B. Expanding the Poverty Defense
Some critics may find child neglect cases an ill-suited foundation for expanding the poverty defense to other areas of the law. Perhaps child neglect is just too different from other crimes. Then again, each type of crime has its own definition, required mental state, pathologies, and causes, and each criminal act arises within its own social context. For these reasons, Professor Stuart Green has argued that “a proper analysis of the relationship between distributive and redistributive justice should proceed on a case-by-case basis.” He would consider the appropriateness of a poverty defense by examining the offense at issue, the precise form of the offender's disadvantage, and the economic and social circumstances of the victim. Given that the poverty defense has thus far emerged in response to only one type of wrongful conduct, a case-by-case approach based on particular crimes might be more achievable than the generalized RSB defense advocated by Judge Bazelon and Professor Delgado.
Under Professor Green's analysis, it is difficult to excuse or justify intentionally violent offenses against other people because the moral underpinnings of these offenses “do not depend on background considerations of social justice.” This reasoning may explain why negligent conduct is sometimes excused in child welfare law, but intentional acts of abuse are not (even though many abusive acts are also rooted in RSB backgrounds). For its part, in 2012, the Supreme Court acknowledged the correlation between growing up in an environment of severe deprivation and crime in Miller v. Alabama but would not go as far to excuse the crime. In Miller, the Court held that life sentences for juvenile homicide offenders without the possibility of parole violated the Eighth Amendment's proscription on cruel and unusual punishment. The Court stated that a sentence of mandatory life without parole not only ignores scientific research on juvenile brain development, but also “prevents taking into account the family and home environment that surrounds [the defendant]--and from which he cannot usually extricate himself--no matter how brutal or dysfunctional.” The Court pointed out that the defendants whose cases were on appeal came from deprived backgrounds, commenting with regard to one of them,
if ever a pathological background might have contributed to a 14-year-old's commission of a crime, it is here. Miller's stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.
Still, the Court demonstrated no willingness to excuse liability with regard to homicide, stating, “[t]hat Miller deserved severe punishment for killing [the victim] is beyond question.” The Court did not explain why the RSB that supports mitigation of punishment does not also lessen liability. Others have argued that mitigation of punishment fits more comfortably within our legal system than does amelioration of liability.
Yet punishment is not the only option for dealing with wrongful conduct. Depending on the crime, there may be creative options for excusing defendants while serving retributive and deterrence functions of the criminal law. For instance, in the child welfare system, greater resources and services for poor parents can often eliminate the “crime” altogether and ensure safety and security for children. For those parents whose RSB makes them unable to meet their children's needs even with state support, a variety of options can excuse their conduct while keeping children safe. Parents with an RSB defense could lose physical custody of their children while retaining visitation rights, so that family ties are not permanently severed. Alternatively, RSB parents could have the opportunity to petition to reinstate their parental rights in the future as their circumstances improve. Accordingly, in considering potential poverty defenses across the legal spectrum, it is important to remember that not all offenses pose the quandary facing Judge Bazelon. In some cases, flexible and just solutions may be available to excuse and support defendants while protecting the interests of victims and society.
A poverty defense to non-violent crimes, in particular, avoids the public safety quandary. Starting with these crimes, a poverty defense may help to sharpen our assessment of individual and societal culpability and thereby produce more accurate judicial decisions, more generous crime prevention strategies, and more effective interventions. The poverty defense could eliminate the inequity that arises in a system that punishes the wrongdoing of the poor with incarceration, while imposing lenient fines and regulatory controls on more affluent wrongdoers. Of course, a poverty defense is not the only way to avoid criminalizing poverty. Alternatives include mitigating punishments based on a defendant's poverty or decriminalizing certain conduct altogether. The possible advantages of the poverty defense are that it allows defendants to avoid the collateral consequences that accompany convictions, such as barriers to future employment and housing, as well as loss of certain public benefits and voting rights. A poverty defense also retains the law's expressive effect of declaring certain conduct undesirable. The ideal solution is the elimination of poverty, which would make the poverty defense unnecessary. Until then, the poverty defense can break the assumed link between poverty and culpability.
Crimes appropriate for a poverty defense might include “victimless” crimes committed almost exclusively by the poor, including the crimes related to homelessness, drug use, truancy, and turnstile jumping. These crimes are different from child neglect (in which the justice system is moving to protect a victim), but they are similarly rooted in poverty. In addition, the defense could extend to crimes of poverty--that is, crimes that people engage in for economic survival--such as public benefits fraud, low-level drug dealing, panhandling, prostitution and minor thefts. The defense might also cover crimes poor people commit in order to survive in a dangerous community, such as unlawful possession of a weapon. In addition, the poverty defense in child neglect cases should be adopted in the twenty-five states that currently lack the defense or, better yet, incorporated into Title 42 of the United States Code, the federal law that funds the foster care system. As the justice system gains more experience with the poverty defense and becomes more sophisticated in understanding poverty, the defense can be expanded to other forms of wrongful conduct.
The social forfeit strain in child neglect law is particularly helpful in conceptualizing an expanded poverty defense. Courts using a social forfeit model examine the conduct and choices of both parents and the state in determining the causes and solutions for alleged neglect. This model does not absolve individual wrongful conduct but rather apportions it in a context in which it can be better understood and hopefully ameliorated. It provides a theoretical basis for moving beyond individual responsibility toward a model of mutual dependency, in which citizens and the state not only claim rights but also owe each other responsibilities. Criminal justice scholars assume that such a “thick” view of citizen-state relationships is normatively impossible and/or theoretically undesirable. But they have failed to notice the social forfeit strain in child neglect case law and how this approach could provide a framework for similarly thick approaches to other areas of the law. Judge Bazelon and Professor Delgado argue that society should be put on trial; the child neglect case law shows that this is possible without absolving individual responsibility.
While some courts are concerned about letting poor parents off the hook for conduct that would penalize richer parents, it is hard to conclude that the poverty defense gives poor parents a free pass to neglect their children. The child welfare system scrutinizes allegedly neglectful poor parents, removes their children from their homes, and mandates parental compliance with extensive case plans. Even with a poverty defense, these parents must demonstrate the capacity, initiative, and responsibility to improve their parenting.
The alternative to the poverty defense is removal of children and termination of parental rights, and sometimes incarceration of parents. Yet foster care is no panacea, as there is ample evidence that remaining in a setting of parental neglect is usually more beneficial for children than foster care. Similarly, while incarceration is an easy, albeit expensive, way to punish criminals, it has proven devastating to families and communities. A poverty defense can lead to more preventative programs by forcing decision makers to confront the paucity of alternatives available to defendants. When poor Americans lack viable alternatives for avoiding wrongful conduct, individual culpability lessens.
There is no evidence that the poverty defense has stigmatized individuals or communities by denying the poor moral agency. It does not presume that poor parents are culturally incapable of raising their children. Rather, the poverty defense recognizes that structural features within our society create financial hardship that sometimes leads to inadequate parenting. Furthermore, the defense is not applied in a blanket fashion; each defendant must show how her unique RSB or current economic condition excuses her specific conduct. Most poor parents are not charged with neglect, and the poverty defense indirectly acknowledges the resilience of these families in the face of economic inequality. As Thomas Ross has written, “Against all odds, facing social stigma and working through maddening systems of public assistance, the poor have survived. Many poor women and men have kept their families together and maintained safe and decent lives in the midst of conditions that would seem to make family disintegration inescapable.” There is already a stigma to being poor in our society, but the stigma of being a neglectful parent is even worse. Thus far, the poverty defense has proven more helpful than harmful, not only keeping families together, but also giving some parents increased services and support.
For some critics, this is simply too much--a poverty defense cannot and should not bear the weight of redistributive aims. This critique, however, is diminished in the context of child neglect, where the poverty defense has been primarily a legislative creation. This limits condemnation of unelected jurists run amuck, and suggests a political avenue for expansion of the poverty defense to other realms. At bottom, however, the critics are correct in that the poverty defense has not worked “a massive transformation of our social structure” and is unlikely to do so. A poverty defense does not reduce poverty, and parents in the child welfare system remain poor. However, the poverty defense shines a light on poverty, its effects, and the constrained choices it imposes. Understanding the problem is the first step towards fixing it. The ultimate goal is a shift from retributive penal policies to redistributive social policies, and greater safety and security for all. As Judge Bazelon stated, “[R]ather than conceding the inevitability of social injustice and seeking the serenity to accept it, we must recognize its intolerability and search for the strength to change it.”