Category Archives: SOCIAL JUSTICE

WALK WITH ME

When my Dad died, I was truly devastated and bereft. From the first breath I had ever taken on this earth, my Dad had been alive. He showed me unconditional love. He taught me by example the value of hard work, silence being golden, staying calm, keeping our sense of humor, showing curiosity instead of judgment, avoiding gossip, and enjoying nature. Being true to myself, being trustworthy and loyal, having a right to my opinion while allowing others theirs, these are among the precious gifts my Dad gave me. He wasn’t perfect, and neither am I. And we didn’t always understand each other, because our lives were so different. But we loved each other, and I miss him still. My experience with him is a defining feature of my character, my identity, and who I am in the world.

When he died, I was in disbelief. I was in grief. I was in mourning.

When I told people that my Dad had died, not all my friends shared my personal experience with their own fathers. Many had both their parents still living. Some had never had a father figure. Others, a violent or abusive parent. Some had a father they loved, but didn’t respect, or a father they could respect, but not really love in a comfortable way. My Dad was an immigrant with a sixth grade education from a small, indigenous population in his part of the world, which also made him different from my friends’ fathers. With all of this, friends processed my mourning in different ways based on their understanding and their experience. But no one tried to erase my experience. No one got defensive or accusatory.

Instead, they were able to meet me where I was at. I remember to this day the comforting sense of not being alone. People repeatedly said they were sorry for my loss and for my suffering. Not because they had caused it – my Dad died of natural causes. But they were sorry for my suffering and wanted to acknowledge it. Some made offers of practical support, but most simply invited me to say what I might need from them, now or later. They were able to offer their support, no matter how much or how little my personal experience intersected with their own. They were able to walk with me, and demonstrate compassion for my suffering in my time of need.

One thing never happened: When I said my Dad died, not one single person felt called upon to say, “All Dads die!” No one hinted that perhaps I was complicit in the fact that he had predeceased me. Instead, they did their best to walk with me in my experience, without trying to argue me out of it, center themselves, or tell me why I was wrong. And that was incredibly healing and helpful. So let’s consider Black Lives Matter.

I am certainly not comparing the death of an aging parent to centuries of oppression! Just suggesting that something is wrong, and needs to be addressed, for those who feel a gut need to react with defensiveness to Black Lives Matter. Step back, and consider. I can be sorry for systemic oppression, without defensively adding that it’s not my fault. I can say yes, Black lives absolutely matter, without feeling the slightest need to add that all lives matter or bring up any members of my racial heritage. Can you imagine if when you told friends that you lost a loved one, they responded by saying so what, everybody dies? How heartless, how unnecessary! It should come quite naturally to say, I am sorry for your grief and your suffering. Please let me know how I can help.

As for social injustices that impact us so unevenly, weighted down by centuries of history, with ongoing consequences and policies embedded in the very fabric of our society, I can be with my fellow humans without telling those most directly impacted how they should feel, what their experiences are, or what they need to do. I have no need to personalize it, center myself, or try to erase their individual or collective experiences. Instead, I seek to acknowledge those most directly harmed, walk with them as far as I am able, educate myself, follow their guidance in offering my heartfelt support, and do my part to achieve the kind of changes that are long overdue. To me, it seems the only decent response.

13th Amendment

An archaeologist friend of mine claims that through a simple piece of ancient pottery, much can be known about a culture’s past, and even traced through to current practices. I claim the same for our laws. We carry the burden of the broken shards of our historic past in every law that is still valid and enforceable. As laws are eventually discarded, remade and transformed, we carry the possibility of creating something both useful and beautiful. Yet the current legal system allows overwhelmingly huge corporations to lobby corrupt politicians for laws that add to their profits, no matter the consequences to the soul of any society: basic human rights. And this is not new. This is fully traceable through our legislation.

Many of us are having hard conversations with ourselves and with others, trying to make sense of this historic moment in the battle for human rights that in some ways is so exciting and hopeful, yet still so heavily weighted by the burdens of our collective, and especially our not so collective, past. And in having these discussions, reading, and learning, I am bewildered at my own ignorance, at how much I have not known about the very government under which I live. I am not alone in this, as our general education system easily leaves us complacent and biased about what is happening at our very doorsteps, in our own communities, unless and until we feel the actual brunt of it. Some of us, myself included, know so little. It is imperative to task ourselves with learning more.

I spent the 4th of July, safely socially distancing, as we now call it, with two friends from a small town across my home state. One of them shared that when she wished a black coworker in her town a “Happy 4th of July” he told her that it was for her, a white person, to celebrate the freedoms and civil rights that she and her family can enjoy, but not for him, as long as black people are still systematically oppressed. She expressed some surprise along with discomfort at this.

We fell into discussion about slavery and incarceration. She was not aware of any connection. So I dug up and read aloud a portion of the 13th Amendment to the United States Constitution, passed in 1865, just after the US Civil War: “Neither slavery nor involuntary servitude, […] shall exist within the United States, or any place subject to their jurisdiction.” I asked each of my friends if they could tell me what was missing. They could not. It seemed complete enough to stand alone. Slavery is outlawed. Right? Well, not quite. Here is the broken shard, that telltale bit of our culture that cuts us even today:

“…except as a punishment for crime whereof the party shall have been duly convicted,..”

This “exception” to the slavery ban in the United States meant that even as slavery was supposedly ending, the law allowed for the wholesale hiring of slave labor from the prison system. With traditional slavery outlawed in a system so reliant upon it, a long list of invented crimes were conveniently passed by slave states. These new “black codes” which only applied to people of African descent, were specifically created to imprison newly freed blacks and channel their work into a profit system that excluded them. Sources indicate that under these laws, as many as 200,000 blacks were arrested, convicted and hired out for profit. In short and extremely simplified fact, people with money and power had a direct and ongoing benefit off the enslavement of their fellow humans, well after 1865. And now we have privatized for-profit prisons across the country that we fill to overflowing. The exception written into the 13th Amendment to the US Constitution still cuts deep.

It is necessary to understand this buried piece of US history before even beginning to contemplate how black men, who make up about 6% of the US population, today constitute close to 40% of national prison population. To understand how police brutality is a symptom of a much deeper, historically rooted problem. I am not the appropriate person to give that history, but the information is out there for anyone interested. Documentaries such as “13th” about the current mass incarceration of blacks and how it relates to slavery and the black laws. Books such as One Dies, Get Another: Convict Leasing in the American South 1865-1928 by Matthew Mancini. Websites such as the Equal Justice Initiative, Prison Policy Initiative, and the National Center for Civil and Human Rights. All at our fingertips. Perhaps the very isolation necessitated by the COVID-19 pandemic will allow us the time to learn, connect, and eventually work together in new ways to help create healthier communities.

A country claiming to be founded on freedom, with 4.4% of the world’s population, and yet over 20% of the world’s incarcerated, is a problematic country. A torn and wounded country. It is a country in dire need of repair, restitution, and healing. Here we are, rolling into another year of US history, close to 250 years since the US Constitution was written. Over 150 years since the US Constitution was amended to (almost) outlaw slavery. Over 50 years since the Civil Rights Act was passed. What are we, the generation alive today, embedding into our legal system, to be uncovered and analyzed by our descendants a century or two from now?

GOOD GOVERNMENT

I just watched my state Governor’s press conference regarding the protests against institutionalized racism. He brought up some important points and revealed his humanity and sincerity in the process. Some will feel he was an apologist for one side or the other, or didn’t go far enough. Yet in light of the absolute shit show that is our current national discourse, it was stunning to hear a government official speak in such a heartfelt and reasoned way. He presented as a public servant who cares about good government and society. This is the gist of what I understood:

The protesters are reasonable in taking to the streets. They are justifiable in their outrage. All thoughtful people feel a visceral revulsion when confronted with the institutionalized injustices and their impact upon vulnerable communities, especially of color. As to protesting government malfeasance, that is enshrined in our constitution. Part of our call to peace and justice has always been made through public gathering and public protest. This is our constitutional right, to seek redress from our government through protest. This is our responsibility as well.

Violence and destruction – (and I cringe at this part for several reasons – mostly because I don’t want to seem to equate the very different power positions and consequences between someone running off with a pair of shoes and someone literally killing a man in broad daylight with no concern for his life – and by the way, our Governor was careful not conflate this). Violence and destruction are not constitutionally protected, as they are criminal acts. But we cannot use those few who are breaking the law as an excuse to ignore the vast majority who are gathering legally and rightfully to seek redress from their government. And we cannot use any rioting as an excuse to once again obscure the underlying issues which gave rise to the constitutionally protected demonstrations in the first place.

As concerned citizens, and as government, we need to raise our eyes to the larger context and refuse to be caught up in the distraction tactics of blaming the protesters and ignoring the underlying racism, systemic injustice, and crying need for a transformed society that is inclusive and serves the needs of all our members. Those who are committing crimes, especially those who endanger the lives and safety of people, should be prosecuted, especially if their actions endangered lives, but we cannot allow these few to cloud our vision: Implementing changes to help create a more just society with room for all of us. Justice and equality under the law. Equal protections and equal opportunities. Fairness. Inclusion.

Thus spoke my Governor. Perhaps not revolutionary, but neither incendiary. Not pointing the finger at anyone with derision and disdain. Not inciting more hatred. Not trying to make himself right by putting others in the wrong. In fact, he went on to humbly acknowledge that as a white man, he himself has not lived through the experiences of minority communities. That he, as well as the rest of us, need to learn more and do more if we want to see real change. The Governor went on to recall with strong emotion when he and his father had watched Robert Kennedy’s speech right after Martin Luther King, Jr. was murdered back in 1968. He said that Kennedy spoke powerfully of the need for us to make an effort to understand each other with compassion.

The Governor cited Kennedy, ” What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country”. Of course, reading the full speech through the lens of our troubled history, it is tainted with the stain of yet another white man telling oppressed blacks to turn the other cheek, and brings to my mind the supposed Malcom X quote, where he talks about how turning the other cheek presupposes justice and mercy on the part of the oppressor, but where that is absent, it is right and necessary to fight: “Give me an M-16 and then “I’ll sing We Shall Overcome,” at least so he is purported to have said in our folk mythology.

The Governor was not citing the part of Kennedy’s speech telling others to keep calm and carry on under oppression without fighting for change. Instead, he was distinctly acknowledging the harm done and the fundamental need to transform our society. And in spite of the burdensome weight of our history, he remains heartened by his abiding belief that most of us, as Kennedy once stated, “want to live together, want to improve the quality of our life, and want justice for all human beings who abide in our land.” And most of us very much long to “make gentle the life of this world” as the ancient Greeks once wrote (and Kennedy had the privilege to study, probably in the original).

At this point, our Governor looked up from the notes in his handwritten spiral notebook, and told us how his father had cried at Kennedy’s speech, and how he, too, had cried. And then our Governor choked up and sat there in front of the cameras unable to speak, taking sips of water, swallowing, pausing, clearing his throat, trying to pull himself together, and then choking up again, and saying he was sorry. And I choked up with him, and I suppose that other people across my state choked up as well. Those of us who long to “make gentle the life of this world” are choking up a lot these days. Each of us mostly still isolated in our own homes, yet each a tiny living thread in the fabric of our state, not wanting to be torn apart, but longing to be healed and made whole, with inclusion and justice for all.

HOUSING

As Your Honor knows, housing is a key stabilizing factor in anyone’s life. Knowing where you are going to sleep tonight – having somewhere to store your things, is gold. Yes, my client failed in following up on his treatment. Yes, my client relapsed. But let’s take a step back and look at the overall purpose of any punishment. Let’s look at the likelihood of creating more accountability and seeing the changes we hope for him supported in a less expensive and more useful way.

The prosecutor is asking for a 30-day jail sentence. Your Honor, if you impose that much time you might as well just sentence him to the full maximum, the year in jail. Remember, this is a misdemeanor. Why am I saying 30 days is functionally the same as the whole year? Because he will lose the subsidized housing that he just got into. The housing that his social worker and case manager worked hard to get him into, specifically so he could stabilize and stop being a problem for society. And for himself.

Your Honor, we have all seen the growing number of tents in our city. We all know that there is a long waiting list for any housing, any roof, of any kind in this city. If you put him back at the end of the line, if you put him in jail and he gets evicted while locked up, what will be the result?

He will be back to square one. He will be back on the streets. How is he going to avoid his friends who use? His friends who sell? His friends who are not his friends, and are not his support group? How is he going to find his way back to stability, and treatment, and enroll in food stamps, and get help for his mental diagnosis, and get help with the prescriptions he is court-mandated to be on, so he won’t fall back into self-medicating with drugs? How is he ever going to get the chance to maybe see his family again, and work on earning their trust by prolonged sobriety?

I understand the need for accountability. I do. And I am not going to stand here and give you a detailed list of the problems he has had, like the recent loss of his mother, and getting assaulted, and having his meds for his mental health diagnosis stolen, and the rest, because one thing addicts in treatment learn is, it is their responsibility to stay clean and sober in all of life’s circumstances. Yet as his attorney I feel it incumbent upon me to point out the obvious, in stating that he has had very little of what we now call social capital. I don’t need to go into details, Your Honor, because I know you get the picture. He hasn’t had very many chances, and he messed up this one, and he knows it.

He knows you can send him back to the streets today, and back to square one. He is waiting to hear your decision today. Your Honor, it is no secret that this defendant has messed up every relationship he has had through the bad start he got and the bad choices he made since. He does not have a stable person left in his life who would let him so much as sleep on their couch, let alone move in with them for the meanwhile. I think for those of us with a large safety net, it is hard for us to fathom the loneliness that would entail. Hard for us to truly fathom how incredibly easy it would be to just give up, in his situation. Just give up for good. But he is still trying, against all the odds. With very little to go on but hoping against hope.

I am not going to stand here and say he shouldn’t have any consequences for relapsing, but community service, or day reporting, or anything else you can think of, would make more sense than kicking him out of safe and sober housing. This is the first place that provides him with the kind of support and guidance he never got at home or in foster care. Give him one more chance and then throw him away if you have to. I already told him, and I am happy to repeat it now, because it is important, that at some point the judge is going to quit worrying about how he is doing and choose to just protect society from his bad choices. I just hope we are not at that point yet. How to combine justice and mercy is beyond me, and I am glad I am not in Your chair today, Your Honor. But taking away his housing just doesn’t serve justice.

Please don’t kick him back to square one. He has been kicked enough. And he really is trying to rise. Trying to get his life in order. And I hope, contribute to society. I know him better at this point than a lot of people do. I know him as he is now, clean and sober and trying. I am willing to invest in him. I believe he has a future. I hope you will consider an alternative consequence instead of the jail time, because I don’t want to see him back here again. He is happy to do day reporting, community service, work crew, or whatever you need. But let him keep his housing. It is for the greater good.

IMPOVERISHED ENVIRONMENT

So I put into my client’s pre-sentencing report all about his childhood, the dirt floor, the hunger, the instability, the beatings, the absolute poverty, the one year of schooling, the lack, the paucity, of pretty much everything that would have helped him develop as a social human being. Think about the photos you see to raise money – dirty kids with big bellies from parasites, staring at the camera like what will you do? What will you do? That’s him.

I see a lot of people, in a lot of situations. And a lot of it is sad. But when you sit across from a kid just out of his teens in an orange jumpsuit who just looks right at you and says, “I’m not very smart. I got hit in the head a lot. My parents were very frustrated with me. The teacher told them they might as well pull me out of school because I couldn’t absorb anything,” then even as a hardened lawyer, it kind of hits you in the gut, and you feel bad for the kid. He didn’t have much of a chance.

You know because he had a co-defendant and there were so many police witnesses, along with civilians, that he spent over a year in the county jail awaiting his trial. And I looked at several expert witnesses, but I couldn’t find one to support that his confession was coerced. So his confession was played to the jury.

My report outlined how lacking his whole life had been, both before and after coming to this country. I had an IQ test and he measured in the 60’s even in his native language. He is functionally very low. And he doesn’t sound bright. He sounds a little scary to people who don’t understand about brain injuries and lack of affect. When someone is telling you something horrible, and then just kind of smiling while they talk, that can be shocking, if you don’t understand where that comes from. You have to have a lot of experience with deep pain to understand that people sometimes have to leave their bodies to stay alive. And they cannot always integrate as adults.

I really wanted to speak for him, and be his voice, his only voice, at sentencing, but he insisted on talking, against my advice. And even though everything he said in his own words was already in my pre-sentencing report and in my sentencing argument, something about the way that he spoke upset the judge. I really think it was his low literacy and his lack of affect. His feelings do not show on his face; he just always shows a bland and pleasant smile. A lot of kids with low IQ smile a lot. This judge stated that she found the defendant’s words and his attitude disturbing, and she added 20 months to the standard sentence.

I argued with the judge, and asked her to reconsider. I pointed out that the psychologist who came to see him shortly before sentencing had noticed that he was actually doing much better in the county jail than he had done outside. That was my strongest argument.

Your Honor, I told her. The fact that the county jail would qualify as an enriched learning environment for this defendant should give you a sense of how truly impoverished this young man’s life has been. The county jail – Your Honor – the county jail is the most positive environment this young man has ever known. Can Your Honor please stop for a moment to reconsider, and take into account what a truly, deeply, and tragically impoverished environment this young man has come from?

My decision has been made, she answered. And that was that. And the poor kid just stood beside me, smiling through his pain, as the guards handcuffed him and took him away for twenty years in prison.

AT THE TABLE

I recently had the honor of working on a bench card for judges in my home state. It was an involved project with extensive research, editing, and vetting. I was further honored with an invitation to share in presenting the project to our state Supreme Court commission on interpreter issues, and it was well received. For me personally, it was a very emotional moment. Because when I looked out of the high-rise window of our meeting place that happened to be in my old neighborhood, I was looking down at a trailer park where my some of my childhood friends grew up.

Our family did not live in the trailer park,. My father was able to build us our own home, although it took him two years to do most of the work with his own hands. We didn’t have medical or dental insurance or a family car, but we had a home. My father was an immigrant with a sixth grade education, and limited English skills. His pickup truck with the name of his cabinet shop was our only ride, and we kids happily rode around in the bed of the truck, never really thinking about how easy it would be to fly out of there and lose our lives on the pavement. The future was nebulous at best. No one talked to us about “what we wanted to be” when we grew up. They wouldn’t have known what to say. I am the first person in my family to finish college.

Yet here I was, addressing judges, within view of the trailer park. From that high window, my heart swung like a pendulum between the two very separate worlds I serve as interpreter. On the one hand, I am serving society’s most privileged and respected professionals, our doctors and lawyers. Our judges and surgeons. These are the people who continue to study and train throughout their 20’s and into their 30’s while their working class peers, people like my parents, have already spent half their lives in the workforce. On the other hand, in these same communications, I am serving the needs of the most disadvantaged immigrants. Arriving on our shores from a war zone or area of unrest, lacking language skills, impoverished, under-educated and usually clueless about how the system they have ended up in works. Few of my clients have even made it through the sixth grade education that served my father so well. My heart goes out to them in their struggles, while I admire the successes of the professionals whom I also serve. I have an ear in each of their worlds. And it is my privilege and my honor to have a voice in both.

PLENTY OF ROOM

I just don’t get this eviction notice thing.  We’ve paid the full rent all along, for five years now, and we’re up on all the utilities.

Yeah, we have seven people in our apartment, but the place is huge! There’s plenty of room.  And I fixed things up myself – I never ask the landlord to help. I figured we’d be here for years, so let’s make it nice.  See how clean we keep it? Now look at this photo! That hole with all the black mold In the ceiling? Yeah, that’s our bathroom. It happened before, some kind of leak from the roof. I just patched, sealed and painted it myself, but now two years later it’s come back.  Because they never fixed the roof.

So what happened is this. I wanted to help out my friend, who has two kids, when her husband got deported, so we got this place together. And it worked out fine. She has the big bedroom, and she and her kids sleep in there. The walk-in closet is gigantic – really more like another bedroom. So I set myself up in the walk-in closet. Everything was fine. She worked. I worked. We paid the rent and everything was fine.  Then her sister got sick.

Her sister has two kids too, and her husband is gone, too. So her sister got sick and she couldn’t work and then she got evicted. Well, were we going to let her and the two kids sleep on the street? No. So they moved in, but it was still okay. The two sisters sleep in the big bed. The little ones sleep on mattresses on the bedroom floor.  There’s plenty of room, and they keep it nice. The sister now, the sick one, she spends about half her time in the hospital, and half her time at the apartment, and she takes about twenty pills a day. I don’t know what she has, but it’s in her blood and it’s really bad.  Some kind of cancer, they say.

And now the landlord is saying we can’t have more than two people and that it’s in something we signed five years ago. But when we moved in, we already had four people, the two of us and the two kids. So I don’t see how we could have agreed that there was only gonna be two adults. What did they think we were gonna do, leave the kids on the street? You can’t leave kids on the street!

So now the landlord wants to evicts us because they say there are too many people. But my friend has to take care of her kids, and help her sister, and her nieces. She has to keep a roof over their heads.  Her husband can’t help her, because they deported him. And then there’s me. I’m just a single guy from their village who wants to help them out. Some of my friends tell me I should just forget them and find my own partner, someone of my own, and just have my own kids and quit helping them, and someday I hope I can, but these kids are already here.  And you can’t leave kids on the street.

I hope the judge will listen to me, and I hope the judge will understand.  And I hope I am allowed to ask the judge questions, because I really want to know something.  If you don’t have room for kids, then what use is the room? If you don’t have room for people who are sick and dying, then what use is the room? If you don’t have room for people who are trying to help people out because their kids are citizens and their husbands got deported, then what use is the room?

I’m not trying to be rude.  I mean really, with all due respect, it’s a real question.  And I hope someone can answer.  Because it seems to me that there’s plenty of room, and I don’t see what the problem is.

NOT LIKE YOU

You are getting mad at me because I keep going back and forth.  I keep changing my mind.  Sorry.  I know you think I am just – I don’t know, just changing my mind over and over for no reason.

But if I go to trial, I could go to jail and then get deported.  And if I plead guilty, I can still get deported.  And if I get deported, I’ll get killed.  You see?

You talk about how we already talked for 40 minutes and how we talked for half an hour before.  Okay.  We did.  But you’re telling me a lot – a whole lot – and I don’t know anything about this system.  I don’t get it.  Maybe I’m just stupid.

You want me to just decide and stick to it.  I get it.  But you need to understand something really important.  I am NOT like you!  I am not like you.  You have your brain intact.  You have schooling.  I was in a gang.  I got beaten.  I got beaten in the head.  I can’t think like you.

I have traumas – I was held and tortured.  I cannot tell you everything they did to me when I tried to leave the gang.   I’m not okay.  Getting hit in a head with a baseball bat is not the worst.  Not the worst.

You, Counsel, you go home and you can think and understand.  See?  You can think and decide things.  I am going to a tiny little tent under the freeway and I am going to think and think and think – but I cannot get anywhere.  I just go around and around.

You keep saying I have to decide.  But how can I decide?  All I know is I want to stay in the country.  I don’t want to go back.  As far as which way to handle the case, you’re the lawyer.  You tell me.

GOOD ENOUGH PARENTS

I could not handle working for child protective services.  I could not be a social worker making decisions on whether to put children back into their homes or deciding whether to remove them in the first place.  Or choosing foster homes.  I admire and respect the people I have met who do this valuable work.  I believe absolutely that all children deserve a safe and happy home.

But I want to talk about parental rights termination from the perspective of a parent who was not abusive herself, but simply unable to protect her children.  Because in spite of all the hard work and good will and good intentions, the overall system, once it hits the courts, can be overwhelmingly burdensome on victims of domestic violence, especially immigrants and the poor.  And I think some of the problem is based on our misguided ideas of what a “good enough” parent should look like.

In a criminal case, in simple terms, you are charged with a specific crime on a specific time at a specific place.  If found guilty, you are sentenced, and the judge signs off on your conditions.  Those conditions are set in stone and you know what they are.  But in termination of parental rights cases, it can be a case of shifting sands.  You are accused of poor parenting, your children are removed, and then the court orders you to complete remedial services, but the services keep changing, the requirements keep changing, and no matter how much you comply, and how many hoops you jump through, you are not done until the state decides you are done.

Let’s take a family with several children in the system.  The mother was abused as a child, left her homeland, moved to the US, and ended up in a domestic violence relationship.  Like many people without any family support, raised with abuse being normalized, it was hard for her to even fathom that she could in any way protect the children from Daddy hitting Mommy, and Daddy hurting them.  But in the US system, it is absolutely each parent’s legal duty to proactively protect the children from abuse, even from the other parent.  Which is good.  Child Protective Services investigates this and can refer these cases to the courts for “failure to protect”.

One parent goes to jail and the other is now caught in the system and under intense scrutiny.  She has been a bad mother in part because she had bad parents and a bad partner.  She was abused twice – both as a young girl and now as a wife – and never got the skills to be the fierce maternal protector and lioness we demand, and that the children deserve.  And of course her financial situation has gotten much worse, as she just lost the “head of household” income.  So what can the state do to make her protective and whole, and “good enough” to parent her children?

Take the children and put them out into foster homes, and keep them there until the court decides the mother is sufficiently improved to deserve the children back.  Take time to investigate, evaluate, test, interview, and assign classes, therapy, drug testing, and more.  Have the mom attend domestic violence prevention programs twice a week.  Order individual therapy, after a psychological evaluation reveals just what kind will best serve.  Keep checking, reading the reports, and deciding on next steps.  This may involve upwards of a dozen paid professionals.

This isn’t a television movie where all the kids are sent to a loving, two-parent middle class foster care household that will later adopt them, where they will have plenty of love, extended family, money for sports and music, and can still have open visitation with their suddenly healthy biological parents, who are wonderfully recovered and even get sober and get good jobs and good parenting skills.  In the actual situation, the kids are split up.  And months go by, a year goes by, in this limbo.

The mother I am thinking of lives way out of town, because it is cheaper there.  But services tend to cluster in urban areas.  It takes her close to two hours on three buses to get to her lawyer’s office.  Because she needs services in her language, she has been ordered to appointments in other far-flung towns and cities around the county.  She spends a couple hours a day on travel, and another couple in appointments with her case worker, her social worker, her group therapist, her support group, her counselor, and others who come and go and write reports about her.  She also meets with a court-appointed special advocate who is assigned to “look out for the best interests of the child” during the court process.  And she goes to her supervised visits, of course.

Now after several delays and continuances, a hearing is coming up and the defense attorney is preparing a declaration with lots of exhibits proving compliance with all prior court orders.  Time has passed, and Mom is really close to completing everything she was asked to do.  She has graduated from her domestic violence prevention course.  She has come to understand her vital role in protecting her own children.  She continues with her weekly therapy.  She has one more appointment with her overall case manager who has been looking over all her other tasks and even inspecting her house once a month for the last six months.  Her house is clean and orderly.  She has tested clean, as always, for drugs.  She has two part-time jobs.  She has visited with the children, supervised, as often as the state has allowed.

All systems are go for reunification.  In the best interests of the children, the defense attorney is going to ask for a gradual return, starting with unsupervised visits, then overnight visits, then reunification.  Mom has got all the skills she is going to.  She is doing her very best.  So it is the right time to reunify.  Not with Dad, of course.  He was physically abusive and there is a ten-year protection order, so he is out of the picture.  But the kids can all live with their mother.

The state can save who knows how many thousands a month on this family, adding up the cost of foster care placement and all the services the state is paying for so that this mother can be a safer, better parent.  Money well-spent, that can now be used to help another family in need, and keep other children safe.  All that is left is the final report from the court-appointed special advocate for the children.  Let’s take a look at that.

The children’s advocate has some new recommendations in his final report.  He asks the judge to order a new neuropsychological evaluation, to see if the mother has some kind of intellectual limitations that would preclude her from ever being an adequate parent.  When he talks with her, she seems slow.  The advocate also asks the judge to order another psychiatric evaluation, because last year’s report was inconclusive.  No specific mental illness diagnosis, beyond post-traumatic stress and depression.  He thinks there may be more to it.  These two new evaluations will really help.  The advocate also demands signed releases so he can talk directly with all of Mom’s counselors, case workers, supervisors, doctors, and others.  He is getting some positive reports about her, and from her, but he wants to find out more.  He is not convinced.

The lawyer tells the mother they will need to argue against these new evaluations and the release of information.  “They are just doing what the state always does, which is bait and switch.  Every time you finish, they find new hoops for you to jump through.”  She adds that the only purpose of the additional evaluations and the releases of information are to “dig up more dirt on you so they can keep your kids.”  The lawyer is really frustrated about how the state seems to set an impossibly high standard – unfairly expecting the parents she represents to be close to perfect, in order to win back their children.  She finds it unrealistic, unfair, and extremely biased.

“The standard should be – are you better than foster care?  Or even – are you as good as foster care?  Because kids are 14 times more likely to be abused in foster care than at home.  That’s just the facts.  So it really makes me angry that the state wants you to somehow become this perfect parent before your kids can get out of foster care.  I am going to start my hearing brief by reminding the judge that you have a fundamental right to parent your own kids!”

The mom is nervous about refusing to do the further services.  She is afraid of the authorities.  She doesn’t want to get into trouble.  She has been steadily compliant throughout this long process, now over a year.   She wants to do anything they ask, she tells her lawyer, so she can have her kids back.  She cannot really process the idea that they are asking her to do more so they can keep the kids from her.  That doesn’t make any sense to her.  It makes her anxious that the lawyer is going to tell the judge she won’t do what the state tells her to.  She feels trapped and helpless.  She wants her kids back.

Now, the state can and should do whatever it can to keep children out of harm’s way.  But given the documented higher risk of physical and sexual abuse in foster care, the state must be extremely careful about removing children from homes like this, where Mom has no record of abuse, but simply poor parenting skills, poor education and poor language skills.  Because the standard for return cannot be that the parent in question must suddenly become a white, educated, middle class, soccer mom complete with a well-employed steady partner and an SUV, a large backyard, and a friendly dog.

Every child deserves a safe and happy home.  But to what degree will removing kids from a not-that-great home – where there is no ongoing abuse – improve their lives?  And given that parenting is a fundamental right under our legal system, we have to make some very difficult decisions about how good “good enough” is in the parenting department.  All families are not going to look alike, act alike, or share the same religion or core values.  Or even the same hygiene.  All families are not going to have the same income and education.  These disparities are reflections of our economic and social inequities, but we will not solve them by demanding that poor parents stop being poor, or that all families must look exactly alike, before they are allowed to raise their own children.

Again, I have the utmost respect for those workers who can handle being in the trenches, visiting homes and having to make that critical decision on whether to remove the children.  And for the judges, who with limited information, must determine whether to reunify the family, or terminate parental rights, or just drag the case on and on in the hopes of future clarity.  I sympathize with the individuals involved.

And yet I still feel compelled to conclude that the state, through its court system, has a huge responsibility in deciding how to carry out its mandate to protect children while respecting a parent’s fundamental rights.  Erring on the side of protecting the children does not necessarily equate with removing the children in every “failure to protect” scenario.  And once removed, the system itself  should be as free from class prejudice, gender prejudice, and race prejudice as humanly possible.

Most importantly, we need to understand that parents do not have to be perfect in order to be a better choice than foster care.  Because this understanding is in the best interests of the children we are trying to protect.

 

 

 

ALFORD PLEA

There once was a case called North Carolina vs. Alford.  People in the legal field are very familiar with this case and its consequences.  A person who wanted to avoid the death penalty pled guilty to murder, but then appealed his own guilty plea.  He claimed he only pled guilty to avoid the gas chamber, and wished to maintain his innocence on the record.  Basically, he was saying he didn’t do it, but he knew he would get convicted.  Long story short, people now have the right to make an Alford Plea – officially pleading guilty, and being sentenced, without admitting to having committed the crime.

When law students and others first hear about this concept, it is a little puzzling.  Why would you plead guilty to something you didn’t do?  There is only one good reason I can think of – because the evidence the government has against you is so strong that you are pretty much guaranteed to lose at trial.  And you want to take advantage of some kind of offer that the government is making you in exchange for your pleading guilty.   In essence, although you did not commit a crime, the weight of the evidence is against you.  So to avoid even more dire consequences, you accept some kind of deal, in which you plead guilty to a crime you did not commit.

The underlying concept is even stranger and more baffling, but there is no remedy for it.  You have the right to a fair and impartial public trial before a jury.  You have other rights, such as the right to counsel and the right to remain silent, to hear and witnesses who testify against you, and to have witnesses brought on your behalf.  But what you don’t have is the right to the correct outcome.  I cannot stress this enough.  You do not have the right to be exonerated and released, even if you did not commit the crime.  You have the right to due process – the procedures must be followed.  But you can, legally, be convicted of a crime you did not commit.

Let’s take an Alford Plea case and see how this plays out.  Say you are walking to work, about a mile and a half, to the same job you have had for some years.  You have your backpack with your lunch and your work clothes, and a baseball cap on to shade your eyes as you walk in the sun.  You are sweating a little.  You want to get to work on time, and your youngest kid kept asking you to pick her up for one more hug goodbye.  You are not a US citizen, but you have it pretty good.  You have a steady job, and you can support your family in a simple way.  You walk with headphones on, and a bit of a smile.  Just a day like any other.

Around the corner, unbeknownst to you, my friend, there is a drama playing out.  In broad daylight, while another man sits in his living room,  his basement window breaks.  Someone is going to force their way into his place!  Such a scary moment for anyone, to be inside our own home and have someone break in and maybe rob and even kill us.  We all want to be safe in our homes.  The homeowner runs downstairs to confront the intruder.  But the man at the window must have heard his steps, because he has stood up and is starting to run away.  He has a backpack and a baseball cap on and he looks – well, the homeowner isn’t sure if he saw his face but maybe he slightly turned around and anyway he had on a dark jacket, a backpack and a baseball cap.

The cops cruise the neighborhood and a couple blocks away who do they see but – you.   You don’t hear the sirens with your music on.  You are bopping along to the beat, thinking about your willful little girl who demanded one more hug.  Haha, she is just like her mother.  A strong character.  A good heart.  You smile again.  You are walking briskly to the beat uphill toward your job.  You have to get to work on time.  The cops seem to come out of nowhere and you are face down on the ground and being cuffed.  You didn’t hear when they told you to freeze and put your hands up.  So they are being rough with you, thinking you were resisting.  What is going on?  What is happening?  Oh my God.

The cops take you in handcuffs to the homeowner’s house.  They tell him, we caught this guy sweating and half-running a couple blocks from here.  Is this him?  Is this the guy?  We think this is the guy.  Right?  It’s the guy.  The homeowner sees you, really sweating now, already in cuffs, with your backpack and your dark jacket that one of the cops is holding.  It’s you.  You are the guy who tried to break into his house in broad daylight.  You are the criminal we all fear and hate.  Thank God the bad guy is caught and we are safe again.  Thank God.  Yes, that’s him, the homeowner says.  That’s him.  It was him.

You are taken to jail and booked for criminal trespass.  That charge is up to a year in jail and a $5,000 fine.  If you don’t hurry up and plead guilty to that, they may also end up charging you with residential burglary, which is a Class B Felony and carries a maximum penalty of ten years in prison and a $20,000 fine.  You are not going to show up for work today, and your boss is going to be worried about you, because you always show up.  You do a good job, and your boss will never believe that you stopped on your way to work to break into a house in the middle of the day.  But what if a local jury does believe it?  Do you want to take that risk?  It is up to you.

You think about it.  You are sitting in jail because you don’t want your family to use their rent money to bail you out, and your boss says if you can get out within a couple weeks he will hold your job for you.    You think about it.  You have a lot of time to think about it.  Because you are in jail, away from everyone, not working, not having dinner with your family, not walking to work a couple minutes late – what if you had left on time?  Would any of this have happened?  But it did, and now you think and think again.  What is the best thing for you and your family?  Trial and a possible acquittal?  Yes, but at the risk of ten years in prison followed by deportation?  Or take a misdemeanor deal and be done with it?  But then you are admitting to something you didn’t do, and you will have a record.  Think and think again.

Your lawyer comes with bad news after interviewing the crime victim.  He was unshaken, completely convinced and ready to testify that it was you, and only you, who tried to get into his house.  The lawyer tried to create some doubt – he reminded him that he never saw your face.  That your dark jacket and baseball cap and backpack are so common.  But the homeowner just cut him off and said he knows what the lawyer is trying to do and he isn’t going to fall for it.  He knows it was you and he will testify under oath that you turned around – he saw your face – he would know you anywhere.  He is happy to testify – he is looking forward to it.  It pisses him off that someone would break his window in broad daylight and he wants you punished.

The lawyer lays out the options once again:  We can argue to the jury that the way they identified you was wrong – they shouldn’t have brought you to the house but should have done a real line-up, but the guy is really convincing.  I think the jury will believe him.  We can bring your boss in to say he doesn’t think you would do that, and that you were due at work. But your boss wasn’t there – the homeowner was.  The prosecutor sat in on the interview with the homeowner, and he says he is even more confident now that they will get you on the felony residential burglary, a deportable offense.  They plan to file it within the week, unless you plea out to the lesser charge.

The lawyer tells you he hates to say it, but you may be found guilty in a fair and impartial trial.  the jury members might believe the police and the homeowner, and really think you did it.  They might be convinced that you did it, beyond a reasonable doubt.  It isn’t really about whether you did it.  It is about whether the jury believes you did it.  They get to decide if the government proved their case.  So you should probably very strongly consider making an Alford Plea.  You will be saying that you didn’t do it, but you believe you will be convicted anyway, so you opt to plead guilty to a lesser charge.  It is up to you, but you need to decide pretty much right now.

This, my friends, is an Alford Plea.  Yes, you have the right to a fair and impartial trial.  But you do not have the right to a fair outcome.  So it is absolutely legal for you to be convicted of something you did not do.  And it is legal for you, in wishing to avoid the dire consequences of that, to plead guilty to something you did not do.