Become a Patron! 


Michele Estrin Gilman

excerpted from: Michele Estrin Gilman, The Poverty Defense, 47 University of Richmond Law Review 495 (January, 2013) (380 Footnotes)


Is stealing a loaf of bread to feed a starving family of eight a crime? Or, is poverty a defense? In Victor Hugo's classic, Les Misérables, the protagonist, Jean Valjean, commits this crime and is sentenced to five years of hard labor. Hugo clearly intends the reader to sympathize with Valjean. The punishment not only seems grossly disproportionate to the crime, but Valjean also seemingly had no other choice. While Valjean's crime may inspire sympathy among readers (and musical theater aficionados alike), it is widely assumed and accepted in our American criminal justice system that poverty is not a defense to crime. In 1971, Judge David Bazelon of the United States Court of Appeals for the District of Columbia famously challenged this assumption, arguing, in dissent to a decision upholding a murder conviction, that juries should be allowed to consider a defendant's “rotten social background”--that is, how growing up under circumstances of severe environmental deprivation can subsequently influence a criminal defendant's mental state and actions.

In turn, Bazelon's dissent spurred a lively academic debate as to whether the law should recognize a poverty defense, what such a defense would look like, and how it would operate. The question is presumed to be the stuff of the ivory tower; one scholar deemed it “entirely the province of intellectuals engaged in scholarly debate.” Gone unnoticed in this debate is that one area of law recognizes a poverty defense to wrongful conduct, and this defense is implicated in thousands of cases a year. In both civil and criminal child neglect cases, various states recognize that conduct that would otherwise be considered neglect is excused on account of a parent's poverty. In short, a poverty defense is not hypothetical. The child neglect case law provides evidence about how the poverty defense works in practice and can guide scholars--and more importantly, lawmakers and courts--in considering whether to extend a poverty defense to other areas of the law.

Considering a poverty defense is timely in light of our increasing poverty rate and the correlation between poverty and crime. As of 2010, more than fifteen percent of all Americans live below the federal government's official poverty line, which is $22,314 for a family of four (meaning that a family earning $22,315 is not considered poor). Twenty million Americans, or 6.7 percent of the population, live in extreme poverty, defined as those living at fifty percent or less of the official poverty level. Of people in the labor force, 7.2 percent--or more than ten million people--do not earn enough to be lifted out of poverty. While the link between crime and poverty is complex, statistics show unequivocally that poor people are overrepresented in the criminal justice system. Further, mass incarceration policies have a particularly devastating impact on low-income, African American, urban communities, as one-third of black men in their twenties are under supervision of the criminal justice system. “By reducing parental capacity to parent children, by further weakening already challenged family structures and resources, and by making already disadvantaged families and communities even less economically viable, incarceration helps to reify a social dynamic that is likely to encourage further involvement in crime.” This was the cycle that Judge Bazelon hoped to break, or at least expose, when he proposed the “rotten social background” defense.

In addition to these dynamics, poverty is becoming increasingly criminalized. Cities across America are making the daily tasks of living for the homeless a crime, passing laws that forbid sleeping, eating, begging, or sitting in public spaces. In some cities, it is even illegal for groups or individuals to serve food to homeless people. At the same time, at least eighty percent of reporting jurisdictions that criminalize homelessness lack adequate shelter space, public toilets, or storage facilities for the homeless to keep their belongings. Thus, a lack of services creates the very conditions of lawlessness. In addition, states, while intensifying welfare fraud prosecutions, increasingly treat poor people who resort to public benefits as criminals, subjecting them to fingerprinting, biometric imaging, ongoing surveillance, and drug testing as a condition for receiving benefits. While debtors' prisons have formally been abolished, the reality is that courts are increasingly jailing poor people who cannot pay off their debts; and, in many cases, these debtors are not even aware that they are being pursued by creditors due to “sloppy, incomplete or even false documentation.” A poverty defense has the potential to serve as a corrective to these trends.
Scholars have articulated at least three differing conceptions of a poverty defense, each of which are reflected in the child neglect case law. In some cases, the child neglect poverty defense most closely resembles traditional criminal law defenses of either necessity or duress, in which external forces that compel a defendant to engage in wrongful conduct lessen or extinguish culpability. Other approaches reflect Judge Bazelon's idea of rotten social background, in which an impoverished upbringing renders a parent unable to fulfill parenting duties. In a third approach, the poverty defense embodies social forfeit theory, in which society's tolerance of severe economic inequality deprives society of the moral authority to blame deprived defendants for their conduct. Regardless of the court's theoretical underpinning, the poverty defense rarely succeeds unless the court has a sophisticated understanding of poverty and how it leads to neglect. Thus, this article argues that not only is the poverty defense an established (albeit overlooked) feature of American law that can be expanded into other areas, but also that it will not fulfill its potential without a rich conception of poverty.

The article proceeds as follows. Section I explains the major theoretical justifications for excusing poor defendants for committing wrongful conduct and sets forth the objections to a poverty defense. Section II provides the context for the poverty defense in child neglect cases, exploring the link between poverty and child neglect and the scope of the poverty defense. Section III analyzes how courts interpret the poverty defense in child neglect cases, demonstrating that all three theoretical approaches to a poverty defense are found in the case law. As Section III explains, a court's conception of poverty drives its interpretation of the poverty defense. Courts that see poverty as rooted in structural causes are more amenable to the defense than courts that view poverty as a result of behavioral failings. Section IV draws lessons from how the poverty defense is applied in child neglect cases in order to inform other areas of the law. Section IV concludes that the poverty defense is not the impossible pipedream painted by its critics. Nevertheless, the defense has not fulfilled its potential because many courts lack a sophisticated understanding of how poverty is related to neglect. Moreover, courts are often uncomfortable with the implications of the poverty defense and how it conflicts with accepted norms of individual culpability. Accordingly, Section IV provides ideas for strengthening the poverty defense and suggests areas for its expansion.



Professor of Law; Director, Civil Advocacy Clinic; Co-Director, Center on Applied Feminism, University of Baltimore School of Law