A poverty defense is not merely a hypothetical exercise, as is often assumed. Rather, there is a widespread poverty defense within the law of civil and criminal child neglect, and some families have remained together as a result of the defense. The poverty defense can make a difference. However, the poverty defense only fulfills its potential when actors in the child welfare system have a rich understanding of the causes and consequences of poverty. When the child welfare system conflates poverty with culpability and ignores the structural realities of our economy, families are torn apart, children suffer, and society pays social and economic costs. By contrast, when the child welfare system views poverty as structurally rooted, the poverty defense not only assists individual poor defendants, but also benefits society more widely through redistributive consequences that can ultimately reduce crime.
At its worst, the poverty defense fools us into thinking that we are compassionate about the challenges facing poor parents, when, in fact, we remove thousands of poor children from their parents each year. At its best, the poverty defense forces the child welfare system to confront the link between poverty and child neglect and to consider societal responsibility for that link. In short, the poverty defense in child neglect cases reveals that such a defense is neither as radically subversive of American law as its critics contend, nor as revolutionary as its proponents pronounce. It is, however, remarkable in American law.
. Professor of Law; Director, Civil Advocacy Clinic; Co-Director, Center on Applied Feminism, University of Baltimore School of Law