Group 3: Regulating FamiliesFamily Policing as Security TheatreTarek Z. Ismail, City University of New York School of Law
This Article suggests that Child Protective Services agencies and officers conducting investigations regularly flout the de minimis Fourth Amendment requirement for voluntary consent, largely because they do not believe it applies to their agents with its full force. It explores how CPS comes to this conclusion, and how courts have missed this question. Beyond the applicable legal frame, the Article breaks new ground by arguing that families subject to consent-proof CPS home searches are securitized objects in a security theatre.
The government communicates to the non-policed public that it is doing its job by protecting children; it communicates to the policed public that it has no choice but to play a central role in the production, resulting in unsaid trauma to generations of disproportionately Black individuals, families and communities alike. By exploring how consent-proof home searches constitute a broader CPS security theatre, this Article frustrates the dominant narrative that policed families are willing subjects of CPS surveillance.
Instead, the Article explores how security theatre is used to conceal both the ineffectiveness of CPS home searches in protecting children on the one hand, and the devastating impact of CPS home searches on policed families on the other.
Ultimately, this Article calls for the dismantling of CPS security theatre. Affected families – policed parents, children, and former foster youth – have already begun to break the fourth wall, by communicating unapologetically the harms of CPS intervention into their families. Following their lead, the Article suggests concrete legal and policy changes which would increase the well-being of children and families, and move toward ending the harms described here.
Book Proposal: Removing the Bias of Criminal Convictions from Family LawJane K. Stoever, University of California, Irvine School of Law
“I know your client better than you do. I’ve seen her RAP sheet,” said a family court judge as my Domestic Violence Clinic law students and I approached counsel’s table with our client. Despite her experience of gun violence, sexual assault, and physical abuse during pregnancy, this client’s record of arrests and prosecutions (RAP sheet) haunted her as she sought safety from domestic violence and custody of her children, as made clear by the judge's statement at the outset of trial and in his ruling.
What happens when a legal system reduces a person to a RAP sheet and prioritizes that information in family court? Given how the criminal legal system disproportionately arrests, charges, and sentences people of color and increasingly criminalizes abuse survivors, this convergence of heuristics and bias harms litigants, families, and communities.
For the WIP session, I seek to workshop a book proposal that expands the analysis in my recent law review article, “Removing the Bias of Criminal Convictions from Family Law.”
In the book, I will examine judicial reliance on convictions in family law and domestic violence proceedings and argue that implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, affect adjudication. I will also analyze recent social movements and lawyer-client decision making, including concerning whether and how to use an opposing party’s criminal history. Without statutory limits and reforms proposed in the book, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.
Discussant and Moderator: Christopher Dearborn, Suffolk University Law School