mentally ill

Former Foster Care Children in the Criminal Justice System: A Problem in Need of a Just Solution

Former Foster Children in the Criminal Justice System:  A Problem in Need of a Just Solution


                I have represented several former foster children in my work as a defense attorney.  I have found that for many former foster children, their experience with the criminal justice system started as a juvenile and continued on into adulthood.  We as a society need to find better solutions to help children and families in crisis so we can keep vulnerable children from entering the adult system.


                California officials did a study of adults in their prisons and found that 14% of those surveyed had been foster children.  Washington did a study and found that 1 in 5 foster children were arrested and jailed within a year of aging out of the system.  Texas, however, apparently has not done the work to find out just how severe the problem is of former foster children experiencing the criminal justice system.


                It makes sense.  Foster children have often been traumatized.  They may have developmental delays, intellectual disabilities, and mental health issues.  They may have missed weeks upon weeks of school.  This makes them especially vulnerable to substance abuse and early affiliation with criminal gangs.  


                Foster children are also vulnerable to homelessness.  Foster kids “age” out of the system at 18.  Some states have “extended” foster programs and allow children to stay sometimes until age 21.  Texas does not have these provisions.  On their 18th birthday, foster children have to find a place to go as their foster families no longer have an obligation to them and neither does the state.  Some kids have no place to go and end up on the streets.  Homelessness is a huge indicator for involvement in the criminal justice system.  Survival crimes, like theft, drug distribution, and prostitution, may be a last resort for homeless former foster kids.   This leads to incarceration.  Some become homeless even prior to aging out as they run away from careless or abusive foster families or group homes.  LGBT youth in the foster system are particularly apt to run away from foster families who reject, kick them out, or abuse them for their sexuality and gender identities.  It is thought that 15% of the juvenile justice system is LGBT youth.


                What can be done? 


                Policy makers and legislators need to focus attention and funding to foster kids and fixing the system while at the same time providing support to families in crisis so that children can remain in homes that can be rehabilitated.  We need to get parents mental health services and substance abuse treatment so that they can stay with their children.  When that cannot happen, the state needs to be able to provide children with safe, supportive homes.  The state needs to ensure LGBT kids are placed with homes that will support them and care for them completely.


                We need to do something about children aging out. We need to provide “extended” placements in Texas as other states have done.  We need to provide transitional housing to kids who are aging out to prevent them from becoming street kids at the age of 18.  We need to provide job training, education opportunities, and mental health treatment to foster children before and after their 18th birthday. 


                If and when former foster kids are charged with crimes, we need to provide special programming and court dockets for them to get support and rehabilitation in a setting that recognizes their special issues.   For example, in Travis County we have “Project Engage” in which young adults who are on probation or on bond get a supportive environment to hear from speakers, do community service, and get support to work and go to school.  We need more programs like this for young adults.


                Lastly, we need to raise the age for the adult system to 18 in Texas.  Children under 18 do not have the mental capacity to make responsible choices as adults do, and they should not be held to the same standards.  Juvenile courts have their own problems, but they do tend to focus more on rehabilitation and reform than punishment.  Raising the age will help keep some foster kids and former foster kids from entering the adult system.  A bill to do just this was given a hearing in the Texas House but it did not get voted out by the entire chamber.


                We need to do better for our foster kids.  These kids have been victims of extreme hardship and bad circumstances not of their doing whatsoever.  We need to give them protection and opportunity to flourish and stay out of the criminal justice system.


Myths on the Mentally Ill and the Criminal Justice System

Myths about People Living With Mental Illness and their Involvement in the Criminal Justice System:

My Rotary Club this week, Austin Cosmo Rotary, ( is raising money for people living with mental illness to go to school and get skills to be able to become gainfully employed. In light of that, I thought I’d do an article discussing mental illness and involvement in the criminal justice system. 

More likely to be victims than perpetrators:

We hear a lot about “crazy people with guns” and the like, but according to several studies the mentally ill are much more likely to be victims of crime than perpetrators.  In a study of almost 5,000 mentally ill adults, it was shown that only 24% had been perpetrators of crime, and only 2.6% of those incidents were in the workplace or school.  A significantly higher percentage – 31% -- had actually been victims of crime.  Nearly half of that 31% had been repeat victims.  The study is found here:

Mentally ill cannot be summarily forcibly committed: 

I get a lot of calls from people saying “my family member is off her meds; can we put her in a hospital or rehab?” The short answer is only if s/he is a danger to herself/himself or others.  This means there has to be a demonstration of violence or likely violence and/or an active suicidal ideation.  Mental illness does not rob the person of the freedom that everyone enjoys in this country to refrain or abstain from medical treatment. 

If a person is accused of a crime and mentally ill, the lawyer can ask for a competency evaluation done to find if the person can understand the system and the accusations enough to held to trial.  If the person is found incompetent, sometimes s/he will be hospitalized to restore his or her competency.  This may be done without the person’s consent. 

Collateral consequences to incarceration are HIGH:

Many mentally ill people legitimately receive government assistance to meet their daily needs.  This may be SSDI, food stamps, housing assistance, and Medicaid.  What is unfortunate and needs to change is that after a period of prolonged incarceration (six months or more, even if never convicted of anything) the receiver of these services may be cut off from services and have to reapply.  This can leave them in a very precarious situation without the ability to meet their basic needs and without treatment options. 

Having a diagnosis does not automatically get you a better deal:

In Travis County and other major counties, mental illness is taken into consideration when someone is charged with a crime.  In Travis County, we have a Mental Health docket in which treatment is often a condition of a plea agreement, etc.  However, just because someone has a mental illness does not mean s/he is going to “skate” on a charge and not be held accountable.  That is a myth.  It is also a myth that s/he will be without treatment in jail as the jail is legally liable to treat them, and in Travis County, the jail is indeed the biggest purveyor of mental health treatment and medication.


We can work together to find better solutions to mental illness than the revolving cycle of incarceration, homelessness, and instability.  Join me and Austin Cosmo Rotary Club to raise money for participants at Austin Clubhouse to get skills to help them work and support themselves.  We can find community based solutions to the challenges of mental illness.