The push to embrace “predictive
analytics,” an unreliable, raciallybiased method in which algorithms “inform” the decisions of
caseworkers – decisions such as when to tear apart a family – is led largely by
the same people who deny the very existence of a racial bias problem in child
welfare, want to see far more families torn apart, or both.
They seem to be willfully
blind to the enormous inherent risks of unnecessary foster care placement, including the risk of abuse or evendeath in foster care.
But there are a few
reform-minded leaders in child welfare who want it as well, for themselves.
These reformers argue in effect: “You can trust us.
We’ll only use our vast powers for good.”
I do
trust them. But I don’t trust their successors.
That
brings me to another lesson from the 2016 election, a lesson that extends beyond
predictive analytics to a wide range of child welfare issues.
The
lesson comes from how President Obama handled key national security issues. He
believed the George W. Bush administration’s ends-justify-the-means approach to
the “war on terror” had gone too far. But instead of pushing to change laws to
make it harder for any president to abuse these powers, he opted for an
approach that amounted to: Trust me.
Limits of the “Have-It-Both-Ways” Approach
The New York Times aptly described it as “President
Obama’s have-it-both-ways approach to curbing what he saw as overreaching in
the war on terrorism.” According to the Times:
Over and over, Mr. Obama has
imposed limits on his use of such powers but has not closed the door on them —
a flexible approach premised on the idea that he and his successors could be
trusted to use them prudently. [Donald] Trump can now sweep away those limits
and open the throttle on policies that Mr. Obama endorsed as lawful and
legitimate for sparing use, like targeted killings in drone strikes and the use
of indefinite detention and military tribunals for terrorism suspects.
And even in areas where
Mr. Obama tried to terminate policies from the George W. Bush era — like
torture and the detention of Americans and other people arrested on domestic
soil as “enemy combatants” — his administration fought in court to prevent any
ruling that the defunct practices had been illegal.
I don’t
know the average tenure of people who run public child welfare agencies, but I
doubt it’s eight years, or even four. The reformers clamoring to get their
hands on predictive analytics algorithms may intend to use them with great
restraint. But there is nothing to stop their successors from using analytics
any way they want.
Lessons Beyond Predictive Analytics
The
lesson should extend beyond predictive analytics. Child welfare systems
are unique in state and local government in the extent to which they wield vast
power with little accountability.
§ Child
protective services workers can search homes – and strip search children –
based on no more than an anonymous tip.
§ They
can walk out with the children entirely on their own authority, or ask law
enforcement to do it for them, without any hearing beforehand.
§ When
there finally is a hearing, the indigent parent – and most are indigent – may
not get a lawyer at all. If she does, it’s likely to be an overloaded public
defender she just met in the hallway five minutes before the hearing.
§ The
standard of proof to hold the child indefinitely is not “beyond a reasonable
doubt” as in a criminal case. The standard usually is merely “preponderance of
the evidence” – slightly more likely than not – the same standard used to
decide which insurance company pays for a fender bender.
The few
reform-minded leaders of child welfare systems know all this. And they
know how this vast power, when abused, harms the children needlessly taken, and
how it overloads workers so they’re less likely to find children in real
danger. But their answer often is the same as President Obama’s approach to
that other area with vast power and little accountability, national security:
self-restraint.
Twenty
years ago I met one such reformer. She’d spent years curbing needless removal
in her state. But shortly after she left, when a new governor took office,
there was a high-profile fatality. The governor panicked, and effectively
ordered his new child welfare agency chief to do the same. “I was amazed at how
quickly it could all be washed away,” she said.
So reformers who are
serious about a lasting legacy need to get serious about curbing their own
power. They should be urging lawmakers to, among other things, raise the
standard of proof in child welfare cases and curb the ability of workers to
misuse their “emergency” authority to remove children. (NCCPR’s full DueProcess Agenda is available here.)
Most important, they
should be creating institutional providers of high quality defense for
families, along the lines of what’s been done in New York City. This
is not a strategy to get “bad parents” off; it helps craft alternatives to the
cookie-cutter service plans typically imposed on families even by relatively
good child welfare agencies.
The
best way to create a legacy of reform is to give families themselves the power
to fight for it.
