prosecution. But the impact on families when children are deemed “neglected” can be devastating, leading to a child’s placement in foster care or even termination of parental rights. If these determinations are largely discretionary, often based on vague laws against “abandonment” and “neglect,” it’s up to individuals to ensure that parenting choices aren’t unfairly criminalized.

The Maryland case had a happy ending, but not every family has the time or the resources to fight a state finding of neglect. Absent implementation guidelines like those now in place in Maryland, parents are at risk of being punished for simply allowing their children to spend time unsupervised. Other states should take similar measures. Child safety is not incompatible with parental freedom, and we must ensure that cultural changes – like the one that followed Etan Patz’s disappearance – do not lead to permanent overcorrections in the legal system.

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Samantha is a 2L at HLS. She is interested criminal justice reform and plans to pursue a career in public defense. She currently works as a student attorney at the Harvard Prison Legal Assistance Project and is a co-director of the Harvard ACLU's Criminal Law Reform group. During her 1L summer, Samantha worked on state habeas corpus petitions for death row inmates at the Office of Capital and Forensic Writs in Austin, Texas. Prior to law school she worked as a paralegal at a criminal defense law firm, and received her B.A. in History from Brown University

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