Time and Punishment

abstract. Every three minutes, state agents remove a child from their home. Once a family is separated, impacted parents are up against a quickly approaching deadline—permanent legal separation looms at the end. In fact, impacted parents navigate three interrelated temporal dimensions: the race to permanent legal separation through the termination of parental rights, the time-consuming process of having to prove that they are fit parents, and the possibility that tomorrow, the state’s concerns will drastically change. The family regulation system—the system that has the power to separate families in this way—has been the subject of sustained critique by both academics and directly impacted families. One major critique is that instead of helping children and their parents, the system further marginalizes them. This Feature introduces an underexplored layer of marginalization in the family regulation system: time.

This Feature argues that the construction of time in the system is not merely a benign force but instead profoundly shapes the family regulation process. Conceptions of time that are neutral fail to account for the ways temporal marginalization fixes parents in time, devalues time as a resource, reproduces social stratification, and privileges the state while disadvantaging families already at the margins. This Feature builds on an emerging literature that critically examines time in legal systems. Drawing on multidisciplinary frameworks that conceptualize the relationship between time and power, this Feature provides an aerial view of the abstract problem of regulating parent-child relationships through a temporal frame, as well as the concrete legal timelines, procedures, and court processes that combine to exacerbate an already-conflictual relationship between the state and marginalized families.

Time and Punishment is the first article to bring the rich conversation on time and power to the family regulation context. This Feature makes two central contributions. One, it identifies and discusses three temporal dimensions in the system—constriction, stretching, and indeterminacy—and addresses their combined impacts, as well as the legal frameworks that underlie them. Second, it brings two sets of literature into conversation: family regulation scholarship and multidisciplinary research on time, power, and marginalization. In this way, it offers an epistemic intervention that complicates managerial conceptions of time and offers insights that are fruitful beyond the family regulation context. Ultimately, this Feature concludes that taking account of time as experienced by impacted families is one step toward fully understanding and responding to temporal marginalization.

author. Assistant Professor of Law, University of Wisconsin Law School. This Feature has greatly benefited from generous feedback by Anna Arons, Valena Beety, Jacob Bronsther, Jade Brown, LaToya Baldwin Clark, I. Bennett Capers, Devon Carbado, Emily Cauble, Jeremiah Chin, Brendan Conner, Erin Collins, Adam Feibelman, Ann E. Freedman, Rhonda de Freitas, Daniel Fryer, Cynthia Godsoe, Leigh Goodmark, Eve Hanan, Sara Hildebrand, Laila L. Hlass, Clare Huntington, Carla Laroche, Christopher Lau, Sarah Lorr, Tamika Moses, Jamelia Morgan, Ngozi Okidegbe, Catherine Smith, Paul Saint-Amour, and Liliana Zaragoza. I am thankful to the participants of the Decarceration Law Professors Workshop 2023, the Family Law Teachers and Scholars Conference, and the 2023 Chicagoland Junior Scholars Workshop. This Feature also benefited from feedback and discussion at the University of Virginia School of Law’s Faculty Workshop, Marquette University Law School’s Faculty Workshop, Tulane’s Center on Law & the Economy, the 2024 Law and Humanities Workshop for Junior Scholars at the UCLA School of Law, and the scholarly workshop series at the University of Wisconsin Law School. I am grateful to the editors of the Yale Law Journal for their helpful thoughts and superb editing. For excellent research assistance, I thank Firuze Barimani, Ismail El-Hassan, Odoi Lassey, and Steph Pettit. For Otis Moon, who came into this world as I finalized this Feature.

Introduction

“Counsel, turn around. What do you see there?

Look at the clock! Where is your client?”1

In 2019, advocate and parent Elizabeth Brico described the impact of being separated from her daughters by the State of Florida. As her trial for the permanent termination of her parental rights approached, she reflected on the changing role of time in her life2:

My clock is up in late August. At the beginning of last year, my life was a mess of sleepless nights, playdates, toilet training, and seemingly endless house chores. There never seemed to be enough time in the day . . . .

Now, my life is a series of endless, empty hours broken only by the routine of my court-mandated services. Instead of fixing breakfast and coaching my girls through brushing their teeth and dressing for school, I drink coffee alone before biking through the heat of Florida to three and a half hours of intensive outpatient therapy, five days a week. I am not greeted in the afternoon by my daughters, but with texts from a faceless social worker directing me to take random drug tests. My days are shaped by paperwork, mandates, and a persistent sense of longing . . . . Every time I see my daughters now, something has changed: a favorite color, a hair style, a shoe size. I am missing everything, and I have no idea when or if my real life will begin again.3

Brico goes on to describe the hurdles and setbacks she faced leading up to this profound sense of temporal distortion. She describes the lack of support and the pressures of having to act quickly to avoid permanently losing her children, all while waiting months for treatment referrals. With her mental health declining after the removal of her children, she eventually “began to believe that . . . [she] was fighting an unwinnable battle”4 against the family regulation system.5 Ticking clocks and time pressure alongside procedural languor, changing expectations placed on parents, and the permanent consequences of decisions made in a snap: the moment of family separation marks the compression of the past, present, and future.

* * *

This Feature discusses multiple aspects of time and family regulation: the management of time through timelines and deadlines, time as a vehicle for social stratification or a medium of subordination, and time as experienced by those navigating the system.

Timelines and deadlines shape all aspects of the legal process. This is true across legal systems. Defense attorneys may use time strategically to navigate and mitigate punitive immigration sanctions.6 In criminal court, judges regularly issue bench warrants for people who fail to appear at hearings scheduled for their cases.7 In housing court, a tenant’s failure to appear for the scheduled court date can result in their eviction.8 Temporal inequities appear at all stages of the court process and are perhaps most prominent in low-level courts designed for the mass disposal of cases and the management and punishment of individuals.9 Legal scholarship has long criticized lower criminal courts as engaging in the “undignified offhand disposition” of cases against low-income people.10 Others have argued that state civil courts subordinate racially and economically marginalized litigants through “racialized extraction and dispossession . . . facilitated and justified through racialized devaluation.”11 The devaluing of already-marginalized people’s time is one way that racial hierarchies are reproduced.12 Traveling to court for appearances can take hours. Once in the courthouse, people are frequently expected to wait hours for appearances that merely last minutes. Regular trips to and from the courthouse are financially burdensome for those already living in poverty. The financial burden is exacerbated when attending court dates means losing a full day of work every few weeks, putting employment at risk, having to pull from scarce resources to organize childcare, or missing public-assistance appointments.

As Professor Renisa Mawani writes: “[L]aw’s time has too often been assumed rather than problematized.”13 Indeed, until recently, the construction of time in and through legal systems has received little sustained attention in legal scholarship.14 Today, the study of legal time and its impact on Black and brown people is receiving increased attention. A few recent articles focus on the relationship between race, time, and the law across subject areas.15 A body of literature draws on critical theories, postcolonial studies, and Afrofuturism16 to examine the relationship between power, law, and time. What characterizes this work is that it goes beyond the mere observation that time impacts the analysis and practice of the law.17 Instead, these scholars observe that time is “integral to the . . . epistemology of law” and examine the ways dominant temporalities perpetuate subordination.18

In adding to this conversation, this Feature identifies and conceptualizes time as a marginalizing force in the family regulation system. This Feature identifies three temporal dimensions in the family regulation system: constriction, stretching, and indeterminacy. Impacted parents navigate (1) constriction in the race against permanent legal separation; (2) stretching in the slow process of having to prove themselves to the state; and (3) indeterminacy in the ever-present possibility that the state’s concerns will no longer focus on a specific moment in time—the moment that gave rise to the underlying allegations—and instead, could change drastically during the course of the case. While these temporal dimensions may appear in tension with one another, they are mutually reinforcing, and families experience their effects concurrently. This Feature examines how their interplay exacerbates an already-conflictual relationship between the state and marginalized parents. Once a family is separated, the parents are up against a quickly approaching deadline—permanent legal separation looms on the other end. The longer the separation, the more likely that the state will attempt to sever the legal child-parent relationship permanently. This Feature argues that neutral conceptions of time fail to account for how the construction of time in the system fixes parents in time,19 devalues time as a resource, reproduces social stratification, and privileges the state while disadvantaging families. This is not to say that temporal marginalization is the product of individual actors’ conscious decision-making or intent. As Professor Kelley Fong puts it: “[T]hrough often well-meaning people trying to help, governments perpetuate marginality and reinforce existing inequalities.”20

So far, most scholarship in the field focuses on how deadlines speed up the permanent separation of families.21 For example, several scholars and advocates have critiqued how federal legislation paved the way to fast-track severance of legal parent-child relationships.22 Indeed, after the enactment of the Adoption and Safe Families Act (ASFA) in 1997, permanent legal separation through the termination of parental rights increased.23 And, as Professor Chris Gottlieb points out, so did the number of legal orphans24—children who have lost their legal relationship with their parents and are not adopted.25 ASFA specifically encourages states to file termination petitions after a child has spent fifteen out of twenty-two months in the foster care system. States that give parents more time for family reunification risk losing federal funding. After the implementation of ASFA, the number of children each year who had their legal relationship with their parents terminated increased significantly.26 This Feature examines how this constriction of time interacts with the surveillance of parents during the stretching of slow-moving phases of separation and adjudication, and how this relationship is complicated by the fact that the focus of the state is in constant flux. For example, a case that begins with allegations that a mother exposed her children to acts of domestic violence inflicted against her27 may later focus on her own alleged marijuana use. This Feature surfaces how the interplay of constriction, stretching, and indeterminacy facilitates ongoing monitoring of current and future behavior and ultimately leads to the “slow death” of impacted families.28

The family regulation system holds the unique power to separate families for both short and extended periods of time. In many states, family regulation agents can separate families without a court order.29 Family court judges can order the removal or reunification of the family once a case is filed in court. From 2017 to 2021, between 200,000 and 270,000 children entered the foster care system each year.30 A recent report by Human Rights Watch and the American Civil Liberties Union (ACLU) has called state-induced family separation a national crisis.31 The family regulation system intervenes predominantly in the lives of Black, Indigenous, and low-income families. According to the Human Rights Watch and ACLU report, Black children are almost twice as likely to experience a family regulation investigation compared to white children.32 They are also more likely to be separated from their families by the state.33 Once removed from their families, Black children remain in the system longer.34 Indigenous parents are up to four times more likely to have their children taken from them than non-Indigenous parents.35

During often-protracted periods of separation, parents navigate other temporal dynamics that can impact their reunification efforts. Parents must engage in months-long programs to prove their parenting abilities long before the state must prove the parents neglected their child. They attend hours of supervised visitation with their child, often having to navigate not only their own work schedules but also an agency worker’s capacity. The tension between the inflexible deadline for the termination of parental rights and the flexibility demanded of parents during the extended period of separation is exacerbated by the fact that allegations brought against parents are not static.

The erosion of familial bonds in and by the family regulation system occurs over time, at different speeds, and with varying outcomes. In some cases, this “slow death” takes the form of the actual destruction of familial bonds through the termination of parental rights. In other cases, a family is put under enormous pressure to comply with family regulation intervention. In either scenario, parents lose the ability to make day-to-day decisions for their family free of constant scrutiny. Family regulation intervention commences suddenly and often unexpectedly. Then, the slow journey through the system begins.

A word on methodology: Critical temporal perspectives and the managerial justice framework provide analytical tools for understanding the unique ways that time shapes the family regulation process. Scholars from a variety of disciplines have offered critical temporal perspectives concerned with how specific conceptions of time facilitate subordination.36 Under the managerial justice framework, developed by Professor Issa Kohler-Hausmann, low-level criminal courts exert social control by sorting and regulating people over time. This orientation is less concerned with the adjudication of guilt or innocence and instead allows for performance testing.37 Together, these frameworks shed light on how monitoring and scrutinizing marginalized families occur under pressures of constriction, are prolonged through stretching, and evolve over time in indeterminate proceedings. In other words, by drawing on both frameworks, time is made visible as a managerial tool. In applying these frameworks, this Feature sheds light on less well-marked forms of marginalization in the legal system.38 It zooms in on an ostensibly benign phenomenon that deeply impacts the realities of today’s ongoing family-separation crisis. This Feature is one of the first works to draw on the rich discourse on time and marginalization in legal scholarship and the first to do so specifically in the family regulation context. As I have done in past work, I blend directly impacted parents’ narratives and practical experience with doctrinal analysis.39 This approach is consistent with an emerging epistemic intervention in other legal conversations that centers direct experience.40 It is particularly fruitful in the family regulation context, where case law provides only limited information about the actual functioning of the system and confidentiality laws limit knowledge production.41 The focus on time as experienced is reflected throughout this Feature and informs its implications.

This Feature makes two central contributions. First, it identifies and discusses three temporal dimensions in the system and the legal frameworks that underlie them. This Feature’s examination of the interplay of these dimensions significantly expands existing critiques in family regulation scholarship. Second, it brings two literatures into conversation: a growing body of critical family regulation scholarship and multidisciplinary research on time, power, and marginalization. Grounding an analysis within critical approaches to time reveals that time is not merely a variable that can be managed. Rather, our understanding of time is both socially constructed and constructs our realities.42 Once we understand time as constructed, our focus shifts from time management to time as experienced. This Feature illustrates that intervening at the level of time not only allows us to attend to people’s lived experiences, but also requires a thick and rich account of those experiences. Ultimately, this Feature concludes that attentiveness to time makes plain why front-end interventions that shift power, reduce harm, and avoid making it even harder to effect broader-scale change are most promising.43 These kinds of interventions prevent the clock from ever beginning to tick.

This Feature proceeds in four Parts. Part I summarizes modes of marginalization commonly discussed in family regulation scholarship and provides an overview of the central stages of family regulation proceedings and the legal standards relevant to each stage. Part II introduces the theoretical frameworks underlying this Feature’s analysis of time, power, and marginalization. Part III maps and analyzes what I call the three temporal dimensions in the family regulation system: constriction, stretching, and indeterminacy. It discusses how these dimensions are both in tension with one another and mutually reinforcing. Drawing on the theoretical frameworks introduced in Part II, this Part provides an aerial view of both the abstract problem of regulating parent-child relationships through a temporal frame, and the concrete problem of legal timelines, procedures, and court processes that combine to exacerbate an already-conflictual relationship between the state and marginalized families. Part IV discusses the larger implications of the Feature on both a managerial and an epistemic level. It concludes that taking account of experience complicates managerial conceptions of time and constitutes one step towards fully understanding the impact of temporal marginalization. These lessons are relevant beyond the family regulation system and ought to inform our understanding of other legal systems and their impact on marginalized people more broadly.