Foster Care as a Mitigating Circumstance in Criminal Proceedings
Just published in Temple Political and Civil Rights Law Review is an article, Foster Care as a Mitigating Circumstance in Criminal Proceedings. The article addresses the question: should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial?
According to the article:
The sensationalism of many criminal trials, especially those of a capital nature, often result from the aggravating circumstances impacting the victim. Conversely, the mitigating circumstances that affect the accused‘s criminality rarely grab headlines. During the sentencing phase of a criminal trial, mitigating factors may justify leniency or otherwise serve to lessen the sentence for the crime with which the accused has been charged. Whether a particular factor will be considered a mitigating one will depend upon the particular facts of the case.
The federal Sentencing Reform Act of 1984 provides guidance in this process, but each state maintains the discretion to dictate its own criteria within the confines of constitutional constructs. The United States Supreme Court has increasingly addressed the importance of clarity in the presentation and consideration of mitigating evidence, which is integral to the trial and sentencing of an accused.
Should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial? Although this article does not provide a definitive answer, it does attempt to provide a better understanding of the foster care experience to those contemplating the question.
Part I provides a general introduction to the topic of foster care. Part II discusses different types of foster care. Part III discusses the impact of foster care on children. Finally, Part IV offers a brief conclusion.
For a copy contact Daniel Pollack, a Professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be contacted at dpollack@yu.edu, (212) 960-0836