COLUMBIA JOURNAL 

OF RACE AND LAW 
VOL. 11  JULY 2021 NO. 3 

 

ARTICLE 

ENDING THE FAMILY DEATH PENALTY 

AND BUILDING A WORLD WE DESERVE 

Ashley Albert,a Tiheba Bain,b Elizabeth Brico,c  

Bishop Marcia Dinkins,d Kelis Houston,e 

 
a Ashley Albert is a parent advocate in the state of Washington.  She 

was the first parent in Washington to legally enforce, and modify, an open 

adoption agreement after her child was taken away by Child Protective Services. 

Her work focuses on the needs of women and children with incarcerated loved 

ones. 
b Tiheba Bain is Founder and Executive Director of Women Against 

Mass Incarceration, an organization empowering justice involved women and 

girls. Recently Ms. Bain was inducted into the Connecticut Hall of Change for 

her exemplary work in the state. She is a Yale Access to Law School Fellow and 

a public speaker. She sits on Connecticut’s Lt. Governor Womens Commission of 

Health and Safety and the African American sub commission of Connecticut’s 

General Assembly Commission.  Tiheba co-hosted the first three  #FreeHer 

conferences and is the former Coalitions Director of The National Council. 
c Elizabeth Brico is a freelance writer and journalist, and a 2019–20 

journalism fellow with TalkPoverty. She was also a 2019 Reimagining 

Communities fellow with The National Council for Incarcerated and Formerly 

Incarcerated Women and Girls, where she researched the use of predictive 

analytics by child services agencies. Her writing typically focuses on social 

justice, particularly as they relate to the drug war and the foster industrial 

complex. Her work has appeared in VICE, Vox, Talk Poverty, The Appeal, Filter 

Mag, Columbia Journalism Review, Undark, Politico, and more.  In her free 

time, she can usually be found reading, writing, or watching speculative fiction. 

Check out her portfolio at eb-writes.com and follow her on Twitter 

@elizabethbrico 
d Bishop Marcia Dinkins is the Founder and Executive Director of 

Black Women Rising a grassroots organization that centers the voices and 

stories of Black women using a trauma informed organizing approach for 

collective healing, power and transformation. Marcia has conducted multiple 

social justice workshops and organized multi-level campaigns to protect and 

defend women’s rights. She is currently a Ph.D candidate at Union Institute & 

University studying Public Policy & Social Change with a specialization in 

Women & Gender Studies. She has certifications in Cultural Competency, 

Forgiveness Therapy, Restorative Justice Trainer, Trauma Informed Approach 

Trainer, Executive Management Leadership, and multiple certifications 

regarding Child welfare. 
e Kelis Houston is Founder of Village Arms (VA), a Christ-centered 

organization that supports African American families impacted by child 

protection. VA was created in direct response to the over representation and 

disparate treatment of African Americans across the child welfare service 

continuum. Kelis’ mission is to help eradicate these disparities through 



862 COLUM. J. RACE & L. [Vol. 11:861 

Joyce McMillan,f Vonya Quarles,g  

Lisa Sangoi,h Erin Miles Cloud,i  

and Adina Marx-Arpadij 

U.S. history is rooted in the rationalization 

of family separation to benefit white supremacy, 

capitalism and mainstream U.S. values. Because 

of this dark history, the U.S. history has become 

the world’s leader of legal destruction of families 

through termination of parental rights. It is the 

only country in the world that routinely pays 

people to adopt children whose parents, often 

women, very much want to be their parent. The 

Adoption and Safe Families Act, enacted in 1997, 

wildly changed the legal landscape of the family 

regulation system. At that time 47% of the children 

in the system were Black, and the drug war had 

 
legislative action, family advocacy, and policy reform. She wrote, and is 

advocating for, the Minnesota African American Family Preservation Act to stop 

the arbitrary removal of Black children from their families and community. She 

also serves as cultural consultant and trainer to child welfare staff, students, 

and service providers. 
f Joyce McMillan is a thought leader, advocate, activist, community 

organizer, and educator. Her mission is to remove systemic barriers in 

communities of color by bringing awareness of the racial disparities in systems 

where people of color are disproportionately affected. Joyce believes before 

change occurs the conversation about systemic oppression that creates poverty, 

and feeds people of color into systems must happen on all levels consistently.  
g Vonya Quarles, a California native with southern roots, is a 3rd 

generation formerly incarcerated woman with lived experiences related to Child 

Protective Services, adoptions, and foster care.  She is the co-founder and 

director of Starting Over Inc., a reentry service provider and civic engagement 

apparatus. She is a Women Organizing for Justice Fellow 2010, Women’s Policy 

Institute fellow 2012/2013, J. Irwin Award recipient 2013, Eleanor Jean Grier 

Leadership fellow 2014, WKKF Fellow 2015, Rosenberg Fellow 2019.  Vonya is 

a licensed and practicing attorney that blends her formal training with 

community advocacy, organizing, engagement, and action.  A mother and 

grandmother, Vonya is grateful to the warrior women and men, the strategists, 

the doers, that have given so much to the fight for freedom.  She recognizes that 

if it weren't for them, she would not have the examples to follow, or the shoulders 

to stand on. Because of them, she is, and because of them, we can and must WIN. 
h Lisa Sangoi is the Co-Director and Co-Founder for Movement for 

Family Power. 
I Erin Miles Cloud is the Co-Director and Co-Founder for Movement for 

Family Power. 
j Adina Marx-Arpadi is a second-year law student at CUNY School of 

Law. She is a doula and lactation counselor, and a member of the Birthmark 

Doula Collective.  



2021] ENDING THE FAMILY DEATH PENALTY 863 

been targeting Black men for low level offenses, 

and labeling Black mothers as “crack moms”. The 

result was an extreme attack on Black families, for 

which we have yet to recover. 

Abolition teaches us to unroot oppressive 

structures, disrupt and dismantle them while 

simultaneously supporting a praxis of 

imagination, healing, and building. In this paper, 

we encourage people not only to work to repeal 

ASFA, but to interrogate the imagination which 

entrenched the legitimacy of ASFA. Part I centers 

the discussion in our imaginations—the world we 

want to build, and the demands we are making. 

Part II moves into a discussion about the counter 

imagination, the ideas and mythology that created 

ASFA—the legal framework. In this section, we 

isolate ASFA as a target for abolition and 

organizing. Part III moves into a practical 

discussion about ethical ways to mobilize around 

ASFA. This section is intended to invite the reader 

to learn, and question, together. It invites 

questions, thinking, and problem solving in lieu of 

providing a recommendation. 

  



864 COLUM. J. RACE & L. [Vol. 11:861 

I. Introduction ............................................................................. 866 
II. The World We Deserve: Our Vision and Our Demand ....... 868 
III. The Violent Antagonist: White Supremacy and Its 

Imagined Reality ................................................................ 872 
IV. An Invitation for Transformation ....................................... 878 

A. An Invitation to Movement Building to End the 
Culture of Forced Family Separation ........................ 879 

B. An Invitation to Reimagine and Build Resilient 
Communities and Family Structures by Learning 
from Shared Memories ................................................ 883 

C. An Invitation to Learn from Movements Outside 
of the Family Regulation System ............................... 886 

D. An Invitation to Build Principled Organizing 
Strategies that Bring Us Closer to Our Goal of 
Liberation and Transformation .................................. 890 

E. An Invitation to Repair and Heal Histories of 
Harm ............................................................................. 892 

V. Conclusion .............................................................................. 893 
  



2021] ENDING THE FAMILY DEATH PENALTY 865 

“It doesn’t interest me  

who you know  

or how you came to be here.  

I want to know if you will stand  

in the center of the fire  

with me  

and not shrink back.” 

—The Invitation, by Oriah1 

 
Jahmel Reynolds, Illustration of White Hands Destroying a 

Black Family Tree. Produced in collaboration with the authors. 

Reynolds’s other work can be found on Instagram, using the 

handle @jahmelr.   

 
1 Oriah, The Invitation (1994), in ORIAH, THE INVITATION 1 (2006). 



866 COLUM. J. RACE & L. [Vol. 11:861 

I. INTRODUCTION 

We are directly impacted mothers, community 

organizations, and allied advocates across the country. We fight 

for family liberation. Many of us met for the first time in 2019 in 

Philadelphia. We participated in a convening called, “Fighting for 

Family,” co-hosted by The National Council for Incarcerated and 

Formerly Incarcerated Women and Girls. Together, about 50 

people—predominantly women, mothers and people of color—

decided to deepen our relationships, leverage our expertise, gain 

momentum, develop coalitions, and build out solidarity against 

family separation tactics. 

We understood, even before most mainstream 

institutions believed, that the criminal and foster systems work 

together to oppress marginalized genders, and that people who 

have been impacted by these systems are best positioned to lead 

change. That racism, capitalism, colonialism, ableism, sexism, 

classism, heteronormativity, etc., are just some of the dark forces 

which deprive us of the world we deserve, and that all forms of 

cages—physical, political, and spiritual—must be dismantled. 

That calling the system a “child welfare” system is disingenuous, 

because it is actually a family regulation and destruction device.2 

In Philadelphia, we collaborated and brainstormed. We 

agreed that there were many ways to end the reliance on family 

policing, regulation, and destruction as a political tactic; even 

though  few people were taking on the violence enacted by 

Adoptions and Safe Families Act (ASFA)—a law that 

dramatically changed the State’s obligations to work with 

families, created financial incentives for adoptions, but not 

reunifications, and outlined strict timelines to terminate 

 
2 We give gratitude to Professor Dorothy Roberts, who built enormous 

scholarship and framing around the regulation of families and bodies through 

the child welfare system. This framing is not only seen in her foundational books, 

SHATTERED BONDS, THE COLOR OF CHILD WELFARE (2002), KILLING THE BLACK 

BODY (1997), but also in a wealth of scholarly articles, one of which became a 

foundational text for our convening in Philadelphia: Dorothy Roberts, Prison, 

Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. REV. 

1474 (2012). We also appreciate the language development and framing in 

Emma Payton Williams, Dreaming of Abolitionist Futures, Reconceptualizing 

Child Welfare: Keeping Kids Safe in the Age of Abolition (2020) (B.A. thesis, 

Oberlin College), https://digitalcommons.oberlin.edu/cgi/viewcontent.cgi?article

=1711&context=honors [https://perma.cc/58GC-92J5]. 



2021] ENDING THE FAMILY DEATH PENALTY 867 

parental rights (TPRs).3 Far too many of us had known or 

witnessed the pain of TPRs—better known as the civil death 

penalty,4 and agreed that it is not an exaggeration to liken them 

to family death. TPRs erased families, children’s names were 

changed, and many parents were left wondering if they would 

ever get to hear the voices of their babies.5 It was clear that we 

had to end this violent cycle of family destruction. 

In building out the work, we grounded ourselves in 

abolition as a theory of change, because we understood abolition 

as a political home that asks us not to acquiesce to a narrow 

understanding of the future, but to stretch, twist, and wring out 

all the permutations of possibility, and fully embrace the capacity 

of potential. As students and curators of abolition, it would be our 

duty not only to disrupt ASFA as a policy, but to unroot the 

underlying oppressive ideologies which gave rise to its violence. 

We would have to engage in a praxis of imagination, healing, and 

building so that we could move away from subtle reform, and into 

a world of transformative solidarity. 

Nearly two years later, we publish this Article about what 

we have done since meeting in Philadelphia, and how we are 

thinking about change. Our mission is to dismantle ASFA and to 

build a new world. We are asking for both ideas to exist 

simultaneously within the consciousness of the reader, as we 

argue that freedom must be our North Star, and as a 

consequence, ASFA will be dismantled. 

Our Article’s thesis is fluid and future leaning, because 

our work is fluid and future leaning. We wrote this Article in a 

voice and structure that we hope invites the reader to feel the 

culture of our work, which is as hopeful as it is urgent. We start 

with our demand and vision of the future instead of a history of 

the law. We then move on to a discussion of ASFA as an 

 
3 See infra Part II. 
4 In re Smith, 77 Ohio App. 3d 1, 16, 601 N.E.2d 45, 54 (Ohio Ct. App. 

Aug. 30, 1991) (“The rights to conceive and to raise one’s children have been 

deemed ‘essential, basic civil rights of man,’ and ‘[r]ights far more precious than 

property rights.’”) (internal citations omitted). Stanley v. Illinois, 92 S.Ct. 1208, 

1212 (1972). A termination of parental rights is the family law equivalent of the 

death penalty in a criminal case. See also, Elizabeth Brico, The Civil Death 

Penalty Makes Hungry Ghosts of Mothers and Children, BETTY’S 

BATTLEGROUND BLOG (Mar. 13, 2019), https://www.bettysbattleground.com

/2019/03/13/the-civil-death-penalty [https://perma.cc/JSP9-43LY]. 
5 Brico, supra note 4. 



868 COLUM. J. RACE & L. [Vol. 11:861 

antagonist to our story of liberation, focusing on its stifling 

impact to political imagination and making clear that ASFA is a 

driver of white supremacy, family separation, and community 

destruction. We end the Article with invitations to build, learn, 

and create in lieu of recommendations. We end this way 

purposefully, because this Article is not prescriptive, but rather 

a memorialization of a time of thinking between a group of 

women envisioning and embodying change. We invite questions, 

community, and continued thinking. We do not have all the 

answers, but provide guiding questions and principles to find 

them. 

We also write this Article at a time when our movement 

has suffered from isolation, the overwhelming oppressive reach 

of carceral systems, lack of funding and political access, racism 

and many more afflictions. We sit in a cold winter of activism, 

desperately awaiting a summer of change, reckoning and 

uprising. We implore you to struggle with us, be in community 

with us, and read the words that we have written with care and 

time. Let this Article sit deep in your soul—talk about it, disagree 

with it, agree with it, picture it, paint it, dance about it. Imagine 

and build freedom. We bare our lacerated hearts to you, and to 

anyone who cares to meaningfully share this vision and dream. 

We will be free, as will our children, and our children’s children. 

II. THE WORLD WE DESERVE: OUR VISION 

AND OUR DEMAND 

“Do we get to live our life? That has been the fight 

for Black people for so long. Will we be able to 

express ourselves the way we want to express 

ourselves without demonization, without having to 

succumb to violence. Do we get to live our life?” 

—Bishop Marcia Dinkins 

Our demand: 

We write this as mothers who have suffered the ineffable 

pain of losing a child to a system that came to us calling itself a 

savior. Mothers who had to silently watch—some of whom are 

still watching—as our children are raised by others under a set 

of values and principles different than our own. Mothers who 

could not watch our children grow up at all. We write this as 

children who were stolen from our families and told we were 

made from junk-genetics; the product of so-called broken mothers 



2021] ENDING THE FAMILY DEATH PENALTY 869 

and failed fathers, but who still had the courage to become 

mothers—only to have our motherhood terminated before it could 

bloom. We write this as survivors of physical and sexual violence 

who were punished for surviving; whom the system chose to 

teach the cruel lesson that surviving such violence made us 

unworthy of motherhood. We write this as mothers who used 

drugs, but still loved our babies. Mothers who used drugs, but 

still cared for our babies. Mothers who were incarcerated, but 

still loved, cared, and yearned for our babies. We write this as 

mothers who made mistakes. Mothers who asked for help 

without knowing our babies were the cost of our asking. We write 

this as Black mothers, Latina mothers, poor mothers, queer 

mothers, disabled mothers, single mothers, abused mothers, 

addicted mothers, loud mothers, and loving mothers. We write 

this as the allies of mothers and fathers and parents who are 

targeted by this system of family destruction. We write this as 

allies, defenders, and advocates who have witnessed the endless 

torment that results from child loss; who have tried to stop 

families from being separated forever, and who sometimes 

succeeded but many times failed. Not because we didn’t try or 

care enough, but because the system is rigged against families. 

We write this as fighters for the sanctity of family integrity—and 

we are no longer asking. 

We demand a world where the integrity of all families is 

valued and family ancestry is held sacred. In this world, families 

are supported and given the resources they need to thrive, and 

the family death penalty, or termination of parental rights, no 

longer exists. In this world, we are building healing space for 

families who have been forcibly separated, and we are collectively 

building a vision of how to hold families together through all our 

complexities and experiences. Our village resurrects, and the 

sound of communal joy resonates from home to home, person to 

person. 

The world we demand is a world built for us. Black 

children can be children, and Black, Brown, and poor birthing 

people are trusted with decisions for the care of their bodies and 

families. It is filled with love, understanding, joy, and peace. It 

has fields of sunflowers, lilies and other flowers giving fragrance 

to the world. It feels like freedom and it tastes like abuelita’s 

congri, my sister’s fried chicken, fresh mango, and mama’s 

macaroni and cheese. It tastes like home. When we look at 



870 COLUM. J. RACE & L. [Vol. 11:861 

people’s faces, they are happy, because for once, Black people are 

living without fear. They are not worrying about who is knocking 

on their door, or feeling a panic when they get a call from an 

unknown number, and they rest easy knowing their children are 

safe. Black daughters are safe. 

We demand a world where people have time to spend with 

their family, going to museums, parks, vacations. It is a world 

without war, poverty, racism, hatred, or mayhem. Language is 

not a barrier, but a thread of understanding. This world utilizes 

a true barter system, without capitalism, with adequate housing 

for everyone, employment that suits all skill sets, and an 

education system where we are taught the truth about our 

heritage and about other people’s heritage, not a colonized 

fantasy. 

We demand a world where we are recognized for our 

actions and the substance of our beings—not judged for the 

substances that may sometimes be in our bodies; substances that 

we all use.6 In this world, it is understood that healing is non-

linear, and that old injuries can resurface afresh many years 

after the original wounding. The passage of time does not efface 

a person’s need or deserving of care. The way someone copes with 

their pain is not a commentary on their love for their children. 

Asking for help is not an admission of incompetence, nor does it 

grant permission for the helper to take what is not offered. In this 

world, substance use is recognized as a normal part of human 

existence, and it does not transform into harm when it is done by 

a person of color or a poor person. In this world, those of us who 

live with addiction, or trauma are afforded the space, time, and 

support necessary to heal, and our children are allowed to be 

participants in that healing. In this world, our children learn that 

adversity can be overcome, that mistakes can be forgiven, and 

that the experience of suffering does not make permanent 

outcasts of us. In this world, we are not always perfect. We are 

not always liked. We do not always make good choices, but we 

still have the right to come home to our babies each and every 

day. 

 
6 See German Lopez, Black and White Americans Use Drugs at Similar 

Rates. One Group is Punished More for It, VOX (Oct. 1, 2015), 

https://www.vox.com/2015/3/17/8227569/war-on-drugs-racism [https://perma.cc

/PMH2-H4HT] (demonstrating how both Black and white Americans use illicit 

drugs at similar rates). 



2021] ENDING THE FAMILY DEATH PENALTY 871 

We demand a world where systems do not dictate the 

futures of families, nor are the complexities of human pain, love 

and need, reduced to checklists and algorithms; where there are 

numerous community-based alternatives to provide the rites of 

passage for healing. For example, when a person gives birth, 

there is a community member that can stay with the parent and 

children if so desired. Families stand together: babysitting each 

other’s kids, giving each other breaks, honoring the need for time 

apart and together. We have eliminated the fatigue, grief, and 

death that are constantly imposed on Black women, birthing 

people, and caretakers. Neighbors become aunties, and strangers 

are now our extended families. 

In this world, we govern our own communities, and have 

participatory policy making. Parents and community leaders 

support each other. We come together with our children, eat food, 

make decisions, and watch the babies play. Hate is buried. Love 

is a verb, and we see it in action. Our differences are no longer 

weapons used to divide us, but rather kindle for curiosity and 

unity. We build, and practice building, with the understanding 

that our liberation is intertwined. All top-down systems are 

eradicated. Instead, grassroots efforts anchor us and lead the 

fight for the health and well-being of families. 

In the future there will be mistakes. But those mistakes 

will be allowed to fuel growth instead of being held over us as 

perpetual bludgeons named “shame” and “humiliation.” We 

would be living in a world where practicing the skills to end 

harm, mediate conflict is an imperative. We would generate 

stamina to endure the ebbs and flows of disagreement, and 

understand this as a practice of joy, not a necessity born out of 

fear. It will be our duty to eliminate the pathology of anger. It 

will be our duty to develop and normalize the reflex to “step up” 

and “step in.” What is now considered hard, will be considered 

routine. 

We hear our world as clearly as we can see it. It sounds 

like flowing water, waves clapping against rocks, the crescendo 

of a waterfall, a breeze strumming its gentle tune through the 

autumn leaves. It sounds like birds chirping in the distance, their 

melodic banter a symbol of the peace we have achieved. But most 

of all, it sounds like the voices of our children.  

In this world, all of us would wake up and hear our kids 

in the morning. We would call out to them and hear them answer, 



872 COLUM. J. RACE & L. [Vol. 11:861 

“mom.” Our grandparents, mothers, and children would be 

chattering, and laughing. Sometimes the words would be hard, 

and sometimes the words would be soft. We hear bickering in this 

future, over things like what to eat for breakfast, or what games 

to play, and what clothes are okay to wear. We reminisce about 

hard times—when we battled together and battled each other. 

Then we hear silence, sighs, laughter, and silence again. In this 

future, our days end with our eyes closing, and deep rest. We 

wake up and hear each other’s voices again. There is a repetition 

in hearing each other; our families are the soundtrack of our 

future. 

And if we must live in a world where we battle, it will be 

with an army united. Millions upon millions of people of all 

backgrounds, races, nationalities, professions, generations, 

orientations, and inclinations will stand together with the 

clarity, strategies and power necessary to dismantle the systems 

that once kept us apart, down to the very rubble of their 

foundations. When we fight, we will do so with the confidence and 

knowledge of our collective experience, with the power and 

endurance that comes from knowing we will accept no other 

outcome than to win. Then, when it is all over, we will breathe, 

we will rest, we will rejoice—and then keep building. 

 

This is our demand. We are no longer asking. 

 

III. THE VIOLENT ANTAGONIST: WHITE 

SUPREMACY AND ITS IMAGINED REALITY 

“I often feel I am trapped inside someone else’s 

imagination, and I must engage my own 

imagination in order to break free.”  

—Adrienne Maree Brown7 

Our opportunities to grow and nurture our world vision 

have been suffocated by the imagination of others. These 

imaginations have built oppressive systems that have sucked 

nourishment from our world and traded domination for 

liberation, and personal responsibility for cooperative 

 
7 ADRIENNE MAREE BROWN, EMERGENT STRATEGY: SHAPING CHANGE, 

CHANGING WORLDS (2017).  



2021] ENDING THE FAMILY DEATH PENALTY 873 

interdependence. They build and manipulate massive, faceless 

institutions—the prison, family regulation, immigration, and 

public assistance systems, to name a few. And they make them 

seem like the inevitable result of existence. They are not. They 

are the manifestation of white, colonial fantasies that become 

laws, that create smoke screens of noble purpose, and that cover 

dark realities of manipulation, oppression, and inequity. 

When we consider the Adoption and Safe Families Act, 

we situate our analysis not only in the elements of the law, but 

also the dominant imagination that allowed it to exist and 

survive with very little opposition. One starting point is looking 

at Senator John Chafee (R-RI), a lead Senate sponsor for the 

legislation, who on the eve of the eve of the passage of the ASFA 

told the New York Times, “[i]t’s time we recognize that some 

families simply cannot and should not be kept together.”8 He 

spoke these words when nearly half of the children in the family 

regulation system were Black, most were poor, and the federal 

government was rapidly draining social safety nets. 

We believe that the families Chaffee imagined were not 

his own. He was from a family to which the entire power and 

might of the United States was dedicated to keeping together. In 

his direct ancestry were multiple governors, law professors, and 

senators. He attended the most elite institutions of the Northeast 

and went on to live the life he was predestined to live—ascending 

from congressperson to governor to secretary of the navy to 

senator.9 He had been bequeathed generational wealth and social 

status from the blood, sweat and tears of our families—literally 

achieving social and political capital from the backs of our 

ancestors. He would likely utter the words that “some families 

should not be kept together” with a strong sense that his would 

continue to accumulate wealth and status, while we would 

inherit a devastating history with the foster system. 

Unfortunately, Chafee was not alone in his imagination 

of deserving families. His speech was a regurgitation of 

mainstream political rhetoric that was seeded in racism, 

misogyny and capitalism, long manufactured by the pushers of 

chattel slavery, political borders, and other vile story tellers. He 

 
8 Katharine Q. Seelye, Clinton to Approve Sweeping Shift in Adoption, 

N.Y. Times, Nov. 17, 1997, at A20. 
9 E.g., John Chaffee, WIKIPEDIA, https://en.wikipedia.org/wiki

/John_Chafee (last visited Mar. 22, 2021). 



874 COLUM. J. RACE & L. [Vol. 11:861 

did, however, add the additional layer of neoliberal storytelling 

that would promote a narrative of “personal responsibility” over 

our families. 

This specific narrative had been brewing for many 

decades but really became a pillar of political propaganda in the 

1970s. With the specter of the Black liberation movement 

squarely before it, the United States deliberately abandoned10 

the belief that the government could, or should, play a role in 

leveling the playing field between the rich and poor, thereby 

making invisible decades of the U.S. government’s segregated 

aid-giving strategies like the New Deal, and 1944 GI Bill—

strategies that built a gold plated escalator devoted to the 

accession of whites to the middle class.11 This erasure, in part, 

created fertile ground for neoliberalism to fill the gap with the 

notion of a “free market”. 

The “free market” would be the leading protagonist of the 

economic story told by the neoliberalists. This “free market” 

would be color blind, race blind, gender blind, and class blind. It 

would enter the final act of the 20th century with a bold message 

about “personal accountability”—a message that venerated the 

market and justified the government’s abdication of its 

responsibilities to support their most marginalized members of 

society. 

Many of us recall being told that the “free market” was 

the greatest arbiter of equality, and that we could leave access to 

basic life necessities in the hands of the “free market.” That those 

who worked hard would get what they worked for. That those 

who did not work hard—well, they would not get what they did 

not work for. We came to learn that for our communities, for 

Black folks, for Brown folks, social mobility was in our hands, 

and ours alone. The free market neither gave a hand up nor beat 

 
10 See The Powell Memo: A Call to Arms for Corporations, MOYERS ON 

DEMOCRACY (Sept. 14, 2012), https://billmoyers.com/content/the-powell-memo-

a-call-to-arms-for-corporations/ [https://perma.cc/38SQ-42HW] (describing the 

United States’ increased focus on businesses in the 1970s). 
11 See, e.g., Darrick Hamilton, Beyond Neoliberalism, Neoliberalism 

and Race, DEMOCRACY: A JOURNAL OF IDEAS, Summer 2019, 

https://democracyjournal.org/magazine/53/neoliberalism-and-race/ 

[https://perma.cc/CM32-GSTG]; IRA KATZNELSON, WHEN AFFIRMATIVE ACTION 

WAS WHITE: AN UNTOLD HISTORY OF RACIAL INEQUALITY IN TWENTIETH-

CENTURY AMERICA (2006) (describing policies in the 1970s that were geared 

towards propelling white people out of the middle class). 



2021] ENDING THE FAMILY DEATH PENALTY 875 

a person down. If something bad happened in someone’s life, the 

free market alleged that it was their fault. Glaringly absent from 

this grotesque fairy tale spun by racial capitalism were the 

inherited advantages and disadvantages of history, of decades of 

infusion of social and economic capital into white communities, 

and the political power that followed.12 

From the 1970s on, the US would continue to privatize 

access to the basic life necessities—such as housing and higher 

education—the government provisions of which were otherwise 

the bedrock of the momentous buildup of wealth in white 

communities.13 They would use language to pathologize us for 

accessing what little government assistance was left, and blame 

us for the harms of living under centuries of oppression, calling 

Black, Brown, and low-income mothers “crackheads” and 

“welfare queens.” They would push them into systems, and turn 

their backs on families and communities. They would disappear 

adults into the prison system and children into the family 

regulation system.14 When they put mamas in cages, mamas 

would send their children to live with their parents only to be told 

that their children could not live with their grandparents. The 

free market, white institutions, governments, pundits, the 

medical establishment, academia, and others, placed the blame 

for the fallout in our community squarely on those of us who 

suffered the most harm. 

With this history and with these lies, it is unsurprising 

that ASFA passed with little political controversy or fanfare. For 

all intents and purposes, it embodies the sentiment, imagination, 

and consciousness of the moment—that the government does not 

have an ongoing responsibility to support families, that if 

something bad happens to our families it is solely our fault, and 

 
12 Hamilton, Beyond Neoliberalism, supra note 11. 
13 The U.S., of course, continues to support and subsidize the 

accumulation of white wealth through many means, such as the tax code but has 

managed to make the massive government assistance that white and wealthy 

people receive invisible. Jocelyn Harmon & Jeremie Greer, How the US Tax Code 

Drives Inequality—And What We Can do to Fix it, FORD FOUND. (Apr. 13, 2017), 

https://www.fordfoundation.org/just-matters/equals-change-blog/posts/how-the-

us-tax-code-drives-inequality-and-what-we-can-do-to-fix-it/ 

[https://perma.cc/CE5C-J5JE]. 
14  Ingrid Archie, Address at the #StopStealingOurBabies Virtual Town 

Hall of the Time for Change, TIME FOR CHANGE FOUND., (Aug. 25, 2020), 

https://www.facebook.com/watch/live/?v=942945716197667&ref=watch

_permalink). 



876 COLUM. J. RACE & L. [Vol. 11:861 

that we—alone—are responsible for centuries of political neglect. 

The Adoption and Safe Families Act reflected these ideas by:15 

1. Demanding that every child welfare system across 

the country move toward termination of parental rights 

proceedings after a child has been in foster care for fifteen 

of the past twenty-two months;16 

2. Insisting that every child welfare system skip 

efforts to keep families together and move directly to 

termination of parental rights as soon as a child enters the 

foster system, if “aggravated circumstances” exist;17 

3. Establishing unprecedented federal incentives to 

states to permanently separate families and terminate 

their legal ties, with no comparable financial incentive to 

reunify or keep families together. 

The adoption of this law was swift. By July 1999, all states had 

laws that mirrored the federal legislation or were more stringent 

than the federal law.18 A formerly incarcerated mother and ASFA 

activist in New York State, Christina Voight, reflects that at the 

time of the law’s passage, everyone, from the mothers caged to 

the family regulation agents to the agencies themselves had no 

idea how ASFA would actually unfold.19 The law was literally 

written on the backs of families. 

Since ASFA was enacted, more than one million children 

have been permanently separated from their parents.20 That is 

about the population of Rhode Island. It is more than the entire 

city of Boston. The annual number of family dissolution and 

 
15 Adoption and Safe Families Act, 42 U.S.C. § 1305 (1997). 
16 There are limited exceptions to this timeline. One such exception is 

that the court can use its discretion when it serves the best interests of the child, 

to extend the timeline. As authors who have practiced for years in New York, 

and people who have directly experienced ASFA, we have not observed use of 

this provision. 
17 Aggravated circumstances range from past criminal convictions to 

the mere fact that a parent has lost their termination trial in the past. 
18 Foster Care: States’ Early Experiences Implementing the Adoption 

and Safe Families Act, U.S. GOV’T ACCOUNTABILITY OFF. (Dec 22, 1999), 

https://www.gao.gov/products/hehs-00-1 [https://perma.cc/SUU3-RB6K]. 
19 Interview with Christina Voight, Movement for Family Power (Dec. 

21, 2020) (on file with author). 
20 Kim Phagan-Hansell, One Million Adoptions Later: Adoption and 

Safe Families Act at 20, IMPRINT (Nov. 28, 2018), https://imprintnews.org

/adoption/one-million-adoptions-later-adoption-safe-families-act-at-20/32582 

[https://perma.cc/VWM5-5BKQ]. 

https://www.gao.gov/products/hehs-00-1


2021] ENDING THE FAMILY DEATH PENALTY 877 

adoptions have increased by 57 percent from the time ASFA was 

enacted through fiscal year 2004.21 Moreover, between 1997 and 

2019, because of ASFA, at least 121,000 more children aged out 

of the family regulation system with no permanent home than 

would have aged out had there been no ASFA, giving America 

the distinction of having the largest number of legal orphans out 

of anywhere in the world.22 

Too many of us have believed what they told us about the 

system—the myth of personal responsibility creates false paths 

of redemption. Many of us were told that we were being selfless 

and doing something good if we gave up on our case, our children, 

and relinquished them to the system. Yet some of us have since 

found our children, spoken with our children who are adults now, 

and we have learned that this system was not good for them. It 

was not as some of us perceived it to be. It was not as the system 

described. It was certainly not redemption. 

We publish this Article over 20 years after the passage of 

ASFA, 20 years into surviving and thriving in spite of the horror 

it has inflicted on children, families and communities. We write 

this and continue to be stunned by the amount of money this law 

has funneled into family regulation systems across the country. 

Money that was stolen from communities. In 2017 alone, states 

were projected to receive $2.658 billion in federal Title IV-E 

adoption assistance budget to fund other families to care for our 

children.23 From 1999 to 2014 the federal government projected 

that it gave states $423,754,125 as an award for dissolving our 

families and adopting out our children.24 Over the course of 20 

years, the federal government (not including state governments) 

has spent tens of billions of dollars on paying other families to 

permanently raise our children and the children of the families 

 
21 U.S. GOV'T ACCOUNTABILITY OFF., GAO-03-626T, FOSTER CARE: 

STATES FOCUSING ON FINDING PERMANENT HOMES FOR CHILDREN, BUT LONG-

STANDING BARRIERS REMAIN 2 (2003).  
22 ASFA: The Racist Child Welfare Law From the 1990s that Almost No 

One Talks About, NAT’L COAL. CHILD PROTECTION REFORM, CHILD WELFARE 

BLOG (Nov. 8, 2020), https://www.nccprblog.org/2020/11/asfa-racist-child-

welfare-law-from.html [https://perma.cc/9RDC-CKZC]. 
23 CONG. RSCH SERV., R43458, CHILD WELFARE: AN OVERVIEW OF 

FEDERAL PROGRAMS AND THEIR CURRENT FUNDING 19 (Jan. 2, 2018). 
24 CONG. RSCH SERV., R43025, CHILD WELFARE: THE ADOPTION 

INCENTIVE PROGRAM AND ITS REAUTHORIZATION 19 (July 15, 2014). 



878 COLUM. J. RACE & L. [Vol. 11:861 

we support.25 These numbers far outpace the money or energy 

that as invested in us, our families, our communities, and our 

advocacy. Can you imagine what we could be doing for our 

families if we had that type of investment? 

ASFA is a continuation of many troubling histories in the 

United States where normative judgements around who were 

worthy families and who were not, who were worthy communities 

and who were not. It used considerable resources and wreaked 

and continues to wreak havoc on so many communities.26 It has 

trapped so many people’s perspective of what is possible, and it 

must end. 

IV. AN INVITATION FOR TRANSFORMATION 

“The ending of one story is just the beginning of 

another. This has happened before, after all . . . . 

Old orders pass. New societies are born. When we 

say, “the world has ended,” it’s usually a lie, 

because the planet, is just fine. But this is the way 

the world ends. This is the way the world ends. 

This is the way the world ends. For the last time.” 

—N.K. Jemison27 

We build a new world, not just by repealing laws, but 

through transforming and undoing oppressive social orders, 

actions and interactions. ASFA is a symptom of centuries of 

family separation policies that have relied on the degradation of 

Black, Brown, and poor bodies to legitimize their existence. It is 

kin to the Violent Crime Bill, cousin to the Personal 

Responsibility and Work Opportunity Act, sibling to the Illegal 

Immigration Reform and Immigration Responsibility Act, and 

heir apparent to all the laws that built up racial capitalism, 

chattel slavery, segregation, border control, reproductive 

injustice and U.S. war strategies. Its relationship to the history 

of punitive policies is a rationale for both its full repeal, and also 

 
25 We estimate the total cost to be much higher, as these numbers do 

not include the cost of family investigation and child removal that proceed 

permanent dissolution. 
26 Latagia Copeland Tyronce, Yes, the Adoption and Safe Families Act 

(ASFA) Can and Should Be Repealed!, MEDIUM (Dec. 24, 2018), 

https://medium.com/latagia-copeland-tyronces-tagi-s-world/yes-the-adoption-

and-safe-families-act-asfa-can-and-should-be-repealed-9c18ac391997 

[https://perma.cc/CM35-BYDM]. 
27 N.K. JEMISIN, THE FIFTH SEASON (2015).  



2021] ENDING THE FAMILY DEATH PENALTY 879 

a reason why a traditional legal/policy strategy, alone, will not 

bring us closer to our world vision. 

We want to build transformative and lasting change. We 

believe there should be no termination of parental rights, no fast-

tracked adoptions, no stringent timelines for reunification, and 

no financial incentives for separations and adoptions. We insist 

on the end of terminating parental rights during a global 

pandemic, because of parental incarceration or simply because 

someone has not achieved remission from a complex medical 

condition. We require a full repeal of ASFA. These are our 

demands, and they can be enacted immediately. However, even 

if we were to achieve these policy shifts, our work would not be 

done. We aim not only to eliminate ASFA but to uproot the 

culture of family policing and forced family separation. Our 

success will be measured by the shift in political alignment, 

imagination and transformation of our community, not by the 

legislative session. 

We are building in collective struggle. We are learning 

together, and offer this final section as a glimpse into what that 

process looks like for us. We urge you to read this section not as 

a blueprint for organizing but rather a description of our time 

together. Maybe this will inspire imagination or invite 

accountability, regardless we share this space with you and hope 

to: 

1. Invite movement building; 

2. Invite memory sharing, imagination, and 

community building; 

3. Invite learning from other movements; 

4. Invite principled organizing strategies; and 

5. Invite healing and reparations. 

In each subsection, we have tried to cite some of our resources in 

the footnotes in each section and hope that it will serve as a 

conversation starter as we all work to build a new world. 

A. An Invitation to Movement Building to End the Culture of 

Forced Family Separation 

When we met in Philadelphia in 2019, we had the 

opportunity to work with AYNI Institute. AYNI is a small 

grassroots organization that, among many things, has studied 



880 COLUM. J. RACE & L. [Vol. 11:861 

hundreds of movements over the last two centuries.28 In 

Philadelphia, they learned from us and also taught us about the 

work they have been doing, especially as it pertained to thinking 

about the importance of social movements,29 and their life cycles. 

One of our main takeaways from AYNI is that we are all 

connected to the earth, and as a consequence we are all connected 

by universal laws of nature.30 One example is that we all go 

through the cycle of life and death in various ways, and this cycle 

is not confined to a human experience, but is also seen in 

activism, social justice trends, organizations and movements.31 

This framing is a shift from the traditional linear trajectory that 

often directs legal, non-profit or traditional legal and policy 

strategies, and creates a circular pattern of planning that helps 

us orient our work, define our success and create stamina for the 

inevitable retrenchment.32 

AYNI uses the metaphor of seasons to explain that social 

movements go through a winter, spring, summer and fall, and 

this cycle takes approximately 5–15 years.33 We learned that in 

each season there are different opportunities.34 In the winter of 

a movement, the work is internal; among other things it is a time 

of low activity and planning, which is the opposite of the 

 
28 AYNI INSTITUTE, https://ayni.institute/ [https://perma.cc/4YC2-592B] 

(last visited Jan 8, 2021). 
29 There are many activists, scholars etc. that have been teaching and 

explaining about the importance of social movements which include but are 

certainly not limited to: Ella Baker, Black Panthers, Black Liberation 

Movement, Civil Rights Movement, Marsha P. Johnson, Dolores Huerta, 

adrienne maree brown, Law for Black Lives, Movement Law Lab, Black 

Organizing for Leadership and Dignity, New Georgia Project, ConMijente, 

Combahee River Collective, the Black feminists who proclaimed the need for 

Reproductive Justice, formations like Survived and Punished, No New Jails, and 

the countless international movement builders, activists, and theorists. We are 

humbled by so many before us and raise AYNI institute as they were a specific 

partner in the support of this work, and we learned a lot from their guidance and 

especially the specific support of Fhatima Paulino. 
30 Ayni Institute, Movement Ecology Introduction Webinar, YOUTUBE 

(Sept. 6, 2016), https://www.youtube.com/watch?v=pGWYaw3he2w&feature

=youtu.be (last visited Mar. 23, 2021). 
31 Id. 
32 Id. See also, Jennifer Ching et al., A Few Interventions and Offerings 

from Five Movement Lawyers to the Access to Justice Movement, 87 FORDHAM L. 

REV. 186 (2018) (discussing strategies for building sustainable movements). 
33 Ayni institute, 3. Movement Seasons, YOUTUBE (Apr. 16, 2019), 

https://www.youtube.com/watch?v=KSwnVINjYgI (last visited Jan 8, 2021). 
34 Id. 



2021] ENDING THE FAMILY DEATH PENALTY 881 

summer—an external, high activity time that may allow for large 

scale policy changes that can be supported by an accountable 

movement infrastructure and lead by people more directly 

impacted by social change.35 They reminded us that many 

movements get stuck in the winter and never move to spring, 

explaining that this is because everyone wants to be in an eternal 

summer.36 That there is a dominant summer culture of “do do 

do,” that is projected by many organizations, institutions, and 

even ourselves, and that organizations do not respect people’s 

winter.37 They also said that we often get stuck in a “winter” 

because we lose sight of what is needed during a winter, 

retreating, deep thinking, learning, and relationship building. 38 

When we learned about the different traits of each 

season, we almost universally agreed that the abolition of the 

family regulation and destruction system was squarely situated 

in a winter. We saw the traits of isolation and low or little funding 

for activist leadership. We saw the blank stares when we told 

people we should end the child welfare system and questioned its 

efficacy.39 We felt the frustration that many of our comrades and 

progressive colleagues confused our demands with one that 

asked for abuse and harm for children.40 We observed the layers 

of shame, stigma, and oppression that surrounded communities, 

parents, and families resisting and activating.41 We certainly 

were not in a summer. 

 
35 Id. 
36 Id. 
37 Id. 
38 Id. 
39 Many activists and directly impacted people have been arguing for a 

swift change with little to know support, funding or even serious consideration 

by mainstream media/lobbying efforts. See, e.g., Latagia Copeland Tyronce, 

supra note 26. The resistance in Contra Costa County, some of which is captured 

in writing by Michelle Chan. Michelle Chan, SAN FRANCISCO BAY VIEW (2021), 

https://sfbayview.com/tag/michelle-chan/ (last visited Mar. 24, 2021). 
40 One representative example, is the fight by Elizabeth Brico for her 

daughters. She created her own petition to convince stakeholders that she 

should be with her child, exposing the very clear and real evidence that despite 

allegations of substance use there were no connections that her children were 

ever neglected. See Elizabeth Sparenberg-Brico, Reunite the Brico Babies with 

their Mama, CHANGE.ORG, https://www.change.org/p/florida-department-of-

children-and-families-reunite-the-brico-girls-ages-5-and-6-with-their-mama 

(last visited Mar. 24, 2021). 
41 VOICES Keston Jones, Episode 3 Dinah Ortiz: #Family, #Women’s 

and #CriminalJusticeReform #Advocate. #VOICESKJ, YOUTUBE (Nov. 25, 



882 COLUM. J. RACE & L. [Vol. 11:861 

The opportunities during winter center on decreasing 

isolation around those most impacted, activism and 

organizations that are looking to direct their resources at the 

same target and deepening alignment around the political 

understanding of the target issue.42 This means creating regular 

practices around meeting and creating community, developing 

coalitions with sustainable infrastructure, discussing how we 

want to be in relationship with each other, developing aligned 

targets and talking points, and sharing and building political 

education around the issues we want to tackle. It also means 

ensuring that resources do not consolidate and congeal within 

funded non-profits or carceral systems, but rather move towards 

community, leadership development, idea generation and 

innovation. 

In the last year, our work around repealing ASFA was 

focused on the strategies we believe will pull our work from 

winter to spring. We organized a convening in Philadelphia, 

engaged in horizontal learning and political education and then 

isolated a particular element of the law we believe we can tackle, 

ASFA. From that Philadelphia convening, we started a steering 

committee that has now been meeting regularly for 

approximately a year. We were hoping to have another, smaller 

in-person convening in March of 2020—though COVID has 

impacted our ability to physically be with one another. We are 

hoping to invite people into working groups in 2021, and we want 

to take time to think through how to bring people together, how 

to organize and how our time together can be meaningful, 

healing, creative and generative. 

Most importantly, we have built relationships with each 

other during this winter. We have learned together, deepened our 

value alignment and trust, and hopefully also built resiliency. 

This is the work of the winter, that we hope evokes a spring. We 

will have to change the outputs of our work as our movement 

shifts. This is a part of our strategy and what we believe it takes 

to truly support liberated policy demands. 

 
2018), https://www.youtube.com/watch?feature=youtu.be&v=5Zz9Ku67Y-

U&app=desktop (last visited Mar. 24, 2021). 
42 Ayni Institute, supra note 29. 



2021] ENDING THE FAMILY DEATH PENALTY 883 

B. An Invitation to Reimagine and Build Resilient 

Communities and Family Structures by Learning from 

Shared Memories 

We aspire to center the experience, expertise, leadership 

and voice of the most directly impacted by ASFA. We strive to be 

accountable to both those within our movements and those in 

adjacent movements and be in constant practice of sustained 

community building. This intentional work is difficult and has 

proved even more difficult this year where a global pandemic 

shut down our ability to be in physical contact with each other. 

Nevertheless, we are reminded by the words of Adrienne Maree 

Brown, that we must “[m]ove at the speed of trust” and that, 

“[t]here is always enough time for the right work. There is a 

conversation in the room that only these people at this moment 

can have. Find it.”43 

One of the conversations we have started building is with 

indigenous communities, who, in response to the devastating 

impacts of the removal of their children, have pushed back on the 

family destruction system and the dissolution of their families. 

This has included fighting for tribal sovereignty and jurisdiction 

over child welfare cases to bring them into tribal courts, and 

implementing alternatives to termination of parental rights. 

Judge Bill Thorne, who is Pomo Coast Miwok, a former State of 

Utah Court of Appeals Judge and former tribal court judge, 

describes these efforts as “not just about reimagining, but about 

remembering how we used to do it in our communities.”44 

We have learned a lot, and have a lot more to learn. 

Professor Priscilla Day, an Anishinaabe tribal member enrolled 

at the Leech Lake reservation and a professor of social work at 

the University of Minnesota Duluth, explained to us that there is 

a belief among many tribes that children choose their parents, 

and that the parent-child bond cannot be severed.45 Jeri Jasken, 

who has worked as the former Director of Child Welfare and 

Director of Behavioral Health for White Earth Nation tribe, 

 
43 ADRIENNE M. BROWN, EMERGENT STRATEGY: SHAPING CHANGE, 

CHANGING WORLDS 20 (2017). 
44 University of Houston Graduate College of Social Work, UpEnding 

the Child Welfare System: The Road to Abolition, YOUTUBE (Oct. 21, 2020), 

https://www.youtube.com/watch?v=t7iZch9P504, at 13:01. 
45 Interview with Priscilla Day, Professor of Social Work, University of 

Minnesota, Duluth (Oct. 20, 2020) (on file with author). 



884 COLUM. J. RACE & L. [Vol. 11:861 

described telling social workers in their training, “it’s not your tie 

to break, not your right to break it.”46 Similarly, Judge Thorne 

explained that many tribal communities believe that to cut off a 

child from their family is an act of abuse, because it not only 

severs the parent-child relationship, but also severs the child’s 

relationship with their extended family and relatives.47 He said, 

“kids are not property, you don’t cut them off. It’s not like a car 

where you have a bill of sale and you can only belong to one 

person. Kids belong to the whole community and the extended 

family.”48 

Professor Day, Judge Thorn, and Jeri Jasken were all in 

leadership at the time ASFA passed. Jeri Jasken, the former 

Director of Child Welfare at White Earth Nation, described a 

deeply uncertain and scary period for her community, where the 

tribe was faced with an overwhelming number of fast-tracked 

TPR petitions occurring in state courts. Judge Fineday describes 

hearing two clear messages from the tribal elders. First, the 

elders described that the tribe had always had practices that 

involved taking in other people’s children and there is no word 

for “orphan” in the Ojibwe language.49 Second, the elders opposed 

the concept of termination of parental rights and believed that 

parents should always be able to have their children returned 

when they are ready.50 

We learned that leaders had to rapidly respond to the 

cultural clash inflicted by ASFA on tribal customs. One form of 

 
46 Interview with Jeri Jasken, Former Director, White Earth Nation 

Child Welfare and Behavior (Dec. 2, 2020) (on file with author). 
47 Interview with Judge Bill Thorne, Utah Court of Appeals, at 26:16 

(Nov. 25, 2020) (on file with author). 
48 University of Houston Graduate College of Social Works, supra note 

44, at 54:20. 
49 History of White Earth, WHITE EARTH NATION, 

https://whiteearth.com/history (last visited Mar. 24, 2021) (“All Indian tribes 

have names for themselves. The largest Indian group in Minnesota calls itself 

Anishinaabe, which means ‘the original people.’ Europeans named them Ojibwe. 

No one is exactly sure how this name developed. Perhaps it came from the 

Anishinaabe word ‘ojib,’ which describes the puckered moccasins worn by the 

people. Some Europeans had trouble saying Ojibwe, pronouncing it instead as 

Chippewa. But both these names refer to the same people. In Canada, the 

Anishinaabe call themselves Ojibwe. In the United States, many tribal members 

prefer the name Chippewa. So that is the name we will use in this history of 

White Earth Reservation.”). 
50 Interview with Anita Fineday, Managing Director, Casey Family 

Programs’ Indian Child Welfare Program (on file with author). 



2021] ENDING THE FAMILY DEATH PENALTY 885 

resistance included the use of traditional law in child welfare 

practice, such as “tribal customary adoptions,” (TCAs)51 which 

allows for a child to be adopted, with all of the legal recognitions 

that adoption entails, but without terminating the parental 

rights.52 Traditional adoptions, or the making of relatives, is not 

new to tribal communities, in that it has been practiced for 

centuries. But what is unique is how this traditional practice is 

applied to a child welfare proceeding, and allows parents to 

continue contact with their children, as well as possible return of 

their children in the future. TCAs were developed in response to 

the specific harms created by ASFA and is based on historic and 

traditional practices held by many indigenous communities in 

which children were raised by extended family and by 

community.53 TCAs have allowed tribes to prevent parental 

rights from being terminated, maintain contact and connections 

between children and parents. 

Faced with the violence and swift nature of ASFA, the 

White Earth Nation tribe recognized the need to take rapid 

action for their community’s survival.54 When Anita Fineday 

became Chief Tribal Judge in 1997, she, along with Jasken and 

other leaders, embarked on a process to re-write their tribal code 

to include a child welfare code, in order to address the large 

numbers of White Earth children in foster care facing a TPR 

 
51 Initially, the tribe relied on their traditional law and custom to 

practice TCAs in the context of child welfare cases in tribal court and refused to 

codify the practice. As Jeri Jasken explained, the tribe initially refused codifying 

it because “it’s traditional law. It’s a verbal, traditional, tradition and practice 

and shouldn’t have to be written down. Any time you force a tribal nation to 

write those things down, you’re expecting something that’s not reasonable, that’s 

more westernized . . . but we ultimately decided to put it in our own code because 

it was of benefit to our families.” However, when the tribe lobbied for TCAs to be 

recognized by the federal government to make adoptive parents eligible for 

adoption assistance funding, the Social Security Administration demanded that 

TCAs be codified for it to be recognized for Title IV-E assistance. As a result, 

TCAs were written into the White Earth code in the early 2000s. White Earth 

has also been able to receive additional financial assistance from the state of 

Minnesota for their TCA adoptive families. Interview with Jeri Jasken, Former 

Director, White Earth Nation Child Welfare and Behavior, at 21:30 (Dec. 2, 

2020) (on file with author). 
52 CALIFORNIA INDIAN LEGAL SERVICES, TRIBAL CUSTOMARY ADOPTION 

HANDBOOK 17 (2017) https://www.calindian.org/wp-content/uploads

/2017/06/TCA-Handbook.-Final.pdf [https://perma.cc/62EG-TMU3]. 
53 Interview with Jeri Jasken, Former Director, White Earth Nation 

Child Welfare and Behavior (Dec. 2, 2020) (on file with author). 
54 Id. 



886 COLUM. J. RACE & L. [Vol. 11:861 

proceeding. They created a tribal family court for resolving child 

welfare cases in their own community, rather than in state court, 

where TPRs were filed at an alarming rate.55 The process was 

done in consultation with tribal elders, who warned that the 

community would not accept the White Earth court if it 

terminated parental rights the way the state courts did.56 They 

worked together to create a suspension of parental rights, which 

allowed parents to maintain a path back to their families. 

We know these are not the only forms of resistance, and 

we have a long way to go to learn about, and contribute to, 

building our collective memory around how communities have 

resisted ASF. However, these conversations are instructive in 

many ways. First, they are a reminder that we are not alone in 

seeing this culture of parental destruction as an affront to our 

culture. That demanding a repeal of ASFA is not a demand for 

harm to children, and that people who hear our demand in that 

manner are likely centering their analysis in dominant white 

culture norms. It also reminds us that our communities have so 

much capacity to organize, and reorganize for the sake of family 

survival. That we have, for so long, taken care of each other, 

responded to harm, supported and nurtured each other. That we 

can build on the resiliency of relationship, hold nuance, and care 

for one another—and that we have to remember as much as we 

reimagine. 

C. An Invitation to Learn from Movements Outside of the 

Family Regulation System 

TPRs have disappeared so many parents from their 

children. Elizabeth Brico writes that “[e]quating this action to 

the death penalty is not hyperbole, in fact . . . it’s not a strong 

enough comparison.” 57 

As far as I can tell, the dead don’t wander among 

the living, constantly inundated with images of 

the lives and experiences they don’t get to have. 

 
55 Anita Fineday, Customary Adoption at White Earth Nation, in 

CW360º: A COMPREHENSIVE LOOK AT PREVALENT CHILD WELFARE, 28 (Traci 

LaLiberte et al. eds., 2015). 
56 Id. Jeri Jasken said that TPRs are simply “not allowable” in White 

Earth’s practices, unless there has been some absolutely egregious harm, which 

is rare. Interview with Jeri Jasken, Former Director, White Earth Nation Child 

Welfare and Behavior, at 5:00 (Dec. 2, 2020) (on file with author). 
57 Brico, supra note 4. 



2021] ENDING THE FAMILY DEATH PENALTY 887 

As far as we know, the dead don’t miss 

themselves, don’t mourn their lives; the dead don’t 

remember the aspirations they never achieved. 

The dead are, if not at peace, then at least null. 

Mothers without their babies are neither at peace 

nor null. Mothers without their babies are Hungry 

Ghosts . . . The civil death penalty looks like 

hating Facebook because you post photos of your 

kids there. The civil death penalty sounds like 

shoving headphones deep into my earlobes so I 

don’t have to hear the mom downstairs shout at 

her kid in a way I never would, but don’t have the 

opportunity to do better than. The civil death 

penalty feels like the recirculated air of my 

apartment because going outside means seeing 

families walking together. Going to the grocery 

store means not buying goldfish and juice for my 

daughters while you buy snacks for yours. Going 

to the beach means the terrible freedom to swim 

without worrying about kids and wave and water 

and drowning. The civil death penalty means 

hating the mirror, where my belly will never be 

flat again and that was only okay because it gave 

me you and you but you’re not here anymore. The 

civil death penalty means being conscripted to 

irreparable loneliness. It means living the 

mangled reality of mother without her children. 

The civil death penalty means hating everyone I 

know for having the audacity to live forward and 

move on while I remain dead and stuck for the rest 

of my life. I’d give anything to be granted 

clemency. 58 

TPRs are a violent legal mechanism that kill families, and ASFA 

is the civil death penalty that enacts the execution. As we learn 

more about how to repeal ASFA, we must think critically about 

how the family and criminal death penalties interact. Both 

purport to build safety at the expense of human life. Both 

normalize state violence as response to social concerns. Both 

politically justify their existence as a way to eliminate serious 

harm, and yet have disproportionately eliminated the existence 

 
58 Id. 



888 COLUM. J. RACE & L. [Vol. 11:861 

of Black and brown people. When determining our best path 

towards dismantling the family death penalty, we believe we can 

learn from activists who have worked to abolish the criminal 

death penalty. We have worked over the past two years to learn 

from comrades in all abolition movements, because learning from 

other connects our liberation to a longer freedom struggle. 

We have learned a great deal from the movement to 

abolish the criminal death penalty. This movement is in many 

ways more mature than ours, in that it has gone through several 

life cycles. The longevity of this activism helps us understand 

both successes and struggles of the work and can provide context 

for how we may want to envision political strategies for our 

movement, and prepare for retrenchment. For example, there 

was a period of time when death penalty abolitionists advocated 

for Life without Parole (LWOP)59 as a replacement to the death 

penalty, with devastating consequences. At the time there was a 

sense that this was a more humane option, and potentially a 

more moral option. However, it did not fundamentally challenge 

the callous disregard for life, or the culture of punishment that 

ultimately drives our reliance on the death penalty. Moreover, 

advocates have argued that the rhetoric used to win support of 

LWOP as a replacement to the death penalty, particularly 

tough-on-crime and cost-saving rhetoric, served only to reinforce 

the values underlying not only the death penalty, but the entire 

penal system.60 By focusing on substituting one draconian policy 

for another, and by failing to put forth a narrative and vision that 

centers the dignity of people facing capital punishment, death 

penalty abolitionists failed to fundamentally alter the framework 

undergirding both LWOP and the death penalty. This leaves the 

 
59 Miller v. Alabama, 567 U.S. 460 (2012). 
60 Ross Kleinstuber et al., Into the Abyss: The Unintended Consequences 

of Death Penalty Abolition, 19 U. PA. J.L. & SOC. CHANGE 185, 194 (2016). In 

addition, arguments about the fiscal savings of LWOP were similarly misguided, 

not only because these arguments reduced the value of human life to a dollar 

amount, but also because the costs “saved” by LWOP are actually the result of 

weakened legal protections and diminished procedural rights. The death penalty 

is more expensive because people receiving death sentences are afforded more 

legal protections than those who receive a sentence of life without parole; any 

argument relying on cost-savings is an implicit endorsement of reduced legal 

protections. Id. at 190–93. See also Rebecca Burns, Is Life Without Parole Any 

Better Than the Death Penalty?, IN THESE TIMES (Mar. 22, 2013), 

https://inthesetimes.com/article/death-penalty-abolition-life-without-parole 

[https://perma.cc/JP7F-VRB8]. 



2021] ENDING THE FAMILY DEATH PENALTY 889 

movement with “nowhere left . . . to turn.”61 Once LWOP replaces 

the death penalty; the result is little more than a “Pyrrhic 

victory.”62 

In the winter of our work especially, we must wrestle with 

these difficult and often competing realities, and generate 

movement wide conversation to create alignment on how we 

remain faithful to the horizon of abolition. This is difficult. TPR 

abolitionists may consider the impact of alternatives to TPR, 

such as an indefinite suspension of parental rights, that prolong 

the uncertainty of reunification or the trauma of family 

separation just as the LWOP prolonged the trauma of death in 

prison. Any alternative that prolongs the process and ordeal of 

family separation may result in parents “volunteering” to have 

their parental rights terminated solely to find closure and put an 

end to their family’s uncertainty and suffering just as people on 

death row will sometimes ‘volunteer’ for their execution to put an 

end to their uncertainty and suffering.63 Moreover, powerful 

entities, such as judges and child welfare prosecutors, may use 

these ostensibly “humane options” to coerce families into 

separations and settle their termination trials.64 It will be a 

struggle, but the ultimate goal must be to make the idea of killing 

a family through a TPR so offensive, that it is no longer an option 

for lawmakers, communities, or individuals. 

We can also learn death penalty abolitionists about the 

importance of being faithful to language and narrative shift. In 

 
61 Ross Kleinstuber et al., supra note 60 at 195. 
62 Id. at 195. 
63 For example, following the Supreme Court Decision in Adoptive 

Couple v. Baby Girl, Dusten Brown dropped his appeals to regain custody of his 

daughter. He said, “I cannot bear to continue it any longer . . . I love her too 

much to continue to have her in the spotlight.” Bethany R. Berger, In the Name 

of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67 

FLA. L. REV. 295, 360 (2015). 
64 This is not an abstract concern. Litigants facing TPR proceedings are 

often threatened with a termination conviction if they do not “volunteer” their 

rights. We see this occur often in New York termination proceedings where 

agencies “offer” conditional surrenders that purportedly allow for visitation 

between parents and children.  These provisions are often unenforceable. These 

conditional surrenders offer parents a glimmer of hope, but no legal rights to 

their children. They give the foster – now adoptive – parent enormous power to 

determine whether the parent can visit, even though they are supposed to be in 

an agreement. They are often used to force settlements for parents that wish to 

litigate their termination trial and do little to actually substantively preserve 

the parent/child relationship. 



890 COLUM. J. RACE & L. [Vol. 11:861 

the context of LWOP, we see the dominant narrative culture 

creates “humanity” around caging people for life versus state 

sanctioned murders. We can learn from our colleagues, about the 

pitfalls of adopting a narrative that prefers one inhumane 

treatment and disguises it as progress. We can also learn from 

our colleagues about the pitfalls of creating categories of 

deserving and undeserving people to justify reform, and how 

creating these types of exceptions do not eliminate the violent 

tactics of the government, but further helps legitimize and justify 

cycles of oppression. We absorb these lessons and work to end 

TPR for all families, not just the ones that society deems worthy. 

Our analysis of the LWOP movement does not negate the 

humble awe and gratitude we also give to the many people who 

resisted the criminal death penalty. To the contrary, it is a 

reminder to learn from others, and help us be open to 

accountability of our own work. The inevitable cycle of movement 

means that new activists will be able to see our vulnerable 

mistakes, we accept this challenge and hope we will not do more 

harm than good. 

D. An Invitation to Build Principled Organizing Strategies that 

Bring Us Closer to Our Goal of Liberation and 

Transformation 

To analyze as to whether we are doing more harm than 

good, we think about different frameworks around abolitionist 

demands that are either “non-reformist reforms” or “abolitionist 

steps.”65 Abolitionists recognize that the world may not change 

tomorrow; however, we also reject incrementalism that reinforces 

the status quo and entrenches oppressive cultures. Longstanding 

organizations like Critical Resistance66 and among many other 

liberation activists,67 have collected and facilitated questions to 

help encourage pro-abolitionist policy changes that resist the 

tendency to tweak the system, but instead tug at the root of the 

policy. In the context of ending policing, and abolishing the prison 

 
65 If You’re New to Abolition: Study Group Guide: Reformist Reforms vs. 

Abolitionist Steps, ABOLITION J. (June 25, 2020), https://abolitionjournal.org

/studyguide/#weekfour [https://perma.cc/8FTJ-532Y]. 
66 CRITICAL RESISTANCE, http://criticalresistance.org/ [https://perma.cc

/AZS6-GLNZ]. 
67 We have been deeply influenced by the framings used by Law for 

Black Lives, Andrea Ritchie, and the Movement for Black Lives among many 

other teachings. 



2021] ENDING THE FAMILY DEATH PENALTY 891 

industrial complex (PIC), many activists think through questions 

like these before agreeing to a policy change:68 

1. Does it reduce funding to the police?  

2. Does it challenge the notion that the police 

increase safety? 

3. Does it reduce the tools and tactics that police 

have their disposal? 

4. Does it reduce the scale of policing? 

5. Is there a material resource gain for communities? 

While this is not an exhaustive list, nor does it encompass the 

scale of expertise that PIC abolitionists consider in framing and 

making their demands, it is an enormously helpful organizing 

tool that creates practical guideposts for building steps towards 

our new future. 

As we consider demands around ASFA, and abolishing 

the family death penalty, we are thinking about how to 

incorporate non-reformist reforms into our analysis. Before 

committing to a policy agenda we ask—are the changes that are 

being proposed reducing funding to the child welfare industrial 

complex,69 and increasing the funds to communities? Is the 

narrative around the policy shift pushing the dominant narrative 

that the family regulation system is an arbiter of safety? Are we 

 
68 Reformist Reforms vs. Abolitionist Steps in Policing, CRITICAL 

RESISTANCE, https://static1.squarespace.com/static/59ead8f9692ebee25b72f17f

/t/5b65cd58758d46d34254f22c/1533398363539/CR_NoCops_reform_vs_abolitio

n_CRside.pdf [https://perma.cc/AWN5-X3L7]. 
69 This framing and definition was presented at “Dream-mapping 

adoption and foster care Abolition,” Allied Media Conference 2020, and was 

created and presented by a collective of adopted and formerly fostered folks. 

Welcome to the 21st Allied Media Conference, SCHED, https://amc2020.sched.com

/event/d8En/dream-mapping-adoption-and-foster-care-abolition [https://perma

.cc/2DUA-EBJH]. They attribute this working definition of child welfare 

industrial complex (CWIC) to people who have offered analysis/ways of thinking 

about the prison industrial complex, military industrial complex, etc. 

acknowledging it as a working definition used explicitly to name the overlapping 

systems of public and private child welfare, across both foster care and adoption. 

A recognition that we noticed that some people have used the term, Child 

Welfare Industrial Complex, but mainly to reference one part of the system (e.g., 

public foster care system, foster care industrial complex, adoption industrial 

complex, orphan industrial complex). However, these have historically not 

included both public and private systems across foster care and adoption and the 

ways those systems overlap and function together.  

 

 



892 COLUM. J. RACE & L. [Vol. 11:861 

supporting changes that decrease the size, power and scale of the 

family destruction system? Are we supporting a shift in material 

conditions and the politicization for our people? This is not an 

exhaustive list, but it is an important discipline in defining 

success, claiming victory, and keeping our focus on liberation. It 

is also an important process that must be convened with 

integrity, and ethical adherence to a liberatory framework, and a 

process that invites transparency and accountability. 

We will not always have a perfect answer to each 

question, and we might agree to a policy change that is imperfect. 

These questions, however, help narrow where we must continue 

fighting. For example, on the one hand, if there were a change 

made to ASFA to end terminations for people who are 

incarcerated, that would be a victory, but it would not be the end 

of movement. It would be a victory because it would reduce 

funding to the family regulation system by ending the financial 

incentives that attach to those specific terminations and 

eliminate a tool that the family regulation system could rely 

upon. However, it still would leave out so many members of our 

community, the legal apparatus of ASFA still intact, and 

potentially entrench the legitimacy of ASFA as a valid idea. This 

does not mean we do not accept it as a victory, but we would know 

we still had more work to do. 

On the other hand, it would not be considered an 

abolitionist step if we were asked to endorse a policy that funded 

agencies to do their own internal review of TPRs, and provide 

recommendations to the community. Here, we have vested more 

funding into the system, made the foster care agency the arbiter 

of success and the creator of the recommendations, and offered 

no guarantee to the material conditions of our people. 

While these were two simple and short examples of how 

an abolitionist uses the framework of “non-reformist” reforms to 

make steps towards change—we hope this is constructive. We are 

continuing to learn, and are hopeful to build change. 

E. An Invitation to Repair and Heal Histories of Harm 

 Abolitionists’ steps towards change also demand a 

transformative repair, not only as we heal as individuals but as 

society becomes accountable to the harms it inflicted on our 

communities. Those of us who have suffered the harms of these 

systems, and in particular Black mamas, Indigenous mamas, and 



2021] ENDING THE FAMILY DEATH PENALTY 893 

Latinx mamas are owed the truth. We are owed reparations. We 

demand that the lies that feed that ideologies of these systems 

that have devalued our families and communities be exposed as 

lies. We demand that our families be supported to heal and 

repair, with the force of law and financial, political, and social 

capital that was invested in these systems. We look to both U.S. 

liberatory frameworks of reparations as well as international 

reckonings with truth and reconciliation to help guide our 

demands and understanding. 

We recognize that the United States is not the only place 

where a dominant political, economic, social, and racial order was 

established in part through family separation. We have many 

examples of this across history and across time, and we are in a 

space of learning about the justice community has demanded. For 

example, the “Las Abuelas de la Plaza de Mayo” movement that 

formed in Argentina in response to the mass disappearance of 

children from families deemed subversive by the military 

dictatorship, began as a group of grandmothers and grew into a 

movement that forced a truth telling around the disappearances 

and the development of a DNA database so that parents could 

find their children.70 

As we build momentum, we must also build a framework 

of reparations that exposes the centuries of violence inflicted on 

our families, and creates a pathway of true healing, shifts 

resources to our community, and builds accountable 

infrastructures to ensure that never again will any family be 

taken by the family death penalty. 

V. CONCLUSION 

“We are a people. A people do not throw their 

geniuses away. And if they are thrown away, it is 

our duty as artists and as witnesses for the future 

to collect them again for the sake of our children, 

and, if necessary, bone by bone.” 

—Alice Walker71 

 
70 Michele Harvey-Blankenship & Rachel Shigekane, Disappeared 

Children, Genetic Tracing, and Justice, in CHILDREN AND TRANSITIONAL 

JUSTICE 293, 302–04 (Sharanjeet Parmar et al. eds., 2010). 
71 ALICE WALKER, IN SEARCH OF OUR MOTHERS’ GARDENS: A 

WOMANIST PROSE (1983).  



894 COLUM. J. RACE & L. [Vol. 11:861 

Stop investing in the imaginations of white supremacy. 

Every day we see powerful people, industries and philanthropy 

invest more in the child welfare industrial complex than 

communities. These industries are so faithful to technical 

surveys like “ACES” that are supposed to address adverse 

childhood experiences, rather than actually building up Black 

women and children. They spend more time building out family 

regulation apparatuses like “prevention models” than advocating 

for housing, baby bonds, and universal basic incomes for our 

communities. They are obsessed over the idea of “permanency” 

instead of confronting the messy reality that family is complex, 

full of contradictions, and ripe for healing and accountability. 

We demand those with power, means, and resources to 

stop voicing caution and hesitancy when the most oppressed in 

our society build power. We demand that those individuals with 

privilege, give unyielding, unrestricted, and unencumbered 

support. That this support be financial, but also intellectual and 

in the form of patience and time. For centuries the United States 

has devoted trillions of dollars and political capital to the 

imaginations that gave us slavery, genocide, prisons, and 

housing insecurity. We are deserving of at least that time, and 

more. We need ample space for creativity, inconsistency, 

mistakes, and conversation. We need space to dream, think, 

strategize, and implement. 

Build with us and exist in principled struggle. We do not 

expect this to be linear or simple, it will be uncomfortable, there 

will be contradictions, mistakes, and need for deeper learning. 

There will be setbacks, harm, and indecision. However, there is 

no better time than now.