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Michele Estrin Gilman

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

      The poverty defense in civil and criminal child neglect cases proves that a poverty defense is not the impracticable pipedream charged by critics. In fact, the poverty defense has made a difference by keeping some families intact that would otherwise have their parent-child bonds permanently severed. Its consequences are concrete. Accordingly, a poverty defense may hold promise for other areas of the law and cannot be as easily dismissed as its critics assume. Although the statutes do not define the scope of the child neglect poverty defense, at least three theoretical approaches emerge from the case law: (1) coercion; (2) RSB; and (3) social forfeit. The cases demonstrate that, regardless of the form of the defense, it will not succeed unless courts have a rich understanding of the causes and consequences of poverty. Success does not mean that parents always win; there are some cases in which no amount of services or support will lead to acceptable levels of parenting. The safety and security of children must be paramount. Accordingly, success can result when poor families are not judged in isolation for their failings, but rather have their challenges and barriers taken into account within a larger societal context. Positive outcomes can include more reasonable treatment plans, greater commitment of state resources for families, and a more careful assessment of whether parental failings are sufficiently harmful to justify removal.

A. Understanding Poverty

      As the cases reveal, many courts simply do not understand or delve into the causes of poverty and its multi-dimensional effects, and thereby conflate poverty with culpability. The prevailing explanation for poverty in the United States is that behavioral choices cause poverty. In this “culture of poverty” perspective, the poor make deficient choices that trap them in poverty. This “culture of poverty” theory meshes well with the American myth of the meritocracy, which holds that anyone can pull themselves up by their bootstraps with hard work and determination. The flipside of this myth is that a failure to thrive in a capitalist economy is equated with moral failings. A neglectful parent is thus doubly to blame--she has failed both to succeed economically in a merit-based system and as a parent. As Martin Guggenheim has stated, most observers see child neglect as a family defect, “with limited or nonexistent societal roots,” rather than a problem with societal roots. In light of this paradigm's focus on the individual, there is little call for collective responsibility or action to reduce poverty. Rather, this perspective “provides a justification for doing so little.”

      A countervailing narrative of poverty is that structural forces cause poverty. This structural explanation for poverty holds that the poor are subject to forces that limit their economic opportunities and trap them in the underclass. For instance, globalization, the weakening of unions, and economic shifts from a manufacturing base to a service economy have left people lacking advanced degrees behind. Likewise, the lack of a living wage, affordable housing, or child care, keeps even working adults trapped below the poverty line. In addition, a legacy of race discrimination in housing and the workplace, as well as the criminal justice system, keeps poor people of color isolated from the mainstream economy. Purely structural responses to poverty are few and far between, making the “poverty defense” in child neglect cases unique. Yet, structural explanations do not capture how individuals, living real lives, respond to and cope with these larger social and economic forces. For instance, a judge presiding over a child neglect case cannot ignore a hungry child because the local steel mill that formerly employed the parent has outsourced its work to China. The court must deal with the family before it.

      Accordingly, a more accurate conception of poverty places individual choices within a framework of structural factors. Sociologist William Julius Wilson, who focuses on low-income, urban, African American communities, first advanced this perspective. He acknowledges various social pathologies and dislocations within the underclass, such as crime, teenage pregnancy, and a rise in single-mother families; however, he places these trends within a broader social context. People who grow up in racially segregated, poor neighborhoods develop coping mechanisms and responses that “emerge[] from patterns of racial exclusion” and that ultimately limit social mobility. While conservative theorists blame the poor for making bad choices, Wilson explains that “structural factors are likely to play a far greater role than cultural factors in bringing about rapid neighborhood change.” For instance, when the economy is strong, concentrated poverty and its associated pathologies decrease and vice versa. If culture were as determinative as conservative theorists posit, increased economic opportunity would not have such a great impact in transforming poor communities. In short, “[c]ulture mediates the impact of structural forces such as racial segregation and poverty,” and the resultant behavior “often reinforces the very conditions that have emerged from structural inequities.” Of course, structural factors combined with personal choices determine economic status for everyone, not simply the poor.

      In the years since Bazelon proposed the RSB defense, there has been extensive new psychological and social science research about how poverty influences behavior. Psychologist Craig Haney surveys this research and concludes that “crime is often committed by persons whose early lives have been pervaded by a great many of . . . potentially damaging risk factors and whose present circumstances include numerous environmental stressors.” Poverty is both a major risk factor and an immediate stressor. As Haney summarizes, poverty has negative effects on childhood development, including “lowered levels of self esteem, high levels of frustration, poor impulse control, and problematic intellectual performance and achievement.”

      Poor children are also exposed to “social toxins,” such as violent neighborhoods and negative role models that skew them toward delinquency and crime and result in dysfunctional coping mechanisms, such as drug addiction and gang membership. Faced with these risk factors, many poor children grow up to be poor adults mired in disadvantaged neighborhoods, where there are high rates of unemployment, transience, and inadequate housing. In turn, these environments can change the way people think about themselves, make them more likely to give into feelings of desperation, and exert pressure on people to engage in illegal conduct. In sum, “[r]isk factors have a direct impact on individual development, increase the likelihood that someone will be exposed to other potentially debilitating risk factors, and make it more likely they will be exposed to problematic social contexts later in life.”

      This research suggests that with regard to a poverty defense there is a role for both the RSB emphasis on social history, as well as the necessity/duress approach to how financial hardship can severely restrict the options available to poor parents. To separate poverty from culpability, actors involved in the child welfare system will need to better understand this emerging research, and lawyers for parents and children will need to educate child welfare workers and courts on how structural economic forces constrain parenting conduct. This is not an easy task. To begin with, child welfare workers are often overworked and overwhelmed and have to make difficult decisions about child safety under pressure. Likewise, even though parents are generally entitled to representation in child dependency hearings and criminal neglect hearings, those lawyers are similarly overburdened and may not have the time or resources to delve into larger social issues surrounding poverty and neglect. This is also true for counsel or guardians ad litem appointed to represent children, as well as judges. Moreover, child neglect hearings usually do not involve experts testifying on issues such as the availability of jobs in the local economy, the lack of affordable housing, or the accessibility of mental health resources. While the child welfare agency may have experts at its disposal, low-income parents cannot afford their own psychiatrists, therapists, and social workers to testify on their behalf. Further, participants within the child welfare system, including caseworkers, lawyers, and judges, carry their own implicit race, gender, and class biases and impose them on parents, who are disproportionately female, minority, and poor.

      Despite these obstacles, the poverty defense in child neglect law can be effective. As the case law exhibits, some judges have noticed the economic realities facing poor parents or have taken an inquisitorial role by scrutinizing the findings of the state's experts. Lawyers for parents, and even some parents themselves, have made compelling arguments about the difficult situations facing poor parents and the lack of state support. The challenge is to expand this sort of reasoning and advocacy throughout the child welfare system, preferably before these cases get to the litigation stage. Possible strategies include increased training for case workers and other actors within the child welfare system about the nexus between poverty and neglect and the causes of poverty. The research is constantly emerging; however, it needs to be disseminated. Advocates for the poor and legal clinics can work together to distill localized economic data and to recruit interdisciplinary experts who can translate structural information for case workers and courts. The child welfare system should also take better account of strengths within families, rather than focusing solely on pathologies.

      Beyond individual cases, there have been multiple child welfare class actions that have successfully presented evidence about structural factors in order to reform child welfare process and to obtain increased services for low-income children and parents. Class action litigation can typically harness greater advocacy resources than individual cases. The dynamics of poverty and neglect can also be discussed among participants in non-adversarial child welfare settings, such as family group conferencing and other fora that are increasingly being set up to address child neglect. In addition, legislators can be responsive to the effects of poverty by increasing funding for family support services; after all, it has been legislatures, not courts, that have largely created the poverty defense and the right to counsel in child welfare cases. For the poverty defense to realize its full potential, advocates will need to think creatively and expand their notions of relevant evidence regarding both parental and state culpability. Similar strategies would be needed wherever the poverty defense expands.

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.”


      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