New Criminal Law and Policy Focus: Foster Care

Welcome to this year’s edition of the Criminal Law and Policy Blog, a product of the Criminal Law and Policy Seminar at Santa Clara University School of Law. We will be focusing on the legal and policy implications of the foster care system in California. As with my past courses on marijuana legalization and bail reform, both of which resulted in statewide policy changes, the goal for this class is for students to produce work that informs policymakers and interest groups. I decided that I wanted the class to focus on this subject because I think it’s important–and tragic–that we, as a society, can know the statistics about the life outcomes of foster children and not do better than we are doing. Despite the subject’s importance, I actually don’t know much about the foster care system other than two things: first, that we sometimes unnecessarily terminate parental rights, we sometimes unnecessarily don’t, and it’s hard to tell the difference, and second, that children who are placed in foster care often end up in the criminal legal system.

So, let me be plain: I am not teaching this class because I have easy answers. I don’t. Most of what I will be doing is listening, learning, and asking questions. As with so many things in life, humility is a great approach. In this class, I am serving as a student guide, working alongside them to learn together.

Ultimately, I think the lessons and case studies involved in foster care might help inform a new approach to criminal justice policy: that the best way to fight crime is to invest in social services, since people who are not provided adequate educational, social, and material support are much more likely to engage in criminal behavior (or, at least, the criminal behavior that is targeted by law enforcement). I also think that approaches taken in the foster system might yield valuable insights for criminal justice reform: the role of holistic, “wrapped” services, working within family and kinship units (and communities) to utilize existing strengths (and to bolster those strengths), the importance of legitimacy/fairness, the ways in which racial disparities are pervasive, the role of childhood trauma in contributing both to parental issues (the “addiction as self-soothing for PTSD” model, given that addiction is a major reason for referrals into the system) and child issues (parental separation via the foster system may itself contribute to worse life outcomes—the cure might be worse than the disease). As with so many things in life, I have found that, in my initial exploration, the questions I thought were interesting have been supplanted, and the things I expected to learn have been supplanted by other things I have, in fact, learned. There have been, for me, many more opportunities to “take” lessons from this new area than to “give” lessons. (Not a surprise, but worth mentioning since parachuting in with solutions without first doing reconnaissance and learning from those on the ground is a problem that many people, particularly in Silicon Valley, fall prey to.)

Stay tuned for the student work to come. I might weigh in from time to time on pedagogical approaches or my own thoughts on the subject. In the meantime, students will be introducing themselves and their topics over the next week or so. Please check back soon or follow us @crimlawpolicy on twitter.