Due Process in the Real World: Child Welfare, Ferguson and Right To Counsel

Equal Justice

Photo by Marjorie Lipan is licensed under CC BY-NC-SA 2.0

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We need to start talking differently about what lawyers call “due process”. All around us are vivid, compelling examples of how government acts upon individual citizens and their families. Earlier this year, an Atlanta baby asleep in his crib was critically injured and disfigured by a “stun grenade” thrown by police in a no-knock drug raid on a house that had no drugs. Yet, when we legal professionals stand up to defend what we see as constitutional rights, we speak in language that is procedural, technical and transparently self-serving. I once mentioned to a high-ranking USDHHS official that right to counsel legislation was probably perceived by child welfare administrators as the Lawyer Employment Act. “Always seemed that way to me,” he admitted.

That same official spent every day of his federal appointment tirelessly promoting the well-being of children and youth in government care, but honestly did not see how legal representation advanced that cause. It’s time that we drop the law journal language and level with the public about what is happening in our child welfare and juvenile justice systems when children and their parents go unrepresented or underrepresented. When the government messes with your life, you get a legal process and an attorney to represent you in that process. Without that lawyer representing you, the government can do as it pleases. The government knows this, and knows the importance of a lawyer in a courtroom. That’s why counties and states always make sure they have a lawyer and often prefer that you don’t.

If we’re honest about what is happening within the walls of the legal systems we operate, we should have allies on all sides. If you care about racial and social justice, you want to fight the campaign to push African American kids out of school and into detention. If you care about our youth, you want teenagers to have the same legal protections as do the police officers who use deadly force against them. If you care about disadvantaged families of color, you want to change the ways we take too many of these families’ children from their homes.

Yet child welfare reform, and the right to counsel that must accompany reform, isn’t inherently a leftie concern. If Ferguson didn’t wake up the libertarians, their Ambien prescriptions may need to be adjusted. Like respect for the individual, respecting parents and helping them raise children without unwarranted state intervention is a cause fit for progressives but also for the Pauls of this world (Ron and Rand, click here to make your donation to NACC and our mission of children’s and families’ rights.)

In Henry VI, Part II, Shakespeare famously gave a character the line, “The first thing we do, let’s kill all the lawyers.” What’s often ignored is that the line is delivered by Dick the Butcher while hatching a plan with his comrades to install one of them as a totalitarian dictator. Getting lawyers out of the way is seen as a very helpful precondition to oppression. Let’s not help those who would have us perceived as self-interested technocrats. In the face of the state’s power, having a lawyer means having a shot at justice. The first thing we do, let’s be clear on that.

Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

About Kendall Marlowe

Kendall is the Executive Director of the National Association of Counsel for Children, the national advocacy organization of attorneys and other professionals representing children and families in child welfare, juvenile justice and custody cases. Kendall served as Chief of the Bureau of Operations and as Deputy Director for the Department of Children and Family Services in Illinois, where he was also spokesperson for the Department of Juvenile Justice and the Governor’s Long Term Care Reform Task Force. Kendall grew up in a family that welcomed six adolescent foster youth, has been a foster and adoptive parent himself, and worked as a social worker with at-risk, homeless and foster youth on Chicago’s south side. He holds a Master’s in Social Work from the University of Chicago School of Social Service Administration, where he received the Wilma Walker Honor Award; and a J.D. and Certificate in Child and Family Law from the Loyola University Chicago School of Law, where he was an Honorary Child Law Fellow.

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