Under the Guise of Care

PUBLISHED

Amna Akbar (@orangebegum) is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

PUBLISHED

Amna Akbar (@orangebegum) is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

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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Dorothy Roberts’s magisterial Torn Apart brings together decades of her work through a prism of being at the frontlines of struggle. Her work amplifies Black mothers in Chicago, New York City, and all around the country who understand the place of their children’s kidnapping in a larger racial, gendered, and economic order, and who fight for their families as they contest and attempt to do undo this hydra-like punishment regime. Part of what Roberts shows so powerfully is the importance of coming together to create counter-narratives to those that prevail around us that aim to distort and obscure what is obvious: that other people — particularly Black, femme, queer, poor, working class, marked “criminal” in one way or another — are not the enemy of the people. They are the people. Indeed, according a 2017 study that Roberts cites, “more than a third of all children experience a CPS investigation at least once by their eighteenth birthday,” with “more than half of Black children” subject to a CPS investigation, “almost twice the rate of white children.”

This is not merely an issue of violence but economic distribution. As Roberts explains, “most federal funding for child welfare services becomes available to families only after their children have been placed in state custody, and the money is spent primarily on the cost of family separation.” In devastating detail, she places family policing within long historical arcs: within practices of slavery and settlement that separated Black and Indigenous peoples, at the auction block and to boarding schools. In the 1990s, she connects Congress’s gutting of welfare through the Temporary Assistance to Needy Families program (TANF) with the facilitation of family separation through financial incentives for states in the Adoption and Safe Families Act (ASFA). While President Clinton “direct[ed] the federal government to . . . double the number of foster children adopted annually,” the First Lady “made adoption a centerpiece of her children’s rights platform.” Family policing, in other words, is a bedrock of our economy.

Wendy Bach’s book, Prosecuting Poverty, Criminalizing Care, documents the criminalization of Black, poor, and working-class mothers. Bach spent countless hours studying and talking to women subject to criminalization, as well as to the many legal workers who facilitate it through their labor. As she shows, when it comes to race-class-gender subjugated communities, care is often used as a smokescreen for punishment — to enable the prosecution of mothers for drug use through preexisting criminal laws and to further the reach of criminalization through new laws. The book opens, for example, with a vignette of Tennessee legislators coming together in 2013 to enact the crime of “fetal assault,” purportedly to care for pregnant people using illegal drugs. Bach explains how legislators cast criminal prosecution as a pathway to treatment for drug use, a story belied by the subsequent prosecutions under the law of “120 mostly low-income women – rural, urban, Black, and white,” which delivered the standard fare of the criminal system: incarceration, surveillance, and debt. These harms, she explains, are products of “structurally instituted bias, neoliberal disinvestment in social support, and the building of an enormous carceral system.”

Each text is a model of scholarship in service of people’s struggles—each takes race, gender, and class seriously, as well as racism, patriarchy, and capitalism. Each emerges from people’s struggles, and each aims to contribute to people’s struggles. I mean this both in a contemporary sense and in a long historical arc. Through these texts you can see the long work of Black feminist practice and intellectual production. Torn Apart’s centering of abolition and racial capitalism marks the text within the Black Radical Tradition, too. 

These books show that that to understand the carceral state and its political economy, or the mechanisms of raced and gendered capitalism, we must put the criminalization of pregnancy and Black women and family life at the center of our analysis. Our conception of punishment must be broader than any narrow conception of ‘criminal law,’ and our calls for care must attend to its tentacles of criminalization. We must take seriously the histories of Black women’s struggles. “Prison abolitionists should support defunding the family-policing system and be careful not to enrich it more with funding divested from the police,” Roberts powerfully argues.

Both books point to the state’s use of care as a pipeline for family separation and incarceration. Bach shows how so-called problem-solving courts do not minimize the impact of criminal law, but rather expand its reach. At the LPE conference on Labor, Social Control, and Counterpower this spring, I heard Joyce McMillan, who Roberts writes about, discuss family policing and its purported care as a kind of connective tissue between various forms of carceral control: between schools and courts and juvenile detention for example. In identifying care as a crucial nexus through which the state exerts and legitimizes its control, Bach, Roberts, and McMillan are far from alone. Kaaryn Gustafson has written about the entanglement of criminalization and welfare. Similarly, in a forthcoming work, Ji Seon Song writes that the power of probation lays in its purported relation to care and services.

If care is a cover for criminalization, what do we do with a framework like “care not cops”? To provide care through carcerality is not only a trap but a nefarious revanchist project targeted at millions and millions of people struggling to make ends meet. Carcerality undoes rather than makes the solidarity and collectivity we need to survive and thrive.

The carceral state is in a deep legitimacy crisis, with questions about its proper function up for public debate, and social movements pushing for care, public safety, and accountability. If we look at how the language of public safety and accountability have been coopted by the political class, there is reason to expect the same with care. In Abolition. Feminism. Now., Angela Davis, Gina Dent, Erica Meiners, and Beth Ritchie describe the Chicago Police Department’s relatively recent creation of an Office of Restorative Justice Strategies. As Davis and her coauthors explain, “[s]uccessful organizing that mobilizes people and makes effective demands on the state is sometimes coopted and absorbed.”

Or consider the shape-shifting name of the police training facility—what activists and many others now call Cop City—that the Atlanta Police Foundation and its partners in City Hall hope to build despite raging public opposition. Kamau Franklin with Community Movement Builders has framed the project as bid by police and the ruling elite to reconsolidate their power in response to the 2020 uprisings in Atlanta and the Atlanta police’s murder of Rayshard Brooks, who fell asleep in a Wendy’s drive-thru. When the police foundation unveiled its plan in 2021, they dubbed the facility “The Institute for Social Justice.” While the foundation eventually backed off that name, they then opted for a seemingly anodyne moniker, “The Atlanta Public Safety Training Center.” 

Franklin explained at a 2021 town hall: “What we have here is a city dedicated to protecting the police while pushing out poor, working-class residents — particularly Black, poor, working-class residents — under the guise it’s helping to protect people.” According to the police foundation, the rationale for the facility is to redress low police morale, reduce police killings, and “reimagine” police training and community engagement. While the specifics of the plan have evolved through the course of mounting opposition, all of the plans feature fixtures like firing ranges, “kill houses,” and a “mock city” for training how to respond to social unrest that suggest policing as usual—policing as it is.

And yet, the evolving language used by the foundation and Cop City’s defenders demonstrates the shifting political ground: proof of a dent in the carceral armor produced by a decade of riot and revolt. The carceral state is simultaneously durable and plasticine. Jonathan Simon recently issued a helpful reminder that the carceral state is subject to constant popular resistance and therefore always shape-shifting. Another example I noticed this week: after being subject to campaigns in Chicago and beyond, and plummeting stock prices after Brandon Johnson’s mayoral election, the company ShotSpotter rebranded as “SoundThinking” earlier this year

Another way the ripple effects of the 2020 rebellions and abolitionist organizing are being absorbed is the turn to professionalization. Social workers are being deployed to meet the call for “care not cops.” Municipalities across the country are experimenting with non-police responses to varied social problems like mental health crises and traffic. These efforts are important: they signal that abolitionist organizing and social insurgency have built sufficient power that the political elite has had to respond. 

But professionalization and professional services will not redress the exploitation of capitalism or the violence of family policing. They may in some cases have conservatizing effects. Care and public safety are about a lot a more than expanding the professional managerial class. 

What we need is not a mystery. As Roberts explains, even a 2019 report commissioned by Congress “recommended drastically expanding programs that give material support to families, ‘either directly, by providing income transfers, or indirectly, by providing food, housing, or medical care.’” Both books suggest the need for and emergence of a popular agenda for decommodification of a whole range of social goods, as I have described elsewhere.

The harder question is how to get there. Bach suggests reforms “separating punishment systems from care systems, avoiding reforms that transfer additional resources to punishment systems, and avoiding collaboration between punishment and care systems.” In her prologue, Roberts marks her disillusionment with reform after two decades of involvement with failed efforts “to improve foster care” and “address its racial disparities.” She calls instead for non-reformist reforms toward abolition. 

One of the demands Roberts highlights is for “legislation that guarantees parents high-quality, multidisciplinary legal defense at every stage of the CPS process, including at initial contact with caseworkers, before children are removed.” (On this blog, Julia Hernandez and Tarek Ismail have written about their CUNY clinic’s role in providing families “radical early defense” of this sort.) On our author-meets-reader panel at Law and Society, I was struck by Roberts’s explanation that while many abolitionists may be skeptical about the right-to-counsel as a strategy to defend against carceral power, she stands by what families subject to the process repeatedly say they need. This is, of course, a key dimension to the non-reformist reform: a demand for a change that attacks the legitimacy of the prevailing order, and brings us closer to a reconstituted one, that emerges from popular and democratic power. The driver of Roberts’s book in particular is the growing number of families impacted by family policing that are organizing and demanding change. It is here, in the building of popular power against cruelty and exploitation, and collective capacity for self-determination that we must focus. 

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