President Donald Trump may have pardoned hundreds of friends and cronies, but President Joe Biden can perform a public service by quickly “pardoning” — or setting up a mechanism to do so — thousands of foster children and those who aged out of foster care and carry with them criminal records that prevent military service, college scholarships or employment.
These children, many of them now adults, are known as “crossover kids.” They grew up in child welfare systems and were charged with crimes, called acts of delinquency, many arising because they were victims of childhood trauma, with damaged brains, poor impulse control and understandable anger.
We are a retired juvenile judge, an adolescent psychologist and a law school student who is a retired military officer, foster and adoptive parent. The three of us have different perspectives, but we are united in our advocacy for these crossover kids. We have had years of experience with them. We understand their backgrounds, their needs and their lack of emotional or family support. Often, no one really advocates for them.
Judge Irene Sullivan (retired): As a juvenile judge in Clearwater, I saw firsthand the struggles of children raised in the child welfare system, no matter the sincere efforts of their underpaid and overworked case managers. Shuttled often between different foster homes, a few belongings in a plastic bag, changing schools four times a year, they were left adrift. It is no wonder that they lashed out, sometimes violently, that they stole things that did not belong to them, that they ran away from group homes and, sometimes, used drugs or even prostituted. While we cannot excuse their behavior, we can understand it. It’s not their fault.
A 12-year-old foster boy stood before me charged with felony criminal mischief for breaking the door of a school bus, trying to get out before striking another student in an argument. The state wanted to find him guilty and have him pay for the cost of a new bus door. How ridiculous. Yet the state had proved the elements of the crime. Likewise, a 15-year-old foster girl lashed out at her teacher for putting his hand on her shoulder. She elbowed him hard in the chest, an unlawful battery. However, she had been repeatedly abused by her mother’s boyfriends until she was removed from the home and put into foster care. She couldn’t stand to be touched. She was guilty of a felony, battery on a teacher, but should that be a lifetime blemish on her record?
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The obvious answer is “no.” But it may take deeper understanding of child psychology, child abuse, the child welfare system and the need for a “pardon,” or expunction of juvenile records before justice is achieved.
Dr. Adele Solazzo, adolescent psychologist: There’s no doubt that children who are in foster care and also under the supervision of the juvenile justice system have poor outcomes for a successful adulthood. The worst has already happened to these youth. They have lost their family, life is unstable, often chaotic, and now they must navigate delinquency court. Educational supports, mental health and substance abuse treatment are lacking. Too many have ongoing struggles with education, employment, poverty and further criminal justice system involvement as they enter adulthood.
There is widespread agreement that brain development continues rapidly until the early 20s, generally concluding around age 25. The prefrontal cortex which is associated with judgment, consequential thinking and impulse control is the final area of the brain to mature. Adolescents tend to be impulsive and risk takers in general. Brain development is further impacted by the trauma associated with foster care, or what caused the child’s removal. Physical, emotional and sexual abuse and neglect in childhood can cause antisocial behavior, poor impulse control, the absence of fear and psychiatric problems.
The odds are stacked against crossover kids. Expunging records can at least partially clear away obstacles to successful adult employment and a better shot at fulfilling their potential.
Bradley P. Hawkins, foster/adoptive parent and third year law student: In Florida and elsewhere, expunction options are available to juveniles who complete a diversion program. However, the diversion program expunction is limited to misdemeanors — a useless tool when one considers the felony convictions the crossover kids receive.
Even if a crossover kid meets the narrow requirement for one of the expunction statutes, or was lucky enough to earn a pardon, the specter of arrest and conviction will hover over any application the juvenile submits to a college, university, military or any other job that requires a background check.
As a retired military officer and foster/adoptive parent, I speak with authority when I write about the foster children Judge Sullivan discussed above. The crimes for which those children were convicted would not be expunged under our current laws. Even if they were, the expungement does not erase the arrest records. If those children sought to enlist in the military, they would have to answer questions such as “Have you every been arrested?” and “Have you every been convicted of a crime?” Neither a pardon nor an expunction offers the juvenile a method by which he or she can legally deny that the arrest or conviction occurred.
Even though the crimes were expunged, these children would still be forced to reveal the details surrounding the arrest or conviction, thereby jeopardizing enlistment into the military, admission to college or employment at any occupation that requires a background check or answer to similar questions.
An expunction statute will truly demolish obstacles if it includes a legal method by which the juvenile has the legal authority to deny the arrest and conviction ever occurred. There is precedent for this type of authority under expunction statutes for survivors of human trafficking. In most cases, those statutes allow for the survivor to deny an arrest, charges or conviction if the crime was committed while the person was a victim of human trafficking.
Crossover kids are victims. They deserve the same humane treatment.
Irene Sullivan, a retired juvenile judge, is an adjunct professor of law at Stetson University College of Law. Adele Solazzo is an adolescent psychologist. Bradley P. Hawkins is a foster and adoptive parent, retired military officer and Stetson University College of Law student class of 2021.