Disrupting Carceral Logic in Family Policing

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.


Among a growing consensus that the criminal legal system is oversized, racist, and ineffective at preventing harm, the “child welfare”/family-policing system1Alan Dettlaff et al., upEnd, How We endUP: A Future Without Family Policing 3 (2021), http://upendmovement.org/wp-content/uploads/2021/06/How-We-endUP-6.18.21.pdf [perma.cc/7Z73-PBQQ] (“The child welfare system is predicated on the subjugation, surveillance, control, and punishment of mostly Black and Native communities experiencing significant poverty. We more accurately refer to this as the family-policing system.”). 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.2In 2020, the most recent year for which we have data, 63,800 children had parents whose rights were permanently terminated—the lowest number in five years. U.S. Dep’t of Health & Hum. Servs., The AFCARS Report 1 (2021), https://www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport28.pdf [perma.cc/298L-L3NS]. 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.3I have previously described this social control in the family-policing and criminal systems. See Cynthia Godsoe, An Abolitionist Horizon for Child Welfare, L. & Pol. Econ. Project Blog (Aug. 6, 2020), https://lpeproject.org/blog/an-abolitionist-horizon-for-child-welfare/ [perma.cc/77K6-PYZS]. See also Caitlyn Garcia & Cynthia Godsoe, Divest, Invest, and Mutual Aid, 12 Colum. J. Race & L. 602, 602–09 (2022); Cynthia Godsoe, The Place of the Prosecutor in Abolitionist Praxis, 69 UCLA L. Rev. 164, 201 (2022). The vague and malleable definitions of neglect,4Despite the rhetoric around “parental abuse,” the vast majority of children are removed from their parents for “neglect.” In 2019 (the latest available data), 61% of children reported were alleged to have been neglected, 10.3% were physically abused, and 7.2% were sexually abused. U.S. Dep’t of Health & Hum. Servs., Child Maltreatment 2019 ii (2019), https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf [perma.cc/P76D-BPCA]. Neglect is a notoriously vague legal category that centers on a parent’s failure to provide food, medical care, housing, and childcare, i.e., poverty. For a recent example, see Godsoe, An Abolitionist Horizon for Child Welfare, supra note 3 (reporting that some school districts “actually reported parents as neglectful during the pandemic for not having sufficient [technology] for remote learning”). For a historic example of this phenomenon, see Mary Farmer-Kaiser, Freedwomen and the Freedmen’s Bureau: Race, Gender, and Public Policy in the Age of Emancipation 57 (2010) (reporting that “the acting assistant commissioner [of the Georgia bureau] informed agents: ‘If a woman has more children than she can support, they can be bound out with her consent. . . . If she becomes a pauper, then the children can be bound out with the consent of the Agent of the Bureau.’” (alteration in original) (citation omitted)). the army of state workers mandated to report against parents who come to them seeking help,5Both research and organizers demonstrate this key fact. See, e.g., Movement for Family Power (@movfamilypower), Twitter (July 26, 2020, 10:00 AM), https://twitter.com/movfamilypower/status/1287387232656121858?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet [perma.cc/2RNZ-7D87] (“Mothers deserve non-judgmental, radically open support. There are systems and structures in place that cause harm to families and communities. These systems deter people who are harmed from seeking help. CPS [Child Protective Services] is one of them.”). 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.6See Godsoe, An Abolitionist Horizon for Child Welfare, supra note 3 (outlining the “lack of process [that] make[s] findings of neglect or abuse almost a foregone conclusion” throughout the investigation and adjudication of mistreatment reports). There is a rich history of social control literature in the criminal context—less in the family-policing system, although, as I argue here, Roberts has single-handedly done a good deal to rectify that. For some of the criminal system literature, see, for example, Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (George Steinmetz & Julia Adams eds., 2009) (2004) (discussing the use of the criminal legal system as a means to control impoverished Black people); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (arguing that the American justice system has become the modern vehicle for racial control); Joey L. Mogul, Andrea J. Ritchie & Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States (Michael Bronski ed., 2011) (discussing crime as a social construct used to criminalize LGBT people); Elizabeth Hinton, From the War on Poverty to the War on Crime (2016) (documenting the proliferation of crime control and mass incarceration as a response to the social problems of poverty and inequality). 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.7See Paul Butler, The System Is Working the Way It Is Supposed to, 104 Geo. L.J. 1419 (2016) (persuasively arguing that police violence against Black men is a systemic, structural problem and calling for radical, abolitionist change). 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.8See, e.g., Mariame Kaba, We Do This ‘Til We Free Us: Abolitionist Organizing and Transforming Justice 125 (Tamara K. Nopper ed., 2021) (describing carceral logic as a “punishment mind-set”). Indeed, the historical throughline of racialized social control in the family-policing system is so consistent that the system arguably operates as a contemporary “Black Code” of family law—a harsh and comprehensive mandate of parenting conduct applied only to low-income families and families of color. Black Codes emerged shortly after the Civil War in Mississippi and rapidly spread into Alabama, South Carolina, and neighboring states. Constitutional Rights Foundation, The Southern “Black Codes” of 1865-66, https://www.crf-usa.org/brown-v-board-50th-anniversary/southern-black-codes.html [perma.cc/L8A7-JUVU]. These laws served primarily to further the exploitation of Black children and to demean and stereotype Black parents. By giving (always white) “masters” parental rights over apprentices, such as the rights to administer corporal punishment, exploit child labor, and recapture runaways, they basically recreated a system of slavery, wherein Black family ties were severed and children were forcibly placed under white masters to work. See Shani M. King, The Family Law Canon in a (Post?) Racial Era, 72 Ohio. St. L.J. 575, 599–601 (2011). These codes were intended primarily to reinforce a social milieu of racial subordination and to relegate newly freed Black Americans to prolonged economic exploitation. I will develop the connection between the contemporary family-policing system and Black Codes further in subsequent work.

In her excellent new book, Torn Apart: How the Child Welfare System Destroys Black Families and How Abolition Can Build a Safer World, Dorothy Roberts9George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of Pennsylvania. 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 Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (2002). 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.11See infra note 12; p. 303 (demonstrating “that the child welfare system’s surveillance, control, and destruction of Black families is part of the same carceral regime as prisons and police”). 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.12See e.g., Dorothy E. Roberts, The Supreme Court 2018 TermForeword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 120 (2019) (detailing the “historical forms of oppression beyond slavery” and calling for us “to dismantle systems beyond police and prisons, including foster care, regulation of pregnancy, and poverty”). For just a few of her other important works in this field, see Dorothy E. Roberts, Black Club Women and Child Welfare: Lessons for Modern Reform, 32 Fla. St. U. L. Rev. 957 (2005) and Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012). 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.13Relatedly, legal scholars have been particularly skeptical of, even derisive about, abolitionist theory. See, e.g., Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1201 (2022) (reviewing Mariame Kaba, We Do This ‘til We Free Us (2021)) (“Abolitionist legal scholars were published long before the summer of 2020, yet these ideas were met with scathing criticism within legal institutions, and by lawyers and institutional actors in particular.”). 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,14See infra notes 57–69 and accompanying text. 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.”15Teresa Bachiller et al., Rise, Centering Parent Leadership in the Movement to Abolish Family Policing, Colum. J. Race & L. 436, 457 (2022).

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.16See e.g., Critical Resistance, What Is Abolition? (2012) (“The best way to reduce harm is by building safe, healthy communities where people have their basic needs met.”). 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].”17Community Control, Movement for Black Lives, https://m4bl.org/policy-platforms/community-control [perma.cc/4SXM-MZRZ].

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.18Ch. 10 (flagging the particular state violence inflicted upon so-called “cross-over youth,” which I define here to include children and young people who move from the family-policing system to the juvenile criminal system); see Denise C. Herz, Joseph P. Ryan & Shay Bilchik, Challenges Facing Crossover Youth: An Examination of Juvenile‐Justice Decision Making and Recidivism, 48 Fam. Ct. Rev. 305 (2010). 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.19See pp. 285–86 (discussing Du Boisian abolition democracy); see also Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2067 (2017) (“[T]he real problem of policing[] at both an interactional and structural level, [is that] current regimes can operate to effectively banish whole communities from the body politic.”). See generally W.E.B. Du Bois, Black Reconstruction in America (1935) (studying the ongoing subjugation of Black people and resistance against real abolition democracy in the period after Emancipation).

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 Stephen O’Connor, Orphan Trains: The Story of Charles Loring Brace and the Children He Saved and Failed 209–12 (2001) (describing the racism of the nascent “child protection” movement in the late nineteenth century focused mainly on non-Anglo-Saxon European immigrants, and noting its central founder’s belief in a racial hierarchy, and different racial “characteristics” of, for instance, the Irish versus the English, as expressed in his book The Races of the Old World); see also Brent Staples, How Italians Became ‘White, N.Y. Times (Oct. 12, 2019), https://www.nytimes.com/interactive/2019/10/12/opinion/columbus-day-italian-american-racism.html [perma.cc/CXT2-7Y3T] (documenting the history of separating “ostensibly white Europeans into ‘races,’ ” with Italians at the bottom, who were sometimes “marked as [B]lack”). To take just a few examples: the forcible removal of Native American children in order to “kill the Indian, save the man”;21This infamous phrase from U.S. Army officer Richard Pratt, founder of the “boarding schools” for warehousing Native children torn from their homes, summed up the federal government’s policy towards Native Americans for over a century—eradicate the tribes as sovereigns and communities by forcibly removing children, permanently isolating them from their families and tribes, and requiring them to abandon Indigenous language, religion, and culture. Charla Bear, American Indian Boarding Schools Haunt Many, NPR (May 12, 2008, 12:01 AM), https://www.npr.org/2008/05/12/16516865/american-indian-boarding-schools-haunt-many [https://perma.cc/2AXS-TJLC]. 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.”22See Nikita Shepard, Anti-Trans Legislation Has Never Been About Protecting Children, Wash. Post (May 10, 2021, 6:00 AM), https://www.washingtonpost.com/outlook/2021/05/10/anti-trans-legislation-has-never-been-about-protecting-children/ [perma.cc/NA9G-RE27] (describing state legislatures’ enactment of transphobic measures to “protect children” and noting that “history shows that political discourse about protecting children . . . has never really been about improving their health. Instead, it has a lot to do with race.”).

Roberts draws these throughlines from slavery and Indigenous genocide through the contemporary racism, xenophobia, and homophobia underlying the system today.23Ch. 4 (describing this history). 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.24Moynihan was at the time assistant secretary of labor under President Lyndon Johnson. P. 119. 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.25Compare Dorothy Roberts, Shattered Bonds, supra note 10, at 248–52 (briefly discussing the Indian Child Welfare Act and the historic removal of Native children in the United States and Australia, mostly in the context of potential group claims by Black families), with pp. 23, 28, 102–08, 129, 194, 281, 288 (including an entire subsection on the historic and ongoing removal of Native American children, coercive adoptions, the Indian Child Welfare Act, and activism by Native families).

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 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997). Roberts’s work at the intersection of criminal law, family law, reproductive rights, and more is too voluminous to list here, but some additional articles are listed supra note 12. 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 Roberts, supra note 10, at 254–76 (recommending significant changes to the family-policing system and state interaction with families more broadly, such as universal and nonstigmatized home-visiting programs and increased benefits to kinship caregivers, while also calling for more control of programs to be situated in Black communities). 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.28Dorothy Roberts, Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being: How I Became a Family Policing Abolitionist, 11 Colum. J. Race & L. 455, 458–59 (2021). 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.29Id. at 457. Roberts also served for decades on the board of the National Coalition for Child Protection Reform, an organization working to move policy away from family separation and the foster system. Pp. 8–11. 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.”30John Washington, What is Prison Abolition?, Nation (July 31, 2018), https://www.thenation.com/article/archive/what-is-prison-abolition/ [perma.cc/Y3TR-W4CT]. 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 trainingobscure 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.31Godsoe, The Place of the Prosecutor in Abolitionist Praxis, supra note 3, at 197–98 (arguing that even progressive prosecutors can be seen as “reformist reforms” perpetuating the criminal legal system). 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.32For a definition of carceral logic, see supra note 8. 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.”33See, e.g., Tina Lee, Catching a Case: Inequality and Fear in New York City’s Child Welfare System 141 (2016) (“[C]aseworkers use compliance as both a shorthand to assess the level of risk a child faces in his home and a way to measure when risk decreases. Compliance is taken to mean that parents have acknowledged their problems and are taking steps to remedy them. At the same time, compliance is also a matter of the differential power held by caseworkers and parents in these interactions. It can be the decisive factor in the decision to remove or not. . . .”); see also Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 430 n.38 (2005) (referencing Georgia’s CPS manual, which states that CPS workers dealing with “uncooperative” parents should inform “the parents of the department’s intent to involve court/law enforcement unless they immediately cooperate. . . .”). 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.34See supra note 4. 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”35Kaaryn Gustafson, Degradation Ceremonies and the Criminalization of Low-Income Women, 3 U.C. Irvine L. Rev. 297 (2013) (documenting the humiliation and subordination accompanying state assistance, such as “welfare” provided to low-income families, particularly women of color); see also Khiara M. Bridges, The Poverty of Privacy Rights 1–6 (2017) (describing the state’s invasions of poor mothers’ privacy rights in family and reproduction). 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.36See Godsoe, An Abolitionist Horizon for Child Welfare, supra note 3.

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.37See Jane Spinak, Reflections on a Case (of Motherhood), 95 Colum. L. Rev. 1990, 2000 (1995) (describing how parents “forced . . . to place their children in foster care are then required . . . to solve their problems of poverty, illiteracy, homelessness or drug addiction while . . . [being] resolute, even cheerful, when they are permitted to visit their children for an hour every other week and to troop off steadfastly to any and all programs.”). 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.38See Vivek Sankaran, My Name Is Not ‘Respondent Mother, ABA Child L. Prac. Today (June 5, 2018) https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january-december-2018/my-name-is-not-_respondent-mother/ [perma.cc/WX69-MRU2] (describing how the court system “strips [parents] of their dignity”). 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 Malcolm M. Feeley, The Process Is the Punishment (1979). 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.40All of these incidents were relayed to me by parents or family-defense attorneys, or I witnessed them myself in court. This short video made by students at New York University School of Law includes parents documenting more humiliations they experienced. E.g., Allison Greer et al., A Life Changing Visitor: When Children’s Services Knocks, Vimeo, https://vimeo.com/71127830 [perma.cc/K6R7-ZBRG]; Martin Guggenheim’s Clinic Makes Film Critiquing Actions of Child Welfare Agency, N.Y.U. Law News (Aug. 30, 2013), https://www.law.nyu.edu/news/family-defense-clinic-doc [perma.cc/XL8A-6MAM]. 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.41See Garcia & Godsoe, supra note 3, at 606–08, 606 nn.30-41 (citing, inter alia, research from the Department of Health and Human Services and the Centers for Disease Control and Prevention). This degradation is also hypocritical—middle-class and affluent families are supported in numerous ways, such as with mortgage and college tuition tax credits, despite claiming not to take “handouts” from the state. 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.42Passim. Cf. Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2018) (describing the societal discipline function of the prosecution of lower-level crimes).

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.43Other professionals working with or adjacent to lawyers are also beginning to recognize their role in perpetuating carceral systems. See, e.g., Leah A. Jacobs et al., Defund the Police: Moving Towards an Anti-Carceral Social Work, 32 J. Progressive Hum. Servs. 37, 54 (2021). 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.44See Gerald P. López, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992) (critiquing the traditional regnant-lawyering model as elitist and paternalistic). “In the regnant idea, lawyers (only half-secretly) regard themselves as the preeminent problem-solvers in any situation in which they lend their expertise.” Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 Geo. L.J. 1603, 1610 (1989). 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 Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice 104–25 (2020). 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.”46See Cynthia Godsoe, Participatory Defense: Humanizing the Accused and Ceding Control to the Client, 69 Mercer L. Rev. 715, 716–17 (2018) (examining the participatory-defense movement, which seeks to “transform the landscape of power in the court system,” and noting that most defenders are whiter and wealthier than their clients and have little-to-no personal experience with the criminal legal system) (quoting Raj Jayadev, What Is “Participatory Defense, Albert Cobarrubias Just. Project, https://acjusticeproject.org/about/purpose-and-practice [perma.cc/CK9B-PUF7]); see also infra notes 85–88. 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.47Attorneys are whiter, richer, more educated, and less likely to have a disability or mental illness than people involved in the criminal or other carceral systems, and also usually lack personal or familial experience with the system. See Alexis Hoag, Black on Black Representation, 96 N.Y.U. L. Rev. 1493 (2021) (detailing the demographic privilege of most lawyers and calling for greater attention to the need for lawyers to better reflect their clients’ identities and understand their lived experiences). Some lawyers and legal scholars are starting to question this hegemony. See, e.g., Letter: 650 Public Defenders Stand Behind Sajid Khan, San Jose Inside (June 23, 2020) https://www.sanjoseinside.com/opinion/letter-650-public-defenders-stand-behind-sajid-khan/ [perma.cc/BN5V-TUNH] (calling for “[a]ll of us who work in the criminal legal system, including public defenders, [to] at the very least be willing to examine the roles we play in perpetuating systemic injustices”); K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L.J. 1062 (2022) (stating that legal scholarship “has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people”); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020) (criticizing the disconnect between the curricular canon for criminal law and actual practice).

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.48Lawyers and law itself are not accustomed to taking a backseat and deferring to others, though they should do so much more. See Brendan D. Roediger, Abolish Municipal Courts: A Response to Professor Natapoff, 134 Harv. L. Rev. F. 213, 216 (2021) (“Law hears ‘abolitionist alternative’ and imagines a new apparatus, similar in form, ready for co-optation.”). 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.”49Impacted parents cite language—both legal jargon and the demeaning labeling of litigants—as significant barriers to their leadership in movement spaces. See Rise, supra note 15, at 443 nn.20–23. 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.50Nicole Smith Futrell, The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic, 45 N.Y.U. Rev. L. & Soc. Change 159, 177 (2021) (describing this dynamic among public defenders); see also Sarah H. Lorr, Unaccommodated: How the ADA Fails Parents, 110 Calif. L. Rev. 1315, 1370 (2022) (describing how strategic decisions to hide a parent’s disability “uphold notions of normalcy” within the system). 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 Matthew Clair, Privilege and Punishment: How Race and Class Matter in Criminal Court 3 (Meagan Levinson & Jacqueline Delaney eds., 2020). Lawyers tokenize litigants, forcing them into racialized narratives that emphasize their weakness or wrongfulness or remorse, denying their individuality and obscuring systemic harms.52Lucie White describes this in her seminal article, Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 Buff. L. Rev. 1 (1990). 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 Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty 31 (2011).

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 Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court 158–62 (2016) (describing and theorizing this dynamic observed in years of court observations). This dynamic reveals lawyers’ important function as “ambassadors of racialized justice . . . conditioning [their clients] into compliance.”55Id. at 162, 169–73. 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 . Viola Castellano, Walking a Fine Line: The Struggle for Parent Advocacy in the NYC Child Welfare System, 33 City & Soc’y 518, 525 (2021). Attorneys have made analogous arguments in the criminal context in critiquing the right to an attorney as unable to stop, and perhaps inadvertently expanding, the criminal system’s reach. See, e.g., Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013). 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.57Law students and newer lawyers currently seem to be much more aware and conscious about these systemic dynamics, which is a very positive change, in my opinion. 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.58A recent lawsuit in New York State is informative as to the heavy caseloads and lack of professional support for many, if not most, attorneys representing parents in these cases. Reimbursable fees for any particular case were capped at a low rate, not accounting for the expertise and multifactored advocacy required in these cases. Recently, a judge issued a preliminary injunction to raise the fees to federal-court levels. Tracey Read, NY Bar Associations Win Assigned Counsel Pay Fight, Law360 (July 26, 2022), https://www.law360.com/articles/1515110/ny-bar-associations-win-assigned-counsel-pay-fight [perma.cc/XS3E-KRNM] (full disclosure—I was an expert affiant in support of the plaintiffs in the case). 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.59Chris Gottlieb, Reflections on Judging Mothering, 39 U. Balt. L. Rev. 371, 373 (2010) (“The list of issues on which mothers are criticized is infinite. . . . [Yet o]ur culture of judging parenting by impossible standards hits some much harder. For it is a culture of judgment that we have developed and it is pervasive, extending to . . . courtrooms where poor parents are scrutinized.”). 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.”60Louise Kiernan, Children on Trial, Chi. Trib. Mag. (Jan. 19, 1997), https://www.chicagotribune.com/news/ct-xpm-1997-01-19-9701190326-story.html [perma.cc/MJX9-7VAV]. 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.”61See Godsoe, The Place of the Prosecutor in Abolitionist Praxis, supra note 3 (outlining the “lack of process [that] make[s] findings of neglect or abuse almost a foregone conclusion” throughout the investigation and adjudication of mistreatment reports). To be clear, I’m not saying more process can solve this: the system is designed to harm. Judges, lawyers, and other system players characterize the proceedings as “rehabilitative” and nonadversarial, thereby impeding zealous advocacy.62I have previously critiqued this false notion of a rehabilitative court for juveniles, see Cynthia Godsoe, Recasting Vagueness: The Case of Teen Sex Statutes, 74 Wash. & Lee L. Rev. 173 (2017) (analyzing juvenile sex offenses), as does Jane Spinak, The End of Family Court: How Abolishing the Court Brings Justice to Children and Families (forthcoming Aug. 2023) (manuscript at 4) [perma.cc/77G2-NSMM] (“One hundred and twenty years later, we are still sending children and families into a court that thinks it is doing good and the consequence is that by trying to do good, it fails to do justice and often does great harm.”). 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.”63Matthew I. Fraidin, Afterword, 20 CUNY L. Rev. 237, 239 (2016). 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.64Posting to child-parentsattorrneys@mail.ammericanbar.orrg (July 11–26, 2022) (on file with author).

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 Martin Guggenheim, What’s Wrong with Children’s Rights (2005); see Martin Guggenheim, How Children’s Lawyers Serve State Interests, 6 Nev. L.J. 805, 824, 834 (2006) (describing the pressures on lawyers for children to follow a “safer course,” including presuming that a conflict between the parents and child exists, that the parent is unfit, and that family separation will “protect” the child). 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.66This occurs even in the delinquency context where the attorney’s role should be very clear since it is modeled on the zealous advocacy mandated of defense attorneys in the criminal system. Although most experts agree that direct advocacy is best for child clients, and the Model Rules of Professional Conduct concur, there are still numerous states and some professional guidance that tries to preserve a “best interests” role in some form, reflecting a paternalistic, and racialized, view of certain families. Noy Davis, Amy Harfeld & Elisa Weichel, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children 7 (2019) (reporting that only fifteen states require fully client-directed counsel for children in family-policing cases). 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 Model Rules of Pro. Conduct r. 1.14 (Am. Bar Ass’n 2022). 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.68Godsoe, supra note 46, at 729. Annette Appell aptly describes the many incentives toward paternalism in this practice: “[The system] can place the lawyer in an unduly powerful role of imposing the lawyer’s values (which are more likely to be reflective of dominant norms) on the child’s decisions. [Moreover], the racial, ethnic, and economic gaps between children’s lawyers and the children they represent challenge these attorneys to understand the social and economic conditions of their clients.” Annette Ruth Appell, Representing Children Representing What? Critical Reflections on Lawyering for Children, 39 Colum. Hum. Rts. L. Rev. 573, 618 (2008).

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.69Cynthia Godsoe, All in the Family: Towards A New Representational Model for Parents and Children, 24 Geo. J. Legal Ethics 303 (2011) (describing these models and flagging the larger complexities of representing children, and of disentangling their interests from their parents—if that should even be done). 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.70See Erin F, White Saviors Are Not Saving Children, Crim. L. & Pol’y (Apr. 22, 2019), https://crimlawandpolicy.wordpress.com/2019/04/22/white-saviors-are-not-saving-children/ [perma.cc/VN5Y-AW7P] (describing the overwhelmingly white judges, lawyers, and social workers in the family-policing system and the potential for “saviorism” to creep in when making judgments for children from different racial, class, and cultural backgrounds). “Child welfare” workers have seen themselves as saviors since their first incarnation during the Progressive Era. See, e.g., Anthony M. Platt, The Child Savers: The Invention of Delinquency 137–45 (expanded 40th anniversary ed., 2009); see also Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago xxviii (2003) (asserting that juvenile court “aimed not merely to punish offenders but to assist and discipline entire urban populations”). The current “child-welfare industrial complex doubles down on the idea that it is ‘saving’ children.” Chris Gottlieb, Black Families Are Outraged About Family Separation Within the U.S. It’s Time to Listen to Them, Time (Mar. 17, 2021, 9:00 AM), https://time.com/5946929/child-welfare-black-families/ [perma.cc/RD3K-V8V4]. 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.71Teju Cole, The White-Savior Industrial Complex, Atlantic (Mar. 21, 2012), https://www.theatlantic.com/international/archive/2012/03/the-white-savior-industrial-complex/254843/ [perma.cc/GK7P-2EN8]; see also Kathryn Joyce, The Child Catchers: Rescue, Trafficking, and the New Gospel of Adoption (2013) (describing the harms of the adoption industry, especially as recently fueled by the “orphan theology” of evangelical Christians). Lawyers for children often like to think of themselves—and are treated—as “heroes” for “helping” children.72 Guggenheim, supra note 65, at 830; see also Amy Mulzer & Tara Urs, However Kindly Intentioned: Structural Racism and Volunteer CASA Programs, 20 CUNY L. Rev. 23, 25 (2016) (describing the white-supremacist roots of volunteer child advocates—who are overwhelmingly white middle- and upper-class women—and noting that merely having a CASA assigned “increases the chance that a parent’s rights to her child will be terminated.”). 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.73Godsoe, The Place of the Prosecutor in the Abolitionist Praxis, supra note 3, at 205–06. 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.74Relatedly, system actors including attorneys frequently minimize family separation and the trauma to children that comes from even short separations from their parents. See, e.g., Rebecca Nagle, The Heart of It, This Land (Aug. 16, 2021), https://crooked.com/podcast/this-land-season-2-coming-august-23rd/ [perma.cc/Z6UA-QT4A] (discussing judges and adoption attorneys’ minimization of the trauma of family separation among Native Americans).

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?”75Kara R. Finck, Applying the Principles of Rebellious Lawyering to Envision Family Defense, 23 Clinical L. Rev. 83, 89 (2016) (outlining the particular threat of “regnant” lawyering in the family-regulation context). 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.76Id. at 83–87 (describing an analogous dynamic in the Cook County criminal court where defense attorneys spending too much time or energy on their clients were labeled “difficult,” “incompetent,” or “clueless”).

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.”77Wendy Haight, Erin Sugrue, Molly Calhoun & James Black, “Basically, I Look at It Like Combat”: Reflections on Moral Injury by Parents Involved with Child Protective Services, 82 Child. & Youth Servs. Rev. 477, 484 (2017). 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. 78See S. Lisa Washington, Survived and Coerced: Epistemic Injustice in the Family Regulation System, 122 Colum. L. Rev. 1097 (2022); see also Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052, 2076 (2021) (book review) (describing how civil rights, criminal-defense, and other public-interest lawyers often perpetuate racialized narratives “of racial inferiority and chronic dependence” that both stigmatize and silence their clients) (emphasis omitted)). Epistemic-injustice theory demonstrates the harms of silencing and discounting the viewpoints and lived experiences of marginalized groups. Epistemic injustice occurs when a marginalized group “is unable to contribute knowledge to public discussions” due to its disfavored status, and the barriers to this group’s participation are deemed unproblematic. Eve Hanan, Incarcerated Activism During COVID-19, 18 Ohio St. J. Crim. L. 475, 478 (2021) (describing the epistemic injustice of people who are incarcerated); see also Olúfémi O. Táíwò, Being-In-The-Room Privilege: Elite Capture and Epistemic Deference, Philosopher (Autumn 2020), https://www.thephilosopher1923.org/essay-taiwo [perma.cc/5PMZ-JLE4]. 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.79See, e.g., Alexis Hoag, The Color of Justice, 120 Mich. L. Rev. 977, 982, 982 n.31, 991 (2021) (reviewing Sara Mayeux, Free Justice (2020)) (noting that “many of the first public-defender offices ignored the structural racism inherent in the criminal adjudication process” and explaining that for the next century, white-dominated defender offices did not advocate against mass criminalization, as Black-led defender organizations did); see also Matthew Caldwell, The End of Public Defenders, Inquest (Feb. 25 2022), https://inquest.org/the-end-of-public-defenders [perma.cc/C7EB-MCN4] (noting the history of public defenders’ institutional role as a “formative step in the expansion of our system of mass arrest, guilty pleas, and incarceration,” questioning whether public defenders serve as a “check or a collaborator” to the carceral system, and concluding that most of the “job came down to assisting the court, however unwillingly, in extracting guilty pleas from [his] clients and thereby burying misconduct on the part of the police, the prosecution, and the court”).

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.80Legal scholars should as well. See Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324, 349 (1987) (urging legal scholars to “listen” to the voices of marginalized people and “build coalitions with others,” since we “will never be [at] the center of any successful [change] movement”). To define some of these terms briefly, “[m]utual aid is both a practice and a theory. It consists of ‘people get[ting] together to meet each other’s basic survival needs with a shared understanding that the systems we live under are not going to meet our needs and we can do it together.’ ” Garcia & Godsoe, supra note 3, at 602 (quoting in part What is Mutual Aid?, Big Door Brigade, https://bigdoorbrigade.com/what-is-mutual-aid/ [perma.cc/8ZAB-MHDB]). Similarly, community self-defense centers the local community in safety; as one organization puts it, “too often, public safety is seen as an individual issue when it is actually a community issue. We all have something to gain by investing in community-based solutions that genuinely create safe and secure communities.” Ella Baker Ctr. for Hum. Rts., Public Safety Begins with Public Health: Making Oakland Safer Together 4 (2017), https://slidelegend.com/public-safety-begins-with-public-health-ella-baker-center_5ad9c09f7f8b9ad5018b4585.html [perma.cc/QH4T-CQB5]. There is very limited research on these frameworks because the U.S. government does not support—or even allow—mutual-aid programs and nonpunitive community-based supports, but a study out of Canada found that families involved in the family-policing system did better when receiving a version of mutual aid than they did receiving traditional “child-welfare” services. See Garcia & Godsoe, supra note 3, at 623–24, 626. This is true of legal scholars as well. See Matsuda, supra. 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.81E.g., Smith Futrell, supra note 50. Based on historic research into antislavery lawyers during the 1850s, Dan Farbman outlines a similar model of resistance lawyering in an unjust regime: “A resistance lawyer engages in a regular, direct service practice within a procedural and substantive legal regime that she considers unjust and illegitimate. Through that practice, she seeks both to mitigate the worst injustices of that system and to resist, obstruct, and dismantle the system itself.” Daniel Farbman, Resistance Lawyering, 107 Calif. L. Rev. 1877, 1880 (2019). Morgan acknowledges the difficulty in doing so, since law and lawyers are themselves “complicit” in perpetuating state carceral systems,82As Kara Finck points out, this is worsened by the false divide between “legal” and “social” services to which lawyers adhere so firmly. Finck, supra note 75, at 96. 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.83See Jamelia Morgan, Lawyering for Abolitionist Movements, 510 Conn. L. Rev. 605, 610, 613 (2021); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 408 (2018). Smith Futrell also emphasizes how abolitionists should ask critical questions, including lawyers acknowledging their own biases.84Smith Futrell, supra note 50, at 193–95. Roediger highlights the need for lawyers to demystify the systems they work in, by explaining what they actually do, rather than perpetuating the standard narrative85Roediger, supra note 48 (also recommending “delegitimizing,” “disempowering/dismantling,” and “dreaming” as tenets of abolitionist law practice).—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 Lin-Manuel Miranda et al., Aaron Burr, Sir, on Hamilton, at 01:00 (Atl. Recording Corp. 2015) (“Talk less . . . smile more.”).

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.87Rise, supra note 15, at 444. 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.”88Our Vision and Values, Movement for Fam. Power, https://www.movementforfamilypower.org/indexa [perma.cc/4KPX-DYS3] (describing the use of “movement lawyering principles to center directly impacted people and grassroots activism”). 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.”89Godsoe, supra note 46, at 716, 723 (quoting interview with Jayadev); see also Mariame Kaba, Free Us All: Participatory Defense Campaigns as Abolitionist Organizing, New Inquiry (May 8, 2017), https://thenewinquiry.com/free-us-all/ [perma.cc/263A-S63W] (describing local and mass self-defense campaigns in relation to abolition). A central tenet of the movement is to have nonlawyer spaces—meetings and organizing spaces where lawyers are not permitted90See Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281, 1285 (2015).—as well as introducing new types of expertise, for example, around what might signify gang membership, to counteract professional expertise such as police experts.91Godsoe, supra note 46, at 722. 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.”92Lauren Johnson et al., Reclaiming Safety: Participatory Research, Community Perspectives, and Possibilities for Transformation, 18 Stan. J. C.R. & C.L. 191, 191, 198–99 (offering the “first known interdisciplinary, community-based participatory research study” focusing on what safety is and how to make safety accessible to everyone). 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 Naashia B. et al., Rise & TakeRoot Just., An Unavoidable System: The Harms of Family Policing and Parents’ Vision for Investing in Community Care 9 (2021), https://www.risemagazine.org/wp-content/uploads/2021/09/AnUnavoidableSystem.pdf [perma.cc/3MFV-SZD4]. The responses reflected the first-order need for information about access to resources, without surveillance or punishment.94Id. at 9, 25. 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”). 95See Washington, supra note 78, at 1121–22, 1156–57. 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.96Erin Cloud, Rebecca Oyama & Lauren Teichner, Family Defense in the Age of Black Lives Matter, 20 CUNY L. Rev. 68, 70–71 (2017) (also calling for collaboration with allies beyond the legal system to make change, including the Black Lives Matter movement).

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.97Godsoe, supra note 46, at 721. 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.98See, e.g., Family Reunification, Equity & Empowerment (FREE) Project, Starting Over, Inc., https://www.startingoverinc.org/free [perma.cc/35AF-V8YD]. California Families Rise, for instance, tweets out videos of parents describing their family separation to change the narrative and expose systemic harms.99 Cal. Fams. Rise, https://californiafamiliesrise.com/ [perma.cc/XR7L-JJW7].

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.”100Values, Law for Black Lives, http://www.law4blacklives.org/values [perma.cc/2GDD-588W].

All of these efforts must be assessed against an abolitionist horizon to ensure that they are not “reformist reforms.”101Amna Akbar and others argue that nonreformist reforms are grassroots and inherently antielitist; they “advance radical critique and radical imagination” and are “pathways for building ever-growing organized popular power.” Amna A. Akbar, Demands for a Democratic Political Economy, 134 Harv. L. Rev. F. 90, 104–113 (2020). 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.”102Angel E. Sanchez, In Spite of Prison, 132 Harv. L. Rev. 1650, 1652 (2019).

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.103See Family Defense, Brook. Defs., https://bds.org/our-work/family-defense [perma.cc/FTK4-RHMH]; Ctr. for Fam. Representation, https://cfrny.org/ [perma.cc/VMD6-MB53]; Family Defense Practice, The Bronx Defs., https://www.bronxdefenders.org/our-work/family-defense-practice/ [perma.cc/69AA-7B2B]; Family Advocacy: How Holistic Family Defense Helps Children Thrive, Cmty. Legal Serv. of Phila. (Aug. 8, 2019), https://clsphila.org/family/family-advocacy-how-holistic-family-defense-helps-children-thrive/ [perma.cc/NP7L-6XNP]. 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.104Lucas A. Gerber et al., Effects of an Interdisciplinary Approach to Parental Representation in Child Welfare, Child. & Youth Servs. Rev. 44, 52 (2019); John Kelly & Michael Fitzgerald, New York’s Parent Defender Model Lowers Reliance on Foster Care, Study Finds, Imprint (May 6, 2019, 5:00 AM), https://imprintnews.org/child-welfare-2/in-new-york-parent-defender-model-means-less-days-in-foster-care/34832 [perma.cc/TZL8-3STL].

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.105Garcia & Godsoe, supra note 3, at 627. 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.”106Castellano, supra note 56, at 519–20 (describing the troubles the Child Welfare Organizing Project had in navigating this dynamic as parents accepted employment with foster-care agencies and then became a part of the system, whereby they could not be fully honest about the system’s flaws, were required to be mandated reporters, etc.). Fully voicing critiques can result in either loss of funding or “insider” status.107See id.

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.108See, e.g., Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J.F. 136 (2015) (arguing that the framing of the marriage-equality movement as very white, “straight-acting,” and affluent, while it brought a hugely important win to many people, also reinscribed gender roles and further entrenched marriage as the only relationship between individuals that merited state support); see also Cynthia Godsoe, The Victim/Offender Overlap & Criminal System Reform, 87 Brook. L. Rev. 1319 (2022) (arguing that, by the numbers, and for true transformational change, criminal system downsizing must include those convicted of violent crimes, and also calling for the dismantling of the victim/offender overlap). 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.109See Castellano, supra note 56, at 531–33; see also Rise, supra note 15. 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.


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 . Garcia & Godsoe, supra note 3, at 197 n.161; see generally Zach Norris, We Keep Us Safe: Building Secure, Just, and Inclusive Communities (2020). They also emphasize “solving problems through collective action rather than waiting for saviors.”111Dean Spade, Mutual Aid Is Essential to Our Survival Regardless of Who Is in the White House, Truthout (Oct. 27, 2020), https://www.truthout.org/articles/mutual-aid-is-essential-to-our-survival-regardless-of-who-is-in-the-white-house/ [perma.cc/F86H-3B54]. 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.112See, e.g., Reimagine Support, Movement for Fam. Power, https://www.movementforfamilypower.org/reimagine-support [https://perma.cc/RL6A-3KTK].

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.113Garcia & Godsoe, supra note 3, at n.625; Leah A. Jacobs et al., Defund the Police: Moving Towards An Anti-Carceral Social Work, 32 J. Progressive Hum. Servs. 37, 49 (2021) (detailing the Bay Area Transformative Justice Collective’s commitment to “restorative justice interventions to child sexual abuse and other related forms of interpersonal violence”). The organizing model correctly posits that many survivors, particularly in marginalized communities, “turn to their intimate networks before . . . state or social services.”114Jacobs, supra note 113. Pods, or localized support groups, are a key mutual-aid component. See Mutual Aid Disaster Relief, Mutual Aid 101: #WeGotOurBlock, https://mutualaiddisasterrelief.org/wp-content/uploads/2020/04/NO-LOGOS-Mutual-Aid-101_-Toolkit.pdf [perma.cc/86TA-VT9H] (presenting a toolkit that includes steps for building a neighborhood pod). 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.115Rise, supra note 15, at 457 n.75. 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.