Children and the Shadow of the Law

WALTER OLSON, CATO INSTITUTE

Let me start with the big picture issues, where I think Diane Redleaf and I agree, and then turn to the difficult issues of interim CPS separations concerning which I learned a great deal from her essay, but on which I harbor some differences and reservations.

For as long as I have been around them, libertarians have been trading outrage about the ways Child Protective Services can snatch children away from parents. Such raids can be a life-changing infringement of some of the most prized of personal rights. They can involve an expensive legal fight against state-hired personnel and experts whose contentions a judge might naturally find plausible.

Armed with such power, some CPS agencies combine the raid-first ask-questions-later ethos of a bad law enforcement agency with the nosy paternalism of a bad regulatory agency. Over nearly twenty years, at my website Overlawyered, I’ve gathered CPS horror stories, a genre at which our friend Lenore Skenazy (of Free-Range Kids) so excels: the parents tripped up for letting kids stroll home from the parkwalk the family dog alone, stay in the back seat of the car on a mild day while mom dashes into the store for a carton of milk, or simply play outside; the journalist mom’s joke tweet (“3-year-old for sale. $12 or best offer”), the kid held for an unexplained cough, and the criminal suspicions raised by dubious hair-strand testing, the use of perjury and false evidence, the perils of parental consumption of poppy seed bagels, let alone marijuana,living with a boyfriend who has a criminal record, and so forth. It’s not just the United States, either: in the United Kingdom a CPS inquiry might hinge on parental obesity or kids’ having been allowed to play grown-up computer games, and we haven’t even gotten to Scandinavia.

To be fair, CPS employees must work under a set of incentives shaped by headline-grabbing bad outcomes. Policies can lurch back and forth, driven by the latest failure: a child dies in parental custody, so public opinion demands more and earlier raids; then a child dies in a foster care setting, and the cry runs the other way. The next death may occur in grandparent care, or in a group home. When CPS managers vacillate and hold back from any definite final placement or resolution, they may saddle kids with one of the most dangerous risk factors of all: time spent in the system.

Even assuming a strong presumption against intervention in intact families that requires a convincing showing of likelihood of serious injury from not removing a child, we are still left with a lot of unanswered questions about procedure and the role of courts. Which brings us to the distinctive subject matter Diane Redleaf raises in her essay: what sorts of policy response should apply to agencies’ practice of proffering to parents ostensibly voluntary interim placements and “safety plans”? What happens when parents regret—the next month, or the next day—having agreed to those conditions? Can they reopen the concessions they made, and how? Does it matter whether the agency has withheld information from them or menaced them with worst-case scenarios?

I want to start by stepping back and taking note of the way the issues raised here turn up not just in disputes between CPS and parents, but across area after area of law and policy. Generically, they are issues arising from negotiation in the shadow of the law. Some examples:

  • A criminal defendant, half scared to death by a prosecutor’s threat of the long sentence that might be handed down if all charges are proven, agrees to a plea bargain. Since the case ends, no jury ever hears the evidence, which may have holes.
  • A business charged with white-collar crimes, or maybe not even charged yet, accepts a deal proffered by the U.S. Department of Justice for a Deferred Prosecution Agreement (DPA) or Non-Prosecution Agreement (NPA). It agrees to pay the federal treasury hundreds of millions of dollars and submit to years of oversight by a federally appointed monitor, who will review and approve decisions that companies ordinarily get to make for themselves. Since the deal is voluntary, a court never gets into the strength of the evidence.
  • A university, bank, or pharmaceutical manufacturer signs a letter agreeing to adopt practices that are in no way required by federal law, after closed-door meetings in which emissaries from a federal department with oversight authority make known their feeling that these would be good practices to adopt. Pushing back is considered hazardous because a determined regulator can almost certainly find ways to make life unpleasant for one of these entities.
  • Lawyers sue manufacturers claiming that a certain class of vaccine or medical devices cause a side effect. One company, more timid than the others, agrees to a settlement paying tens of millions of dollars. The other defendants go to court and win decisive victories: the law says there was no causation. Too bad for the company that settled; settlements are forever.
  • Idealistic lawyers sue public social service agencies in search of court decrees cleaning up agency bad practices. The case settles and the resulting consent decree requires the agency to get permission from the lawyers before, say, changing certain policies or dropping budgetary commitments. Twenty years later, the private lawyers are still using the bargaining leverage of the consent decree to obtain concessions on unrelated issues.

In short: courts enforce settlements. They often do so even when the settlement is a hard bargain and even when its results stray from the appearance of equal justice. They do so partly out of self-interest (if it were too easy to wriggle out of old settlements, courts would be full of people trying to refight old cases and would have less time for the new). They do so partly out of an ideology that values contract, although settlement is treated as final even in countries with less respect for contract than ours. Yes, of course there are some exceptions—when the proffering party has obtained the settlement by fraud, for example. But the brilliant-but-quirky Judge Richard Posner, and his Seventh Circuit colleague Judge Frank Easterbrook, weren’t just off on some weird contractarian jag when they ruled in the DuPuy case that by and large parents are stuck with the settlement bargains they reach with CPS, even if they were under pressure when they settled, and can’t ask for free-form reconsideration based on all the individualized facts and circumstances.

Yet that is not the end of the story. In recent decades legal scholars, including many of libertarian bent, have stepped up attention to the once neglected issues of bargaining in the shadow of the law. Everyone realizes that most criminal prosecutions end in plea bargain rather than trial, and most civil lawsuits in settlement, and many major regulatory outcomes from the use of guidance documents, informal negotiations, and so forth. In public law the use of agency consent decrees has come under more scrutiny as well.

And if I may oversimplify, these varied lines of scholarly inquiry often wind up echoing much of the critique of CPS practice that Diane Redleaf presents:

Leverage. The side making the demands can deploy fear of extreme or unpredictable outcomes or prolonged legal process to obtain concessions a court probably would not or even could not have imposed.

Opaqueness. Settlements get negotiated away from public view, without the procedural sunlight afforded by open court and written judicial opinions. It is harder for outsiders to know what outcomes are typical, or how wide the range of variance is.

Entanglement over time. If it likes, the side making the demands can sometimes obtain for itself an ongoing, perhaps indefinite supervisory role, even in situations where judicial resolution would tend to afford a once-for-all clarifying ruling, such as a line between guilty and not guilty.

Bypassing court review. Key problems with the demanding side’s case, from quality of evidence to procedural irregularities, may never come before a judge.

Many of the problems Redleaf identifies are versions of these. CPS separations occur “in secret and without fanfare.” Statistics on them are not maintained “in any reliable form.” And so on.

So how do we get a handle on this? My first sense is that attacking the settlement process as such is doomed to frustration: the window for finding duress is awfully narrow. (E.g., “Caseworkers are trained to label safety plans as ‘voluntary agreements.’”)

Instead, obligations to respect rights can be imposed directly on agencies without need to scrutinize the give-and-take of the settlement process. If an agency fails to develop probable cause of abuse, and lacks exigent circumstances or a court order, it must release that child, period.

On the issue of opaqueness, higher-ups such as legislators and governors can impose reporting requirements. Settlements that go beyond the underlying statute in curtailing parents’ rights, entangle a family in obligation for more than a certain length of time, or are considered unusual or extreme for other reasons, can be kicked upstairs to require approval by agency brass.

Safeguarding every family’s rights will, as one of its benefits, shore up families against unwise surrenders of their rights.


Used with the permission of the Cato Institute/CC BY-NC-SA 4.0


Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.