The Journal of Things We Like (Lots)
Select Page

Tag Archives: Poverty Law

Court Personalities and Impoverished Parents

Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020).

Professor Tonya Brito’s in-depth examination of the pursuit of child support from poor fathers continues to pay significant dividends that extend well beyond family law. Producing Justice in Poor People’s Courts: Four Models of State Legal Actors highlights the that differing personalities and approaches can have on impoverished parents involved in child-support-enforcement disputes before the courts. Based on an impressive ethnographic study, Brito’s article shows how the actors involved craft stories about impoverished family dynamics as a way to make sense of their own role and complicity in an often unjust system of regulating poor families.

For professors who have written extensively about a particular issue over many years, part of the challenge is situating each new contribution without succumbing to the temptation and comfort of repetition. Producing Justice in Poor People’s Courts handles this challenge beautifully. Part I briefly introduces the problem of courts seeking enforcement of child support orders against poor noncustodial fathers. Low-income fathers are often subject to child support orders that fail to take into account their ability to pay, with the amount owed based on an assumption of the availability of minimum wage employment for individuals who may face significant employment barriers or even incarceration. The result is that many poor fathers become child support debtors, failing to make payments because of their poverty—not because of an unwillingness to provide such support. As Brito notes, these fathers are “deadbroke parents . . . rather than deadbeat parents.” (P. 153.)

Part I is a necessary starting point for the argument that follows, but it is in Part II, which describes the existing research on child support enforcement against poor fathers, that Brito’s writing starts to really shine. Those in the poverty law space are likely to have some familiarity with related scholarly work by Ann Cammett, Daniel Hatcher, Solangel Maldonado, and Brito herself. But whether the reader knows of such work or not, Part II provides an invaluable service: not only reviewing the literature, but connecting these past works in a way that highlights the problematic ways the law reduces deadbroke dads to merely debtors, irrespective of the barriers they face or the other ways they act as fathers. Producing Justice in Poor People’s Courts, Brito explains, “expands and illuminates this body of literature by empirically examining how child support law is operationalized in poor people’s courts, bridging the gap between the law on the books and the law in action.” (P. 161.) Rather than pretending that such literature does not exist (as some scholars are tempted to do in order to make flashy claims about being the first to making a particularly novel argument), or repeating arguments previously made without acknowledging as much (as some senior scholars do in order to continue to publish without putting in additional effort), Brito’s review of the literature invites the reader to care about the poor families caught in the system and to trust the study.

The heart of the article can be found in Parts III and IV. The research methodology section is a necessary component and fitting for a study funded by the National Science Foundation, but law professors are likely to skim it. That said, Part III shows the level of care Brito and her study partners put into ensuring the comprehensiveness and depth of their court observations and of their interviews of those involved, including judges, government lawyers pursuing back child support, and lawyers representing defendant fathers. The study involved nearly five years of site visits, which ended only when those visits reached “a point of saturation,” and those visits were supplemented by reviews of the case files. (Pp. 171-72.) Put differently, Part III establishes that the study is based on in-depth qualitative ethnographic work.

Brito’s primary argument is that judges and lawyers involved in child support enforcement fit into four archetypes: navigators, bureaucrats, zealots, and reformers. I do not want to spoil the article by fully presenting their characteristics, but all four types share a desire to make sense of and justify their own participation in the criminalization of poor fathers. As Brito highlights, bureaucrats imagine themselves bound by a set of rules that they have no choice but to implement when poor fathers appear in court. Navigators are more troubled by their role and, seeing no good options, respond by kicking the can down the road—issuing continuances and second chances to poor fathers, while still faulting them for not meeting the demands of child support orders. Zealots and reformers approach the challenge of squeezing payments out of poor fathers from opposite corners. Zealots (perhaps my own quibble with the article is Brito’s value-laden choice to use this label) celebrate single mothers and are not burdened by doubt when it comes to judging poor fathers who fall behind on child support. Reformers—the study found only two such individuals—seek to change the system from within in a way that is more protective of the liberty interests of fathers who cannot afford to pay child support.

Producing Justice in Poor People’s Courts is worth reading not just because it does such a great job identifying and bringing out these archetypes, but also because it highlights the ways parents can experience very different forms of “justice” depending on the type of actors who happen to be involved (quite randomly) in their case. Taking a broader view, the approaches actors take to justify their own roles within the child-support-enforcement system differ, but they all struggle to reconcile their self-image with the injustice involved in trying to wring payments out of people who may not be able to make such payments. The article is both a tour-de-force, connecting lots of prior work with a remarkably in-depth study, and a call for other scholars to invest in qualitative ethnographies of those settings where the law shapes the lives of poor people.

Cite as: Ezra Rosser, Court Personalities and Impoverished Parents, JOTWELL (November 19, 2021) (reviewing Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020)), https://lex.jotwell.com/court-personalities-and-impoverished-parents/.

Legal Compliance, Categorization and the Disappearing of Suffering

Just a quick warning—Armando Lara-Millán’s Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity is a depressing read, particularly, for those of us who have, at some time in our poverty law careers, litigated class actions. It’s not as if we did not know, when, for example, negotiating compliance benchmarks for institutional defendants (jails, public housing agencies, welfare departments, public hospitals…), either that the purpose of those benchmarks could be easily evaded or that our lawsuit might result in pulling resources away from another need. But knowing this abstractly, and earnestly planning against it, is one thing and reading a book that exquisitely describes how legal pressure often does little more than redistribute pain, is an entirely another.

Lara-Millán is a sociologist. In Redistributing the Poor, he challenges fundamental narratives at the heart of a significant branch of socio-legal scholarship. He suggests that the overarching recent U.S. historical narrative that many of us assume is true–that we are seeing the results of “overinvestment in criminal justice and underinvestment in public health”—fundamentally misunderstands the way the United States governs the poor. “In short, the idea of redistributing the poor draws attention to how states agencies circulate people between different institutional spaces in such a way that generates revenue for some agencies, cuts costs for others, and projects illusions that services have been legally rendered.” (P. vii.)

Millán conducted his fieldwork in two locations–the intake section of a jail and the waiting room of a public hospital. He watched as staff in these spaces sorted human beings into formal and informal administrative categories – gang member, person in need of mental healthcare, level 3, level 4, real criminals, welfare seekers, drug seekers, and more. In addition, he dug deep into local archival material – giving us access to the day-to-day bureaucratic decision-making and budgetary constraints that led to the human sorting he observed. The book is deeply-researched, provocative, and persuasive, and I imagine it will shake the waters of settled ideas in Lara-Millán’s field. For legal scholars who read and write in those socio-legal spaces, it is essential reading.

But for this jot I want to focus, through a description of just one example, and on what Lara-Millán teaches us about the ways in which, in an age of fiscal austerity, administrative compliance with legal mandates can result in little more than the disappearance and reallocation of suffering.

I’ll begin with one thing Lara-Millán observed while watching staff process human beings from arrest into the jail’s many housing categories. From the perspective of those who are responsible for this task, one of the biggest threats comes from those who either “shut down” becoming non-responsive to orders or “act up” during the process by “yelling, cursing, screaming, fighting, getting out of line, disobeying staff direction, refusing to cooperate, and otherwise causing a commotion during the processing.” (P. 49.) These incidents disrupt the smooth flow of intake. To solve this problem, deputies call on nursing staff who administer “psychotropic drugs, pain medication, and mixes of sedatives ….to ensure the machine-like flow of the intake process.” (P. 49.) The results were two-fold. Efficiency was enhanced, and the targeted inmates received a “medical mark” in their files, making it more likely, at least in the short term, that they would be processed in medical housing in the jail.

Lara-Millán makes three separate and persuasive arguments to explain what he observed. First he argues that this “solution” was an administrative resolution of two unrelated progressive legal pressures; second that austerity meant fundamentally that, despite legal pressure, the jail did not and would not have enough space in medical housing to meet the real need, and third that to resolve these competing pressures, the administration invested what little resources they had not primarily into avoiding violence and providing care but instead into feigning legal compliance.

The progressive legal pressures at play, brought about by a series of federal investigations and civil rights litigation, targeted two separate harms: excessive force incidents and the failure to provide mental health care. The administration of medication and subsequent medical marking became a way to solve both problems. It lowered the rates of excessive force and demonstrated the provision of care. On the face of it, legal compliance is achieved. But that left administrators with an additional problem. There simply were not enough medical spaces in the jail to actually meet the demand for mental health services. Those processed in at intake had to be processed out, to make space for others who disrupt the administration of the jail. As we watch administrators solve that problem, what becomes clear is that the emphasis is not really on the provision of care. Instead, administrators place emphasis on feigning compliance through the processing of inmates into and out of the medical category. As Lara-Millán discovers, as the jails came under increasing pressure to meet mental health needs, it received significant funding for that purpose, funding that was pulled, by the way, from community mental health. But these resources did not really go to meeting therapeutic needs. Instead, “the newly hired personal [sic] for medical and mental healthcare were almost entirely made up of security and processing personnel not therapeutic personnel.” (P. 83.) These processing personnel “were tasked with continuously upgrading and downgrading inmates between the limited medical spaces and general population spaces of the jail” (P. 84), thus resolving the issue of the limited space. In the end administrative emphasis is focused not so much on the progressive goals—avoiding harm and providing care—but on administering categories that redistribute both human beings and the harms they suffer.

This example, and the many others in the book, raise profound questions about the efficacy of progressive legal reform. Lara-Millán’s task is not to solve this problem, but that hardly relieves the pressure on those who do pursue legal reform to wrestle with its implications. And that, of course, is just one reason why everyone interested in poverty law should read this book.

Cite as: Wendy Anne Bach, Legal Compliance, Categorization and the Disappearing of Suffering, JOTWELL (October 1, 2021) (reviewing Armando Lara-Millán, Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity (2021)), https://lex.jotwell.com/legal-compliance-categorization-and-the-disappearing-of-suffering/.

Visibly Fragile America

Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man, 52 Colum. Hum. Rts. L. Rev. __ (forthcoming, 2021).

Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)

These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy.

I particularly enjoyed Toussaint’s review of Critical Legal Studies scholarship that deconstructed domestic “rights-based discourse as a tool to dismantle social and economic inequality” (P. 26) and CRT scholarship that demonstrated “the importance of rights to the freedom struggles of oppressed and marginalized populations, including the plight of Black Americans from chattel slavery to Jim Crow segregation to mass incarceration.” (P. 28.) I also appreciated his argument for advocates to draw upon a reconstructed human rights discourse—tempered by the social struggles of Black Americans—to challenge the normative underpinnings of contemporary U.S. public policy and articulate an emancipatory vision of democracy.

Toussaint’s most important theoretical contribution, however, is his dreadful yet cogent analysis of the ideology of white supremacy. Tousaint uses the lens of the late religious studies scholar Catherine Bell’s theorization of “the ritual, in materialist terms, as a bridge between tradition and an ever-changing social world, a structural mechanism that navigates the tensions between the internal moral self and the external sociopolitical order” (P. 9). He then elaborates:

The historic and ongoing subjugation of Black people in America is forged by discrete “ceremonies” of racial ritualization that use race to construct notions of “domination and resistance within the arena of the social body.” In so doing, rituals of white supremacy create “white sacred time” by enabling historic anti-Black ideas to be “born again,” interrupting modern sociopolitical life with racist traditions that “renew, regenerate, and re-energize their participants, infusing the present with holy meaning.” (P. 10.)

One has only to recall photographs and similar representations of past instances of openly anti-Black racism (e.g., lynching and other practices of racialized and sexualized violence against Black Americans before and after Emancipation) and then compare them to one’s experience or memory of today’s (barely concealed) anti-Black racism (e.g., the incessant killing of Black Americans by police or vigilantes) to feel sick at how apt Toussaint is to identify that public (and private) anti-Black violence recreates “white sacred time,” infuses the present with an unholy meaning, and thereby redeems the ideology of white supremacy for the twenty-first century.

Informed by, and valuing, Black American lives, and their literary distillations like Ralph Ellison’s 1952 novel, Invisible Man, Toussaint discerns and fills a lacuna in U.S. political and sociolegal theory—sacrifice—in particular “the power of institutional arrangements to erase aspects of humanity from our view entirely, such as the involuntary sacrifices that sustain racial hierarchy, and the everyday rituals of white supremacy.” (Pp. 44-45.) With these historical and contemporary realities in mind, Toussaint concludes by urging Americans to engage in “a radical (re)imagination of American democracy, one that wrestles with the erasure of Black sacrifice from the American consciousness and overcomes the ubiquity of racial ritualization that produces invisible citizens.” (Pp. 24-25.)

In closing, I come away from Of American Fragility musing over how to perform different rituals—capable of infusing the present with the sacred significance of interracial justice and other dimensions of intergroup justice and social solidarity.

This is serious scholarship and well worth reading.

Rest in Power

Amadou Diallo (Sept. 2, 1975 – Feb. 4, 1999)
Sean Bell (May 18, 1983 – Nov. 25, 2006)
Oscar Grant (Feb. 27, 1986 – Jan. 1, 2009)
Trayvon Martin (Feb. 5, 1995 – Feb. 26, 2012)
Rekia Boyd (Nov. 5, 1989 – Mar. 21, 2012)
Shantel Davis (May 26, 1989 – Jun. 14, 2012)
Eric Garner (Sept. 15, 1970 – Jul. 17, 2014)
Michael Brown Jr. (May 20, 1996 – Aug. 9, 2014)
Laquan McDonald (Sept. 25, 1997 – Oct. 20, 2014)
Akai Kareem Gurley (Nov. 12, 1986 – Nov. 20, 2014)
Tamir Rice (Jun. 25, 2002 – Nov. 23, 2014)
Natasha McKenna (Jan. 9, 1978 – Feb. 8, 2015)
Walter Lamar Scott (Feb. 9, 1965 ­­– Apr. 4, 2015)
Freddie Gray Jr. (Aug. 16, 1989 – Apr. 19, 2015)
Clementa C. Pinckney (Jul. 30, 1975 – Jun. 17, 2015)
Cynthia Marie Graham Hurd (Jun. 21, 1960 – Jun. 17, 2015)
Susie Jackson (Jan. 28, 1928 – Jun. 17, 2015)
Ethel Lee Lance (Aug. 30, 1944 – Jun. 17, 2015)
Depayne Middleton-Doctor (Dec. 15, 1965 – Jun. 17, 2015)
Tywanza Sanders (Jul. 23, 1988 – Jun. 17, 2015)
Daniel L. Simmons (Jul. 16, 1940 – Jun. 17, 2015)
Sharonda Coleman-Singleton (Sep. 24, 1969 – Jun. 17, 2015)
Myra Thompson (Dec. 5, 1955 – Jun. 17, 2015)
Sandra Bland (Feb. 7, 1987 – Jul. 13, 2015)
Alton Sterling (Jun. 14, 1979 – Jul. 5, 2016)
Philando Castile (Jul. 16, 1983 – Jul. 6, 2016)
Keith Lamont Scott (Feb. 3, 1973 – Sept. 20, 2016)
Stephon Clarke (Aug. 10, 1995 – Mar. 18, 2018)
Botham Shem Jean (Sept. 29, 1991 – Sept. 6, 2018)
Breonna Taylor (Jun. 5, 1993 – Mar. 13, 2020)
George Floyd (Oct. 14, 1973 – May 25, 2020)

And countless other Black Americans whose lives matter.

Cite as: Marc-Tizoc González, Visibly Fragile America, JOTWELL (January 4, 2021) (reviewing Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man, 52 Colum. Hum. Rts. L. Rev. __ (forthcoming, 2021)), https://lex.jotwell.com/visibly-fragile-america/.

White Parents Searching for White Public Schools

Erika K. Wilson, The New White Flight, 14 Duke J. Const. L. & Pub. Pol’y 233 (2019).

The New White Flight makes two significant contributions to our understanding of race and education. First, it argues that white parents chose to send their children to segregated, disproportionately white schools. This choice is reflected in white residential preferences for areas where “pricing-out mechanisms” ensure that the local school is disproportionately white. (P. 254.) This racially-motivated choice holds “even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality.” (P. 236.) Second, it shows how charter schools give white parents a way to act on their preference for majority white schools even within school districts where only minority of students are white. Charter schools and other school choice programs, by enabling white parents to act on their general preference to avoid schools that are predominantly Black or Latino, facilitate the creation and maintenance of “white charter school enclaves” within larger diverse school districts. (P. 262.)

It would be tempting to write off both contributions with a yawn. A cynic might ask what is new about white parents wanting white schools and school choice enabling educational segregation? That, after all, is the story of how white parents reacted to Brown v. Board of Education. But by forcefully insisting that segregated education today is a result of white parents choosing to avoid predominantly Black schools, Professor Wilson challenges race-neutral explanations for why whites prefer disproportionately white schools. And by laying out the ways charter schools, through their regulatory framework as well as their educational philosophies, cater to white parents seeking to send their kids to disproportionately white schools, Professor Wilson shows the negative consequences of educational choice programs. Ultimately, the article is an eye-opening and sobering look at how the choices of white families further educational inequality at a societal level and even within school districts. It is a valuable read for anyone interested in poverty law, education policy, and property law, but the audience that could most benefit from the article arguably are well-educated urban white parents.

What is most powerful about The New White Flight is that it pulls no punches. Even though the article gives a long list of reasons why white parents might opt to send their kids to predominantly white schools, none of these ultimately excuse those parents. Connecting Milton Friedman’s theoretical justifications from 1955 for a market- or choice-based approach to education to the desire of whites to avoid desegregation, Professor Wilson emphasizes that when white parents “exclude by failing to choose to associate with students of color, the consequence is a form of segregation that is palpable and harmful to students of color.” (P. 251.) Choice is inseparable from exclusion given the racial dynamics of cities and of public education.

Similarly, though it is tempting to categorize educational segregation as merely a consequence of residential settlement patterns along race and class lines, in other words to treat it as a natural result of where people live, Professor Wilson does not buy this distinction. Whites cannot claim refuge in the argument that the local school just happens to be whiter than other schools in the larger urban area. Instead, The New White Flight recognizes that the residential and educational choices of white families together are part of the same story: “whites as a collective are choosing racially segregated schools . . . whites are choosing school segregation.” (P. 253.)

The charter school phenomenon that the article focuses on are those charter schools that are notably whiter than the demographics of the school district overall. Professor Wilson breaks charter schools into four different types. Two types–traditional charter schools that focus on rigorous, back-to-basics education and conversion charter schools that are basically failed public schools flipped into a charter school arraignment–tend to have more students of color and low-income students. The other two types–prestige charter schools that offer progressive or project-based educational approaches and neighborhood preference charter schools–tend to have whiter and wealthier student populations. As Professor Wilson argues that these last two types of charter schools “insulate white students from large numbers of students of color and allow whites to engage in white flight without residential mobility.” (P. 273.)

One example of how this works detailed by Professor Wilson that is particularly troubling is in Georgia, where the charter school legislation states that charter schools must give preference to kids within the proposed school’s attendance zone but allows those proposing the school to define their own attendance zone. (P. 272.) White parents or charter schools serving them can, as a consequence, create charter schools that target predominantly white neighborhoods and that by design will have a mostly white student population. If all Professor Wilson’s article did was call out Georgia’s legislation, it would have been a contribution and a sign of how far whites continue to go to use the tools of the state to self-segregate.

Professor Wilson is not writing in a vacuum. There are other important works that look at how the choices of whites, especially white parents, contribute, directly and indirectly, to racial subordination. What makes The New White Flight worth reading even for those people well versed in matters of educational inequality and the reproduction of racial hierarchy is how unflinching it is. It gives no quarter to white parents whose kids are in predominantly white schools. Speaking as a white parent married to a Latina, it can therefore be uncomfortable to read, in part because the choices made while parenting–including where to live and what school to attend–can feel like the most personal and most individual. But as the article shows, the choices white parents make collectively can have tremendous negative impacts on students of color and lower-income students.

Cite as: Ezra Rosser, White Parents Searching for White Public Schools, JOTWELL (November 27, 2020) (reviewing Erika K. Wilson, The New White Flight, 14 Duke J. Const. L. & Pub. Pol’y 233 (2019)), https://lex.jotwell.com/white-parents-searching-for-white-public-schools/.

Private Debt and Public Violence

At the time that I am writing this Jot, in late May 2020, the unemployment rate has climbed above 14%; COVID-19 has once again exposed persistent racial health disparities, and in the wake of the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor,  communities across the U.S. are rising in protest. Real too is that our country’s small (and largely regressive) provision of economic support, to those whose tentative hold on security was ripped out from under them this Spring, has all but dissolved. Given this searing new reality, one might think that counsel from scholars about the absurdity and cruelty of placing the burden of economic desperation on poor communities themselves would no longer be needed.  Who would think, today, that the very communities of color reeling the most should shoulder the cost of their economic survival? Surely we are thinking more radically and more generously than that. But history does not counsel optimism.  We know that neoliberal inequality functions through a pernicious combination of potent racialized myths and vigorous punitive and extractive legal systems.

So in this jot, written at this particular moment, and as one very small response to all that is unfolding around us, I want to highlight two pieces of scholarship that lay bare the viciousness of one aspect of those neoliberal systems: Tonya Brito’s The Child Support Debt Bubble and Abbye Atkinson’s Rethinking Credit as Social Provision. Both pieces critique social welfare policy that puts the burden of economic security onto the shoulders of those least able to sustain it. Without question, both pieces are exquisitely well done, and if this were normal times, my jot would focus entirely on what these papers argue and their undeniable strengths. And certainly all that is in order, but what I want to focus on, after summary and praise, is the relationship between private debt and public violence.

Brito’s The Child Support Bubble builds on years of qualitative research on the reality of child support collection from poor, predominantly Black men. Brito merges qualitative and quantitative evidence with rich legal knowledge and incisive analysis to easily convince her reader that our systems levy absurd amounts of debt onto the shoulders of poor Black men who will never be able to satisfy that debt. Policies that charge exorbitant interest rates and refuse to lower child support amounts, even when fathers are incarcerated, lead to an absurd and inescapable debt. This leads—much like criminal system debt—to constant involvement of punitive agencies in the lives of these men. It leads also to the further privatization of social welfare support in the form of rules that transfer child support payments not to the mothers of these men’s children but to the government agencies that provide meager amounts of welfare support. In the final section Brito runs a simulation, marshalling the numbers and rules to convince us that the whole thing is rigged to make sure that these fathers will never, ever escape. Brito’s melding of story, legal analysis, structural unpacking and quantitative data leaves her reader convinced that our child support system is nothing more than a trap—both for the poor fathers who will never escape the debt and for the poor mothers and children who will never get the economic support they need. And not only is it a trap, but it is a distraction, one that “obscure[s] the fact that our social welfare system does not sufficiently meet the needs of poor families.” (P. 987.)

Atkinson’s Rethinking Credit as Social Provision, reveals another false and distracting trap. Like the very best of critical scholarship, Atkinson makes visible that which is somehow both totally obvious and somehow hidden. She delivers several of these insights. First for credit to work, a borrower has to borrow from her wealthier future self. Second, credit as social welfare policy assumes that the giving of credit will result in that richer future self. Third, the possibility of higher future income depends not really on the mythic bootstrap-pulling capacity of the borrower but instead on the overall strength of the economic opportunities available to that particular borrower. Fourth, viewing credit as social welfare policy is unrealistic “for low-income Americans in light of wage stagnation and persistent insecurity with respect to employment, income and expenses.” (P. 1148.) And finally, when borrowers default the system acts extractively – pulling whatever wealth exists out of poor communities and into the hands of higher income lenders. Race, of course, has everything to do with this. Extractive debt systems target poor African American and Latinex communities. Despite all this, however, policy makers, both on the right and the left, have come to focus on credit as a significant tool in what Atkinson labels a privatized form of social welfare provision, but Atkinson ultimately views that as a harmful distraction. She urges that “it is time for credit to leave the conversation around social provision for low-income Americans . . .  and [to] redirect our collective focus toward the fundamental, persistent, and underlying challenge of ever-increasing economic, and consequently social, inequality.” (P. 1162.)

Ultimately both Brito and Atkinson share a similar message. A social welfare policy that wields myths of individual rights and responsibilities to mask the ways in which structural racism limits opportunity; a social welfare policy that pulls families apart; a social welfare policy that has more to do with punishment than support, and a social welfare policy that maintains and strengthens inequality by pulling wealth out of those communities – is no social welfare policy at all. We need instead, as both counsel, social welfare policy that directly addresses economic inequality. But we need to remember this is not just about ineffective social welfare policy. It is about racial subordination, maintained by violence. How? Because when racialized myths and distraction fail to maintain inequality, neoliberalism turns to state violence. To see this link clearly we only need remember Walter Scott, an African American man killed by a white police officer in April of 2015 in South Carolina. Scott had been jailed multiple times for failure to pay child support. On that day, once again, there was an outstanding warrant for his arrest. We cannot know what was in Scott’s mind as he ran from the officer that day, but he no doubt knew that for him, the best-case scenario was jail and the worst was his death at the hands of the state. And that death can all too easily be traced back to debt.

Wendy Anne Bach, Private Debt and Public Violence, JOTWELL (July 10, 2020) (reviewing Abbye Atkinson, Rethinking Credit as Social Provision, 71 Stan. L. Rev. 2093 (2019) and Tonya Brito, The Child Support Debt Bubble, 9 UC Irvine L. Rev 953 (2019)), https://lex.jotwell.com/private-debt-and-public-violence.