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The Appeal Podcast: The War on Drugs Continues In Family Court

With Miriam Mack and Elizabeth Tuttle Newman of The Bronx Defenders

Photo illustration by Anagraph / Photo by David Galloway/Getty

As cannabis use is legalized in more and more jurisdictions across the country, child welfare systems aren’t always keeping pace. Allegations of drug use are still raised in family court, particularly against parents of color, and those who admit using cannabis are often subject to heightened surveillance. We are joined today by Miriam Mack and Elizabeth Tuttle Newman, staff attorneys from The Bronx Defenders, to discuss the lessons to be gleaned from states like New York and Colorado.

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Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page and as always you can like and subscribe to us on Apple Podcasts.

As cannabis use has become legal in more and more jurisdictions across the United States, the assumption for most people — understandably — has been that the criminalization of its use would drop in proportion, but in several states, the use of cannabis by parents, even away from one’s children, has been used in a haphazard and measurably racist way by child protective services as a pretext to tear families apart. Today we are joined by Miriam Mack and Elizabeth Tuttle Newman and attorneys from the Bronx Defenders Office to discuss the use of arbitrary drug tests to harass low wage, largely black and Latinx parents.

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Miriam Mack: This is Miriam. Many of the standards are best interest standards, what’s in the best interest of the child? And that standard is made by people who are impacted by racism, who are impacted by classism, who are impacted by implicit bias. 

Elizabeth Tuttle Newman: This is Elizabeth. So what we’ve seen in our experience as family defense practitioners every day in the South Bronx is that the drug war is just as pernicious in family court. It does all of the same things that it is done in a criminal context from separating families to ravaging communities. The War on Drugs is an intervention point that the government has historically used to surveil and control people of color and it isn’t just limited to incarcerating people.

[End Clips]

Adam: Quick production note, we will be using the terms marijuana and cannabis interchangeably in this episode. Marijuana being, because that’s a more popular term we suspect people will know, but to be clear, marijuana has racist origins and largely exists to stigmatize the use of cannabis. The term we generally prefer using is cannabis. We will slowly migrate over to that term as the podcast continues. Thank you so much for coming on the program. 

Thank you. 

Thanks a lot. 

Adam: So you wrote, y’all wrote, as they say in my native Texas, y’all wrote an article for The Appeal on September 9th called “Parents Threatened With Losing Children Over Cannabis Use,” which exposed me, and I assume all who read it, to something that almost never gets talked about but is infinitely interesting, which is that as we’ve increasingly in the state and local levels decriminalized cannabis use — marijuana — although of course this is not at all uniform. The general impression is that the issue was kind of behind us, that the war is kind of won, but there’s one area in particular you note that has an extremely racist implementation of cannabis law that is very much alive and thriving, which is that of child protective services. Can you talk about the uses and misuses of the War on Drugs and how the state is taking away children or increasingly monitors parents for the use of cannabis and what the racial makeup of this implementation is?

Miriam Mack: Sure. Okay. This is Miriam. One of the reasons why we wanted to take time to write about the prosecution of cannabis in the family court system is because Ms. D, who we wrote about and who’s mentioned in the story, that’s the type of thing that we see on a daily basis. Ms. D’s story is emblematic of what we see happen in family court every day and, you know, she is a young mom, uses cannabis a few times a week. There’s no allegation or any suggestion that her use of cannabis has any sort of negative impact on her children. But even still her family was subject to surveillance. She was subject to court monitoring. She was required to participate in a daily drug treatment program which caused her to almost lose her housing and put her children in jeopardy. And housing can always be, destabilized housing can always be the basis for further and continued family court intervention. And this is just one example of hundreds of cases we’ve seen where cannabis use, despite its wide use throughout New York and throughout the country and legalization, is a very active issue in family court. 

Elizabeth Tuttle Newman: So this is Elizabeth. Ms. D’s story really does reflect the realities of the child protective system writ large. Nationwide there has been a lot of attention paid to the way that the drug war has hurt black and Latinx people, but really not enough attention paid to the ways in which the drug war has manifested in the child protective system where we work. So what we’ve seen in our experience as family defense practitioners everyday in the South Bronx is that the drug war is just as pernicious in family court. It does all of the same things that it has done in the criminal context from separating families to ravaging communities. The War on Drugs is an intervention point that the government has historically used to surveil and control people of color and its reach isn’t just limited to incarcerating people. It’s another dimension of the drug war that we have been focusing on, that folks on the ground level had been fighting for but it can be invisible if you’re not focusing on that. That’s one of the reasons why, you know, we’re a family defense attorneys, but we do work in a holistic office. So we come at this problem at the Bronx Defenders from different ways, whether that’s through a criminal context, an immigration case or a civil case like housing. And that’s one of the reasons that we have to be under one roof is because of the government works against families from many different angles.

Adam: So let’s talk about these racial disparities, which I think, you know, on the show I could almost sort of pre record saying the system is racist, but these are actually numbers that shocked even me as someone who does this for a living. You found quote, “One study found that Black children are 6.2 times more likely to be involved in a report of abuse or neglect than white children, 7.8 times more likely to be involved a report found to be credible by the child welfare agency, and 12.8 times more likely to be placed in foster care. Moreover, in New York, Black children remain in foster care longer, on average, than white children.” To what extent are African American parents who use cannabis — now, obviously this happens to white people too, but at a far less frequent rate — to what extent is that seen as sort of child abuse or some kind of pathology where when some white yuppie does it, it’s kind of just a, a sort of hobby?

Miriam Mack: This is Miriam again. That’s sort of absolutely what we see here in New York. And I think the best example of that is that The New York Times relatively recently ran a story sort of talking about the pot moms of Park Slope, right? And there, you know, there have been sort of jurists that have remarked upon the fact that walking around in New York City and observing folks using marijuana liberally in some parts of the city, whereas in the South Bronx that could lead you into real family court issues. And so there’s just a different sort of approach and I think you’re absolutely right when you said that the behavior is pathologized because certain behavior that would be okay in wealthier parts of New York City is absolutely viewed with suspicion and is viewed as a point in which that family needs to be, or the family that is in court needs to be brought into court. The family needs to be regulated. And I think that part of that is that even with the trend of legalization throughout this country and even in New York where there was a discussion in the legislature about legalizing marijuana and there’s been discussions in courtrooms from our attorneys suggesting the fact that this is something that is not uncommon, a parent to use cannabis is not uncommon. And in fact the law requires for ACS to do more than just say — ACS is the Administration of Children’s Service, which is the child welfare administration here in the five boroughs — but the law requires for ACS to say something more than this parent uses whatever substance it is, but in this case it’s cannabis. And what we see is that the same behaviors that we know are going on all throughout the city, that in fact parents talk openly in The New York Times about using marijuana and how that not only doesn’t affect their parenthood but also makes them better parents. That cannot be said in the Bronx family court. That gets parents into hot water. It leads to parents cases dragging on longer. It leads to people having to go to drug programs and I think it would be unheard of in other jurisdictions.

Adam: Now to be clear, just to clarify for our listeners, Ms. D, the person we’re talking about here as an example, was asked by a protective investigator if she smoked and she said yes cause she thought it’s legal, it’s not a big deal. But she did not do it in front of her children. So I think those who may be listening and be like, well you shouldn’t smoke weed in front of your kid. She never did it in front of her child and was never alleged by the state to have done it in front of her child. So we’re really talking about completely private use. Now, I know that when I grew up, my parents drank every night. Alcohol was very common. So we have this kind of 1960s morality where people drink ten hours a day and then turn to someone smoking weed and call them a beatnik dope fiend, which of course science has bared out as completely nonsensical and indeed it’s quite the opposite. Alcohol sort of empirically is much worse for you, as is of course smoking. If one of these child protective services people were sitting here now, what would they sort of say to rationalize that apparent hypocrisy, even setting aside the racist element?

Miriam Mack: I think that’s a good question. You know, I think that part of what we have heard in our experience in court is that, you know, there’s so much discretion in the child welfare setting, right? There’s so much, you know, many of the standards are best interest standards, what’s in the best interest of the child? And that standard is made by people who are impacted by racism, who are impacted by classism, who are impacted by implicit bias. And so I think we have heard for sure in court that first of all, people say sort of dismissively ‘well I’m not concerned with those parents,’ right? We’re talking about this family and this parent should not be using any sort of substances, let alone illegal substances. And, you know, in New York marijuana is decriminalized, but it’s not legalized, right?

Adam: Right, right. Sorry, I should clarify that. It’s not legal. You’re right. Sorry.

Miriam Mack: But I think, but I think still, I think, you know, to your point with Ms. D, the reason why she was forthcoming about it is because it is decriminalized and many people use marijuana and she wasn’t using the marijuana around her children, right? But I think that we have to take a step back and think about the fundamental premise of ACS. You know, in theory, ACS is an administration that is tasked with protecting children. But we know as public defenders that it functions as an administration that surveils poor people, that controls poor people and largely in our experience, because poverty often tracks race and the folks that we are dealing with are all poor people of color for the most part. And what our sort of experience shows is that black and Latinx folks are held to a different parenting standard, right?

Adam: Right. 

Miriam Mack: And part of that is also because they are more visible to the system than let’s say the parents in Park Slope. When you’re not constantly coming into contact with government actors, you know, whether it’s through living in a shelter or it’s through being on Medicaid or HRA then you have less exposure and necessarily your parenthood is less likely to be indicted by the system.

Adam: Yeah. Which is why of course anytime there’s some whimsical New York Times style section story about pop moms or small business owners breaking into the marijuana vertical it kind of outrages African-Americans on Twitter for good reason. Right? It’s, it’s just held to a wildly different standard. So you mentioned the New York Administration for Children’s Services. You note that Administration for Child Services Commissioner David Hansell quote “testified that the agency uses neither a parent’s cannabis use nor a positive toxicology alone as a basis for child protective determinations.” Now the word alone here is doing a lot of work.

Miriam Mack: Right. 

Adam: How does this statement from the commissioner, how does it compare from y’alls experience on the ground as public defenders? 

Miriam Mack: Right, so I think it was very interesting for us to hear him say that ACS was no longer bringing cases based on cannabis use and that ACS’ policy was that a positive toxicology alone — which in fact is the law — but a positive toxicology alone cannot be the basis for child protective determinations. We were surprised to hear that because our experience as public defenders and we spoke to this in the hearing and also individuals who themselves have been surveilled and policed by the system spoke to this, we saw and still see on a daily basis or on a regular basis rather, that in fact ACS was bringing cases based on allegations of marijuana use. And in fact ACS was bringing cases based on marijuana use where there was no actual articulated connection to the impact on the child, right? And, and these are not standards that we, the Bronx Defenders, are sort of bringing into court. This is the law. The law requires, not that you just argue that a parent is using some sort of substance, whether it is a regulated substance or it’s an illegal substance, but you have to also, you know, ACS, they’re not prosecutors, right? We use the language of prosecution because it’s government surveillance and intervention much the same way of criminal prosecution. But at the end of the day, they are tasked with protecting children, not just regulating adult behavior. And in fact we see plenty of petitions where one of the allegations is, ‘oh, and you know, the parent uses cannabis.’ And we were surprised to hear the commissioner say that ACS is no longer bringing these cases. I mean it is extremely concerning when a commissioner of the Administration of Children’s Services does not actually know what’s happening. And we would be remiss to fail to acknowledge that ACS does have policies that often track the law, that correctly track the law, but what is happening on their line level, it does not reflect their policies. And so the idea that the commissioner could come into a hearing and say that cannabis is not being prosecuted suggests that ACS does not actually know what’s happening, that they have wrong information going into the room. And to me that is an indictment of the system and it reflects ACS’ approach, which often is to intervene first and evaluate later. 

Elizabeth Tuttle Newman: This is Elizabeth again. I just wanted to make one point with regard to the hearing. Um, one thing that was revealed is that ACS doesn’t actually collect data on the prosecution of cannabis use across racial or class lines. So all we can really rely upon in answering these questions is observing what we know to be true. There’s no reason that ACS couldn’t be collecting this data and making that data public. We already have a good idea of what it will tell us based on our experiences on the ground as practitioners, but it’s essential, you know, to have data that will show us that information. And also just to have more transparency in general about how that information is used on a citywide level.

Adam: Right. Okay. So one thing that is a factor here that you note is that marijuana is, in terms of drug testing, is kind of low hanging fruit because unlike alcohol, which leaves your body in a few days, marijuana can stay there for as long as a month. So just as a matter of kind of biology, if you will, it’s much easier to play gotcha with marijuana than it is other substances. To what extent do you think this is a product of what you alluded to, where they’re looking for things that are wrong and marijuana is just far more likely to come up?

Elizabeth Tuttle Newman: I think that the fact that cannabis can stay in your system for a month is absolutely a way in which it’s different from many other types of drugs. I think one of the realities that our clients face before ever coming to court and ever even meeting a lawyer or knowing about their legal rights, is that caseworkers may ask them to take a drug test and they won’t know what their rights are. Parents who want to keep custody of their children may feel like they have no other choice. In fact, they may feel like, ‘okay, this is decriminalized, in fact, if I’m forthcoming as Ms. D was, that will only help me. The case worker says that she’s a social worker, that she’s here to help me, that she’s here to provide assistance to my family.’

Adam: Right. And little do they know that they are agents of law in effect?

Elizabeth Tuttle Newman: Absolutely, yes. 

Adam: Right.

Elizabeth Tuttle Newman: I mean they’re, they’re investigating a case and they are the key witness in the prosecution of that case.

Adam: Yeah. I see. Like a lot of people wouldn’t know that. So one thing ya’ll noted it in your piece was that somewhat paradoxically greater criminalization among black and Latinx parents, for example in Colorado, that the decriminalization of marijuana has paradoxically led to a greater criminalization of minorities. You cite a Denver Post article that found between 2013 and 2015 that quote child welfare cases involving parental or caretaker drug use increased by two full percentage points. This was around the time that Colorado legalized cannabis. Can you explain what’s going on there exactly? Is it that the legalization leads to more ubiquity of cannabis and the child protective services however remains in its pre decriminalization approach?

Elizabeth Tuttle Newman: Yeah, so I think the first thing is we’re not really sure, but we have some ideas. What we learned in writing our article and in speaking with different Colorado based practitioners, is that there has been an uptick in drug related cases being filed even after legalization. And again, some of the issues around data transparency also impact Colorado in which we don’t know which drugs are being used or in what way they’re being, the filings are increasing or among what population. We don’t have that information. So we know that in Colorado, even though it’s been legalized, it does seem that parents who use cannabis are being overly scrutinized in ways that parents who do not use cannabis are not. So it would appear that there is still a stigma against cannabis use even after legalization. Maybe that’s not for individuals who use on their own, but it certainly seems to be true for caregivers and of course pregnant people whose bodies that we as a society are much more comfortable policing in general. So based on talking to Colorado practitioners on the ground, some of the practitioners speculated that perhaps because of legalization, perversely enough, the child protective system is taking an even closer look at cannabis. The idea that they postulated being that, you know, now that cannabis is legalized, of course the system shouldn’t trust the people who we already did not trust to begin with, to use cannabis responsibly. And thus we are the ones that need to intervene without these criminalizing, you know, statutes. I just want to emphasize that the bottom line is that we don’t know what happened in Colorado, but from our experience we have seen how legalized substances can still be used as a proxy for poor parenting for our clients in the Bronx. A good example of that is alcohol misuse. When it comes to alcohol misuse, the law is comparatively good. For a parent to be found neglectful, the law requires that parents be proven to have lost control of their actions and thereby pose a risk of harm or harm to their children. The issue that we see comes in the implementation of that law and how it’s actually applied on the ground because we’ve seen ACS drag families into court for alcohol use that falls well below that high standard that I just stated. So based on talking to people in Colorado, what we’ve seen with ACS caseworkers and how they handle even legal substances, we have reason to believe that even cannabis legalization will not cure a misapplication of the law that continues to prosecute parents and separate families.

Adam: I mean it seems like the state just sends a lot of mixed signals and obviously applies the application of these laws in a racist and classist fashion. What is the kind of conventional thinking amongst scholars who studied this about what the policy should look like?

Miriam Mack: We know that as public defenders what we would implore the state to do is to follow the law, right? That is a basic step that can be taken to mitigate some of these issues that Elizabeth and I are discussing. So first and foremost, follow the law and also apply the law in a way that is not motivated and animated by race and by class. Right? And so as Elizabeth was saying, and as I was noting earlier, the law requires not just an articulation that a parent does something that ACS believes is not good, right? Just because a parent uses cannabis, that’s not enough. There has to be some sort of causal connection to that parents’ use of cannabis on an impact on the child. There’s a good causal connection to some sort of harm to that child. That is something very basic that we are not seeing. And I think that another step that the state could take is that some of the benefits of the doubt that are afforded to wealthy white folks, some of the benefits of the doubt that are afforded to, you know, even white parents that we see in the Bronx family court. I mean they’re few and far between, white parents that we see in Bronx family court, but our experience as public defenders is that there are many benefits of the doubt that they’re afforded, that our black and Latinx clients are not afforded. Right? Another step that could be taken right now is to exercise caution and to really investigate before intervening with a family. You know, one thing that sort of ACS celebrates, and to be clear, it is good that ACS is, that less children are going into foster care. But another thing that has to be interrogated is that intervening in a family’s life, even if it doesn’t result in foster care, but being involved in a family’s life, coming to their house, asking parents basic questions, forcing them to engage in programs, forcing them to have caseworkers come to their home, that in and of itself is a type of surveillance that is a burden that is most strongly borne by poor people of color in this city. And so before intervening in an individual’s life, actually taking the time to evaluate before intervening. You know, it’s the opposite with ACS often that we see is ‘well we’ll just file and then we’ll figure stuff out once it’s in court.’ And so I think those are some guidelines I think that we would put forth as public defenders. I think they’re very basic guidelines that we would sort of put forth in terms of how to address these issues because frankly the law is clear and if ACS were to follow the law or to follow its policies or to communicate its policies to line level attorneys, we would be having a different conversation. 

Elizabeth Tuttle Newman: I think in terms of a larger scale prescriptive issue, we need to stop criminalizing poverty. It’s important to recognize that the child welfare system criminalizes poverty. 

Adam: Right.

Elizabeth Tuttle Newman: In a city like New York, that is racialized. So we’re talking about the systematic surveillance of poor people of color. The vast, vast majority of our cases are neglect cases. They are not abuse cases. That’s rooted in the criminalization of poverty. So we’ve seen parents being brought into court, not just for cannabis use, but for other things like leaving their children home alone for a brief period of time due to lacking childcare when they work multiple jobs or having a dirty home when their landlord is exploitative and refusing to make necessary repairs to their home or when the family is placed in a shelter that’s way too small for the family or for even telling a doctor that a parent is suffering from postpartum depression. So I think all of these ways we see on the ground that a lot of what happens and a lot of why parents are being brought in to court has to do with criminalizing poverty.

Adam: That seems to be a recurring theme on the show, 90 percent of what we cover is, uh, take resources out of the carceral state and give it to social services and that’ll help. The old cliche about life’s about choices, but rich people have way, way, way, way more choices.

Miriam Mack: Right. And I think it’s the criminalization of poverty. But I think also it’s the sort of larger picture of the fact that we can’t ignore that this country is haunted by a history that has found it easier to separate black and Latinx women from their children than they have white women from their children. We come from a history of black families being separated through slavery, of indigenous children being separated from their families. This is not something new. We see it now on the border, right? With children being separated from their families. And one point in the conversation was the crisis that’s happening on the border that folks are talking about is that family separation is not new to the United States. And for people of color the assumption is that, and especially poor people of color, the assumption is that the children are better off elsewhere and the idea that their parents and the bonds that they have with their parents have value, that that’s not acknowledged by the courts. It doesn’t seem to be acknowledged by ACS. And one of the sort of scholars that is really important to our work and that guides our work, Dorothy Roberts, notes that if an outsider looked at the American child welfare system, they’d conclude that it’s not a system designed to promote the welfare of America’s children, but rather a system to monitor and punish poor families, especially black families. So, you know, it’s this historic devaluing that we see that reverberates throughout all of our systems. This is the point that Elizabeth made in the beginning where the War on Drugs is an intervention point in black and Latinx communities where it is precisely, it’s community separation across the board, right? When a loved one is incarcerated that is family separation. The child welfare system separating children from their parents: family separation. The way the immigration system is functioning: family separation. And then that functions that reverberates throughout communities and deprives communities of their ability to be able to build power and resist the very structures that keep this power structure the way that it is. So I think that it’s sort of like levels on levels of building on the history of the United States and it all reverberates in the systems that we’re talking about right now.

Adam: I think that’s a perfect place to end it. Miriam Mack, Elizabeth Tuttle Newman, thank you so much for coming on. 

Elizabeth Tuttle Newman: Great. Thank you so much.

Miriam Mack: Thank you so much.

Adam: Thank you to our guests Miriam Mack and Elizabeth Tuttle Newman and the Bronx Defenders Office. Remember you can always follow us at The Appeal magazine’s main Twitter and Facebook page and as always you can like and subscribe to us on Apple Podcasts. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.