This post is part of a symposium that highlights how law school clinics can disrupt the infrastructure of racial capitalism. Read the rest of the posts here.
Every year, the American family policing system (FPS) separates roughly half a million children from their parents. This system, though long overlooked, is increasingly being recognized for what it is: a way to control and terrorize politically marginalized communities. To date, however, challenges to family policing have largely focused on state agencies as the primary actors in this system, and courtrooms as the primary battleground, while paying less attention to other driving forces like capitalism, public-private relationships, and the powerful investigative and administrative structures in which the judicial venue is nested. Taking the lead from abolitionist’s broader work that seeks to fundamentally re-draw relationships and the distribution of resources, law school clinics should similarly expand their advocacy beyond now well-trod legal paths.
Family policing has always served capitalist interests along racial lines, combining the financial imperatives of markets with the moral imprimatur of saving children from their own families. The state, corporations, and nonprofits take children and extract family resources, diverting them to government, corporate, and private citizen’s interests. As Dorothy Roberts has pointed out, “the family policing system played an integral, though largely overlooked role in the 1990s federal consolidation of capital accumulation, welfare retrenchment, and punitive containment.” What are the consequences and possibilities for countermovement when we contextualize the FPS within the web of racial capitalism? Family defense clinics can help to answer this question by serving as a hub for legal-organizing partnerships, representing families in non-judicial spaces they usually navigate alone, and supporting families to keep the FPS out of their homes and lives.
Actors Behind the State’s Courtroom
The state’s role in the FPS is most visible. It is state agents that investigate allegations of maltreatment, state prosecutors who pursue parents in court, and state judges who make decisions about families staying together or not, and on what terms. These actors are the public face of a system that, writ large, funnels money from federal coffers to states, and from states to the localities and companies that administer foster care, adoption, and other programs. In 2018 the federal government spent $33 billion on child welfare programs, 48% of which was spent to maintain children in the foster system.
One way to analyze the state’s role in the market is as a market maker: an entity that facilitates conditions for profitable capital accumulation. The state accomplishes this, in the first instance, by creating the conditions for a market–an exchange of goods and services. It pulls families into its web through investigation, surveillance, monitoring, removal of children and termination of the legal parent-child relationship, a relationship courts destroy for 1 in every 100 children, and which Black and Native American children experience at more than twice the rate of white children.
With this market in place, the state contracts with or creates opportunities for private companies to participate in the market. Foster care, for example, is a well-funded entitlement program that has largely been privatized, a “reform” to many state’s administration of foster care in which scores of children have been abused and neglected. Private companies, many owned by private equity firms, are entrusted to care for children despite track records of abuse and with little to no oversight.
Perhaps the most egregious example is the private-equity backed Mentor Network, one of the largest for-profit foster care companies in the U.S. and the central target of a 2015 investigation by the U.S. Senate Finance Committee. Purchased by a venture capital firm in 2006, the company went public in 2014, earning 1.2 billion in revenue that year. At the time of the investigation, the company managed homes for 10,000 children in 18 states; in states that ban for-profit companies from securing contracts for foster care services, the company brought in its non-profit sister organizations as subcontractors. The committee’s report concluded that Mentor “prioritizes profits over children’s well-being and its primary mission was to fill beds to increase profits.” Eighty-five children died in Mentor’s care between 2005 and 2014. The committee found that the company actively covered up the deaths, while paying millions of dollars in settlements to victim’s families, to ensure that the state continued to place children in their care.
Mentor then shifted gears. It jettisoned some of its foster care contracts and focused on managing homes for people with intellectual and developmental disabilities. In 2020 the Senate Finance Committee issued another report after investigating Mentor’s operations in Oregon, finding numerous violations and substandard care occurring even as the report was being written. Despite it all, Mentor continues to grow. Last year it acquired more companies that operate homes for people with intellectual and developmental disabilities and paid its private equity holders half a billion dollars in debt-backed dividends. Then Mentor rebranded itself as “Sevita Health,” declaring on its website, “It’s a new day.”
States also collaborate with poverty-industry companies to devise revenue maximization schemes exploiting families entangled in the family policing system. In his 2016 book The Poverty Industry, law professor Daniel Hatcher details these predatory partnerships between states, corporations, and local governments to seize a variety of assets from children, such as Medicaid, disability, survivor or veteran’s assistance, even a child’s burial plot if she has one. For instance, in 2012, Maryland contracted with Maximus, a for-profit company, to increase the number of children in foster care designated as “disabled,” so the state could acquire their disability benefits. The designated population soared from 2% to 20%. Describing its work in the “market,” Maximus blatantly referred to children as a “revenue generating mechanism.” In a similar scheme, Maximus produced 16 million in revenue for Iowa over four years. Hatcher estimates that, through these practices, states siphon $250 million per year from poor children.
When we contextualize the family policing system within the neoliberal state, recognizing that it also reflects the interests of businesses and financial capital, we can expose pressure points beyond those made obvious by state actors, who often serve as the initial point of access for the private interests described above. By heading off those interests at the pass, families disrupt the dominant, coercive policing model, making space for something new. For family defense clinics, these opportunities might be the sub-judicial spaces families usually navigate alone like investigations.
Clinical Praxis Beyond the Family Court
Families typically become ensnared in the FPS through a call to a child maltreatment hotline, triggering a broad, intensive investigation. Since families are not assigned a lawyer at this stage, most families navigate these investigations alone. Families unable to obtain private lawyers are only represented once the state files a petition in court, after the state has had the benefit of a fulsome investigation. Seeking to keep families together once a petition is filed or reunite those the state has separated, lawyers have focused on judicial proceedings as the main site of struggle against the FPS. But just as focusing on state actors alone obscures other powerful forces acting on and within the FPS, focusing singularly on courtrooms as the site of contestation leaves untouched other sites of significant vulnerability for families subject to family policing. One way that law clinics can help dismantle the FPS is by lawyering in these sub-judicial spaces to contract the front end of the family-policing funnel, in turn disrupting its exploitative market landscape.
In our work in CUNY’s Family Defense Practicum, we call this radical early defense: the representation of families at the earliest moment possible with the intention of restricting or eliminating the state’s coercive encroachment into a family’s life. Radical early defense directly challenges presumptions core to the prevailing family policing regime. First, radical early defenders reject the inevitability of investigation and surveillance. By equipping families to refuse investigation safely and confidently, radical early defenders push back against the notion that families do not deserve legal representation until the state has taken drastic action to remove children or involve a court. Second, radical early defenders reject the presumption of the FPS’s benevolence. By providing the kind of representation a wealthy family could obtain at the first instance of state intrusion, radical early defenders help families set the terms of their interaction, rather than allowing the FPS to dictate how the investigation unfolds.
At its most basic level, radical early defense springs from a shared willingness between a family and their community of support – including their legal representatives – to push back robustly against the FPS at its earliest site of intervention. Practically, lawyers and law school clinics engaged in radical early defense stand ready to represent a parent who refuses consent to an FPS agent seeking entry to their home, directing their child to remove clothing to inspect their body, or insisting that the parent take a drug test. Acting arm-in-arm with community allies, radical early defenders hold FPS agents and the lawyers who represent them to their legal responsibilities. When a parent refuses consent with the backing of a radical early defense team, they force FPS agents to make decisions about how to best use their resources – whether to seek a warrant, to seek some other means of completing their investigation, or to forego an unnecessary investigation entirely.
By adopting a radical lawyering approach to family policing, law-school clinics can take an explicitly abolitionist tact, one driven by the mission to shrink the carceral family-policing project as a whole. And by closing the door to the FPS even slightly, we can begin to alter balances of power between politically marginalized families, the state, and the market forces underlying family policing.