ABUSED AGAIN: COMPETING CONSTITUTIONAL STANDARDS FOR THE STATE'S DUTY TO PROTECT FOSTER CHILDREN

Foster care systems, designed to be safe havens for abused children, are themselves rife with child abuse. Yet the Constitution requires that children taken into foster care custody be kept in an environment that is safe. How safe? The circuits have split. Five circuits, relying on the Eighth Amendment, require only that foster children be kept as safe as prisoners: the state may not show "deliberate indifference" to their needs. Other circuits hold that the Fourteenth Amendment dictates a higher standard: the state must exercise "professional judgment" in its care for these children. The Author argues that the Eighth Amendment standard, which contains wide latitude for punishment, is constitutionally deficient, and that neither standard adequately protects children, particularly children who have already suffered abuse.