In November 2018, a 14-year-old with a criminal record used a handgun to rob a Subway fast-food joint in Maricopa County, Arizona. He was charged with armed robbery. Despite a request from the county attorney’s office to detain the boy, he was ordered by a court into the custody of the Arizona Department of Child Safety (ADCS) and placed in a foster home with abused and neglected children. His case was not an outlier.
That same month, a 17-year-old was charged with sexually assaulting his female cousins, who were eight and seven. But instead of being sent to a juvenile or adult detention facility—the mother of one of the girls testified to the devastating effect the assault had on her daughters and the risk he posed to others—he was also ordered into the custody of ADCS and placed in a foster home with other children.
Then there was the case of 17-year-old Fernando Sanchez, who exhibited a series of escalating felony behaviors. While on probation, Sanchez had not only committed new crimes but also had cut off his ankle monitor. Rather than detain him, authorities sent Sanchez into the custody of ADCS. He ran off as he was leaving the courthouse with his social worker. A few days later, he committed a drive-by shooting. He is currently on trial for murdering a young woman.
Perhaps the worst case was that of Francisco Shadmu Foley Jr., a 17-year-old repeat offender. He was on a crime spree—committing robberies, aggravated assaults, and attempted sexual assaults. Despite impassioned pleas from ADCS that they could not put him back in a foster home—he had run away multiple times already—the court ordered him back into the custody of foster care. While his social worker drove Foley to yet another foster home, he ran from her car while stopped at a traffic light. He was arrested shortly thereafter for raping and murdering a woman, her bludgeoned body found by a passerby.
Foley is now in prison with a release date of November 2035 and has already racked up seven guilty verdicts for misconduct while locked up. Putting aside the fact that the violent felonies he committed, leading up to raping and killing a woman, led to only a 15-year prison term, the question is whether placing him in juvenile detention and some kind of treatment program could have changed the outcome for Foley or his victims. We will never know because he was repeatedly diverted to foster care instead.
Our child-protection system is supposed to protect vulnerable children—children whose parents abuse them or are unable or unwilling to care for them. A foster home is either a private home or a congregate-care facility where abused, neglected, or abandoned children are placed by a government agency for temporary care.
But in the current political environment, that system has just become another off-ramp to divert young criminals from punishment. Perhaps even worse than plans to defund the police, eliminate cash bail, and promote “reparative justice” over incarceration, sending juvenile defendants into the foster-care system puts them into close contact with our most vulnerable populations. And the system lacks any kind of rehabilitative services that juvenile delinquents are supposed to receive to prevent escalating criminal behaviors.
In other states, even older youth who may have started out in the foster system but are committing an escalating series of violent acts are not being processed in the criminal-justice system because that is seen as unacceptably punitive. Instead, they remain in less restrictive settings in foster care. In some cases, they are placed in foster homes with other kids who are then vulnerable to attack. This may have been what happened in the case of Ma’Khia Bryant, the Ohio teen who was shot by police as she tried to stab another girl. Police reports show an escalating series of physical altercations taking place in the foster home where she lived; officers were called to the location multiple times. Though juvenile records are sealed, it seems more than likely that at least one of the girls living there had been in trouble with the law.
If authorities cannot find a foster home for these more dangerous youth, then they may remain in child-welfare offices. In Texas, over 400 foster kids this year slept in offices, many of them supervised by former law-enforcement officials, because the young people were too violent to be placed in regular foster families.
All of these actions are placing foster children, foster families, and caseworkers in danger. And we have only ourselves to blame. A series of poor policy decisions over the past half century has led us to this place.
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The Juvenile Justice and Delinquency Prevention Act of 1974 called for a “deinstitutionalization” of juvenile “status offenders,” requiring them to be removed from secure detention facilities. A “status offender” is defined as a truant, a curfew violator, a runaway, or a minor in possession of alcohol or tobacco. Who could disagree with this? The mere thought of a child being jailed for such offenses is heartbreaking. Even expanding the intent behind this act to prevent delinquencies involving misdemeanors from resulting in jail time seemed prudent in most cases.
Today, however, we find that the pendulum has swung wildly to mitigate jail or detention for felonies involving violent or sexual crimes. What started with status offenses before moving on to misdemeanors now includes diversion from criminal-justice systems for violent, sexual, and repeat offenders. The foster-care system has become the repository for delinquents. But many of these young people do not meet the basic qualifications for the system. They are not without parents, and they are not victims of child abuse.
When delinquency is diverted to the foster-care system, many things happen or, rather, don’t happen. Delinquents do not get rehabilitation, and they have free rein in a system of care that is not secure. There are no bars in foster homes. Vulnerable foster children and the birth children of foster parents are victimized by those supposedly in state protective care. Imagine this: The government responds to child abuse, removes children from their birth parents because of danger, and places the children in an equally dangerous environment with a delinquent felon—or numerous delinquent felons, in the case of group homes. This is a moral and statutory abrogation of government’s duty to provide safety and well-being to abused and neglected children.
Child protection and foster care are funded by a variety of sources. Title IV-E is the section of the federal Social Security Act that makes tax dollars available to states for foster care and adoption programs. For every dollar the state spends on foster care, the federal government matches it. But no such program exists for delinquency. The cost of detention and treatment for young criminals is borne by state and county courts and the juvenile justice system. Therefore, if a judge orders detention, the local jurisdiction must absorb the costs. But if the judge diverts the delinquent into foster care, the state and the federal government get the bill.
The funds allocated to the foster-care system do not treat the child; rather, they treat the child’s troubled parents. How so? The goal of foster care is to house dependent children temporarily and safely until the issues with their birth parents can be resolved. This money also pays for the cost of living for the foster child—including things such as the daily bed rate, food, clothing, and school expenses. In the event the child cannot be safely returned to birth parents, this money subsidizes adoption.
Nothing in this funding covers the treatment of delinquent behavior.
Placing young people who have committed felonies into a system without rehabilitation is likely to make matters worse. The past several years have seen a dramatic rise in juvenile crime and a dramatic drop in juvenile detention. Homicide cases in juvenile courts jumped 35 percent between 2014 and 2018. While it is hard to know the precise national measure of juvenile crime—it can be difficult for someone reporting a crime to know whether the offender was legally a juvenile—we have seen real spikes in violent juvenile crime across the country in recent years.
An AP article on the spike in violent crime among youth in Connecticut, for instance, noted an increase in car thefts, robberies, and shootings. Some attributed the rise to kids not being in school as a result of the pandemic. But there’s more than playing hooky going on here. In New Haven, there were 19 murders as of the beginning of November in 2020, up from 10 during the same period in 2019. Assaults with firearms were up 39 percent, and robberies with firearms increased 23 percent. In Hartford, shooting incidents increased 58 percent to more than 200 in 2020 over the year before.
Carjackings by juveniles have been making the news as well. According to an NPR report, in Minneapolis, there were 405 carjackings last year, more than triple the number in 2019. The suspects arrested were often juveniles between the ages of 11 and 17. Other cities saw huge increases, too, including New Orleans, Kansas City, Louisville, and Washington. Last year in Chicago, there were 1,400 carjackings, and police there say juveniles were involved in nearly half of those incidents. In March, a 15-year-old and a 13-year-old girl were charged with murder in the fatal carjacking of an Uber driver after the pair used a stun gun on him.
Even while all these crimes seem to be on the rise, the number of arrests and the level of punishment for juvenile offenders seem to be dropping precipitously. A few states are trying to raise the age at which young people can be tried as adults. Washington, for instance, no longer allows 16- or 17-year-olds to be automatically charged in adult court when they commit violent crimes. But some states are raising the age at which young people can still be charged as a juvenile to 20. The city council in Washington, D.C., passed a bill that would allow judges to determine whether offenders who were younger than 25 at the time of their crimes and who have served at least 15 years—no matter how violent their offense—deserve early release. Under such a law, the Parkland shooter, for instance, would serve no more than 15 years for killing 17 students and wounding 17 others.
And this is if they get charged at all. Many jurisdictions have turned to “restorative justice” practices as a way to handle juvenile offenders. Asking young people to make amends in the community as opposed to placing them in a juvenile-detention facility seems like a reasonable approach to low-level offenders. But the evidence on this practice is questionable for repeat violent ones.
Also, it may be that low-level offenders were once “scared straight” by these punishments before their crimes seriously escalated. Now, with few if any consequences for their actions, it’s not clear whether they are really getting the message that they have done anything wrong. And frankly, it’s not only the kids who need to be scared. Sometimes it’s the parents, too. When offenses are minor, getting a parent’s attention can sometimes make the difference between a child getting on the right path and remaining on the wrong one. The parents who have thrown up their hands and allowed their children to be taken into the foster-care system because they cannot handle their escalating behaviors might have intervened earlier if the consequences had been more serious.
By putting these young people into foster care instead of the criminal-justice system, we are postponing any real decisions about how to handle their behaviors. Our leaders seem to be guided by a kind of magical thinking that assumes that if we ignore the severe problems of children and teens and restrict the options for their placement, then they will be rehabilitated—or no one will see their problems as severe.
Much of what is driving this conversation has been the need to fix racial disparities in both systems, to make the numbers come out even on our spreadsheets. And so rather than look at the fact that crime is committed at different rates in different racial and ethnic communities or that the factors driving foster care (broken families, poverty, substance abuse) are not proportionately distributed across the population, we are simply ignoring populations in need.
Neither the child-welfare nor the criminal-justice system is simply about punishment. Both are about protection as well. We are serving the most vulnerable members of the population—in schools, in families, in neighborhoods—by keeping them safe from those who mean them harm. But it is those vulnerable kids and families whose voices are often lost when these policies are put in place.
It is not uncommon these days to hear criticism of the “foster-care-to-prison pipeline”—or “crossover youth.” Academics and child-welfare officials have become convinced that foster care is somehow leading young people into the criminal-justice system. Indeed, one survey found that one in six inmates in the California state prison system had spent time in foster care. But correlation does not equal causation. There is no evidence that the child-welfare system—as much as it may be in need of reform—is at the root of the problem. Rather, it is important to think about all the abuse, neglect, and other trauma that have brought children to the attention of child-welfare officials in the first place. And then we can add to that the kids who were already involved with the criminal-justice system before they entered foster care. More significant, if you put teenage violent offenders into foster care, then the pipeline becomes a self-fulfilling prophesy.
It is time for prosecutors and judges to stop shunting the problem of juvenile offenders onto an already overburdened, underfunded (and in need of reform) foster-care system. By offloading the responsibility, they might be satisfying the demands of progressive ideologues, but this comes at the expense of protecting the most vulnerable. It is time to start intervening earlier in the criminal trajectories of these youth, ensuring that they are given real consequences and offered real chances at rehabilitation before their acts escalate.
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