Suicide Decriminalization and Prison Abolition

Introduction

Until the 1970s, the Western world criminalized attempted suicide. It was decriminalized because of new theories of mental health, the eugenics and euthanasia movement, a shift in legal focus to individual rights and privacy, and a lack of justification for penalizing self-harm through criminal means. Today suicide is only a crime in the few states that follow criminal common law, however, it is rarely prosecuted.

Although attempted suicide has been decriminalized in the United States, suicides occur twice as often as homicides each year. Suicide is the tenth leading cause of death in the United States for the overall population and the second leading cause of death among people between 10 and 34 years-old. The suicide rate has increased for thirteen years in a row with the highest rate since World War II in 2017.

In this series of posts I will analyze the decriminalization of suicide in light of the prison  abolition framework offered by Allegra McLeod. McLeod is a legal scholar and abolitionist who defined the “prison abolition ethic” in the article Prison Abolition and Grounded Justice. The way attempted suicide changed in terms of criminal law is exemplified by two key concepts of prison abolition: decriminalization and  preventative justice. I want to explore why decriminalization of suicide has been unsuccessful in lowering suicide rates, whether implementing other strategies outlined in the prison abolition framework would improve the situation, and if this offers any lessons in how prison abolition framework could be successfully applied to other crimes.

In this post I will to discuss the idea of prison abolition, the history of criminalization of suicide, and decriminalization of suicide. I will begin by discussing the prison abolitionist ethic, as outlined by Allegra McCleod. Then, I will discuss how different cultures view suicide and the history of suicide criminalization. This post focuses on England because the United States adopted English common law at its inception. Finally, I will discuss how and why suicide was decriminalized and where suicide stands in criminal law today in the United States.

This series of posts will address the criminalization of suicide and attempted suicide only. It will not discuss physician-assisted suicide, suicide pacts, influencing someone else to commit suicide, or accidental killings of another during attempted suicide.

The Prison Abolitionist Ethic

According to Allegra McLeod, prison abolition is the ethical, institutional, and political framework that aims to demolish the current criminal law and police system in exchange for positive social projects and institutions that work to prevent criminalized conduct. Prison abolition is about more than just tearing down prisons, it is about rethinking justice, security, public safety, and criminality.

There are several key concepts that are necessary for prison abolition to be successful. The first, and most significant, is preventative justice, which “designates a range of measures aimed at reducing the incidence of harmful behavior, typically by targeting the risks posed by specific individuals and less often by addressing the potential harm posed by given social situations.” These preventative measures range from alternatives to detention to funding social programs that reduce crime. Other key concepts are decriminalization, justice reinvestment (meaning “reinvesting criminal law administrative resources in other sectors and also reinvesting the concepts of justice and prevention w/ more expansive meaning”), creating safe harbors for vulnerable persons and communities to care for themselves, alternative livelihood programs to prevent conduct that would usually be addressed by criminal law administration, simple design innovations that improve security, and urban redevelopment that engages community members in projects and populating urban areas.

The following sections outline the history of suicide and attempted suicide criminalization and decriminalization. An abolitionist framework would start with decriminalization, but it wouldn’t end there. It would extend to the root causes of suicide and build out programs to prevent it. Decriminalization does little to promote public welfare without the addition of the concepts laid out in the prison abolition ethic.

Suicide in Different Cultures

The different cultural views of suicide begin within the word itself. The term “suicide” connotes an active verb of “killing.” The root “sui” means himself or herself and “-cide” means to kill. The term suicide did not exist until the 1600s. The terms self-homicide, self-destruction, and self-murder were previously used in the English language. Many other languages did not have an equivalent term because they regarded the act as a passive dying, rather than an active killing.

In ancient Rome, suicide was commendable when it was completed by warriors in battle when defeat was inevitable. In ancient Japan, seppuku was commendable in certain circumstances. Suicide was also deemed honorable in war contexts in several cultures. Buddhists in China widely accepted immolation and it is still accepted among some Buddhists today. Some instances of suicide are accepted in the Hebrew Bible and the New Testament, but it is unconditionally condemned in the Quran.

Suicide Criminalization

Suicide was first criminalized by the Romans. The Roman Council of Arles “denounced suicide as a diabolical inspiration” and criminalized suicide of servants in the fifth century to prevent the significant number of slave suicides. Attempted suicide of a soldier was also criminalized by Roman military law. The punishment, ironically, was death.

Christianity also played a part in suicide criminalization in Rome. St. Augustine condemned suicide as violating the Sixth Commandment (“Thou shalt not kill”) unequivocally but excused it for the rare virgin suicides that resulted in sainthood, such as with Samson or Pelagia. The Council of Braga in the sixth century denied funeral rites to those who committed suicide. Dishonoring the corpses of persons who completed suicide became customary and then codified into law. Then forfeiture of a victim of suicide’s property to the lord later became codified. The exception was if the suicide was committed as a result of madness or illness. In the thirteenth century, Saint Thomas Aquinas further condemned suicide in his Summa Theologiae. The Catholic perspective of suicide condemnation became the dominant view across Europe.

Suicide Criminalization in England

The Catholic Church’s perspective most likely led to criminalization of suicide and attempted suicide in England. In the thirteenth century, Henry de Bracton considered suicide a felony and wrote that committing suicide resulted in a forfeiture of goods. By the fourteenth century, suicide was called felo de se and treated as a felony. In order to be considered a suicide, the self-killing had to have the legal element of “malicious intent.” Courts would hold post-mortem jury trials to determine intent. The criminal stigma and forfeiture of property could be avoided by a finding of insanity. Either way, there was a customary practice of driving a stake through the corpse’s heart and dumping the body in a pit near a crossroads. This was to prevent the spirit from returning, and ensure that, if the spirit did return, it would be confused as to which direction it should go.

William Blackstone believed that suicide was: “[a] double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony committed on one’s self.”

Suicide Criminalization in America

Suicide criminalization practices varied in the early colonies. Although the colonies adopted English common law, they did not adopt all aspects of it. Suicide was rampant among indigenous peoples and enslaved Africans. Along with the mass deaths of indigenous peoples due to diseases carried over from Europe and conflicts with colonizers, there were also numerous acts of suicide. Enslaved Africans often committed suicide on ships but this was soon prevented by force-feeding and nets which prevented jumping overboard. In the colonies, legislation provided state compensation to slave-owners for the suicide of slaves who were accused of felonies.

Early on in colonial America, Massachusetts adopted the impaling and burial by a highway law from England. However, none of the states considered suicide a crime by the nineteenth century. The colonies decriminalized suicide to set them apart from England during the Revolution and after, with no penalties remaining in the thirteen colonies by 1798. However, attempted suicide was considered a crime at common law. It was treated as a misdemeanor since it was considered an attempted felony. Some states have enacted legislation that expressly rejects common law crimes. If these states did not codify attempted suicide into their criminal statutes then attempted suicide would not be a crime in those jurisdictions. Some states did codify a criminal statute. Most of them mandated that attempted suicide is punishable by up to 2 years in jail, a $1000 fine, or both.

Suicide Decriminalization in England

Ideas about the criminalization and condemnation of suicide began to shift in the seventeenth century as a result of progressive intellectual, scientific, and cultural thought of the age of the Enlightenment. Non compos mentis, or insanity, jury verdicts rose in postmortem suicide trials, which protected families from being forced to forfeit their property. Before the seventeenth century, 2% of suicides had non compos mentis, or insanity verdicts. 42% of verdicts were non compos mentis in 1700 and they rose to 80% in 1750 and 97% in 1800.

In the eighteenth century, society became more secularized and the medical profession emerged. Public perception of suicide became more tolerant. Two suicides in the early nineteenth exemplified the shifting attitudes. The British Foreign Secretary committed suicide in 1822 which put his post-mortem jury in a tough position. They had to decide whether an esteemed member of government was a felon or insane. They returned with a verdict of temporary insanity, meaning that his property was not forfeited to the king and he did not have to have a crude burial by impalement at a crossroads. The next year, in 1823, a law student committed suicide and was subjected to a crossroads burial. There was public outcry and the practice was outlawed the same year by the Burial of Suicide Act.

The property implication of suicide, escheating to the king, was outlawed in the Forfeiture Act of 1870. Although there was no way to penalize completed suicide anymore, attempted suicide began to be considered a misdemeanor. Attempted suicide was officially decriminalized by statute by the Suicide Act of 1961.

Suicide Decriminalization in the United States

The nineteenth century brought the emergence of psychoanalytic theory, social science theory, social Darwinism, and the industrial revolution. Privatization of family life and urbanization created a new disaffected isolation which resulted in a rise of suicide.

The eugenics movement, which evolved from the ideas of social Darwinism, in combination with the creation of morphine, led to the rise of the euthanasia movement,  which was a social movement that lobbied for the legalization of euthanasia. Euthanasia, or mercy killing, is “painlessly putting to death persons suffering from painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures.”

Suicide rates spiked during the Great Depression, sparking public awareness and conversations about death and suicide. The Euthanasia Society of America was founded in 1938 by a majority of eugenicists. Euthanasia had significant lobbying efforts and began to grow public support.

Then World War II stopped the euthanasia movement in its tracks. The Nazis murdered nearly twenty million people and committed mass atrocities. People were outraged and disgusted by the crimes of eugenicists written about in the newspapers. They began to equivocate the euthanasia movement with Nazis. After the war, law began to change in the United States, with a focus on individual rights and privacy exemplified by the Warren Supreme Court, which issued a series of landmark rulings in the 1960s.

By the 1970s most states with statutes criminalizing attempted suicide had repealed them. Today, only states that follow criminal common law have the ability to criminalize suicide. This is only a handful of states and attempted suicide is rarely prosecuted.

Suicide and Prison Abolition

The history of suicide criminalization and decriminalization demonstrates that ideas about crime have more to do with politics, religion, and the voices of those in power than it does about rational assessments of the public good. The logical response to preventing suicide or any other behavior looked down upon by society is to investigate why the act was committed and address the root cause. The historical response, however, was to criminalize suicide and punish it after the fact. This did not act as a deterrent but it did have the effect of punishing the family of the victim and enriching the government. This could be said for most crimes that are still criminalized. The root cause of criminal acts is not being addressed and crime continues to occur. The only difference is that suicide is no longer considered a crime. This is largely because of changing attitudes towards suicide that began to consider it a private issue rather than a public one and the fact that the government could no longer profit from suicide in the form of escheatment.

However, suicide rates have only risen since it has been decriminalized. In the last 50 years since decriminalization began, no one has called to criminalize it again to prevent suicide. Since we know that criminalization does not impact the rate of suicide then it probably does little to prevent other acts that are considered crimes. So why do we still punish crimes when this method is ineffective? Suicide is a good example to test out the prison abolition ethic because it was decriminalized even though its prevalence has not changed. Decriminalizing suicide illustrates the importance of the positive project of abolition. Without the society-building features, decriminalization does very little to promote the public welfare.

The next post will discuss how decriminalization has not been successful in lowering suicide rates, if implementation of any of the other key concepts of prison abolition would be effective, and whether suicide decriminalization offers any lessons for how the prison abolition ethic could be applied to other crimes.

Access to Health Care and Criminal Justice Reform – Part 2

“America’s health care system is neither healthy, caring, nor a system.” – Walter Cronkite

A Universal Wraparound Program Available to all Minors Would Break the Cycle of Poor Health, Poverty, and Incarceration.

Too many people fall victim to cycles of poor health, poverty, and incarceration. In this post, I will demonstrate the ways in which the provision of universal wraparound health care services for minors is the best way to break this cycle.

Wraparound services are comprehensive, integrated, community-centered health care services, and meet all four components of sufficient health care access –– coverage, services, timeliness, and workforce. Thus, they address all of the factors contributing to poor health. The National Wraparound Initiative (NWI) service model, combined with the National Wraparound Implementation Center’s (NWIC) implementation strategy, is the ideal model from which a comprehensive, universal health care system for all children should be built.

I am proposing universal wraparound health care services for all individuals in the U.S. from birth until they reach 18 years of age. This will entail providing a health care team to every minor in the U.S. This team will address, at minimum, the wellness needs of every child in the U.S., including physical, emotional, intellectual, social, occupational, and spiritual needs, where appropriate and desired. Wellness needs, however, will act as the floor, not the ceiling, as my program will be modeled on the NWI’s program.

This program will not be means-tested but will require a significant new tax. This tax should be levied progressively against higher-income individuals and families. Within the program itself, efficacy will be measured by the NWI and NWIC’s evaluation protocols. The external success of this program, however, will be measured by the reduction in use of emergency health care services, decrease in preventable disease and associated comorbidities, lower rates of intergenerational poverty, and reduction in future levels of incarceration.

Developing a modified model of wraparound services that is available to all minors would be effective because early intervention is a proven generator of long-term socioeconomic benefits. These benefits will accrue to individuals and society. Individuals will experience better health, economic, and carceral outcomes. Society will benefit through long-term savings on various public programs and institutions. While a universal wraparound program would require enormous front-end investments, the benefits on the back-end could be transformative for individuals and save taxpayers trillions of dollars.

Access to Health Care and Entry into the Criminal Justice System

“Of all the forms of inequality, injustice in health care is the most shocking and inhuman[e].” –– Martin Luther King, Jr. (1966)

Access to Health Care for all Ages Remains Elusive, Especially for Those in Poverty, and These Conditions Increase the Likelihood of Entry into the Criminal Justice System.

There is a strong, biconditional link between minors’ inadequate health care access and poverty and between poverty and entry into the criminal justice system. That is, poverty worsens health and poor health engenders poverty. Poverty leads to criminal justice involvement and criminal justice involvement leads to poverty.

This post focuses on the link between minors’ inadequate health care access and entry into the criminal justice system. Poverty is the link between inadequate health care access and entry into the criminal justice system. If we can break the link between poverty and poor health — particularly in minors — we can reduce our prison populations.

Insufficient health care access and the cycle of poverty are bidirectionally linked.

Put simply, poverty negatively impacts health and poor health perpetuates poverty. Poverty is an essential element to consider in this relationship because data that directly examines minor populations’ access to health care and future entry into the criminal justice system is scarce. Recently, while some studies have analyzed the relationship between health care access and incarceration, those studies focused on adult populations. While these studies will be illustrative when analyzing minors, currently, it is vital to use poverty as a link.

I will use the Supplemental Poverty Measure (SPM) as the metric for poverty. Unlike the U.S. Census Bureau formulation, the SPM accounts for, inter alia, the receipt of tax credits and government assistance. The SPM has measurement consistency, which is generally a measure of data reliability. In other words, measurement consistency gauges how well the data collection methods are performing at measuring what researchers are intending to measure. Additionally, the SPM is based on “inflows” and “outflows.” Outflows reflect income spent only for basic needs. Inflows include cash income from any source and noncash benefits that contribute towards a family’s spending. Inflows do not include necessary expenses and taxes owed. Ultimately, “[a] family is designated as poor if its annual money inflow, net of necessary expenses, falls below its threshold level of money outflow.”

The majority of individuals and families who experience poverty do not stay in poverty for the remainder of their lives. More often, individuals and families will cycle in and out of poverty. While most adults who experience poverty do so cyclically, the data for adults and children are different. Indeed, children who grow up in poverty are significantly more likely, relative to adults, to stay in poverty their entire lives.

Poverty cripples both physical and mental health. Individuals and families who live in impoverished communities are at greater risk for chronic disease, have a higher mortality rate, and experience lower life expectancy. Even looking only at adult populations, the effects of poverty are punishing and unjust. The effects of poverty, however, take a uniquely cruel and depressing toll on children.

The effects of poverty on children begin in the womb. Women in disadvantaged communities experience higher maternal mortality rates and give birth to children with lower birth weights. Should mom and baby survive childbirth, however, living in poverty increases food insecurity and decreases nutrition access. Continuing as they age, children who live in low-income homes experience higher rates of asthma, developmental and learning disabilities, exposure to tobacco and lead, obesity, poor growth, and learning and behavioral problems. Additionally, children who grow up in impoverished homes are more likely to engage in tobacco use and substance misuse. The disadvantages that accrue with poverty eventually become too burdensome to shoulder, which leads to increased mental health problems and greater rates of suicide.

Suicide: A Violent Crime or a Public Health Issue?

Prison abolitionists such as Allegra McLeod argue that we need to address the root causes of violent crime, focus on healing rather than punishment, and take care of victims while ensuring that we are stopping the problem at the source. Ironically, there is one violent crime that we treat this way, and it happens to be the most deadly violent crime there is: suicide. Suicide is the most prevalent violent crime in the United States, with more than twice as many incidents each year as homicide. This series of posts will examine what, if anything, our treatment of suicide can teach us about the promise—and limits—of treating other violent crimes as public health problems.

Suicide was criminalized by statute in the U.S. until most of those statutes were abolished by the 1970s, following the trend of most other Western countries. Suicide decriminalization stemmed from studies that suicide was a mental health issue which bolstered the idea that it should not be treated as a criminal matter. Today suicide is still a crime in about a dozen states that follow criminal common law but it is rarely prosecuted. Suicide is still one of the leading causes of death in the United States, with the highest rate since World War II in 2017 despite the rise and availability of suicide prevention resources. Does this mean that an abolitionist framework is ineffective, does it mean that we need to be more careful about implementation, or is suicide different qualitatively from other violent crimes?

Christina Santora is a third-year law student at Santa Clara University School of Law. She decided to attend law school to be a more effective advocate for human rights and social justice. Christina is currently a clinical law student at the Northern California Innocence Project where she advocates for the exoneration of innocent prisoners in wrongful conviction cases. She formerly participated in the International Human Rights Clinic at SCU, where she wrote reports on issues of immigrant detention, co-authored an amicus curiae brief in support of the human rights of environmental defenders, researched criminal justice reform, and advocated for an international treaty addressing violence against women.

Throughout her law school career, Christina has volunteered at the Florence Immigrant and Refugee Rights Project in Arizona, the New York Immigration Coalition, and Community Legal Services in East Palo Alto. She co-founded the Santa Clara University chapters of the National Lawyers Guild and If/When/How: Lawyering for Reproductive Justice, and is currently a board member of the American Civil Liberties Union SCU chapter. Christina hopes to dedicate her career to advancing sustainable peace, justice, and human dignity.

Access to Health Care Services and Entry into the Criminal Justice System

My name is Dustin Weber and I am a third-year law student at Santa Clara University School of Law. I completed my undergraduate degree in Political Science, with a Pre-Law emphasis, at California State University, East Bay. Prior to coming to law school, I had a career in the coffee industry.

I have a personal stake in the issue of health care access and delivery. I am a Type-1 diabetic (T1D). Management of this disease is interminable, exhausting, and painful. Improper management of the disease leads to a litany of comorbidities, including potentially dangerous physical and mental complications. This disease is cruel and unforgiving. The United States (U.S.) health care system has made management of the disease significantly more difficult. Before passage of the Affordable Care Act (“Obamacare”), going directly to law school was a greater challenge for someone with a chronic disease about to age off his parents’ health insurance plan. So, given the importance of health care to an individual’s wellbeing, I will be focusing my writing on health care access and its relationship to entry into the criminal justice system.

Specifically, I will demonstrate how expanding the use of wraparound services to all minors, based on the Wraparound Initiative model, would stem the flow of already disadvantaged populations into the criminal justice system. Generally, wraparound services are those not focused only on treating specific health issues, but services that are more comprehensive and aimed at providing individuals with holistic treatment. I will be unpacking this issue in three parts. In the first part, I will establish the link between insufficient health care access as a child and the increased likelihood of entering the criminal justice system. In the second part, I will discuss how our current system has failed and why the Wraparound Initiative model is ideally suited for slowing entry of individuals into the criminal justice system. In the third part, I will propose how to modify and expand the Wraparound Initiative model so that it can be implemented in communities across the country. 

ACE Detection and Treatment: A Holistic Approach for Foster Youth

As explained in my previous posts, adverse childhood experiences (ACEs) are detrimental to juvenile development and have lasting affects that shape adult behavior. Therefore, the subsection of youth in the foster care system is vulnerable to the detrimental affects of ACEs and should be afforded additional care and services.

But since ACEs seem to be fairly pervasive, how do we determine who has ACEs and how many they have?

Implementation of a Universal Form of ACE Testing:

The 1998 Kaiser-CDC study that introduced ACEs found that 52% of participants reported at least 1 ACE, and 25% of participants had more than 2 ACEs. It is unlikely that the Kaiser-CDC ACE findings have decreased given that the United States has the highest incarceration rate in the world, greatly surpassing our neighbors abroad.  In the US, almost 1 in 28 children have a parent who is incarcerated. For that reason, it is important that a standardized ACE test is implemented as a base determination of child trauma and as a mechanism to assess what services may be beneficial to youth who are entering the dependency system.

Continue reading “ACE Detection and Treatment: A Holistic Approach for Foster Youth”

The Dangers of Repressed Trauma: Mario’s Story of Overcoming Adverse Childhood Experiences

In my last post, I discussed ACEs and their effects on a macro-level. As previously discussed, adults with high ACE scores are more likely to exhibit maladaptive behaviors, including drug and alcohol use disorders. In 2017, approximately 19.7 million American citizens, aged 12 and older, had a substance abuse disorder related to abuse of alcohol or illicit drugs. In 2016 the Centers for Disease Control (CDC) conducted a review of all drug overdose data. They found that accidental drug overdose was the cause of death for 63,632 Americans in 2016. The rate of overdose deaths increased in all categories, regardless of age, gender, ethnicity, sexual orientation, and socio-economic class.

Additionally, drug and alcohol disorders place a great strain on the criminal justice system. In 2018, 456,000 people were incarcerated for drug possession, trafficking, or other non-violent drug offense. According to a 2017 study by the National Institute on Drug Abuse, drug abuse and addiction cost the American economy more than $740 billion annually in “lost workplace productivity, healthcare expenses, and crime-related costs.” When the cost of addiction tops $740 billion and places such a strain on society, we are all affected by addiction, whether or not we personally struggle with substance abuse.

Continue reading “The Dangers of Repressed Trauma: Mario’s Story of Overcoming Adverse Childhood Experiences”

Inequality for Youth: Why Do Foster Youth & Juvenile Offenders Receive Different Treatment?

I. Introduction: How Does Society Want To Treat Its Children?

            There is a shared belief in society that children should grow up in environments that are conducive to living healthy and productive lives. There are certain things that we believe that all children need and deserve. Those beliefs are even enshrined in the Convention on the Rights of the Child, which sets out the rights that must be realized for children to develop their full potential: to be free from hunger and want, neglect and abuse. When these things might be lacking, society has in place mechanisms to try and remedy those deficiencies. Judge Leonard P. Edwards, in an article for the National Council of Juvenile and Family Court Judges, wrote that “[w]hen the family fails or is unable to rear its child within acceptable norms, society has an interest in intervening to achieve its own goals.” Children are our future and it is the shared goal of a society to raise them as best we can. However, there are times when circumstances compel the state to act in the best interest of the child.

            It is because of that fact that society has procedures and systems to protect and nurture children to the best of our ability. Some youth are removed from their unsafe homes and placed into foster care and some youth commit offenses and are then incarcerated. In my last post, I wrote about how children in the juvenile justice system face similar traumas as children in the foster care system might experience and are often even the very same children, yet the treatment they receive is vastly different. The question is why? What is different about the youth that would necessitate a difference in treatment? These youth are often the same and they have all experienced similar trauma. Yet, because of a few different circumstances surrounding the trauma these youth might be experiencing (being removed from their homes and placed in foster care vs. being removed from their homes and being incarcerated) they receive different support.

            Society also collectively believes that children under a certain age lack a “level of maturity, thought process, decision-making, and experience” compared to individuals above the age of majority. We therefore generally distinguish between children and adults with regard to criminal culpability “We punish [criminal acts] because we believe such harm is morally deserved by a particular individual for a particular act.”  However, is that what we want for our children? We recognize that children should be treated differently than adults and that rehabilitative measures would be better for them and society, yet the reality is considerably different. In Miller v. Alabama (2012), a 14-year-old committed murder and was sentenced to life in prison without the possibility of parole. The Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment, writing “that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform…they are less deserving of the most severe punishments.”

There is certainly a different societal view on the two populations, foster youth and juvenile justice youth, but they are all still children and youth that are deserving of all that we believe children deserve. Both systems can be traumatizing, but we tend to think one set of youth deserve what they are getting because they have committed some criminal/delinquent act. This is especially true for children and youth that commit particularly heinous or violent crimes because instinctively, we believe they should be punished.  This idea is given credence in Chief Justice Roberts’s Miller  dissent, where he wrote “society may determine that [protecting the innocent from violence] requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency.” Yet the fact that these children and youth still are treated differently despite experiencing similar trauma is unjust. These children all deserve similar support when they experience difficult circumstances.

            In this post I will go through a brief overview of the criminal justice system and juvenile justice system as well as the theories underlying them. Then I will discuss issues with the juvenile justice system and its implementation and some of the realities of juvenile justice. I will also discuss some reforms to the issues addressed. Finally, I will discuss possible policy suggestions and further plans of action.

Continue reading “Inequality for Youth: Why Do Foster Youth & Juvenile Offenders Receive Different Treatment?”

Unpacking Adverse Childhood Experiences and the Impact on Foster Care Youth

In the past 20 years, doctors and public healthcare professionals have uncovered a clear link between poor adult health and adverse childhood experiences (ACEs). According to the Substance Abuse and Mental Health Services Administration, adverse childhood experiences (ACEs) are “stressful or traumatic events, including abuse and neglect. They may also include household dysfunction such as witnessing domestic violence or growing up with family members who have substance abuse disorders.” ACEs not only lead to early morbidity, but they also have been found to promote participation in maladaptive, “high-risk,” behaviors. 

In the United States, adults who have experienced 6 or more ACEs during their childhood are 24.36 times more likely to attempt suicide than a person without ACEs. According to the 2017 article from the International Journal of Child Abuse and Neglect, not only are adults with high ACE scores likely to attempt suicide, but they are also 3.73 times more likely to use illegal drugs, 2.84 times more likely to engage in heavy alcohol use, and 2.73 times more likely to suffer from depression. 

Unfortunately, adults who suffer from drug addictions and alcohol abuse are not less likely to have children than their peers. Instead, they become families with adult caregivers who suffer from drug and alcohol addictions. At a certain point, when the substance abuse is unmanageable, law enforcement and Child Protective Services will intervene in the best interest of the child. If the parent is unable to cure their addiction, their child will join nearly 52,000 other youth who are in California’s Foster Care System.

Continue reading “Unpacking Adverse Childhood Experiences and the Impact on Foster Care Youth”

Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools

In my last post we personified the real-life implications of discretion in the child welfare systems and how it can create inconsistency. We will now review current statutes, California’s most widely used policy manual, (the structured decision-making tool (SDM)), and culture of the agencies involved to uncover exactly why and how discretion can create inconsistencies that inflict further unnecessary trauma. The problem is not that child welfare agencies have discretion – every unique family deserves a response that best suits them – the problem is that this discretion is unfettered. There are clear steps and guidelines; however, a social worker can use something called an “override” (p.5) to change the course of a child welfare case based on their personal judgment. In this post I will illuminate unchecked discretion can have negative consequences for families.  

            It is important to have an overview of the juvenile dependency process before we go into the issues. First, a report of neglect or abuse is made to the child welfare service. These reports can be made by a law enforcement agent, officials at the child’s schools, family members, etc. Once a report is made, an official at the child welfare agency will determine whether and how quickly a response is warranted. Once a social worker responds, they have to make assessments about the risks of the child’s situation to determine what the best course of action will be (ie: open a case and work with the family, close the case, or remove the child). A social worker is to make those decisions, with or without the approval of a supervisor, using the SDM. These determinations will not be reviewed by a judge until the child welfare agency has a detention hearing, which can take days or weeks. 

I. Evaluation of Relevant Statutes

            California Welfare and Institution Code § 300 defines state law on the issue of removal. The subsection relevant to substance use related neglect is as follows:

(b)  (1)  The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. A child shall not be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. 

If a report comes in and gets substantiated, a social worker can launch an investigation. If, during the course of investigation, it is determined that there is substantial risk of the child suffering then WIC § 300 is the controlling statute for removal. Although there are different potential causes for removal according to the statute, I would like to focus on substance use related neglect since this issue is at the heart of the overwhelming majority of child welfare cases.

            I would like to break down this statute to identify where the law grants discretion which creates opportunities for agents of the state to subjectively evaluate conditions. First, what constitutes “substantial risk?”  The statute lists substance abuse as a cause for willful or neglectful failure to care, but it does not state that that substance abuse automatically creates a substantial risk that the parent will willfully or negligently fail to care for the child.

            The determination of whether or not a child is at “substantial risk” is subjective and these crucial decisions are largely made by a case worker, with approval of a supervisor if there are issues that require overrides. Overrides are when a social worker uses their clinical experience to make judgment calls outside of the guidelines in the SDM. (pp. 8-9) This type of discretion is subject to implicit biases that social workers might carry, especially when it comes to substance use disorders.

            In many cases, substance use disorders can constitute grounds for removal; however, there is evidence that removal is typically not the best one for the child or parent involved. A child being yanked out of their home by strangers is extremely traumatic and is likely to cause long term suffering and issues; however, in some situations that might be in the best interest of both the parent and the child. Removal can have a positive impact on some parents by giving them a reason to begin to make serious life changes, but it can also drive a parent further down the rabbit hole of addiction by taking away the only thing that gave them hope to keep fighting to make those changes. Issues with removal are very complex and need to be tailored to individual situations, that is absolutely a fact. That fact is also the reason why these decisions should not be completely susceptible to the judgment of one social worker (and possibly a supervisor) without any safeguards or protection. Of course, discretion can also be used in ways that have a positive impact on families. However, this statute leaves a lot of room for subjectivity without any safeguards when making such a crucial decision about the trajectory of a child’s life.

            Next, California Welfare and Institutions Code § 309(a) governs the responsibilities of the child welfare agency to keep a child with their parent or at least, place the child with a family member. The law regarding placement is as follows:

309 (a) Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child’s being taken into custody and attempt to maintain the child with the child’s family through the provision of services. The social worker shall immediately release the child to the custody of the child’s parent, guardian, Indian custodian, or relative, regardless of the parent’s, guardian’s, Indian custodian’s, or relative’s immigration status, unless one or more of the following conditions exist:

(1) The child has no parent, guardian, Indian custodian, or relative willing to provide care for the child.

(2) Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a relative.

According to this statute, the child welfare agency “shall… attempt to maintain the child with the child’s family through the provision of services.” The agency is not mandated to maintain the child with the child’s family through the provision of services. However, the agency is also not allowed to fail to exert any effort to maintain the child. This leaves the standard regarding continued detention – which states that it should only be used if there is immediate and urgent necessity for the protection of the child and there are “no reasonable means” that could protect child in their home or the home of a relative – subject to human judgement once again. Do “reasonable means” look the same in every case?

            Lastly, California Welfare and Institutions Code § 361.4 governs the emergency placement of children who have been declared dependents of the state and is as follows:

 (3) Notwithstanding paragraph (2), a child may be placed on an emergency basis if the CLETS information obtained pursuant to paragraph (2) of subdivision (a) indicates that the person has been convicted of an offense not described in subclause (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, pending a criminal records exemption decision based on live scan fingerprint results if all of the following conditions are met:

(A) The conviction does not involve an offense against a child.

(B) The deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interests of the child.

(C) No party to the case objects to the placement.

WIC § 361. 4 outlines the standards for clearing potential emergency placements in regard to criminal records. The statute indicates that placements can be approved even if the person who is intending to take temporary custody of the child has a criminal record, so long as the other conditions are met. One of these conditions is that “the deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interest of the child.” This means that determining whether or not a family member is the best option for placement of a child despite a criminal conviction is ultimately left up to the judgment of a human with their own subjective beliefs. I would be interested to know how the agency would determine what was in the best interest of the child.

            As you can see, all of the statutes discussed above have discretion built into them. Like mentioned above, discretion can be used for positive outcomes like keeping families together, placing children with relatives who might have criminal records, or promptly removing kids out of dangerous situations when the SDM might not call for those actions. However, in light of the entire process and the lack of guidance or oversight until after these decisions have been made, and the fact that these decisions can have traumatic consequences that cannot be undone it should not be so easy to use discretion to circumvent a well-established tool.

II. The Role of Risk Assessment

            Every county in California utilizes the structured decision-making tool to inform their decisions regarding child dependency. Levels of risk determine the decisions made by the child welfare agency involved about a particular case. The section regarding substance abuse of a caregiver states,

The caregiver is diagnosed with chemical dependency or abuse AND is currently using. Current use does not require that caregiver be under the influence at the moment of the call, but that the caregiver has used within the past two weeks and has not entered into a formal or informal program to achieve abstinence; OR The caregiver is using illegal drugs; OR The caregiver’s alcohol use suggests a probability that dependency or abuse exists, such as blackouts, secrecy, negative effects on job or relationships, identified drinking patterns, etc. (p.28)

I thought it was interesting that a person with a substance use disorder (not alcohol) can be classified as neglectful even if they haven’t used in two weeks, yet a person with an alcohol dependency is afforded a more thorough evaluation of how their drinking affects their ability to care for the child.

            The structured decision-making tool is intended to assist child welfare agents make risk assessments throughout the process described earlier. However, not every decision will be dictated by the SDM because each and every step recommends a certain action but also gives an easy “check this box and explain” override option that can be used retroactively.

            This seems like a major problem. Let’s look closer at the override options to uncover how “checking a box” to avert the recommended course of action can be problematic. The first step in the SDM is determining whether or not the report requires a response and this step has an “override” option. (p.5) This is when the agency has received a report of neglect and is determining the next course of action.

Continue reading “Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools”