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Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.

As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos.1 And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms.2 While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991.

But it is not just criminal justice scholarship that has overlooked the plight of black women. The same is true, Roberts argues, of feminist scholarship, which has focused on the effects of welfare on women, but has been less attentive to the role of the public child welfare system on poor mothers’ ability to care for their own children. In this article, Roberts remedies this oversight and identifies the connections between these two systems. Using government statistics and reports, she shows how the interactions of the prison system and the child welfare system results in the massive removal of children from black mothers, choosing to punish black mothers by severing their familial ties rather than addressing the root causes of their poverty. Federal legislation compounds the injury by shifting support for children from public assistance to often-elusive private employment, or even to adoptive families.

Roberts thus makes two novel and substantial contributions to antiracist and feminist scholarship: she extends the discourse about mass incarceration and the prison system’s role in maintaining racial inequality to focus specifically on black women, and she analyzes how the prison system and the child welfare system intersect to punish black mothers because they are black and because they are women. Roberts poignantly names this intersection a “system of interlocking oppressions.” Since black women suffer the combined effects of racism and sexism, they have experiences and suffer injuries that are different from those of white women and black men. The systems create conditions that uniquely injure black women in two fundamental ways: by political choices to fund punitive instead of supportive programs, and by the discretionary actions and perspectives of decision-makers that are fueled by destructive stereotypes of black women as irresponsible “welfare queens”—sexually promiscuous, carelessly prolific of unwanted offspring, and unfit to raise children.

As Roberts explains, punitive political choices include treating allegations of public-benefits fraud as criminal matters rather than civil infractions, criminalizing drug addiction, and focusing resources on the termination of parental rights and adoption rather than the reunification of poor black mothers with their children. The criminalization of black women, in effect, pushes women into the prison system, which then works with the child welfare system to destroy family relationships. Take, for example, the case of children born to women who are incarcerated. Immediately after delivery, the vast majority of states automatically place their newborns in foster care; federal law encourages the termination of their parental rights; and the requirements imposed by child protective services are often virtually impossible to comply with, given the frequent conflict between prison policies and those of child welfare systems. Despite these manifest difficulties, child welfare authorities may view a mother’s failure to visit and communicate with her child as abandonment and grounds for terminating parental rights. The remote locations of most prisons, the cost of travel, and inadequate government support for relatives for childcare exacerbates the problem and decreases the likelihood that black mothers will be able to overcome the odds and maintain healthy relationships with their children. Finally, when mothers are released, post-prison collateral penalties make it difficult to maintain the parent-child relationship. These collateral penalties include federal and state laws that deny drug offenders public benefits, housing, education and job opportunities, and that bar individuals with criminal records from certain employment. Without a job or place to live, women can find it very difficult to meet the requirements of child welfare agencies and thus risk the termination of their parental rights.

Critically, Roberts makes clear that even outside of its intersection with the prison system, the child welfare system has evolved over time into one that is designed to punish black mothers. Indeed, as the system began to serve fewer white children and more children of color, state and federal governments made a choice to spend more money on out-of-home care and less on in-home services. As Roberts has extensively discussed throughout her scholarship, the system responded to an increasingly black female clientele by reducing services to families while intensifying its punitive functions. In effect, the mission of child welfare changed from protecting children from social disadvantages stemming from poverty and racial discrimination to protecting children from purported maltreatment at the hands of their mothers.

Roberts is quick to note that the damage that comes from attributing poor black families’ hardships to maternal deficits is dangerous. This practice obscures the systemic causes of these hardships, devalues black family bonds, and, as Roberts makes clear, “prescribes foster care in place of social change and services.” The result is that black children are unnecessarily separated from their mothers and that white, middle-class and affluent parents can ignore the injustice of the system by believing the false narratives about poor black mothers. The act of blaming black mothers is particularly insidious because it justifies unnecessary state intrusion into the family and because it allows privileged families, who otherwise might advocate for change, to ignore the injustice of the system.

Ultimately, Roberts believes that the state’s role in assisting families should be much greater, and furthermore, that the overrepresentation of black children in foster care results from racial, class, and gender inequities in U.S. society and child welfare practices. The solution to maternal incarceration, Roberts suggests, is family support and reunification, not permanent disruptions. Her perspective is not unopposed by feminists or child protection experts. Roberts’ article is a profoundly important one in an ongoing debate about a child welfare system that is in crisis. The other side of the debate is possibly best represented by Harvard Law School Professor Elizabeth Bartholet, who begins with the premise that current practice fails to protect children from abuse and neglect, and thus, recommends an aggressive policy of family intervention. The premise of Bartholet’s book, Nobody’s Children,3 is that child welfare policy is flawed because, notwithstanding our best efforts, family preservation has proved a futile endeavor. It is society’s commitment to “blood bias,” according to Bartholet, that keeps us focused on family preservation to the detriment of the lives and well-being of children. Bartholet, consequently, strongly supports federal legislation that makes it easier to terminate parental rights, speeds up the timeframe for the termination of parental rights, and provides states financial incentives for terminating parental rights in the process of freeing children for adoption.

In addition to continuing the debate about how to repair a broken child welfare system, Roberts fundamentally challenges the existing discourse by exploring how black women are situated both in the discourse of mass incarceration and child welfare and how race, gender and class form the backdrop against which the systems intersect. In doing so, the article breaks the silence for black mothers, who had largely fallen into the gaps of antiracist and feminist discourse. Ultimately, Roberts’ latest article is a must read for family law scholars, gender scholars, children’s rights scholars, and for anyone interested in the structural and political dimensions of race, gender and class, as it has important implications not only for debates about antisubordination, antiracism, and feminism, but also for the right to family unity and children’s independent rights to be raised with their families and within their culture.

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  1. See Loic Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 Punishment & Soc’y 95 (2001).
  2. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2011).
  3. See Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative (1999).
Cite as: Shani King, Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women, JOTWELL (October 15, 2013) (reviewing Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012)),