Systemic apathy and the attorney’s charge

Apathy is the predominate risk with judicial venues where the majority of defendants are guilty of what is alleged against them, such as criminal court or dependency, neglect and abuse court. This systemic apathy leads to the few truly innocent people who come through those courts to be shuffled along as expeditiously as possible and often being presumed guilty because they are amongst the guilty. The only way to combat this apathy systemically is through proper funding so that mandates can be met and advocates are encouraged to advocate. The only way to combat this apathy individually is through personal integrity. We need both!

For lawyers, this means engaging the political system to adequately fund the systems that handle criminal law and quasi-criminal matters such as dependency, neglect and abuse. It also means practicing law with more than just compliance with ethical rules; it means practicing with personal integrity.

The Cabinet takes a stand for the “best interest of the child (umm – no) . . . Cabinet/Worker”

I try to take at least 24 hours to calm down over a topic before I write a post about it. This time I took about 96 hours. I recently had a conversation with Cabinet worker’s in Fayette County. The topic was reunification services to a parent whose child was removed by the Cabinet a few months back and where the child was placed in the temporary custody of the other parent. Even though the removing worker had been giving this parent hope of reunification, it turns out that the Cabinet’s official position is that they have nothing more to do; they have achieved “permanency” for the child by recommending custody be given to the other parent. I could tell the removing worker was struggling with what the right thing to do and I respect her for being willing to struggle with it. The other worker just summary stated, without knowing the family, circumstances or issues (and frankly without even being invited into the conversation) that should such a case be “transferred to [her], she would give it 30 days and then give permanent custody to the [other parent].” She stated quite righteously that her job would be done because she would have achieved permanency for the child.

Interestingly, the Cabinet, as an executive branch agency, has achieved something quite miraculous. They have changed the law. The standard for removal and placement given in KRS 620 is whatever is in the “best interest” of the child. The Cabinet, however, has decided the only thing that really matters is permanency. It gets even more interesting. Permanency is achieved by the Cabinet not when the child has a permanent place to live (I’ve seen enough disrupted adoptions to know this isn’t really possible), but when there is a goal in place that looks like it may lead to permanency. So, what is worker number 2′s rush to give permanent custody to the other parent really all about?

I hope you noticed that she said nothing about trying to figure out the best home for the child for the long-haul. She said nothing about why the child was originally with parent 1 to being with (which might have been an indicator that something about that parent was “best” for the child at some point – and may be again). No wrestling or struggling. That is why I was angry. This worker, with the blessing of the Cabinet, had changed “best interest of the child” to “best interest of the worker’s caseload”. You see, as soon as parent 2 gets permanent custody, the worker gets to close her involvement out. Since most teams go on a strict rotation basis for assigning new cases, she gets to have a lower caseload as a result.

You may be mentally telling me that it is obvious that if the child got hurt with parent 1, then of course it is in the best interest to be with parent 2 permanently. All I can say is that is an oversimplification. You may be right often enough to justify being simple minded about it. Certainly worker 2 felt very justified in staying simple minded. This is a life-altering decision that is multi-faceted. Parent 1 may have encountered a pure accident or something else beyond their control – a one time fluke – and otherwise be a good parent. Parent 2 may have some problems that were not discovered on the Cabinet’s very cursory home evaluation. There are many factors in both KRS 620 and KRS 403 that make it clear even the legislature knows it isn’t a simple matter. Besides, occasionally the Cabinet flat gets things wrong. How can this worker take it so lighlty?

On to rant number 2 which I touched on in a previous ponderment. Worker 1 had children (and even grandchildren). Worker 2 had none and was quite young (with the air of being used to getting what she wanted – perhaps thats why she felt okay about intruding in the conversation). I won’t now be simple minded myself and say that having children equals good worker or not having children equals bad worker. What I will say is that workers without sufficient life experiences to create a level of understanding and empathy towards their clients tend to be very hard in their approach. Having children tends to promote these experiences, but it is not the only path. Worker 1 had the experience and so she struggled. Worker 2 had not and so she had more empathy for her caseload than for a parent and child relationship that is to be forever altered.

Best interest is not exactly a fool proof or specific standard, but it is sure a sight better than “permanency”. Permanency should be left where it belongs – a factor to consider in determining best interest.

An example of resistance to change:

I encourage everyone to read this full article on an interview with Professor Robert G. Lawson in the Courier Journal. Bob Lawson is that rare individual who is willing to go against the popular tide and critical examine a position most take for granted and it was an honor to be taught by him. The popular position is that we must be tough on crime; being tough is the only way we can keep our families safe. This mantra has certainly won plenty of elections for Lexington’s Commonwealth Attorney, Ray Larson. And yet, the evidence is showing that popular notion to be flawed. For those who won’t read the entire article, I’ve included some especially pertinent excerpts quoting Professor Lawson:

“Now, here’s what I say to the public. Most of the inmates we lock up in the jail system are going to be in there for a while, and then they’re going to come out of there. They’re going to come out of there, in my opinion — because of the way we’re treating them — meaner than they were when they went in. Now whenever you look beyond the jails to the corrections system itself — I’m talking about prisons and what we’ve been doing now for almost 30 years — we’ve got so many locked up in this country — we’ve got 2.25 million people locked up. We’re releasing every year from just the federal and state prison system 500,000 people. They’ve been kept there longer than at any time in our history. They’ve been kept away from their families longer, away from their communities longer; they have been kept under the worst conditions in our recent history; they’ve had less done for them than any group in our recent history, all because of the number that we’re locking up, and we’re releasing them into a re-entry system that is incapable of helping them. Because there are so many on probation or parole — we’ve got about 5 million in the country on probation or parole.”

…

“Now, I’m down there going through these jails and I hear discussion by these jailers about a change in the standards. I’m looking and I find in virtually every jail I’m in inmates sleeping on the floor. So I come back and I get into these regulations and I discover it’s 2005 and they have lowered their standards now to 40 square feet per inmate. You know how much space there is? Stretch out your arms and circle yourself, and it’s that much space.

Why does that matter?

In our country, under our system, we have to insist on decent treatment of people we lock up.

And then, what I would say to the public is that you had better realize all of these people are going to emerge from these places and they’re going to live beside you. They’re going to live in our communities. And if we put them under conditions that make them worse than they were when they went in, then I think we pay the price. And I quite frankly think the day of reckoning for that is at hand, because we’ve been doing this now for 25 years.”

…

“Here’s another thing we do: As we’ve gotten overloaded, they used to have to have a face-to-face meeting with inmates when they are up for parole. Now you still have to have a face-to-face meeting between the parole board and the inmate if you’re in prison, but if you’re in jail they don’t see them face to face.

If I’m trying to find inmates who would be more likely to stay out of trouble if they got out of jail, and would not threaten public safety, it would be the ones in the jail and not the ones in the prison. The serious offenders are the ones in the prison system. But the rates show that more prison inmates get paroled.”

…

“Well, the public first. I think the public needs a better understanding of what is going on here. The public needs to understand what we’ve done here, and what we’re doing and whether or not it makes any sense. And it’s my belief that what we’re doing here does not make any sense, whether you’re talking about the way you treat people or whether you’re talking about crime control.

You take a bunch of people, lock them up in close confinement with a television set up on the wall, and that’s all they do — and they do that for years. And they’re in there together, a broad mixture of people, none of which are model citizens — I guarantee you there’s no discussion going on there about how to improve the school system. That’s not what they’ll be talking about.

I don’t think there is an appreciation of the fact that there will be a fallout from this sooner or later. And I believe it’s apt to be sooner rather than later.

In this state, we’re not willing to pay for things we agree with, like increased quality of education. Isn’t it a big leap to think people would support making conditions more humane for inmates of jails and prisons?”

…

“So the solution isn’t locking people up for longer periods of time. It’s what?

Distinguishing between people that we should be afraid of, that we would lock up, and people that we’re mad at.

And who should we want to lock up, and who are we just mad at?

We’re mad at drug offenders. We’re mad at people that won’t support their kids. Someone recently was quoted in the paper saying there are 1,000 people in prison for non-support of their children. You’re taking a guy that won’t support his children, and we’re locking him up in prison. The average cost here, $18,613 a year — does it make sense to take somebody who won’t support his children, lock him up and pay that kind of money to keep him?

When we wrote the penal code in 1974, I remember this argument. We couldn’t decide whether non-support should be a Class B misdemeanor, which would have 90 days in jail, or a Class A misdemeanor, which would give him up to 12 months in jail. Well, we finally settled on the high one. It could be a lower penalty, but that would be the maximum.”

I suspect that Professor Lawson is correct in that we are approaching a time when the consequences of the last 30 years becomes inescapable (sort of like what’s happening with global warming). I also suspect we will resist change for a decade or so more just to be sure we were wrong. Hopefully, though, Bob Lawson will plant seeds that will take root and grow.

The enemy, resistance

Its an obvious truth that people resist change. Systems resist change too. Resistance for the sake to resisting change is the enemy to individuals and to systems. We shut out possibilities and shut down creativity by resisting new perspectives and ideas. This leads to decreased justice. The image that comes to mind is a nearsighted rhinocerous barreling down a path and trampeling anyone and anything that got in its way just because something spooked it.

I found this list of resistance mechanisms by Ken Cloke and reprinted at Settle it Now Negotiation Blog to be very insightful:

1) Marginalization: Making ideas, people, perspectives, or insights that could threaten the system appear unimportant, irrelevant, irrational, or impossible to achieve.
2) Negative Framing: Using language that frames new ideas and critics negatively so that nothing that threatens the system can be thought or communicated successfully.
3) Exaggeration: Stereotyping or exaggerating one part of an idea in order to discredit the other parts and the whole.
4) Personalization. Reducing ideas to individual people, then discrediting or lionizing them.
5) Sentimentalization: Using sentimental occasions, ideas, emotions and language to enforce conformity and silence criticism.
6) Seduction. Describing the potential of the existing system in ways that unrealistically promise to fulfill people’s deepest dreams and desires and blame the failure to achieve them on others.
7) Alignment: Communicating that in order to exist, succeed, be happy or achieve influence, it is necessary to conform to the system regardless of its faults.
8 Legitimization. Considering only existing practices as legitimate an all others as illegitimate.
9) Simplification. Reducing disparate, complex, subtle, multi-faceted ideas to uniform, simplistic, superficial, emotionally charged beliefs.
10) False Polarization: Limiting people’s ability to choose by falsely characterizing issues as good or evil, right or wrong, either/or.
11) Selective Repression. Selecting individual critics as examples, bullying them for disagreeing or failing to conform and ostracizing them.
12) Double Binds: Creating double standards that require people to live divided lives, or make it difficult for them to act with integrity.

When individuals who lean away from creative thinking work for systems that discourage creative thinking, like the Cabinet for Health & Family Services, the resistance encountered rises exponentially. Unfortunately, non-creative thinkers, in my experience, tend to be drawn to such organizations.

John Adams said it better

Thanks to the US Post Office, I found the following quote that said my point in my prior post far more concisely:

“Let us dare to read, think, speak and write.” John Adams, 1765.

Words to give pause

Blogger’s like to have readers – otherwise they would just keep a journal and hide it under their mattress. So, when someone says “I read your blog”, there is usually a certain gratification. However, when that person is a judge who tells you this in the midst of a pre-trial in a case involving a frequent topic of your blog, then “I read your blog” gives pause rather than gratification. That happened recently and in that pause, I considered the risk versus benefit of blogging – at least on topics that I have a strong opinion about. Did I harm or help my current client with my postings? Did I offend him/her (since many of my posts are meant to prick the minds of people enough to get them thinking about a topic)? Was the judge informed or did my shared experiences contradict his/her own? Did I at least convey that I care deeply about the issues, even if the judge’s perspective is at odds with my own? I cannot answer any of those questions and regardless of the answers, there is no going back. Once something is posted on this world wide web, consider it immortal. The only thing I could do was review some of my prior posts and see if, in retrospect, I have been balanced and fair.

In reviewing my posts regarding the Cabinet for Health & Family Services, I recognized that I have advocated strongly for increased funding and other systemic improvements. What I have not touched upon much is the individual responsibility of a person who undertakes the duties of working as a social services worker for the Cabinet. It is entirely true, as many of my prior posts state, that chronic underfunding, understaffing and other circumstance beyond the individual worker’s control perpetuate systemic problems. It is also true that these systemic problems influence the individual workers in how they perform their duties. However, I have seen workers who performed with integrity despite the pressures and I have seen other workers take the short cuts. My point is that I have not intended to make excuses for individual workers to neglect their duties by engaging in falsification of records, failing to make reasonable home visits to clients and foster homes, failing to perform thorough investigations, jumping to snap conclusions, engaging in lazy black and white thinking, perjuring themselves in court, or any of the other short-cuts I have seen taken.

There is a cost to maintaining integrity and providing quality services in spite of the system’s problems. One cost is time. I routinely worked sixty hour weeks and many times much more than that and barely stayed caught up so, I know the good workers at the Cabinet must be doing the same. So many nights were spent responding to a an emergency page or phone call. Another cost is emotional. I had many sleepless nights thinking about people in my care as well as reviewing the tasks left undone and I know many workers go through the same struggle. Despite the costs, those workers with integrity care deeply and recognize that they are making life altering decisions. There is no room for short-cuts with that.

While this post lacks the satirical quality of some recent ones and has that sappy, soapbox quality that can be such a turn-off, I wanted to be sure to explain that there is not a simple equation of “systemic problems” = “problem worker excused.” Instead, I advocate for fixing the systemic problems with the Cabinet and also call upon individual workers to maintain integrity and quality despite the obstacles. Your families deserve no less. If you are simply putting in time and getting by for that paycheck, please find another career.

And, as for the perils of blogging out here in the public realm where even judges happen across my musings, I am quite sure that it is not the smartest or most political thing for an attorney to do. I am sure it could cost me clients or job opportunities. Perhaps it could sway a judge against a client or cause a hundred other bads, but speaking out for one’s believes has never been an activity for the timid. I write this for the hope of the one good that it might bring and that hope is sufficient to give me the courage to put my beliefs out there where you can consider them. Who knows – maybe I’ll even get it right occasionally!