Disrupting Carceral Logic in Family Policing

Cynthia Godsoe* April, 2023

Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World. By Dorothy Roberts. New York: Basic Books. 2022. Pp. 11, 303. $32.

Introduction

Among a growing consensus that the criminal legal system is oversized, racist, and ineffective at preventing harm, the “child welfare”/family-policing system¹ continues to be praised for protecting children from “bad” parents. The tremendous harm the system inflicts on millions of families and communities—particularly low-income populations and communities of color—is ignored. So, the violence of the multibillion dollar system continues unabated: separating children from their families of origin mostly based on a family’s poverty or the system’s culturally biased judgment of parenting; siloing children in often long-term and high-risk foster “care”; and sometimes even permanently orphaning children via the termination of parental rights.² As a growing body of research, scholarship, and, most importantly, lived experiences of impacted people reveals, the punishment and family separation of poor, Black, Native, and other marginalized families is central to the American project of maintaining white supremacy, as well as other hierarchies along divisions such as class and gender.³ The vague and malleable definitions of neglect,⁴ the army of state workers mandated to report against parents who come to them seeking help,⁵ and the lack of even the minimal due process accorded to accused people in the criminal legal system render the family-policing system a very effective weapon of social control.⁶ To paraphrase Paul Butler describing the criminal legal system, the system is working like it is supposed to—the harms are a feature, not a bug.⁷ Like the criminal system, the family-policing system is driven by, and in turn perpetuates, carceral logic—an array of legal practices that operate to police, discipline, and most importantly, subordinate a given population in the name of safety or protection.⁸

In her excellent new book, Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, Dorothy Roberts⁹ takes a monumental step toward illuminating the harms of the family-policing system and remedying the false narrative that it helps families and protects children. It is difficult, if not impossible, to overstate Professor Roberts’s contributions to this field, not to mention numerous others. Twenty-one years ago, Roberts published Shattered Bonds: The Color of Child Welfare, the first full-scale examination of the system by a legal scholar.¹⁰ In the intervening decades she has continued to document the system’s harms and to inspire and support other scholars, lawyers, and advocates (including me) to consider how this system operates in parallel to the criminal system and overlaps with it to surveil, separate, and punish Black and other marginalized families.¹¹ In Torn Apart, Roberts deftly combines a growing body of research into racialized social control and the harms of the family-policing system with her groundbreaking past work and her theoretical framework of abolitionism.¹² In so doing, Professor Roberts has produced another iconic work that will shape the fields of family law, poverty law, and criminal law for years to come. To be clear, I mean shape both the scholarly and the practical/advocacy realms; one of Roberts’ particular skills is bridging the oft-criticized gap between legal scholarship and law on the ground. Her work will influence not only how people think about and teach family law, but also, hopefully, how families interact with and are treated by the state.

This Review aims to use Torn Apart as a springboard to further explore the carceral logics of the family-policing system and, particularly, the role of lawyers in maintaining and legitimating these logics.¹³ As with the criminal, immigration, and other punitive state systems, legal structures and lawyers help to create, perpetuate, and legitimate this racialized hierarchy. Roberts aptly calls out the “family court professionals” as a “powerful branch of the family-policing machinery” (p. 127). Yet, while naming state lawyers, volunteer Court Appointed Special Advocates (CASAs) or Guardians ad Litem (GALs), judges, and court officers, she does not include lawyers for children or parents (p. 127). A growing number of scholars and lawyers are recognizing that defense lawyers are too often let off the hook when examining their own complicity in these systems,¹⁴ even though these lawyers may silence clients, sort them into those who are “worthy” and “unworthy,” and ensure their compliant processing through an unjust system. Tellingly, impacted communities have long recognized that even the most well-intentioned professionals should not be at the movement’s center. As Rise, a community-impacted parents’ movement in New York City, puts it: “Parents [should] set the agenda. Allies will, increasingly, be allies. That is how parent power builds. To begin that cycle of shifting power, our growing movement [against family policing] must reckon with the dynamics [within the movement] that tokenize and marginalize parents.”¹⁵

Drawing in part from my own experiences representing children and teenagers in family court, I follow Roberts’s thread of the complicity of system actors to delineate how lawyers for children and lawyers for parents (albeit perhaps unwittingly) participate in the system’s silencing and dehumanizing logic. In Part I, I outline Professor Roberts’s core arguments documenting and theorizing family policing as a carceral system of racialized social control and highlight her self-described journey from a reform-minded critic to someone convinced abolition is the only solution. Part II delineates how lawyers representing people against the state can contribute to sustaining and legitimating its carceral project. In the family-policing system this includes both attorneys representing children and those representing parents. Part III suggests a tentative path forward, building on Professor Roberts’s work and that of other abolitionist activists and scholars to argue for dismantling the family-policing system and replacing it with community-based support.¹⁶ Lawyers and legal scholars must avoid perpetuating and legitimating the system by centering the voices of impacted people and ceding expertise and funding to them. This power shifting is essential so that “those most impacted [can] . . . control the laws, institutions, and policies that are meant to serve [the people].”¹⁷

I. The “Benevolent Terror” of the Family-Policing System

In Torn Apart, Roberts persuasively describes and theorizes the family-policing system as a continuation of the criminal legal system and other “islands” of the carceral state—a system with “unparalleled powers to terrorize entire communities, shape national policies, and reinforce our unequal social order” (p. 23). She marshals data; legal, historical, and sociological scholarship; and the lived experience of children and parents who have been involved in the system (via interviews and testimonies) (pp. 5–8, 56–62, 280–81) to portray the terror in action—how the system “actually works” (p. 35). This includes surveillance of families, particularly when they are seeking help for poverty, domestic violence, mental health, and other issues. (ch. 7); coercion into “voluntary” services or entanglement into a court system with little oversight or due process (ch. 5); skewed federal funding schemes that prioritize child removal to the foster system and adoption (ch. 6); and media “panics” over (rare) cases of severe abuse and death that fuel more punitive interventions into families (pp. 285–86). Roberts details the system’s overwhelming connection to poverty, and how, by blaming parents for the impact of poverty on their children, it obscures the racialized structural inequality actually harming American children. Unlike many other critiques of the system, Torn Apart not only demonstrates how the system harms parents, but situates it within an abolitionist framework, showing how even slight involvement punishes the very children and youth it is purportedly helping.¹⁸ This rich and thorough account brings something new to those who are unfamiliar with the system, as well as to those who have worked in or researched it for years. And its portrayal of racist state violence toward children and families should shock us all into action. Accordingly, Roberts’ work earns its place alongside other iconic criminal system critiques and works of abolitionist theory such as Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Angela Davis’s Are Prisons Obsolete?, and Ruth Wilson Gilmore’s Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California.

Torn Apart is a particularly urgent critique and call to action because some proposals to divest from police and incarceration recommend investing more in the family-policing system. As Roberts points out, one of the family-policing system’s particular evils is that it cloaks itself in the rhetoric of children’s best interests, purporting to “rescue” and “save” children from their own families. The system not only damages parents and communities—as more people are recognizing—but also inflicts particular harms on the very people it purports to protect: children and teenagers. Roberts peels back the system’s “benevolent guise” to show the state-sanctioned violence we should be seeking to dismantle along with the violence of the policing and criminal legal systems (p. 26). Perhaps even more effectively, because of the rhetoric of child saving, the family-policing system keeps marginalized communities down—outside of the body politic and thus blocked from amassing power or challenging the status quo.¹⁹

It is impossible to discuss the family-policing system without acknowledging its roots in white supremacy. Some continue wrongly to ignore the connection, although Roberts does not. The family-policing system has been employed virtually exclusively against low-income and nonwhite families (a changing definition that used to include Italians and Eastern European Jewish communities as nonwhite)—weaponizing children as a political tactic to maintain race, class, and other hierarchies has a long history in the United States.²⁰ To take just a few examples: the forcible removal of Native American children in order to “kill the Indian, save the man”;²¹ the lack of family rights among enslaved people and the post-Civil War “Reconstruction” removal of Black children from their parents as “apprentices” to white “masters”; nineteenth-century “orphan” trains of Eastern European immigrant children who had parents, just ones who were low-income and insufficiently “American”; and, most recently, transphobic efforts to treat gender-affirming parenting as “abusive.”²²

Roberts draws these throughlines from slavery and Indigenous genocide through the contemporary racism, xenophobia, and homophobia underlying the system today.²³ She also demonstrates how historically these laws perpetuated stereotypes of immorality and incompetence against parents of color, particularly Black mothers—and still do today. This same false narrative can be traced through the infamous 1960s “Moynihan Report”—which decried families headed by single Black mothers as inferior, immoral, and responsible for Black people’s poverty—to today’s neglect laws.²⁴ Although Torn Apart primarily focuses on Black families (see the title), the book does not give short shrift to other marginalized communities. Indeed, Torn Apart significantly expands, for instance, the discussion of the policing of Native American families from Roberts’s earlier work.²⁵

What makes Torn Apart even more of a compelling read is that it also documents Roberts’s scholarly and personal journey from someone who was very critical of the system but open to reform, to a pure abolitionist who is convinced that the system cannot be fixed. Roberts first recognized the racist violence of the family-policing system—long before almost any other scholar—when interviewing women and researching the criminalization of drug use during pregnancy in Killing the Black Body.²⁶ Soon after, she engaged in a larger critique of the system in Shattered Bonds, still prescient after twenty-two years. In Shattered Bonds, Roberts called for abolition of the system, but also expressed her ongoing belief in the potential of a state-run system of “child welfare.”²⁷ Reflecting her valuable contributions as an activist/advocate as well as scholar, Roberts not only called for reform, but worked hard toward it. Among other things, she participated as a litigation monitor to improve the Washington State child welfare system, seeing firsthand what a decade of expert oversight could—and could not—do to improve government treatment of low-income families of color.²⁸ After this experience, and other efforts to “reform” or explain away the racial inequities in the system, Roberts concluded that it could not be fixed—in short, that “[t]he only way to stop the destruction caused by family policing is to stop policing families” (p. 11).

Two other developments inspired her on the path from reformer to abolitionist: the penal-abolition movement, and the organizing of impacted parents and children.²⁹ Roberts learned from both the futility and harm of “reformist reforms” (pp. 26, 282, 296). Even at its best, reform is only a Band-Aid—as one writer describes it, reform “deals with pain management and [abolitionism] with the actual source of the pain.”³⁰ By framing the harms of the system as aberrational cases or caused by a few “bad apples,” these reforms—such as police bodycams or more family-policing caseworker training—obscure the systemic nature of the harms. Indeed, reformist reforms are dangerous in that they may legitimate fundamentally unjust systems and re-entrench concomitant hierarchies of race and class.³¹ After years of studying, speaking with impacted parties, and being actively involved in reform efforts, Roberts recognized the impossibility of true “child welfare” and “community safety” without radical power-shifting (pp. 8–11, 284). As discussed more below, Roberts concludes her book with some steps toward this power-shifting, incorporating her abolitionist constitutionalism in a compelling combination of theory and praxis. A story I wanted to hear more about—and seek to follow up on here—is the role of lawyers in this power-shifting.

II. Lawyers’ Complicity in the System’s Enforced Humiliation

A significant carceral logic of the family-policing system is its subjugation of the parents, particularly women of color, trapped in it.³² Even more than defendants in the criminal legal system, parents in the family-policing system who are accused of neglect or abuse are silenced and at risk of family separation if they speak, or at least if they do not conform to the narrative expected of them. First, the outcome of a case, even whether a case will be opened or not, often turns on an individual caseworker’s assessment of the parent’s compliance or “cooperation.”³³ This both obscures parental rights—they don’t exist for these parents—as well as sets up an impossibly high parenting standard. No parent could survive the scrutiny—you can never: drink alcohol or smoke marijuana, pick up your child late from school, express frustration or anger, or spank them. The vague and constantly shifting nature of “neglect” law makes it impossible for parents to even know how to comply.³⁴ Second, parents are expected to be not only obedient but humble, to deny their own expertise or ability to care for their children, to present as weak, a victim themselves, and to throw themselves at the mercy of the caseworker and court. Even this “degradation ceremony”³⁵ doesn’t often work; many parents are ensnared in the system when seeking help with, for instance, housing, domestic violence, or a child’s special education needs.³⁶

This requisite performative subjugation piles insult upon the very real injuries caused by the family-policing system, ignoring the fact that no parent wants to be cooperative—let alone grateful—when being threatened with family separation, nor should they have to genuflect and beg to gain access to basic healthcare and housing or to keep their children.³⁷ It is sometimes surprising to law students and lawyers learning about the system for the first time that the system purportedly aiming to help families and support parents has such a stigmatizing and humiliating approach.³⁸ After several decades of working in and studying the system, I have come to believe that this approach is not merely tangential. Indeed, it is central to the project—as Malcolm Feeley famously said about the criminal legal system: “the process is the punishment.”³⁹ Parents are subjected to surprise “visits” at midnight, sometimes accompanied by armed police officers and often based on an anonymous call to a hotline; during these visits, state agents search fridges and bathrooms for inadequate food or supplies, strip-search children, and interrogate parents about very personal issues. Once they get to court, parents are further degraded as judges refer to parents and their partners not by name but as “mom,” “paramour,” or even “fat lady,” and assume that any challenge they face is a personal moral failing rather than a normal part of parenting, especially when struggling with poverty.⁴⁰ Families do not need parenting classes or supervised visitation with social workers from different communities telling them how to care for their children; all the research shows—and even the government acknowledges—that what would improve children’s wellbeing are material resources such as housing, child care, and physical and mental healthcare.⁴¹ As Roberts documents so well, the family-policing system is not functioning to increase child safety or help families; instead it sorts, marks, and hassles them, thereby perpetuating a society stratified by race, class, immigration status, et cetera.⁴²

It is not just cynical system actors or bigoted politicians, however, who inflict this epistemic injustice on families. In this Part, I describe the complicity of attorneys for children and attorneys for parents in this project.

A. Lawyers as Insiders in Carceral Systems

Lawyers are “insiders” in carceral-state systems and, through professional culture, are situated in a hierarchy above children and parents, frequently defining themselves as experts and saviors.⁴³ Gerald López recognized decades ago that lawyers are constrained by the elitist norms of a profession that casts them as “heroes” to their “helpless” and “incapable” clients; today, lawyers continue to erase or override client voices and perpetuate racialized stereotypes and structural inequality.⁴⁴ Building on Lopez’s work, scholars have theorized how lawyers are insiders in carceral state systems that “other” and dehumanize people. Jonathan Rapping, for instance, has described the huge pushback from judges and even other public defenders in New Orleans when advocacy organizations hired public defenders from outside the very insular local bar to help overcome the problematic expectation in that city’s local lawyers’ “club” that a defense lawyer “would be anything but zealous.”⁴⁵ Having learned from the participatory-defense movement—a community-organizing model for accused people, their families, and their communities—I have argued that public defenders often maintain “the power structures that exclude nonlawyers and nonprofessionals from the court systems and silence the people most affected.”⁴⁶ Well-intentioned or not, this paradigm impedes the dignity and autonomy of people whose lives are affected by laws and carceral systems, and helps to perpetuate the legitimacy of societal hierarchies and power dynamics.⁴⁷

This professional self-view silences those most impacted, and lawyers’ concomitant reification of top-down “expertise” leaves the actual people affected by laws and policies markedly absent from casebooks, articles, and even their own representation.⁴⁸ Many legal scholars and advocates perpetuate this silencing by using legal jargon designed to be confusing to “outsiders” and asserting themselves as someone who “knows best.”⁴⁹ Clients who speak up can slow down the system and frustrate lawyers who have many incentives to pander to the biases of judges and other system players, thereby perpetuating racialized, ableist, and gendered narratives that may legitimate systemic harm.⁵⁰ Sociologist Matthew Clair exposed this problematic dynamic in his in-depth study of the Boston criminal court system: “[d]efense attorneys—caught between the expectations and power of prosecutors and judges, on the one hand, and the hopes of their clients, on the other—often ignore, silence, or even coerce” their clients who attempt to exercise autonomy and dignity.⁵¹ Lawyers tokenize litigants, forcing them into racialized narratives that emphasize their weakness or wrongfulness or remorse, denying their individuality and obscuring systemic harms.⁵² Relatedly, lawyers’ reliance on hyperlegal, unemotional arguments—what lawyers are most comfortable with—has also had the unintended consequence of erasing their clients’ voices, as well as the harm and violence done against them. To cite just one example, Kaaryn Gustafson has documented how early welfare lawyers “downplayed the racialized, classed, and gendered lives and experiences of poor mothers, highlighting instead the universality of rights.”⁵³

Through these silencing mechanisms, attorneys sort clients into the usual ones to be processed through and the rare “worthy” ones that deserve more attention and advocacy—a racist process Nicole Gonzalez Van Cleve has aptly compared to “slave trading.”⁵⁴ This dynamic reveals lawyers’ important function as “ambassadors of racialized justice . . . conditioning [their clients] into compliance.”⁵⁵ By sorting, silencing, and disempowering their clients, defense lawyers are thus essential to the smooth operation of the carceral-state machine, which, in the family-regulation context, is even less transparent and even more plea-driven than in the criminal system.

Compounding this, lawyers’ focus on individual cases reinforces the paradigm of individual culpability and obscures the systemic issues and root causes of child poverty and other injustices. Lawyers enforcing individual clients’ rights and trying to settle to obtain the best outcomes for them still risk perpetuating the “individualizing and depoliticized” approach of the carceral agency.⁵⁶ Attorneys working case after case without calling out the racialized pattern by which families “catch” cases reinforces the myth of the system’s neutrality and benevolence, and of individual “bad” parents. In practice, my colleagues and I would argue—to varying degrees—for our clients to be placed in kinship care or to receive education or mental-health services, mostly without articulating—or even recognizing—the “elephant in the room” of unnecessary family separation.⁵⁷ Admittedly, much of this role is intrinsic to the system itself—heavy caseloads, lack of funding, reliance on judges for appointment, the individualistic and “color-blind” court ethos.⁵⁸ As I elaborate further below, however, addressing only individual cases of lawyering while leaving the larger structural-inequality issues unvoiced are “reformist reforms.”

B. Family-Policing System Lawyers: Paternalism and Child Saving

Attorneys in the family law realm are particularly susceptible to paternalism for numerous reasons. To begin with, everyone has an opinion about families and parenting, particularly about whether mothers are doing their “job” properly.⁵⁹ Moreover, blaming individual parents for childhood poverty and harm, rather than acknowledging our collective responsibility, feels better to people who want to believe that our country, city, and community actually care about children—about all children, because of course race and class bias play a major role in this dynamic. Yet family-policing courts are not places where all people’s parenting is scrutinized and questioned; rather, they are sites “where mostly white, middle-class lawyers and judges make decisions about the lives of families and children who are mostly Black, Hispanic, and poor.”⁶⁰ Roberts quotes New York City parent and organizer Imani Worthy noting the physical separation of the “insider” professionals and “outsider” impacted people, and the obvious racial skew: “While in the courthouse I couldn’t help but notice a separation when you enter. Lawyers, judges, . . . [and caseworkers] walk in on the left side. On this side, I notice a lot of Caucasian people entering. The right side is for the general public. The general public had so many Black and Brown faces” (pp. 130–31).

Compounding this framework of racialized morality is the procedural and structural nature of courts adjudicating family issues. They have lower levels of due process than other carceral courts and use vague legal standards such as “neglect” and “best interests of the child.”⁶¹ Judges, lawyers, and other system players characterize the proceedings as “rehabilitative” and nonadversarial, thereby impeding zealous advocacy.⁶² Attorneys who cite caselaw or expect process are demeaned, scolded, and perhaps even sanctioned. I remember being ignored or yelled at numerous times for asking judges for the bases for objections being overruled or sustained, or for colloquies to be put on the record, to preserve them for appeal; I was even once berated for citing the U.S. Constitution because, the judge said, in her court, “we follow the New York Family Court Act, not other law.” This false veneer of collaboration and informality not only obstructs process rights, like appeals, but also obscures the very antagonistic, indeed violent, nature of these cases. As longtime family defender Matt Fraidin put it: “[We] are demeaned and derided for putting the government to its paces: how many times have we been scolded . . . that these are not adversarial proceedings even though it sure felt adversarial when they took our client’s children.”⁶³ A recent thread on the parents’ attorney’s listserv echoes the constant pressure from judges, agencies, and other attorneys not to be too “zealous” and to cooperate, no matter what the impact on their clients.⁶⁴

Attorneys representing children and youth in these cases are particularly at risk for perpetuating the stereotypes of “bad” parents and “broken” families. The attorney’s existence alone, as Marty Guggenheim argues, undercuts—even violates—the constitutional presumption due parents that they are acting in their children’s best interests.⁶⁵ Other structural factors include the challenges in ascertaining a young child’s wishes and, even more, the role confusion for lawyers who represent people under eighteen years old.⁶⁶ Admittedly it is often more difficult to find out the wishes of, or put oneself in the place of, a young child than an adult. But this challenge is frequently exaggerated to justify the substitution of the attorney’s wishes for those of the client. Several factors make communicating with minor clients less difficult than many assume. Firstly, social workers and other trained interviewers can assist, finding out the context of the child’s life (and following Model Rule of Professional Conduct 1.14).⁶⁷ Secondly, many adults, disproportionately those caught in state carceral systems, can also present as difficult to communicate with, whether due to mental illness, disability, or a language barrier, but again, this is no excuse for overriding the client’s autonomy and dignity. As I’ve argued before, attorneys representing marginalized clients, including children, must be extravigilant to check their biases and views.⁶⁸

The system’s paternalism toward minors (and other “differently abled” clients) is reflected in the role confusion for lawyers representing them. In most states, lawyers are allowed to jettison the bedrock mandate of zealous client-directed advocacy in order to serve as a “guardian ad litem” (GAL) ostensibly following the child’s best interests.⁶⁹ Such a model would be unthinkable for “ordinary” clients, leaves children voiceless in matters of supreme importance to their lives, and dilutes the role of the judge as fact finder. Atrocities in the name of benevolence abound, such as it being in a teenager’s “best interests” to be forcibly constrained in a facility for minor problematic behavior or for running away from trauma.

The “child saver” mentality is well-documented and closely intertwined with the broader “white savior” mentality.⁷⁰ Just as Teju Cole has written about efforts to save Africans, particularly African children, the rhetoric and practice around U.S. child welfare, especially adoption, similarly strokes “white egos” while ignoring the systemic poverty and racism that created these systems, and perpetuates significant harm through family separation.⁷¹ Lawyers for children often like to think of themselves—and are treated—as “heroes” for “helping” children.⁷² I have previously described the dangers of lawyers regarding themselves as heroes, including the risk that lawyers will commit misconduct and take shortcuts in a misguided belief that the ends justify the means.⁷³ Significantly, the child-savior mentality further undermines the presumption that parents know what’s best for their children. Tellingly, a former colleague of mine who spoke proudly about her decades as a “law guardian,” repeatedly referred to her clients in court and in other venues as “my children”—not recognizing that other adults, usually present in the courtroom, were in fact the loving parents to those children.⁷⁴

Attorneys for parents are also swept into the harmful “saving-children-from-their-own-parents” rubric outlined above. As one family defender put it: “[A]s was most common, would [the judge and other lawyers] presume that I worked as a de facto child advocate ultimately ensuring the best interests of the child even if it was at the expense of my client?”⁷⁵ Other harmful dynamics include dividing clients into categories, and failing to really advocate for them, but rather just “going along to get along” so as not to waste their “capital” with judges and prosecutors. Relatedly, attorneys are pressured to not cite caselaw or “waste” courts’ time.⁷⁶

It is not only attorneys for children who stigmatize and shame impacted parents, but sometimes their own attorneys; is it any wonder then that parents swept up in the system do not feel they are being advocated for or even respected? One mother summed it up: “I didn’t trust none of them [the system players]. Half the time I didn’t trust my own lawyer.”⁷⁷ Relatedly, Lisa Washington has documented the family-regulation system’s pressuring of mothers who are survivors of domestic violence to conform to certain narratives, a process their own lawyers are sometimes part of. ⁷⁸ Other lawyers make jokes about the names their clients give their children and about their clothing. Even those who don’t act this way often fail to identify and address the structural racism and other systemic factors driving the family-policing system. In short, lawyers are inherently reformist, and the history of even defense attorneys shows the bar’s racial skew and failure to address systemic issues.⁷⁹

III. Toward Abolitionist Lawyering

Lawyers who seek to not only represent individual clients in carceral systems, but also to help dismantle such systems, must build on participatory defense, mutual aid, and other community self-defense movements, center the voices of impacted communities, and cede expertise, funding, and power to those communities.⁸⁰ In this Part, I sketch out some potential avenues to do so in the family-regulation system, while flagging some pitfalls. I have tried to focus here on learning from community movements, rather than relying only on the more traditional scholarly authorities.

Few scholars have grappled with the tensions inherent in lawyering for abolition, but Jamelia Morgan, Nicole Smith Futrell, and Brendan Roediger offer valuable insight.⁸¹ Morgan acknowledges the difficulty in doing so, since law and lawyers are themselves “complicit” in perpetuating state carceral systems,⁸² and flags the key steps of keeping in sight an abolitionist horizon, practicing “radical imagination,” and engaging in a structural critique along with individual representation.⁸³ Smith Futrell also emphasizes how abolitionists should ask critical questions, including lawyers acknowledging their own biases.⁸⁴ Roediger highlights the need for lawyers to demystify the systems they work in, by explaining what they actually do, rather than perpetuating the standard narrative⁸⁵—namely, that the family-policing system surveils and controls families of color and low-income families, rather than “protecting” or “helping” children as it purports to do. These scholars and others argue that it is essential for lawyers to center impacted communities and to follow their insights, instead of trying always to direct and lead—paraphrasing the infamous song from Hamilton, they urge attorneys to “talk less, listen more.”⁸⁶

I build on their work to outline abolitionist or resistance lawyering in the family-regulation context. First, lawyers should cease acting as gatekeepers. Rather than “inviting” parents into “movement spaces” that are rightfully theirs, lawyers should instead ask how they can be allies and learn from parents’ expertise, including but not limited to their lived experiences.⁸⁷ Lawyers must center parents’ voices in decisionmaking as to litigation, policy advocacy, and every other step. Movement for Family Power’s mission statement offers a model: “We believe that building the power of impacted people and communities is critical to creating meaningful, lasting change. We will work to meaningfully center the leadership of parents and families affected by the Foster System, amplifying their voices, and advancing their political agendas.”⁸⁸ To elevate community expertise, attorneys in family policing can also look to models in the criminal legal system such as participatory defense. The participatory-defense movement takes as its centerpiece the hierarchy between the system players and the people whose lives are at stake. It seeks to increase the agency of those involved in the system, both for better outcomes and for their dignity. As community organizer and cofounder Raj Jayadev describes it, participatory defense is “not about the person receiving a better service, it [is] about becoming the agent of change themselves.”⁸⁹ A central tenet of the movement is to have nonlawyer spaces—meetings and organizing spaces where lawyers are not permitted⁹⁰—as well as introducing new types of expertise, for example, around what might signify gang membership, to counteract professional expertise such as police experts.⁹¹ Research must also be expanded to incorporate other types of expertise. Like participatory defense, participatory research centers the community members, “too often viewed as [mere] research subjects,” and prioritizes their needs and expertise to build change “through co-learning community-academic partnerships.”⁹² In 2021, Rise held “community conversations” and collected surveys asking parents, particularly those who had been involved with the New York City’s family-policing system, what they and their families needed most.⁹³ The responses reflected the first-order need for information about access to resources, without surveillance or punishment.⁹⁴ For both the valuable information it provides, and the empowering process, more attorneys should support and cite participatory research.

Second, abolitionist lawyering entails changing the dominant narrative. Central to this is not stereotyping clients or using shaming or demeaning language (including refusing to refer to clients by their preferred names and pronouns and just terming them “mom”). ⁹⁵ It also entails

mak[ing] a concerted effort to fight against th[is] caste system . . . and to eradicate [its] race-blind myths . . . [and] challeng[ing] the current rhetoric that argues for Black Families to comply, cooperate, and engage with a system that in its current form attacks and destroys Black Families under the guise of kindness and protection.⁹⁶

Again, lawyers should follow the lead of impacted parties and grassroots movements in order to secure better outcomes in individual cases, and even to further change the larger narrative about what helps children thrive and keeps them safe. Participatory defense also humanizes defendants via videos about their lives and families.⁹⁷ Parent-led movements in the family-policing space are adopting similar models to “humanize the defendant . . . and increase[] visible family presence” in individual cases, as well as to downsize and ultimately abolish the system as a whole.⁹⁸ California Families Rise, for instance, tweets out videos of parents describing their family separation to change the narrative and expose systemic harms.⁹⁹

A third key component is to couple zealous advocacy in individual cases with efforts at systemic change. This can include legislative advocacy to, for instance, require informed consent for drug testing people giving birth; or it can entail impact litigation to increase kinship-caregiver eligibility to receive foster-care funding. A key area for systemic advocacy that most truly centers community voices is organizing around actions that do not prioritize professional elites but instead leverage community expertise and invest resources directly in communities. As Rise’s community organizer puts it: “Nothing about us, without us. . . . The people who are closest to the problems are the ones who are closest to the solutions but farthest from the resources” (p. 281). Another model to this end is Law for Black Lives (L4BL), a coalition of lawyers who advocate “using the law for the people” and “strive to think creatively and collectively about how the law can be used to support movements while respecting activists’ and organizers’ political choices.”¹⁰⁰

All of these efforts must be assessed against an abolitionist horizon to ensure that they are not “reformist reforms.”¹⁰¹ A particular challenge is balancing the potential tradeoffs between present harm reduction and inadvertently strengthening or prolonging the system. Yet both are essential; lawyer and former prisoner Angel Sanchez compares the carceral state to cancer: “[W]e should fight to eradicate it but never stop treating those affected by it.”¹⁰²

Roberts flags many of these steps toward abolition without specifically critiquing lawyers’ practices. As noted above, Torn Apart highlights the voices of impacted people, incorporating the stories of impacted parents into Roberts’s theoretical critique, and even describes her own experience as a Black mother being interrogated by a teacher about her son’s absences—unusual for legal scholarship and far from a pretend neutral and top-down expert outlook (pp. 80–81). Roberts also works to change the narrative and recognize grassroots expertise by citing Rise’s participatory research and the insights and experiences of parents and other movement leaders, and by theorizing family defense as part of the path to abolition. (pp. 277–82, 297–98).

In terms of lawyering, Roberts commends family defense as a valuable tool in combatting the system. I couldn’t agree more. Offices like the Bronx and Brooklyn Defenders, the Center for Family Representation in New York City, and Community Legal Services in Philadelphia incorporate many of the tenets of abolitionist or rebellious lawyering discussed here, including: interdisciplinary and adversarial representation of parents entangled in the system, coupled with systemic advocacy; conscious efforts to call out structural racism and other inequalities; and lifting up of community expertise.¹⁰³ There’s no false “collaboration” there. Its name alone—“family defense”—puts the lie to the pernicious trope that parents and children have different interests in these cases. Tellingly, research of this nascent movement has found that it yields significantly shorter stays in the foster system for children, quicker reunifications with family, and no compromises in safety.¹⁰⁴

Even the most committed abolitionist lawyer, however, faces risks; I want to note two here. First, co-option by state entities is always a risk, given that most funding and other resources—both tangible and intangible—continue to be in state control. Taking government funding can mean strings attached to the provision of services, as happened when, for instance, the Department of Agriculture co-opted the Black Panthers’ free breakfast initiative, turning the mutual-aid program into a stigma-ridden “handout” accompanied by mandated child-abuse reporting.¹⁰⁵ Moreover, for impacted people working in the system, and perhaps even more for lawyers, given our affinity for status, there can be a “fundamental contradiction” between their acceptance as “authoritative voices in shaping institutional practices and policies” and their “fully voic[ing] their critique.”¹⁰⁶ Fully voicing critiques can result in either loss of funding or “insider” status.¹⁰⁷

Perhaps the most significant risk is the tendency of lawyers to buy into “carceral logics” such as oversimplified binaries of offender and victim and “good” versus “bad” parent, and prioritization of those litigants who seem the most like themselves. I’ve described these same tensions in the marriage-equality and criminal-reform contexts.¹⁰⁸ Rise and other parent movements have critiqued this tendency in the family-policing realm topick only “squeaky-clean” people to represent the community, thus using impacted-parent advocates merely as a “cosmetic element” and discussing only neglect rather than abuse cases.¹⁰⁹ There are no easy solutions—sometimes a good legislative or litigation strategy may seem to require putting forth certain images more than others—but it is clear that any meaningful change necessitates shifting the narrative to encompass even the less publicly palatable parts of the picture, such as violent crime or child abuse. Abolitionist attorneys must constantly balance these tensions and keep their vision on the long-term horizon.

Conclusion

That horizon should be for community self-defense, mutual aid, and grassroots leadership. These movements embody the concept that “we keep us—and our children—safe.” In other words, true public safety comes from support systems for families and communities rather than top-down carceral interventions; communities can work together against violence and other harms through restorative justice and investments in resources like healthcare, housing, education, and living-wage jobs.¹¹⁰ They also emphasize “solving problems through collective action rather than waiting for saviors.”¹¹¹ As Roberts urges us to, lawyers must “abandon the fool’s errand of tinkering with a system designed to tear families apart” (p. 284) and instead learn from impacted parents and families who are already imagining a safer world with care in place of surveillance and punishment.¹¹²

This entails freeing individuals from the broad net of punitive surveillance and control, and instead funding services that provide true dignity, care, and justice. One local program illustrates the promising potential of building on community expertise and local harm-prevention infrastructure. The Bay Area Transformative Justice Collective addresses physical and sexual abuse and centers on supporting families via their chosen “pods” of support, rather than through state surveillance and punitive intervention.¹¹³ The organizing model correctly posits that many survivors, particularly in marginalized communities, “turn to their intimate networks before . . . state or social services.”¹¹⁴ Empowering these pods to build prevention infrastructures aids both in individual cases and systemic change.

Transformation also requires divestment from social workers, lawyers, and other professionals tasked with family surveillance and separation. Instead, we must learn from parents and community organizers—they know best how to care for their children. To this end, “[p]arents need to be in all spaces,” including informing and leading advocacy for change.¹¹⁵ This kind of humility does not come naturally to lawyers, even less to law professors, but it is essential. Is abolitionist lawyering even possible—or is it an oxymoron? The best way to truly achieve meaningful change and support impacted communities is to work ourselves of a job.

* Professor of Law, Brooklyn Law School. For thoughtful comments, I owe thanks to Bennett Capers, Alexis Hoag-Fordjour, Esther Hong, Clare Huntington, Amy Kimpel, Sarah Lorr, Jamelia Morgan, Alice Ristroph, Jocelyn Simonson, Lisa Washington, Madalyn Wasilczuk, and Ron Wright. This piece also greatly benefitted from workshops at CrimFest 2022, the 2022 decarceration summer works-in-progress, Family Law Scholars and Teachers 2022, and SEALS 2022 Family Law series. I am especially appreciative of numerous family defenders for discussing their work with me. For excellent research assistance, I am grateful to Sophia Borne, Sabrina Rodriguez, and Sahil Sael Soni, and for thoughtful and wise editing, to the editors of Michigan Law Review.