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?”
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Progressive District Attorneys Can Affect the Foster Care System by Changing the Tough on Crime Culture

I. Introduction: Since the tough on crime culture played a large role in mass incarceration, we must elect Progressive District Attorneys that prioritize diversion and rehabilitation before incarceration whenever it is possible.

As mentioned in my previous blog post, District Attorneys’ offices have a wide degree of discretion throughout the stages of the criminal justice process. The decisions prosecutors make can impact whether a parent gets incarcerated, and ultimately whether a parent loses their parental rights in that process. The Vera Institute compiled an overview of seven critical decision points for prosecutors throughout the criminal justice process and how these decisions can affect an individual’s fate. Notably, the overview highlights how, even at the charging stage, if the prosecutor selects a charge that carries a mandatory minimum sentence, he has essentially already chosen the potential sentence at the time of charging, rather than the judge or jury doing so at the time of sentencing. If the prosecutor had chosen a lesser charge, this decision could increase the likelihood that a person is, for example, eligible for diversion programs or released pre-trial. Diversion programs, or pre-trial release, could likely help contribute to maintaining an otherwise healthy family unit and keep additional children from being placed in the foster care system.

By prioritizing programs that avoid incarceration and promoting, for example, rehabilitation, prosecutors can dramatically decrease the number of children who end up in foster care. District Attorneys’ offices, and the individual decisions prosecutors make, are highly influenced by their culture. A Chief District Attorney can change the entire culture of an office by, for example, promoting decisions and programs which would actually assist parents in overcoming their involvement in the justice system and allowing them to continue to be involved in their child’s life. Electing a more progressive District Attorney, who prioritizes programs that avoid incarceration, would benefit parents as a whole. Historically, District Attorneys’ offices have followed a tough on crime approach which rewarded a high rate of convictions, at all costs. This culture, in effect, has resulted in the high rates of incarceration we see in our nation today.

Continue reading “Progressive District Attorneys Can Affect the Foster Care System by Changing the Tough on Crime Culture”

Changing the System From Within: How Electing a New District Attorney Can Improve the Foster Care System

I. Introduction: Since most District Attorneys are elected, we must elect District Attorneys who embrace criminal justice reform.

Criminal justice reformers have a new strategy: electing new District Attorneys in order to change the system from within. District Attorneys (“DA’s”) are commonly referred to as prosecutors, and prosecutors represent “the People” of the state in which they work. This means that in everything prosecutors do, with the power they wield, they must keep in mind what is best for the victims, defendants, and people of their state. While the decisions of an individual deputy district attorney, in deciding what is best for “the People,” can influence the foster care system on a micro-level, the election of a Chief District Attorney can influence the foster care system on a macro-level. This is why criminal justice reform advocates have recently begun to utilize a new strategy to advance their cause: voting out the old DA in favor of a new DA who embraces commonsense criminal justice reform.

When a child is placed in the foster care system, that child’s life and the life of that child’s parents are changed forever. The same thing goes for when a child, or a child’s parents, gets incarcerated. These traumatic events have immeasurable lifelong consequences. At every waystation in the criminal justice system, the lives of all those who are touched by the system become irreparably impacted. Given that prosecutors have outsized influence and power in the criminal justice process, it is evident that examining the role of prosecutors is critical to understanding how the foster care system can be improved. While admittedly a crass and inexact analogy, if one were interested in reforming the beef industry, an examination of the roles of cattle farmers would be important to analyze. Concomitantly, an analysis of those who wield power in the criminal justice system, and who serve as de facto feeders into that system, is important to understanding how reform of the system can be most effectively undertaken.

Children with incarcerated parents and children in foster care often overlap. In fact, 40% of children in foster care have been exposed to parental incarceration at some point in their lives. Children with parents who become entangled in the criminal justice system are far more likely to enter the foster care system. In fact, each year, 14,000 children whose parents are incarcerated are placed in the foster care system. The criminal justice system exacts an often-heavy toll on the accused, however, that toll does not just fall on the accused him- or herself. The children of the accused suffer collateral consequences as a result of a parent’s experience with the criminal justice system. Since, in the criminal justice system, prosecutors have arguably the most power and influence, analyzing prosecutors’ roles in the system is thus imperative to understanding how to improve the foster care system. One solution is electing more District Attorneys who embrace systemic reform.

Over the course of my posts, I will discuss the influence the Chief District Attorney has on his or her deputy district attorneys and how that is relevant to the foster care and juvenile justice systems as a whole.

Continue reading “Changing the System From Within: How Electing a New District Attorney Can Improve the Foster Care System”

Differences between youth in the foster care system and the criminal justice system – Why the difference in treatment?

Certain similarities exist between the children and youth in the foster care system and those in the criminal justice system. Often these youths are in unstable housing, have parents who might have substance abuse or domestic violence issues, have difficulties in finishing a high school education and behavioral issues while in school. In addition, they are more likely to end up in the criminal justice system as adults and not have as much stability as compared to the general population. This comparison is not to conflate the two populations, but to explore and analyze the different treatment between them. Foster youth receive certain benefits during their time in the system that are not afforded to children in the criminal justice system. My research would explore the differences in treatment between the two populations, why there is a difference, and hopefully generate some policy suggestions to create better outcomes and safer communities. My thought from the outset is if youth in the criminal justice system were given some of the benefits and/or services afforded to foster youth, they might have better outcomes than there are now. The benefits to this approach would hopefully be better experiences for youth growing up in turbulent environments, taxpayers wouldn’t have to spend as much on incarceration, and society as a whole would be safer and better to some of our most vulnerable citizens.  

My name is Pedro Naveiras and I am a second-year law student at Santa Clara University. Prior to law school I worked in education and local government, but I went to law school knowing I wanted to be a prosecutor. I attended CSU Bakersfield studying Philosophy and Political Science. I worked for the Kern County District Attorney’s Office last summer and will be clerking at the Contra Costa District Attorney’s Office this summer. I look forward to learning more about the approaches and taking this knowledge to whatever District Attorney’s office I end up working at.