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The Profits of Family Policing and Punishment


Jane M. Spinak is the Edward Ross Aranow Clinical Professor Emerita of Law at Columbia Law School and author of The End of Family Court: How Abolishing the Court Brings Justice to Children and Families.

This post continues a symposium on Dorothy Roberts’s Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World and Wendy Bach’s Prosecuting Poverty, Criminalizing Care.

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Anti-carceral grassroots activists and partnering scholars have embraced the concept and practice of non-reformist reforms to signal a clear rejection of reforms aimed at merely improving the current structures of carceral institutions and systems. Non-reformist reforms, on the contrary, are intended to shrink and eventually abolish those systems and create instead an anti-racist, anti-classist, and overall humane approach to the goals of safety, liberty, equality and well-being. Of the many challenges to achieving non-reformist reforms, perhaps one of the most stubborn is the deep integration of government funding practices with government policy purposes. This is perhaps nowhere more evident than in the realm of family policing and regulation – what is euphemistically called child protection or child welfare.

Over the past 50 years, federal, state, and local government funding mandates have achieved the opposite of what they were purported to achieve: child safety, permanency, and well-being. Instead, as Dorothy Roberts has repeatedly argued, “If you came with no preconceptions about the purpose of the child welfare system, you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.”

This institutional design, while building on a longer history of penalizing poor and marginalized families through state intervention, was supersized through a series of federal mandates beginning in the 1960’s to create abuse and neglect hotlines, expand the definition of neglect and abuse to encompass most of the indicia of poverty, limit the efforts and time necessary to assist families in remaining together or being reunified, and financially reward states for terminating parental rights and achieving adoptions. All of the funding for these mandates diminished instead of accomplished safety, permanency, and well-being.

Roberts calls the monetary aspect of this system the “Foster Industrial Complex,” identifying the ways that states and localities have drawn down billions of dollars of federal funds to investigate, surveille, prosecute, and separate families through child protective services agencies (CPS). Federal Title IV-E foster care funds, for example, are uncapped, while Title IV-B funds for preventive services that help keep children at home are capped and represent a miniscule part of the federal CPS pie. This, in essence, rewards CPS and sub-contracting non-profit agencies for separating families rather than preventing child removal. Even the most recent federal foray into a more preventive stance – the Families First Preventive Services Act – which permits states to use some of the Title IV-E foster care funding to prevent separation, is restricted to “children at imminent risk of entering foster care.” Children in that category then are already being investigated or surveilled by CPS, and their parents’ use of those services will be closely monitored with the threat of child removal hanging over their heads. In short, this form of prevention is still deeply imbedded in a system that financially rewards intervention. What families need to avoid the specter of CPS is voluntary, well-resourced, community-developed and -based assistance that is frequently material but also can help them address treatment or other basic social needs.

This overview suggests that if we reward prevention by funding non-governmental actors or their non-profit partners, we can decouple CPS from desperately needed services. But the system is even more nefarious. Roberts draws on Daniel Hatcher’s investigation into the ways states and localities partner with private corporations to comb through records to determine if they can capture benefits that would otherwise enure to the child, such as Social Security Survivor Benefits, and use them to pay for foster care or even supplement the general coffers. In other words, a CPS agency may draw down federal funds for foster care while at the same time draw off a child’s benefits to pay for the same service, essentially making a profit on a child’s foster placement. Creating non-reformist reforms therefore requires not just a radical shift in our approach to keeping children safely and happily at home with their families but slaying the well-fed lion, as Roberts characterizes this profit-focused system. 

Then there are states, like Tennessee, which intensified the destruction of families by passing a “fetal assault” law designed to criminally charge women for drug use during pregnancy in order for them to receive the drug treatment the state believed they needed. The women charged were overwhelmingly impoverished. Wendy Bach’s Prosecuting Poverty, Criminalizing Care details exquisitely how the (now defunct) fetal assault law not only failed to ensure that prosecuted women received that care, it drew them deeper into the family policing and criminal legal systems, punishing them instead with incarceration, the imposition of ever-bourgeoning fees and fines, and taking their children away. In Tennessee, these fees and fines included “all the costs that have accrued in the cause,” if the defendant was convicted. The defendant may find herself paying for her arrest, her jailing, her prosecution, and her probation. Tennessee also imposes litigation taxes which pay for basic government expenses as well as earmarked programs that range from driver education in schools to salaries for public defenders to judges’ conferences. Instead of providing the treatment the law envisioned, mothers were driven further into poverty while the profit-seeking lion was also being well fed in Tennessee. And well fed throughout the country. As Alexandra Natapoff has established, “the petty-offense process has quietly become a regressive feature of American tax policy. It actively extracts revenue from an ever-widening pool of mostly low-income people in order to fund the operations of private as well as public criminal justice institutions.”

While investigating the mothers who were the victims of the fetal assault law, Bach also expanded her scope to interrogate how impoverished women in Tennessee generally accessed substance use treatment. She soon discovered that treatment was essentially available only with a referral from the family regulation CPS agency or from the criminal court. One treatment provider would tell someone desperate for treatment to go shoplift to get access to treatment; another suggested they “get a little charge” to secure a referral. Her mantra was “Lock ‘em up, clean ‘em up and start over.” How do we even try to unravel these systems that thrive on criminalizing care while using government funding along with pernicious fees and fines to penalize and destroy families in the name of helping them?

One answer is to uncover these practices and then publicize them, as both Roberts and Bach do. Most of the public has no idea about the choices their federal, state, and local governments make around how to fund family regulation systems and know even less about the pernicious practices used to extract further funding out of the families these systems are supposed to be assisting. Publicity and advocacy matter. In April 2023, San Diego County, CA, stopped its practice of collecting Social Security benefits of foster children after taking $3.2 million since 2015. And last month, after sustained advocacy by the People’s Association of Justice Advocates led by Shane Harris, a former foster child, the San Diego County Board of Supervisors unanimously agreed to sponsor a bill stopping the practice throughout the state. At the same time, as Claire Dunning wrote in a recent LPE blog post, we have to confront how the federal government has forsaken its role of providing essential rights and services in general and understand how desperate states and localities, in turn, fail to fully fund their own services and those of their non-profit-contracting partners. It is hard to imagine that these practices didn’t lead directly to charging fees and fines for services that should be provided by government and contracting non-profit entities. There is no viable social contract in such a system.

A second step is to form partnerships with labor unions, legislators, good government groups, foundations, think tanks, and local communities and neighborhoods to figure out how to shift resources and jobs out of compulsory systems and into communities desperate for funding not dependent on surveilling, reporting on, and intervening in families. This requires a commitment to creating jobs not dependent on punitive solutions and retraining workers to support families in their quest to thrive. Workers should not be relegated to employment built on carceral doctrines to pay their bills and care for their own families.

Finally, we must understand the limits of non-reformist reform unless it is built on the ideas and experiences of impacted families, neighborhoods, and communities who have the insights into what are the most effective ways to receive and use whatever resources are being offered. The shift away from trying to fix the family regulation system to dismantling it could never have happened without the advocacy and activism of impacted individuals, communities and their partners, especially during the last decade. Whatever expertise we have as professionals in our disciplines and practices can only be employed in partnership with these activists, and with their insights and experiences shaping that partnership. Only then can non-reformist reforms lead to social justice for all families.