COLUMBIA JOURNAL OF RACE AND LAW

COLUMBIA JOURNAL

OF RACE AND LAW

VOL. 11 JULY 2021 NO. 3

ARTICLE

ENDING THE FAMILY DEATH PENALTY

AND BUILDING A WORLD WE DESERVE

Ashley Albert,

Tiheba Bain,

Elizabeth Brico,

Bishop Marcia Dinkins,

Kelis Houston,

Ashley Albert is a parent advocate in the state of Washington. She

was the first parent in Washington to legally enforce, and modify, an open

adoption agreement after her child was taken away by Child Protective Services.

Her work focuses on the needs of women and children with incarcerated loved

ones.

Tiheba Bain is Founder and Executive Director of Women Against

Mass Incarceration, an organization empowering justice involved women and

girls. Recently Ms. Bain was inducted into the Connecticut Hall of Change for

her exemplary work in the state. She is a Yale Access to Law School Fellow and

a public speaker. She sits on Connecticut’s Lt. Governor Womens Commission of

Health and Safety and the African American sub commission of Connecticut’s

General Assembly Commission. Tiheba co-hosted the first three #FreeHer

conferences and is the former Coalitions Director of The National Council.

Elizabeth Brico is a freelance writer and journalist, and a 2019–20

journalism fellow with TalkPoverty. She was also a 2019 Reimagining

Communities fellow with The National Council for Incarcerated and Formerly

Incarcerated Women and Girls, where she researched the use of predictive

analytics by child services agencies. Her writing typically focuses on social

justice, particularly as they relate to the drug war and the foster industrial

complex. Her work has appeared in VICE, Vox, Talk Poverty, The Appeal, Filter

Mag, Columbia Journalism Review, Undark, Politico, and more. In her free

time, she can usually be found reading, writing, or watching speculative fiction.

Check out her portfolio at eb-writes.com and follow her on Twitter

@elizabethbrico

Bishop Marcia Dinkins is the Founder and Executive Director of

Black Women Rising a grassroots organization that centers the voices and

stories of Black women using a trauma informed organizing approach for

collective healing, power and transformation. Marcia has conducted multiple

social justice workshops and organized multi-level campaigns to protect and

defend women’s rights. She is currently a Ph.D candidate at Union Institute &

University studying Public Policy & Social Change with a specialization in

Women & Gender Studies. She has certifications in Cultural Competency,

Forgiveness Therapy, Restorative Justice Trainer, Trauma Informed Approach

Trainer, Executive Management Leadership, and multiple certifications

regarding Child welfare.

Kelis Houston is Founder of Village Arms (VA), a Christ-centered

organization that supports African American families impacted by child

protection. VA was created in direct response to the over representation and

disparate treatment of African Americans across the child welfare service

continuum. Kelis’ mission is to help eradicate these disparities through

862 COLUM. J. RACE & L. [Vol. 11:861

Joyce McMillan,

Vonya Quarles,

Lisa Sangoi,

Erin Miles Cloud,

and Adina Marx-Arpadi

U.S. history is rooted in the rationalization

of family separation to benefit white supremacy,

capitalism and mainstream U.S. values. Because

of this dark history, the U.S. history has become

the world’s leader of legal destruction of families

through termination of parental rights. It is the

only country in the world that routinely pays

people to adopt children whose parents, often

women, very much want to be their parent. The

Adoption and Safe Families Act, enacted in 1997,

wildly changed the legal landscape of the family

regulation system. At that time 47% of the children

in the system were Black, and the drug war had

legislative action, family advocacy, and policy reform. She wrote, and is

advocating for, the Minnesota African American Family Preservation Act to stop

the arbitrary removal of Black children from their families and community. She

also serves as cultural consultant and trainer to child welfare staff, students,

and service providers.

Joyce McMillan is a thought leader, advocate, activist, community

organizer, and educator. Her mission is to remove systemic barriers in

communities of color by bringing awareness of the racial disparities in systems

where people of color are disproportionately affected. Joyce believes before

change occurs the conversation about systemic oppression that creates poverty,

and feeds people of color into systems must happen on all levels consistently.

Vonya Quarles, a California native with southern roots, is a 3rd

generation formerly incarcerated woman with lived experiences related to Child

Protective Services, adoptions, and foster care. She is the co-founder and

director of Starting Over Inc., a reentry service provider and civic engagement

apparatus. She is a Women Organizing for Justice Fellow 2010, Women’s Policy

Institute fellow 2012/2013, J. Irwin Award recipient 2013, Eleanor Jean Grier

Leadership fellow 2014, WKKF Fellow 2015, Rosenberg Fellow 2019. Vonya is

a licensed and practicing attorney that blends her formal training with

community advocacy, organizing, engagement, and action. A mother and

grandmother, Vonya is grateful to the warrior women and men, the strategists,

the doers, that have given so much to the fight for freedom. She recognizes that

if it weren't for them, she would not have the examples to follow, or the shoulders

to stand on. Because of them, she is, and because of them, we can and must WIN.

Lisa Sangoi is the Co-Director and Co-Founder for Movement for

Family Power.

Erin Miles Cloud is the Co-Director and Co-Founder for Movement for

Family Power.

Adina Marx-Arpadi is a second-year law student at CUNY School of

Law. She is a doula and lactation counselor, and a member of the Birthmark

Doula Collective.

2021] ENDING THE FAMILY DEATH PENALTY 863

been targeting Black men for low level offenses,

and labeling Black mothers as “crack moms”. The

result was an extreme attack on Black families, for

which we have yet to recover.

Abolition teaches us to unroot oppressive

structures, disrupt and dismantle them while

simultaneously supporting a praxis of

imagination, healing, and building. In this paper,

we encourage people not only to work to repeal

ASFA, but to interrogate the imagination which

entrenched the legitimacy of ASFA. Part I centers

the discussion in our imaginations—the world we

want to build, and the demands we are making.

Part II moves into a discussion about the counter

imagination, the ideas and mythology that created

ASFA—the legal framework. In this section, we

isolate ASFA as a target for abolition and

organizing. Part III moves into a practical

discussion about ethical ways to mobilize around

ASFA. This section is intended to invite the reader

to learn, and question, together. It invites

questions, thinking, and problem solving in lieu of

providing a recommendation.

864 COLUM. J. RACE & L. [Vol. 11:861

I. Introduction ............................................................................. 866

II. The World We Deserve: Our Vision and Our Demand ....... 868

III. The Violent Antagonist: White Supremacy and Its

Imagined Reality ................................................................ 872

IV. An Invitation for Transformation ....................................... 878

A. An Invitation to Movement Building to End the

Culture of Forced Family Separation ........................ 879

B. An Invitation to Reimagine and Build Resilient

Communities and Family Structures by Learning

from Shared Memories ................................................ 883

C. An Invitation to Learn from Movements Outside

of the Family Regulation System ............................... 886

D. An Invitation to Build Principled Organizing

Strategies that Bring Us Closer to Our Goal of

Liberation and Transformation .................................. 890

E. An Invitation to Repair and Heal Histories of

Harm ............................................................................. 892

V. Conclusion .............................................................................. 893

2021] ENDING THE FAMILY DEATH PENALTY 865

“It doesn’t interest me

who you know

or how you came to be here.

I want to know if you will stand

in the center of the fire

with me

and not shrink back.”

—The Invitation, by Oriah

Jahmel Reynolds, Illustration of White Hands Destroying a

Black Family Tree. Produced in collaboration with the authors.

Reynolds’s other work can be found on Instagram, using the

handle @jahmelr.

Oriah, The Invitation (1994), in ORIAH, THE INVITATION 1 (2006).

866 COLUM. J. RACE & L. [Vol. 11:861

I. INTRODUCTION

We are directly impacted mothers, community

organizations, and allied advocates across the country. We fight

for family liberation. Many of us met for the first time in 2019 in

Philadelphia. We participated in a convening called, “Fighting for

Family,” co-hosted by The National Council for Incarcerated and

Formerly Incarcerated Women and Girls. Together, about 50

people—predominantly women, mothers and people of color—

decided to deepen our relationships, leverage our expertise, gain

momentum, develop coalitions, and build out solidarity against

family separation tactics.

We understood, even before most mainstream

institutions believed, that the criminal and foster systems work

together to oppress marginalized genders, and that people who

have been impacted by these systems are best positioned to lead

change. That racism, capitalism, colonialism, ableism, sexism,

classism, heteronormativity, etc., are just some of the dark forces

which deprive us of the world we deserve, and that all forms of

cages—physical, political, and spiritual—must be dismantled.

That calling the system a “child welfare” system is disingenuous,

because it is actually a family regulation and destruction device.

In Philadelphia, we collaborated and brainstormed. We

agreed that there were many ways to end the reliance on family

policing, regulation, and destruction as a political tactic; even

though few people were taking on the violence enacted by

Adoptions and Safe Families Act (ASFA)—a law that

dramatically changed the State’s obligations to work with

families, created financial incentives for adoptions, but not

reunifications, and outlined strict timelines to terminate

We give gratitude to Professor Dorothy Roberts, who built enormous

scholarship and framing around the regulation of families and bodies through

the child welfare system. This framing is not only seen in her foundational books,

SHATTERED BONDS, THE COLOR OF CHILD WELFARE (2002), KILLING THE BLACK

BODY (1997), but also in a wealth of scholarly articles, one of which became a

foundational text for our convening in Philadelphia: Dorothy Roberts, Prison,

Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. REV.

1474 (2012). We also appreciate the language development and framing in

Emma Payton Williams, Dreaming of Abolitionist Futures, Reconceptualizing

Child Welfare: Keeping Kids Safe in the Age of Abolition (2020) (B.A. thesis,

Oberlin College), https://digitalcommons.oberlin.edu/cgi/viewcontent.cgi?article

=1711&context=honors [https://perma.cc/58GC-92J5].

2021] ENDING THE FAMILY DEATH PENALTY 867

parental rights (TPRs).

Far too many of us had known or

witnessed the pain of TPRs—better known as the civil death

penalty,

and agreed that it is not an exaggeration to liken them

to family death. TPRs erased families, children’s names were

changed, and many parents were left wondering if they would

ever get to hear the voices of their babies.

It was clear that we

had to end this violent cycle of family destruction.

In building out the work, we grounded ourselves in

abolition as a theory of change, because we understood abolition

as a political home that asks us not to acquiesce to a narrow

understanding of the future, but to stretch, twist, and wring out

all the permutations of possibility, and fully embrace the capacity

of potential. As students and curators of abolition, it would be our

duty not only to disrupt ASFA as a policy, but to unroot the

underlying oppressive ideologies which gave rise to its violence.

We would have to engage in a praxis of imagination, healing, and

building so that we could move away from subtle reform, and into

a world of transformative solidarity.

Nearly two years later, we publish this Article about what

we have done since meeting in Philadelphia, and how we are

thinking about change. Our mission is to dismantle ASFA and to

build a new world. We are asking for both ideas to exist

simultaneously within the consciousness of the reader, as we

argue that freedom must be our North Star, and as a

consequence, ASFA will be dismantled.

Our Article’s thesis is fluid and future leaning, because

our work is fluid and future leaning. We wrote this Article in a

voice and structure that we hope invites the reader to feel the

culture of our work, which is as hopeful as it is urgent. We start

with our demand and vision of the future instead of a history of

the law. We then move on to a discussion of ASFA as an

See infra Part II.

In re Smith, 77 Ohio App. 3d 1, 16, 601 N.E.2d 45, 54 (Ohio Ct. App.

Aug. 30, 1991) (“The rights to conceive and to raise one’s children have been

deemed ‘essential, basic civil rights of man,’ and ‘[r]ights far more precious than

property rights.’”) (internal citations omitted). Stanley v. Illinois, 92 S.Ct. 1208,

1212 (1972). A termination of parental rights is the family law equivalent of the

death penalty in a criminal case. See also, Elizabeth Brico, The Civil Death

Penalty Makes Hungry Ghosts of Mothers and Children, BETTY’S

BATTLEGROUND BLOG (Mar. 13, 2019), https://www.bettysbattleground.com

/2019/03/13/the-civil-death-penalty [https://perma.cc/JSP9-43LY].

Brico, supra note 4.

868 COLUM. J. RACE & L. [Vol. 11:861

antagonist to our story of liberation, focusing on its stifling

impact to political imagination and making clear that ASFA is a

driver of white supremacy, family separation, and community

destruction. We end the Article with invitations to build, learn,

and create in lieu of recommendations. We end this way

purposefully, because this Article is not prescriptive, but rather

a memorialization of a time of thinking between a group of

women envisioning and embodying change. We invite questions,

community, and continued thinking. We do not have all the

answers, but provide guiding questions and principles to find

them.

We also write this Article at a time when our movement

has suffered from isolation, the overwhelming oppressive reach

of carceral systems, lack of funding and political access, racism

and many more afflictions. We sit in a cold winter of activism,

desperately awaiting a summer of change, reckoning and

uprising. We implore you to struggle with us, be in community

with us, and read the words that we have written with care and

time. Let this Article sit deep in your soul—talk about it, disagree

with it, agree with it, picture it, paint it, dance about it. Imagine

and build freedom. We bare our lacerated hearts to you, and to

anyone who cares to meaningfully share this vision and dream.

We will be free, as will our children, and our children’s children.

II. THE WORLD WE DESERVE: OUR VISION

AND OUR DEMAND

“Do we get to live our life? That has been the fight

for Black people for so long. Will we be able to

express ourselves the way we want to express

ourselves without demonization, without having to

succumb to violence. Do we get to live our life?”

—Bishop Marcia Dinkins

Our demand:

We write this as mothers who have suffered the ineffable

pain of losing a child to a system that came to us calling itself a

savior. Mothers who had to silently watch—some of whom are

still watching—as our children are raised by others under a set

of values and principles different than our own. Mothers who

could not watch our children grow up at all. We write this as

children who were stolen from our families and told we were

made from junk-genetics; the product of so-called broken mothers

2021] ENDING THE FAMILY DEATH PENALTY 869

and failed fathers, but who still had the courage to become

mothers—only to have our motherhood terminated before it could

bloom. We write this as survivors of physical and sexual violence

who were punished for surviving; whom the system chose to

teach the cruel lesson that surviving such violence made us

unworthy of motherhood. We write this as mothers who used

drugs, but still loved our babies. Mothers who used drugs, but

still cared for our babies. Mothers who were incarcerated, but

still loved, cared, and yearned for our babies. We write this as

mothers who made mistakes. Mothers who asked for help

without knowing our babies were the cost of our asking. We write

this as Black mothers, Latina mothers, poor mothers, queer

mothers, disabled mothers, single mothers, abused mothers,

addicted mothers, loud mothers, and loving mothers. We write

this as the allies of mothers and fathers and parents who are

targeted by this system of family destruction. We write this as

allies, defenders, and advocates who have witnessed the endless

torment that results from child loss; who have tried to stop

families from being separated forever, and who sometimes

succeeded but many times failed. Not because we didn’t try or

care enough, but because the system is rigged against families.

We write this as fighters for the sanctity of family integrity—and

we are no longer asking.

We demand a world where the integrity of all families is

valued and family ancestry is held sacred. In this world, families

are supported and given the resources they need to thrive, and

the family death penalty, or termination of parental rights, no

longer exists. In this world, we are building healing space for

families who have been forcibly separated, and we are collectively

building a vision of how to hold families together through all our

complexities and experiences. Our village resurrects, and the

sound of communal joy resonates from home to home, person to

person.

The world we demand is a world built for us. Black

children can be children, and Black, Brown, and poor birthing

people are trusted with decisions for the care of their bodies and

families. It is filled with love, understanding, joy, and peace. It

has fields of sunflowers, lilies and other flowers giving fragrance

to the world. It feels like freedom and it tastes like abuelita’s

congri, my sister’s fried chicken, fresh mango, and mama’s

macaroni and cheese. It tastes like home. When we look at

870 COLUM. J. RACE & L. [Vol. 11:861

people’s faces, they are happy, because for once, Black people are

living without fear. They are not worrying about who is knocking

on their door, or feeling a panic when they get a call from an

unknown number, and they rest easy knowing their children are

safe. Black daughters are safe.

We demand a world where people have time to spend with

their family, going to museums, parks, vacations. It is a world

without war, poverty, racism, hatred, or mayhem. Language is

not a barrier, but a thread of understanding. This world utilizes

a true barter system, without capitalism, with adequate housing

for everyone, employment that suits all skill sets, and an

education system where we are taught the truth about our

heritage and about other people’s heritage, not a colonized

fantasy.

We demand a world where we are recognized for our

actions and the substance of our beings—not judged for the

substances that may sometimes be in our bodies; substances that

we all use.

In this world, it is understood that healing is non-

linear, and that old injuries can resurface afresh many years

after the original wounding. The passage of time does not efface

a person’s need or deserving of care. The way someone copes with

their pain is not a commentary on their love for their children.

Asking for help is not an admission of incompetence, nor does it

grant permission for the helper to take what is not offered. In this

world, substance use is recognized as a normal part of human

existence, and it does not transform into harm when it is done by

a person of color or a poor person. In this world, those of us who

live with addiction, or trauma are afforded the space, time, and

support necessary to heal, and our children are allowed to be

participants in that healing. In this world, our children learn that

adversity can be overcome, that mistakes can be forgiven, and

that the experience of suffering does not make permanent

outcasts of us. In this world, we are not always perfect. We are

not always liked. We do not always make good choices, but we

still have the right to come home to our babies each and every

day.

See German Lopez, Black and White Americans Use Drugs at Similar

Rates. One Group is Punished More for It, VOX (Oct. 1, 2015),

https://www.vox.com/2015/3/17/8227569/war-on-drugs-racism [https://perma.cc

/PMH2-H4HT] (demonstrating how both Black and white Americans use illicit

drugs at similar rates).

2021] ENDING THE FAMILY DEATH PENALTY 871

We demand a world where systems do not dictate the

futures of families, nor are the complexities of human pain, love

and need, reduced to checklists and algorithms; where there are

numerous community-based alternatives to provide the rites of

passage for healing. For example, when a person gives birth,

there is a community member that can stay with the parent and

children if so desired. Families stand together: babysitting each

other’s kids, giving each other breaks, honoring the need for time

apart and together. We have eliminated the fatigue, grief, and

death that are constantly imposed on Black women, birthing

people, and caretakers. Neighbors become aunties, and strangers

are now our extended families.

In this world, we govern our own communities, and have

participatory policy making. Parents and community leaders

support each other. We come together with our children, eat food,

make decisions, and watch the babies play. Hate is buried. Love

is a verb, and we see it in action. Our differences are no longer

weapons used to divide us, but rather kindle for curiosity and

unity. We build, and practice building, with the understanding

that our liberation is intertwined. All top-down systems are

eradicated. Instead, grassroots efforts anchor us and lead the

fight for the health and well-being of families.

In the future there will be mistakes. But those mistakes

will be allowed to fuel growth instead of being held over us as

perpetual bludgeons named “shame” and “humiliation.” We

would be living in a world where practicing the skills to end

harm, mediate conflict is an imperative. We would generate

stamina to endure the ebbs and flows of disagreement, and

understand this as a practice of joy, not a necessity born out of

fear. It will be our duty to eliminate the pathology of anger. It

will be our duty to develop and normalize the reflex to “step up”

and “step in.” What is now considered hard, will be considered

routine.

We hear our world as clearly as we can see it. It sounds

like flowing water, waves clapping against rocks, the crescendo

of a waterfall, a breeze strumming its gentle tune through the

autumn leaves. It sounds like birds chirping in the distance, their

melodic banter a symbol of the peace we have achieved. But most

of all, it sounds like the voices of our children.

In this world, all of us would wake up and hear our kids

in the morning. We would call out to them and hear them answer,

872 COLUM. J. RACE & L. [Vol. 11:861

“mom.” Our grandparents, mothers, and children would be

chattering, and laughing. Sometimes the words would be hard,

and sometimes the words would be soft. We hear bickering in this

future, over things like what to eat for breakfast, or what games

to play, and what clothes are okay to wear. We reminisce about

hard times—when we battled together and battled each other.

Then we hear silence, sighs, laughter, and silence again. In this

future, our days end with our eyes closing, and deep rest. We

wake up and hear each other’s voices again. There is a repetition

in hearing each other; our families are the soundtrack of our

future.

And if we must live in a world where we battle, it will be

with an army united. Millions upon millions of people of all

backgrounds, races, nationalities, professions, generations,

orientations, and inclinations will stand together with the

clarity, strategies and power necessary to dismantle the systems

that once kept us apart, down to the very rubble of their

foundations. When we fight, we will do so with the confidence and

knowledge of our collective experience, with the power and

endurance that comes from knowing we will accept no other

outcome than to win. Then, when it is all over, we will breathe,

we will rest, we will rejoice—and then keep building.

This is our demand. We are no longer asking.

III. THE VIOLENT ANTAGONIST: WHITE

SUPREMACY AND ITS IMAGINED REALITY

“I often feel I am trapped inside someone else’s

imagination, and I must engage my own

imagination in order to break free.”

—Adrienne Maree Brown

Our opportunities to grow and nurture our world vision

have been suffocated by the imagination of others. These

imaginations have built oppressive systems that have sucked

nourishment from our world and traded domination for

liberation, and personal responsibility for cooperative

ADRIENNE MAREE BROWN, EMERGENT STRATEGY: SHAPING CHANGE,

CHANGING WORLDS (2017).

2021] ENDING THE FAMILY DEATH PENALTY 873

interdependence. They build and manipulate massive, faceless

institutions—the prison, family regulation, immigration, and

public assistance systems, to name a few. And they make them

seem like the inevitable result of existence. They are not. They

are the manifestation of white, colonial fantasies that become

laws, that create smoke screens of noble purpose, and that cover

dark realities of manipulation, oppression, and inequity.

When we consider the Adoption and Safe Families Act,

we situate our analysis not only in the elements of the law, but

also the dominant imagination that allowed it to exist and

survive with very little opposition. One starting point is looking

at Senator John Chafee (R-RI), a lead Senate sponsor for the

legislation, who on the eve of the eve of the passage of the ASFA

told the New York Times, “[i]t’s time we recognize that some

families simply cannot and should not be kept together.”

spoke these words when nearly half of the children in the family

regulation system were Black, most were poor, and the federal

government was rapidly draining social safety nets.

We believe that the families Chaffee imagined were not

his own. He was from a family to which the entire power and

might of the United States was dedicated to keeping together. In

his direct ancestry were multiple governors, law professors, and

senators. He attended the most elite institutions of the Northeast

and went on to live the life he was predestined to live—ascending

from congressperson to governor to secretary of the navy to

senator.

He had been bequeathed generational wealth and social

status from the blood, sweat and tears of our families—literally

achieving social and political capital from the backs of our

ancestors. He would likely utter the words that “some families

should not be kept together” with a strong sense that his would

continue to accumulate wealth and status, while we would

inherit a devastating history with the foster system.

Unfortunately, Chafee was not alone in his imagination

of deserving families. His speech was a regurgitation of

mainstream political rhetoric that was seeded in racism,

misogyny and capitalism, long manufactured by the pushers of

chattel slavery, political borders, and other vile story tellers. He

Katharine Q. Seelye, Clinton to Approve Sweeping Shift in Adoption,

N.Y. Times, Nov. 17, 1997, at A20.

E.g., John Chaffee, WIKIPEDIA, https://en.wikipedia.org/wiki

/John_Chafee (last visited Mar. 22, 2021).

874 COLUM. J. RACE & L. [Vol. 11:861

did, however, add the additional layer of neoliberal storytelling

that would promote a narrative of “personal responsibility” over

our families.

This specific narrative had been brewing for many

decades but really became a pillar of political propaganda in the

1970s. With the specter of the Black liberation movement

squarely before it, the United States deliberately abandoned

the belief that the government could, or should, play a role in

leveling the playing field between the rich and poor, thereby

making invisible decades of the U.S. government’s segregated

aid-giving strategies like the New Deal, and 1944 GI Bill—

strategies that built a gold plated escalator devoted to the

accession of whites to the middle class.

This erasure, in part,

created fertile ground for neoliberalism to fill the gap with the

notion of a “free market”.

The “free market” would be the leading protagonist of the

economic story told by the neoliberalists. This “free market”

would be color blind, race blind, gender blind, and class blind. It

would enter the final act of the 20th century with a bold message

about “personal accountability”—a message that venerated the

market and justified the government’s abdication of its

responsibilities to support their most marginalized members of

society.

Many of us recall being told that the “free market” was

the greatest arbiter of equality, and that we could leave access to

basic life necessities in the hands of the “free market.” That those

who worked hard would get what they worked for. That those

who did not work hard—well, they would not get what they did

not work for. We came to learn that for our communities, for

Black folks, for Brown folks, social mobility was in our hands,

and ours alone. The free market neither gave a hand up nor beat

See The Powell Memo: A Call to Arms for Corporations, MOYERS ON

DEMOCRACY (Sept. 14, 2012), https://billmoyers.com/content/the-powell-memo-

a-call-to-arms-for-corporations/ [https://perma.cc/38SQ-42HW] (describing the

United States’ increased focus on businesses in the 1970s).

See, e.g., Darrick Hamilton, Beyond Neoliberalism, Neoliberalism

and Race, DEMOCRACY: A JOURNAL OF IDEAS, Summer 2019,

https://democracyjournal.org/magazine/53/neoliberalism-and-race/

[https://perma.cc/CM32-GSTG]; IRA KATZNELSON, WHEN AFFIRMATIVE ACTION

WAS WHITE: AN UNTOLD HISTORY OF RACIAL INEQUALITY IN TWENTIETH-

CENTURY AMERICA (2006) (describing policies in the 1970s that were geared

towards propelling white people out of the middle class).

2021] ENDING THE FAMILY DEATH PENALTY 875

a person down. If something bad happened in someone’s life, the

free market alleged that it was their fault. Glaringly absent from

this grotesque fairy tale spun by racial capitalism were the

inherited advantages and disadvantages of history, of decades of

infusion of social and economic capital into white communities,

and the political power that followed.

From the 1970s on, the US would continue to privatize

access to the basic life necessities—such as housing and higher

education—the government provisions of which were otherwise

the bedrock of the momentous buildup of wealth in white

communities.

They would use language to pathologize us for

accessing what little government assistance was left, and blame

us for the harms of living under centuries of oppression, calling

Black, Brown, and low-income mothers “crackheads” and

“welfare queens.” They would push them into systems, and turn

their backs on families and communities. They would disappear

adults into the prison system and children into the family

regulation system.

When they put mamas in cages, mamas

would send their children to live with their parents only to be told

that their children could not live with their grandparents. The

free market, white institutions, governments, pundits, the

medical establishment, academia, and others, placed the blame

for the fallout in our community squarely on those of us who

suffered the most harm.

With this history and with these lies, it is unsurprising

that ASFA passed with little political controversy or fanfare. For

all intents and purposes, it embodies the sentiment, imagination,

and consciousness of the moment—that the government does not

have an ongoing responsibility to support families, that if

something bad happens to our families it is solely our fault, and

Hamilton, Beyond Neoliberalism, supra note 11.

The U.S., of course, continues to support and subsidize the

accumulation of white wealth through many means, such as the tax code but has

managed to make the massive government assistance that white and wealthy

people receive invisible. Jocelyn Harmon & Jeremie Greer, How the US Tax Code

Drives Inequality—And What We Can do to Fix it, FORD FOUND. (Apr. 13, 2017),

https://www.fordfoundation.org/just-matters/equals-change-blog/posts/how-the-

us-tax-code-drives-inequality-and-what-we-can-do-to-fix-it/

[https://perma.cc/CE5C-J5JE].

Ingrid Archie, Address at the #StopStealingOurBabies Virtual Town

Hall of the Time for Change, TIME FOR CHANGE FOUND., (Aug. 25, 2020),

https://www.facebook.com/watch/live/?v=942945716197667&ref=watch

_permalink).

876 COLUM. J. RACE & L. [Vol. 11:861

that we—alone—are responsible for centuries of political neglect.

The Adoption and Safe Families Act reflected these ideas by:

1. Demanding that every child welfare system across

the country move toward termination of parental rights

proceedings after a child has been in foster care for fifteen

of the past twenty-two months;

2. Insisting that every child welfare system skip

efforts to keep families together and move directly to

termination of parental rights as soon as a child enters the

foster system, if “aggravated circumstances” exist;

3. Establishing unprecedented federal incentives to

states to permanently separate families and terminate

their legal ties, with no comparable financial incentive to

reunify or keep families together.

The adoption of this law was swift. By July 1999, all states had

laws that mirrored the federal legislation or were more stringent

than the federal law.

A formerly incarcerated mother and ASFA

activist in New York State, Christina Voight, reflects that at the

time of the law’s passage, everyone, from the mothers caged to

the family regulation agents to the agencies themselves had no

idea how ASFA would actually unfold.

The law was literally

written on the backs of families.

Since ASFA was enacted, more than one million children

have been permanently separated from their parents.

That is

about the population of Rhode Island. It is more than the entire

city of Boston. The annual number of family dissolution and

Adoption and Safe Families Act, 42 U.S.C. § 1305 (1997).

There are limited exceptions to this timeline. One such exception is

that the court can use its discretion when it serves the best interests of the child,

to extend the timeline. As authors who have practiced for years in New York,

and people who have directly experienced ASFA, we have not observed use of

this provision.

Aggravated circumstances range from past criminal convictions to

the mere fact that a parent has lost their termination trial in the past.

Foster Care: States’ Early Experiences Implementing the Adoption

and Safe Families Act, U.S. GOV’T ACCOUNTABILITY OFF. (Dec 22, 1999),

https://www.gao.gov/products/hehs-00-1 [https://perma.cc/SUU3-RB6K].

Interview with Christina Voight, Movement for Family Power (Dec.

21, 2020) (on file with author).

Kim Phagan-Hansell, One Million Adoptions Later: Adoption and

Safe Families Act at 20, IMPRINT (Nov. 28, 2018), https://imprintnews.org

/adoption/one-million-adoptions-later-adoption-safe-families-act-at-20/32582

[https://perma.cc/VWM5-5BKQ].

2021] ENDING THE FAMILY DEATH PENALTY 877

adoptions have increased by 57 percent from the time ASFA was

enacted through fiscal year 2004.

Moreover, between 1997 and

2019, because of ASFA, at least 121,000 more children aged out

of the family regulation system with no permanent home than

would have aged out had there been no ASFA, giving America

the distinction of having the largest number of legal orphans out

of anywhere in the world.

Too many of us have believed what they told us about the

system—the myth of personal responsibility creates false paths

of redemption. Many of us were told that we were being selfless

and doing something good if we gave up on our case, our children,

and relinquished them to the system. Yet some of us have since

found our children, spoken with our children who are adults now,

and we have learned that this system was not good for them. It

was not as some of us perceived it to be. It was not as the system

described. It was certainly not redemption.

We publish this Article over 20 years after the passage of

ASFA, 20 years into surviving and thriving in spite of the horror

it has inflicted on children, families and communities. We write

this and continue to be stunned by the amount of money this law

has funneled into family regulation systems across the country.

Money that was stolen from communities. In 2017 alone, states

were projected to receive $2.658 billion in federal Title IV-E

adoption assistance budget to fund other families to care for our

children.

From 1999 to 2014 the federal government projected

that it gave states $423,754,125 as an award for dissolving our

families and adopting out our children.

Over the course of 20

years, the federal government (not including state governments)

has spent tens of billions of dollars on paying other families to

permanently raise our children and the children of the families

U.S. GOV'T ACCOUNTABILITY OFF., GAO-03-626T, FOSTER CARE:

STATES FOCUSING ON FINDING PERMANENT HOMES FOR CHILDREN, BUT LONG-

STANDING BARRIERS REMAIN 2 (2003).

ASFA: The Racist Child Welfare Law From the 1990s that Almost No

One Talks About, NAT’L COAL. CHILD PROTECTION REFORM, CHILD WELFARE

BLOG (Nov. 8, 2020), https://www.nccprblog.org/2020/11/asfa-racist-child-

welfare-law-from.html [https://perma.cc/9RDC-CKZC].

CONG. RSCH SERV., R43458, CHILD WELFARE: AN OVERVIEW OF

FEDERAL PROGRAMS AND THEIR CURRENT FUNDING 19 (Jan. 2, 2018).

CONG. RSCH SERV., R43025, CHILD WELFARE: THE ADOPTION

INCENTIVE PROGRAM AND ITS REAUTHORIZATION 19 (July 15, 2014).

878 COLUM. J. RACE & L. [Vol. 11:861

we support.

These numbers far outpace the money or energy

that as invested in us, our families, our communities, and our

advocacy. Can you imagine what we could be doing for our

families if we had that type of investment?

ASFA is a continuation of many troubling histories in the

United States where normative judgements around who were

worthy families and who were not, who were worthy communities

and who were not. It used considerable resources and wreaked

and continues to wreak havoc on so many communities.

It has

trapped so many people’s perspective of what is possible, and it

must end.

IV. AN INVITATION FOR TRANSFORMATION

“The ending of one story is just the beginning of

another. This has happened before, after all . . . .

Old orders pass. New societies are born. When we

say, “the world has ended,” it’s usually a lie,

because the planet, is just fine. But this is the way

the world ends. This is the way the world ends.

This is the way the world ends. For the last time.”

—N.K. Jemison

We build a new world, not just by repealing laws, but

through transforming and undoing oppressive social orders,

actions and interactions. ASFA is a symptom of centuries of

family separation policies that have relied on the degradation of

Black, Brown, and poor bodies to legitimize their existence. It is

kin to the Violent Crime Bill, cousin to the Personal

Responsibility and Work Opportunity Act, sibling to the Illegal

Immigration Reform and Immigration Responsibility Act, and

heir apparent to all the laws that built up racial capitalism,

chattel slavery, segregation, border control, reproductive

injustice and U.S. war strategies. Its relationship to the history

of punitive policies is a rationale for both its full repeal, and also

We estimate the total cost to be much higher, as these numbers do

not include the cost of family investigation and child removal that proceed

permanent dissolution.

Latagia Copeland Tyronce, Yes, the Adoption and Safe Families Act

(ASFA) Can and Should Be Repealed!, MEDIUM (Dec. 24, 2018),

https://medium.com/latagia-copeland-tyronces-tagi-s-world/yes-the-adoption-

and-safe-families-act-asfa-can-and-should-be-repealed-9c18ac391997

[https://perma.cc/CM35-BYDM].

N.K. JEMISIN, THE FIFTH SEASON (2015).

2021] ENDING THE FAMILY DEATH PENALTY 879

a reason why a traditional legal/policy strategy, alone, will not

bring us closer to our world vision.

We want to build transformative and lasting change. We

believe there should be no termination of parental rights, no fast-

tracked adoptions, no stringent timelines for reunification, and

no financial incentives for separations and adoptions. We insist

on the end of terminating parental rights during a global

pandemic, because of parental incarceration or simply because

someone has not achieved remission from a complex medical

condition. We require a full repeal of ASFA. These are our

demands, and they can be enacted immediately. However, even

if we were to achieve these policy shifts, our work would not be

done. We aim not only to eliminate ASFA but to uproot the

culture of family policing and forced family separation. Our

success will be measured by the shift in political alignment,

imagination and transformation of our community, not by the

legislative session.

We are building in collective struggle. We are learning

together, and offer this final section as a glimpse into what that

process looks like for us. We urge you to read this section not as

a blueprint for organizing but rather a description of our time

together. Maybe this will inspire imagination or invite

accountability, regardless we share this space with you and hope

to:

1. Invite movement building;

2. Invite memory sharing, imagination, and

community building;

3. Invite learning from other movements;

4. Invite principled organizing strategies; and

5. Invite healing and reparations.

In each subsection, we have tried to cite some of our resources in

the footnotes in each section and hope that it will serve as a

conversation starter as we all work to build a new world.

A. An Invitation to Movement Building to End the Culture of

Forced Family Separation

When we met in Philadelphia in 2019, we had the

opportunity to work with AYNI Institute. AYNI is a small

grassroots organization that, among many things, has studied

880 COLUM. J. RACE & L. [Vol. 11:861

hundreds of movements over the last two centuries.

Philadelphia, they learned from us and also taught us about the

work they have been doing, especially as it pertained to thinking

about the importance of social movements,

and their life cycles.

One of our main takeaways from AYNI is that we are all

connected to the earth, and as a consequence we are all connected

by universal laws of nature.

One example is that we all go

through the cycle of life and death in various ways, and this cycle

is not confined to a human experience, but is also seen in

activism, social justice trends, organizations and movements.

This framing is a shift from the traditional linear trajectory that

often directs legal, non-profit or traditional legal and policy

strategies, and creates a circular pattern of planning that helps

us orient our work, define our success and create stamina for the

inevitable retrenchment.

AYNI uses the metaphor of seasons to explain that social

movements go through a winter, spring, summer and fall, and

this cycle takes approximately 5–15 years.

We learned that in

each season there are different opportunities.

In the winter of

a movement, the work is internal; among other things it is a time

of low activity and planning, which is the opposite of the

AYNI INSTITUTE, https://ayni.institute/ [https://perma.cc/4YC2-592B]

(last visited Jan 8, 2021).

There are many activists, scholars etc. that have been teaching and

explaining about the importance of social movements which include but are

certainly not limited to: Ella Baker, Black Panthers, Black Liberation

Movement, Civil Rights Movement, Marsha P. Johnson, Dolores Huerta,

adrienne maree brown, Law for Black Lives, Movement Law Lab, Black

Organizing for Leadership and Dignity, New Georgia Project, ConMijente,

Combahee River Collective, the Black feminists who proclaimed the need for

Reproductive Justice, formations like Survived and Punished, No New Jails, and

the countless international movement builders, activists, and theorists. We are

humbled by so many before us and raise AYNI institute as they were a specific

partner in the support of this work, and we learned a lot from their guidance and

especially the specific support of Fhatima Paulino.

Ayni Institute, Movement Ecology Introduction Webinar, YOUTUBE

(Sept. 6, 2016), https://www.youtube.com/watch?v=pGWYaw3he2w&feature

=youtu.be (last visited Mar. 23, 2021).

Id.

Id. See also, Jennifer Ching et al., A Few Interventions and Offerings

from Five Movement Lawyers to the Access to Justice Movement, 87 FORDHAM L.

REV. 186 (2018) (discussing strategies for building sustainable movements).

Ayni institute, 3. Movement Seasons, YOUTUBE (Apr. 16, 2019),

https://www.youtube.com/watch?v=KSwnVINjYgI (last visited Jan 8, 2021).

Id.

2021] ENDING THE FAMILY DEATH PENALTY 881

summer—an external, high activity time that may allow for large

scale policy changes that can be supported by an accountable

movement infrastructure and lead by people more directly

impacted by social change.

They reminded us that many

movements get stuck in the winter and never move to spring,

explaining that this is because everyone wants to be in an eternal

summer.

That there is a dominant summer culture of “do do

do,” that is projected by many organizations, institutions, and

even ourselves, and that organizations do not respect people’s

winter.

They also said that we often get stuck in a “winter”

because we lose sight of what is needed during a winter,

retreating, deep thinking, learning, and relationship building.

When we learned about the different traits of each

season, we almost universally agreed that the abolition of the

family regulation and destruction system was squarely situated

in a winter. We saw the traits of isolation and low or little funding

for activist leadership. We saw the blank stares when we told

people we should end the child welfare system and questioned its

efficacy.

We felt the frustration that many of our comrades and

progressive colleagues confused our demands with one that

asked for abuse and harm for children.

We observed the layers

of shame, stigma, and oppression that surrounded communities,

parents, and families resisting and activating.

We certainly

were not in a summer.

Id.

Many activists and directly impacted people have been arguing for a

swift change with little to know support, funding or even serious consideration

by mainstream media/lobbying efforts. See, e.g., Latagia Copeland Tyronce,

supra note 26. The resistance in Contra Costa County, some of which is captured

in writing by Michelle Chan. Michelle Chan, SAN FRANCISCO BAY VIEW (2021),

https://sfbayview.com/tag/michelle-chan/ (last visited Mar. 24, 2021).

One representative example, is the fight by Elizabeth Brico for her

daughters. She created her own petition to convince stakeholders that she

should be with her child, exposing the very clear and real evidence that despite

allegations of substance use there were no connections that her children were

ever neglected. See Elizabeth Sparenberg-Brico, Reunite the Brico Babies with

their Mama, CHANGE.ORG, https://www.change.org/p/florida-department-of-

children-and-families-reunite-the-brico-girls-ages-5-and-6-with-their-mama

(last visited Mar. 24, 2021).

VOICES Keston Jones, Episode 3 Dinah Ortiz: #Family, #Women’s

and #CriminalJusticeReform #Advocate. #VOICESKJ, YOUTUBE (Nov. 25,

882 COLUM. J. RACE & L. [Vol. 11:861

The opportunities during winter center on decreasing

isolation around those most impacted, activism and

organizations that are looking to direct their resources at the

same target and deepening alignment around the political

understanding of the target issue.

This means creating regular

practices around meeting and creating community, developing

coalitions with sustainable infrastructure, discussing how we

want to be in relationship with each other, developing aligned

targets and talking points, and sharing and building political

education around the issues we want to tackle. It also means

ensuring that resources do not consolidate and congeal within

funded non-profits or carceral systems, but rather move towards

community, leadership development, idea generation and

innovation.

In the last year, our work around repealing ASFA was

focused on the strategies we believe will pull our work from

winter to spring. We organized a convening in Philadelphia,

engaged in horizontal learning and political education and then

isolated a particular element of the law we believe we can tackle,

ASFA. From that Philadelphia convening, we started a steering

committee that has now been meeting regularly for

approximately a year. We were hoping to have another, smaller

in-person convening in March of 2020—though COVID has

impacted our ability to physically be with one another. We are

hoping to invite people into working groups in 2021, and we want

to take time to think through how to bring people together, how

to organize and how our time together can be meaningful,

healing, creative and generative.

Most importantly, we have built relationships with each

other during this winter. We have learned together, deepened our

value alignment and trust, and hopefully also built resiliency.

This is the work of the winter, that we hope evokes a spring. We

will have to change the outputs of our work as our movement

shifts. This is a part of our strategy and what we believe it takes

to truly support liberated policy demands.

2018), https://www.youtube.com/watch?feature=youtu.be&v=5Zz9Ku67Y-

U&app=desktop (last visited Mar. 24, 2021).

Ayni Institute, supra note 29.

2021] ENDING THE FAMILY DEATH PENALTY 883

B. An Invitation to Reimagine and Build Resilient

Communities and Family Structures by Learning from

Shared Memories

We aspire to center the experience, expertise, leadership

and voice of the most directly impacted by ASFA. We strive to be

accountable to both those within our movements and those in

adjacent movements and be in constant practice of sustained

community building. This intentional work is difficult and has

proved even more difficult this year where a global pandemic

shut down our ability to be in physical contact with each other.

Nevertheless, we are reminded by the words of Adrienne Maree

Brown, that we must “[m]ove at the speed of trust” and that,

“[t]here is always enough time for the right work. There is a

conversation in the room that only these people at this moment

can have. Find it.”

One of the conversations we have started building is with

indigenous communities, who, in response to the devastating

impacts of the removal of their children, have pushed back on the

family destruction system and the dissolution of their families.

This has included fighting for tribal sovereignty and jurisdiction

over child welfare cases to bring them into tribal courts, and

implementing alternatives to termination of parental rights.

Judge Bill Thorne, who is Pomo Coast Miwok, a former State of

Utah Court of Appeals Judge and former tribal court judge,

describes these efforts as “not just about reimagining, but about

remembering how we used to do it in our communities.”

We have learned a lot, and have a lot more to learn.

Professor Priscilla Day, an Anishinaabe tribal member enrolled

at the Leech Lake reservation and a professor of social work at

the University of Minnesota Duluth, explained to us that there is

a belief among many tribes that children choose their parents,

and that the parent-child bond cannot be severed.

Jeri Jasken,

who has worked as the former Director of Child Welfare and

Director of Behavioral Health for White Earth Nation tribe,

ADRIENNE M. BROWN, EMERGENT STRATEGY: SHAPING CHANGE,

CHANGING WORLDS 20 (2017).

University of Houston Graduate College of Social Work, UpEnding

the Child Welfare System: The Road to Abolition, YOUTUBE (Oct. 21, 2020),

https://www.youtube.com/watch?v=t7iZch9P504, at 13:01.

Interview with Priscilla Day, Professor of Social Work, University of

Minnesota, Duluth (Oct. 20, 2020) (on file with author).

884 COLUM. J. RACE & L. [Vol. 11:861

described telling social workers in their training, “it’s not your tie

to break, not your right to break it.”

Similarly, Judge Thorne

explained that many tribal communities believe that to cut off a

child from their family is an act of abuse, because it not only

severs the parent-child relationship, but also severs the child’s

relationship with their extended family and relatives.

He said,

“kids are not property, you don’t cut them off. It’s not like a car

where you have a bill of sale and you can only belong to one

person. Kids belong to the whole community and the extended

family.”

Professor Day, Judge Thorn, and Jeri Jasken were all in

leadership at the time ASFA passed. Jeri Jasken, the former

Director of Child Welfare at White Earth Nation, described a

deeply uncertain and scary period for her community, where the

tribe was faced with an overwhelming number of fast-tracked

TPR petitions occurring in state courts. Judge Fineday describes

hearing two clear messages from the tribal elders. First, the

elders described that the tribe had always had practices that

involved taking in other people’s children and there is no word

for “orphan” in the Ojibwe language.

Second, the elders opposed

the concept of termination of parental rights and believed that

parents should always be able to have their children returned

when they are ready.

We learned that leaders had to rapidly respond to the

cultural clash inflicted by ASFA on tribal customs. One form of

Interview with Jeri Jasken, Former Director, White Earth Nation

Child Welfare and Behavior (Dec. 2, 2020) (on file with author).

Interview with Judge Bill Thorne, Utah Court of Appeals, at 26:16

(Nov. 25, 2020) (on file with author).

University of Houston Graduate College of Social Works, supra note

44, at 54:20.

History of White Earth, WHITE EARTH NATION,

https://whiteearth.com/history (last visited Mar. 24, 2021) (“All Indian tribes

have names for themselves. The largest Indian group in Minnesota calls itself

Anishinaabe, which means ‘the original people.’ Europeans named them Ojibwe.

No one is exactly sure how this name developed. Perhaps it came from the

Anishinaabe word ‘ojib,’ which describes the puckered moccasins worn by the

people. Some Europeans had trouble saying Ojibwe, pronouncing it instead as

Chippewa. But both these names refer to the same people. In Canada, the

Anishinaabe call themselves Ojibwe. In the United States, many tribal members

prefer the name Chippewa. So that is the name we will use in this history of

White Earth Reservation.”).

Interview with Anita Fineday, Managing Director, Casey Family

Programs’ Indian Child Welfare Program (on file with author).

2021] ENDING THE FAMILY DEATH PENALTY 885

resistance included the use of traditional law in child welfare

practice, such as “tribal customary adoptions,” (TCAs)

which

allows for a child to be adopted, with all of the legal recognitions

that adoption entails, but without terminating the parental

rights.

Traditional adoptions, or the making of relatives, is not

new to tribal communities, in that it has been practiced for

centuries. But what is unique is how this traditional practice is

applied to a child welfare proceeding, and allows parents to

continue contact with their children, as well as possible return of

their children in the future. TCAs were developed in response to

the specific harms created by ASFA and is based on historic and

traditional practices held by many indigenous communities in

which children were raised by extended family and by

community.

TCAs have allowed tribes to prevent parental

rights from being terminated, maintain contact and connections

between children and parents.

Faced with the violence and swift nature of ASFA, the

White Earth Nation tribe recognized the need to take rapid

action for their community’s survival.

When Anita Fineday

became Chief Tribal Judge in 1997, she, along with Jasken and

other leaders, embarked on a process to re-write their tribal code

to include a child welfare code, in order to address the large

numbers of White Earth children in foster care facing a TPR

Initially, the tribe relied on their traditional law and custom to

practice TCAs in the context of child welfare cases in tribal court and refused to

codify the practice. As Jeri Jasken explained, the tribe initially refused codifying

it because “it’s traditional law. It’s a verbal, traditional, tradition and practice

and shouldn’t have to be written down. Any time you force a tribal nation to

write those things down, you’re expecting something that’s not reasonable, that’s

more westernized . . . but we ultimately decided to put it in our own code because

it was of benefit to our families.” However, when the tribe lobbied for TCAs to be

recognized by the federal government to make adoptive parents eligible for

adoption assistance funding, the Social Security Administration demanded that

TCAs be codified for it to be recognized for Title IV-E assistance. As a result,

TCAs were written into the White Earth code in the early 2000s. White Earth

has also been able to receive additional financial assistance from the state of

Minnesota for their TCA adoptive families. Interview with Jeri Jasken, Former

Director, White Earth Nation Child Welfare and Behavior, at 21:30 (Dec. 2,

2020) (on file with author).

CALIFORNIA INDIAN LEGAL SERVICES, TRIBAL CUSTOMARY ADOPTION

HANDBOOK 17 (2017) https://www.calindian.org/wp-content/uploads

/2017/06/TCA-Handbook.-Final.pdf [https://perma.cc/62EG-TMU3].

Interview with Jeri Jasken, Former Director, White Earth Nation

Child Welfare and Behavior (Dec. 2, 2020) (on file with author).

Id.

886 COLUM. J. RACE & L. [Vol. 11:861

proceeding. They created a tribal family court for resolving child

welfare cases in their own community, rather than in state court,

where TPRs were filed at an alarming rate.

The process was

done in consultation with tribal elders, who warned that the

community would not accept the White Earth court if it

terminated parental rights the way the state courts did.

They

worked together to create a suspension of parental rights, which

allowed parents to maintain a path back to their families.

We know these are not the only forms of resistance, and

we have a long way to go to learn about, and contribute to,

building our collective memory around how communities have

resisted ASF. However, these conversations are instructive in

many ways. First, they are a reminder that we are not alone in

seeing this culture of parental destruction as an affront to our

culture. That demanding a repeal of ASFA is not a demand for

harm to children, and that people who hear our demand in that

manner are likely centering their analysis in dominant white

culture norms. It also reminds us that our communities have so

much capacity to organize, and reorganize for the sake of family

survival. That we have, for so long, taken care of each other,

responded to harm, supported and nurtured each other. That we

can build on the resiliency of relationship, hold nuance, and care

for one another—and that we have to remember as much as we

reimagine.

C. An Invitation to Learn from Movements Outside of the

Family Regulation System

TPRs have disappeared so many parents from their

children. Elizabeth Brico writes that “[e]quating this action to

the death penalty is not hyperbole, in fact . . . it’s not a strong

enough comparison.”

As far as I can tell, the dead don’t wander among

the living, constantly inundated with images of

the lives and experiences they don’t get to have.

Anita Fineday, Customary Adoption at White Earth Nation, in

CW360º: A COMPREHENSIVE LOOK AT PREVALENT CHILD WELFARE, 28 (Traci

LaLiberte et al. eds., 2015).

Id. Jeri Jasken said that TPRs are simply “not allowable” in White

Earth’s practices, unless there has been some absolutely egregious harm, which

is rare. Interview with Jeri Jasken, Former Director, White Earth Nation Child

Welfare and Behavior, at 5:00 (Dec. 2, 2020) (on file with author).

Brico, supra note 4.

2021] ENDING THE FAMILY DEATH PENALTY 887

As far as we know, the dead don’t miss

themselves, don’t mourn their lives; the dead don’t

remember the aspirations they never achieved.

The dead are, if not at peace, then at least null.

Mothers without their babies are neither at peace

nor null. Mothers without their babies are Hungry

Ghosts . . . The civil death penalty looks like

hating Facebook because you post photos of your

kids there. The civil death penalty sounds like

shoving headphones deep into my earlobes so I

don’t have to hear the mom downstairs shout at

her kid in a way I never would, but don’t have the

opportunity to do better than. The civil death

penalty feels like the recirculated air of my

apartment because going outside means seeing

families walking together. Going to the grocery

store means not buying goldfish and juice for my

daughters while you buy snacks for yours. Going

to the beach means the terrible freedom to swim

without worrying about kids and wave and water

and drowning. The civil death penalty means

hating the mirror, where my belly will never be

flat again and that was only okay because it gave

me you and you but you’re not here anymore. The

civil death penalty means being conscripted to

irreparable loneliness. It means living the

mangled reality of mother without her children.

The civil death penalty means hating everyone I

know for having the audacity to live forward and

move on while I remain dead and stuck for the rest

of my life. I’d give anything to be granted

clemency.

TPRs are a violent legal mechanism that kill families, and ASFA

is the civil death penalty that enacts the execution. As we learn

more about how to repeal ASFA, we must think critically about

how the family and criminal death penalties interact. Both

purport to build safety at the expense of human life. Both

normalize state violence as response to social concerns. Both

politically justify their existence as a way to eliminate serious

harm, and yet have disproportionately eliminated the existence

Id.

888 COLUM. J. RACE & L. [Vol. 11:861

of Black and brown people. When determining our best path

towards dismantling the family death penalty, we believe we can

learn from activists who have worked to abolish the criminal

death penalty. We have worked over the past two years to learn

from comrades in all abolition movements, because learning from

other connects our liberation to a longer freedom struggle.

We have learned a great deal from the movement to

abolish the criminal death penalty. This movement is in many

ways more mature than ours, in that it has gone through several

life cycles. The longevity of this activism helps us understand

both successes and struggles of the work and can provide context

for how we may want to envision political strategies for our

movement, and prepare for retrenchment. For example, there

was a period of time when death penalty abolitionists advocated

for Life without Parole (LWOP)

as a replacement to the death

penalty, with devastating consequences. At the time there was a

sense that this was a more humane option, and potentially a

more moral option. However, it did not fundamentally challenge

the callous disregard for life, or the culture of punishment that

ultimately drives our reliance on the death penalty. Moreover,

advocates have argued that the rhetoric used to win support of

LWOP as a replacement to the death penalty, particularly

tough-on-crime and cost-saving rhetoric,

served only to reinforce

the values underlying not only the death penalty, but the entire

penal system.

By focusing on substituting one draconian policy

for another, and by failing to put forth a narrative and vision that

centers the dignity of people facing capital punishment, death

penalty abolitionists failed to fundamentally alter the framework

undergirding both LWOP and the death penalty. This leaves the

Miller v. Alabama, 567 U.S. 460 (2012).

Ross Kleinstuber et al., Into the Abyss: The Unintended Consequences

of Death Penalty Abolition, 19 U. PA. J.L. & SOC. CHANGE 185, 194 (2016). In

addition, arguments about the fiscal savings of LWOP were similarly misguided,

not only because these arguments reduced the value of human life to a dollar

amount, but also because the costs “saved” by LWOP are actually the result of

weakened legal protections and diminished procedural rights. The death penalty

is more expensive because people receiving death sentences are afforded more

legal protections than those who receive a sentence of life without parole; any

argument relying on cost-savings is an implicit endorsement of reduced legal

protections. Id. at 190–93. See also Rebecca Burns, Is Life Without Parole Any

Better Than the Death Penalty?, IN THESE TIMES (Mar. 22, 2013),

https://inthesetimes.com/article/death-penalty-abolition-life-without-parole

[https://perma.cc/JP7F-VRB8].

2021] ENDING THE FAMILY DEATH PENALTY 889

movement with “nowhere left . . . to turn.”

Once LWOP replaces

the death penalty; the result is little more than a “Pyrrhic

victory.”

In the winter of our work especially, we must wrestle with

these difficult and often competing realities, and generate

movement wide conversation to create alignment on how we

remain faithful to the horizon of abolition. This is difficult. TPR

abolitionists may consider the impact of alternatives to TPR,

such as an indefinite suspension of parental rights, that prolong

the uncertainty of reunification or the trauma of family

separation just as the LWOP prolonged the trauma of death in

prison. Any alternative that prolongs the process and ordeal of

family separation may result in parents “volunteering” to have

their parental rights terminated solely to find closure and put an

end to their family’s uncertainty and suffering just as people on

death row will sometimes ‘volunteer’ for their execution to put an

end to their uncertainty and suffering.

Moreover, powerful

entities, such as judges and child welfare prosecutors, may use

these ostensibly “humane options” to coerce families into

separations and settle their termination trials.

It will be a

struggle, but the ultimate goal must be to make the idea of killing

a family through a TPR so offensive, that it is no longer an option

for lawmakers, communities, or individuals.

We can also learn death penalty abolitionists about the

importance of being faithful to language and narrative shift. In

Ross Kleinstuber et al., supra note 60 at 195.

Id. at 195.

For example, following the Supreme Court Decision in Adoptive

Couple v. Baby Girl, Dusten Brown dropped his appeals to regain custody of his

daughter. He said, “I cannot bear to continue it any longer . . . I love her too

much to continue to have her in the spotlight.” Bethany R. Berger, In the Name

of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67

FLA. L. REV. 295, 360 (2015).

This is not an abstract concern. Litigants facing TPR proceedings are

often threatened with a termination conviction if they do not “volunteer” their

rights. We see this occur often in New York termination proceedings where

agencies “offer” conditional surrenders that purportedly allow for visitation

between parents and children. These provisions are often unenforceable. These

conditional surrenders offer parents a glimmer of hope, but no legal rights to

their children. They give the foster – now adoptive – parent enormous power to

determine whether the parent can visit, even though they are supposed to be in

an agreement. They are often used to force settlements for parents that wish to

litigate their termination trial and do little to actually substantively preserve

the parent/child relationship.

890 COLUM. J. RACE & L. [Vol. 11:861

the context of LWOP, we see the dominant narrative culture

creates “humanity” around caging people for life versus state

sanctioned murders. We can learn from our colleagues, about the

pitfalls of adopting a narrative that prefers one inhumane

treatment and disguises it as progress. We can also learn from

our colleagues about the pitfalls of creating categories of

deserving and undeserving people to justify reform, and how

creating these types of exceptions do not eliminate the violent

tactics of the government, but further helps legitimize and justify

cycles of oppression. We absorb these lessons and work to end

TPR for all families, not just the ones that society deems worthy.

Our analysis of the LWOP movement does not negate the

humble awe and gratitude we also give to the many people who

resisted the criminal death penalty. To the contrary, it is a

reminder to learn from others, and help us be open to

accountability of our own work. The inevitable cycle of movement

means that new activists will be able to see our vulnerable

mistakes, we accept this challenge and hope we will not do more

harm than good.

D. An Invitation to Build Principled Organizing Strategies that

Bring Us Closer to Our Goal of Liberation and

Transformation

To analyze as to whether we are doing more harm than

good, we think about different frameworks around abolitionist

demands that are either “non-reformist reforms” or “abolitionist

steps.”

Abolitionists recognize that the world may not change

tomorrow; however, we also reject incrementalism that reinforces

the status quo and entrenches oppressive cultures. Longstanding

organizations like Critical Resistance

and among many other

liberation activists,

have collected and facilitated questions to

help encourage pro-abolitionist policy changes that resist the

tendency to tweak the system, but instead tug at the root of the

policy. In the context of ending policing, and abolishing the prison

If You’re New to Abolition: Study Group Guide: Reformist Reforms vs.

Abolitionist Steps, ABOLITION J. (June 25, 2020), https://abolitionjournal.org

/studyguide/#weekfour [https://perma.cc/8FTJ-532Y].

CRITICAL RESISTANCE, http://criticalresistance.org/ [https://perma.cc

/AZS6-GLNZ].

We have been deeply influenced by the framings used by Law for

Black Lives, Andrea Ritchie, and the Movement for Black Lives among many

other teachings.

2021] ENDING THE FAMILY DEATH PENALTY 891

industrial complex (PIC), many activists think through questions

like these before agreeing to a policy change:

1. Does it reduce funding to the police?

2. Does it challenge the notion that the police

increase safety?

3. Does it reduce the tools and tactics that police

have their disposal?

4. Does it reduce the scale of policing?

5. Is there a material resource gain for communities?

While this is not an exhaustive list, nor does it encompass the

scale of expertise that PIC abolitionists consider in framing and

making their demands, it is an enormously helpful organizing

tool that creates practical guideposts for building steps towards

our new future.

As we consider demands around ASFA, and abolishing

the family death penalty, we are thinking about how to

incorporate non-reformist reforms into our analysis. Before

committing to a policy agenda we ask—are the changes that are

being proposed reducing funding to the child welfare industrial

complex,

and increasing the funds to communities? Is the

narrative around the policy shift pushing the dominant narrative

that the family regulation system is an arbiter of safety? Are we

Reformist Reforms vs. Abolitionist Steps in Policing, CRITICAL

RESISTANCE, https://static1.squarespace.com/static/59ead8f9692ebee25b72f17f

/t/5b65cd58758d46d34254f22c/1533398363539/CR_NoCops_reform_vs_abolitio

n_CRside.pdf [https://perma.cc/AWN5-X3L7].

This framing and definition was presented at “Dream-mapping

adoption and foster care Abolition,” Allied Media Conference 2020, and was

created and presented by a collective of adopted and formerly fostered folks.

Welcome to the 21st Allied Media Conference, SCHED, https://amc2020.sched.com

/event/d8En/dream-mapping-adoption-and-foster-care-abolition [https://perma

.cc/2DUA-EBJH]. They attribute this working definition of child welfare

industrial complex (CWIC) to people who have offered analysis/ways of thinking

about the prison industrial complex, military industrial complex, etc.

acknowledging it as a working definition used explicitly to name the overlapping

systems of public and private child welfare, across both foster care and adoption.

A recognition that we noticed that some people have used the term, Child

Welfare Industrial Complex, but mainly to reference one part of the system (e.g.,

public foster care system, foster care industrial complex, adoption industrial

complex, orphan industrial complex). However, these have historically not

included both public and private systems across foster care and adoption and the

ways those systems overlap and function together.

892 COLUM. J. RACE & L. [Vol. 11:861

supporting changes that decrease the size, power and scale of the

family destruction system? Are we supporting a shift in material

conditions and the politicization for our people? This is not an

exhaustive list, but it is an important discipline in defining

success, claiming victory, and keeping our focus on liberation. It

is also an important process that must be convened with

integrity, and ethical adherence to a liberatory framework, and a

process that invites transparency and accountability.

We will not always have a perfect answer to each

question, and we might agree to a policy change that is imperfect.

These questions, however, help narrow where we must continue

fighting. For example, on the one hand, if there were a change

made to ASFA to end terminations for people who are

incarcerated, that would be a victory, but it would not be the end

of movement. It would be a victory because it would reduce

funding to the family regulation system by ending the financial

incentives that attach to those specific terminations and

eliminate a tool that the family regulation system could rely

upon. However, it still would leave out so many members of our

community, the legal apparatus of ASFA still intact, and

potentially entrench the legitimacy of ASFA as a valid idea. This

does not mean we do not accept it as a victory, but we would know

we still had more work to do.

On the other hand, it would not be considered an

abolitionist step if we were asked to endorse a policy that funded

agencies to do their own internal review of TPRs, and provide

recommendations to the community. Here, we have vested more

funding into the system, made the foster care agency the arbiter

of success and the creator of the recommendations, and offered

no guarantee to the material conditions of our people.

While these were two simple and short examples of how

an abolitionist uses the framework of “non-reformist” reforms to

make steps towards change—we hope this is constructive. We are

continuing to learn, and are hopeful to build change.

E. An Invitation to Repair and Heal Histories of Harm

Abolitionists’ steps towards change also demand a

transformative repair, not only as we heal as individuals but as

society becomes accountable to the harms it inflicted on our

communities. Those of us who have suffered the harms of these

systems, and in particular Black mamas, Indigenous mamas, and

2021] ENDING THE FAMILY DEATH PENALTY 893

Latinx mamas are owed the truth. We are owed reparations. We

demand that the lies that feed that ideologies of these systems

that have devalued our families and communities be exposed as

lies. We demand that our families be supported to heal and

repair, with the force of law and financial, political, and social

capital that was invested in these systems. We look to both U.S.

liberatory frameworks of reparations as well as international

reckonings with truth and reconciliation to help guide our

demands and understanding.

We recognize that the United States is not the only place

where a dominant political, economic, social, and racial order was

established in part through family separation. We have many

examples of this across history and across time, and we are in a

space of learning about the justice community has demanded. For

example, the “Las Abuelas de la Plaza de Mayo” movement that

formed in Argentina in response to the mass disappearance of

children from families deemed subversive by the military

dictatorship, began as a group of grandmothers and grew into a

movement that forced a truth telling around the disappearances

and the development of a DNA database so that parents could

find their children.

As we build momentum, we must also build a framework

of reparations that exposes the centuries of violence inflicted on

our families, and creates a pathway of true healing, shifts

resources to our community, and builds accountable

infrastructures to ensure that never again will any family be

taken by the family death penalty.

V. CONCLUSION

“We are a people. A people do not throw their

geniuses away. And if they are thrown away, it is

our duty as artists and as witnesses for the future

to collect them again for the sake of our children,

and, if necessary, bone by bone.”

—Alice Walker

Michele Harvey-Blankenship & Rachel Shigekane, Disappeared

Children, Genetic Tracing, and Justice, in CHILDREN AND TRANSITIONAL

JUSTICE 293, 302–04 (Sharanjeet Parmar et al. eds., 2010).

ALICE WALKER, IN SEARCH OF OUR MOTHERS’ GARDENS: A

WOMANIST PROSE (1983).

894 COLUM. J. RACE & L. [Vol. 11:861

Stop investing in the imaginations of white supremacy.

Every day we see powerful people, industries and philanthropy

invest more in the child welfare industrial complex than

communities. These industries are so faithful to technical

surveys like “ACES” that are supposed to address adverse

childhood experiences, rather than actually building up Black

women and children. They spend more time building out family

regulation apparatuses like “prevention models” than advocating

for housing, baby bonds, and universal basic incomes for our

communities. They are obsessed over the idea of “permanency”

instead of confronting the messy reality that family is complex,

full of contradictions, and ripe for healing and accountability.

We demand those with power, means, and resources to

stop voicing caution and hesitancy when the most oppressed in

our society build power. We demand that those individuals with

privilege, give unyielding, unrestricted, and unencumbered

support. That this support be financial, but also intellectual and

in the form of patience and time. For centuries the United States

has devoted trillions of dollars and political capital to the

imaginations that gave us slavery, genocide, prisons, and

housing insecurity. We are deserving of at least that time, and

more. We need ample space for creativity, inconsistency,

mistakes, and conversation. We need space to dream, think,

strategize, and implement.

Build with us and exist in principled struggle. We do not

expect this to be linear or simple, it will be uncomfortable, there

will be contradictions, mistakes, and need for deeper learning.

There will be setbacks, harm, and indecision. However, there is

no better time than now.