Criministrative Law: Data-Collection, Surveillance, and the Individualization Project in U.S. Child Welfare Law

• Published in: Columbia journal of gender and law 2024-03, Vol.44 (3)
• Main Author: Cohen-Rimer, Yael
• Format: Article
• Language: English
• Subjects: Administrative courts; Child welfare; Criminal procedure; Data entry; Laws, regulations and rules; Powers and duties; Social aspects
• ISSN: 1062-6220; 2333-4339
• DOI: 10.52214/cjgl.v44i3.12984

Textual analyses of child welfare laws, joined by extensive textual and legal analyses of case law, reveal how the "dance" between the administrative and the criminal in child protective services (CPS) is rooted in the individualized perception of poverty. This individualization, which forms the bedrock of the capitalist American welfare state, promotes the fragmentation of the family unit. Building on individualized perception and reifying it, child welfare laws and practices are neither purely administrative nor criminal, but "criministrative." As such, they serve as a legal shield for the State in its attempts to ensure child welfare; the State refuses to provide protections available in traditional criminal contexts to families involved in CPS investigations, while simultaneously enjoying administrative courts' less restrictive evidentiary rules. This Article follows the thread of individualized surveillance embedded in the law, starting with the conflation of "abuse" and "neglect." This Article proposes three solution pathways, building from practical to theoretical: divorcing neglect from abuse, adopting a Poverty Aware Paradigm, and developing a theoretical framework for an institutionalized "benevolent gaze."