“At the back of everyone’s mind as they’re going through an investigation is, ‘I have a caseworker in my house, asking me questions about my parenting of my children. And it can go either way. I know this could end up with my kids being removed, not even for anything I’ve done. This person has the legal power to separate my children from me.’ No matter how flowery we talk, that is in the back of everyone’s mind.”
— Official, Connecticut Department of Children and Family Services
Introduction
Family regulation investigators subject more than three million American children to home searches each year.
Though home searches have proven ineffectual for rooting out child maltreatment,
states require these searches for almost every family regulation investigation, regardless of the underlying allegations.
As a result, investigations routinely bring state agents into the home, the most protected space in Fourth Amendment jurisprudence.
Under the Fourth Amendment, home searches are presumptively unreasonable unless state agents have a warrant, avail themselves of a recognized exception to the warrant requirement like exigency, or gain the consent of the home’s residents.
Consent is, in practice, the default response to this constitutional hurdle. Though data is sparse, one scholar estimated that more than 90% of home searches are conducted with the nominal consent of parents.
The number of searches authorized by warrants or court orders is vanishingly small. In both New York City and Los Angeles, for example, searches authorized by warrant occur in fewer than 1% of investigations.
Perhaps more surprisingly, the number of searches justified by exigency is also low.
Exigency allows state agents to enter a home without a warrant if they believe a person inside is hurt or about to be hurt.
But most family regulation investigations focus on allegations of neglect, rather than physical or sexual abuse,
reducing the likelihood of exigency in most cases. Further, only 5% of children whose families are investigated are ultimately taken from their parents’ care.
Since the state must make a showing similar to exigency to justify many of these separations,
the removal rate is a rough proxy showing the relative rarity of exigencies in family regulation investigations.
In the criminal law context, it is hardly a novel observation that consent is often—perhaps always—a legal fiction. Under the Supreme Court’s Fourth Amendment jurisprudence, consent must be voluntary to be valid.
But generations of criminal law scholars have argued that the Court’s standard for voluntary consent does not sufficiently account for the coercion inherent in any request from an official to an individual.
Nor, they argue, does it account for imbalances in information and power or for the dimensions of identity—including race, class, gender, disability, immigration status, and language—that necessarily shape interactions between the state and individuals.
Others critique consent for expanding surveillance and insulating searches from review: Consent, they say, allows the state to conduct searches even when it has no particularized suspicion, shields searches from judicial scrutiny, and offers courts an alternative basis on which to approve of searches that might otherwise be constitutionally infirm.
Though these critiques of consent searches are common in criminal law scholarship, they have received limited attention in family regulation scholarship.
In this field, explorations of consent and voluntariness tend to focus on the voluntariness of parents’ decisions to separate from their children or to accept ongoing restrictions on their parental rights.
Those explorations are vital but leave untouched the millions of cases every year where state agents investigate a report of child maltreatment, extract consent to search a home, and close the case after the search finds no evidence to support further state intervention.
This is by far the most common kind of contact families have with the family regulation system.
Even when searches do not lead to further state intervention, they still disrupt the privacy, dignity, and security of individual families and race–class subjugated communities
—thus feeding families’ legal estrange-ment from the state and the body politic.
This Article contends squarely with the central role of consent searches in the family regulation system. In doing so, it makes three central contributions.
First, it offers an initial descriptive account of how consent powers the family regulation home search apparatus, surveying the sorts of pressures that the state exerts on families to extract consent for searches. Statistical data on the frequency of home searches and what legal authority the state asserts to justify home searches is hard to come by—a problem that itself hints at the casualness of agencies’ home intrusions.
Thus, this Article draws on primary sources including interviews, agency materials, legal filings, and court decisions to sketch out the role of consent searches and identify some of the tactics and pressures that agencies around the country rely on to gain consent.
Given the fractured nature of the family regulation system
and limits on data, this Article does not purport to provide a definitive or unified national account. But it does reveal consent to be the default justification for family regulation home searches
and yield a taxonomy of three recurring tactics agencies rely on to gain consent. All three tactics play out against a backdrop of parental fear and family regulation norms of compliance: (1) misrepresentations of investigators’ legal authority to conduct searches; (2) threats to arrest parents if parents refuse to consent; and (3) threats to remove children if parents refuse to consent.
Second, following from this descriptive account, this Article advances a constitutional claim.
Under current consent doctrine, consent is involuntary if a reasonable person would not feel free to refuse a state actor’s request for consent.
This Article reviews state and federal case law considering the voluntariness of consent searches in criminal investigations where criminal investigators extracted consent through tactics akin to routine family regulation tactics. That review shows that courts have found such tactics to be so coercive as to render consent involuntary under the existing standard.
Under current law, searches authorized by such coerced consent are as unconstitutional in the family regulation system as in the criminal legal system.
This Article explains how systemic challenges to the constitutionality of agencies’ coercive tactics could knock down a central pillar of the family regulation system’s constitutional evasion and spur changes in agency practices through the legal process and public pressure.
But, it acknowledges, constitutional litigation is not a cure-all. Even when a constitutional violation can be established, remedies may be ineffective or nonexistent.
More fundamentally, the constitutional argument itself is limited. As criminal law scholars point out, the voluntariness standard does little to protect against implicit, rather than explicit, coercion.
Consent works no better in the family regulation domain than in other domains where it has failed.
Third, this Article takes up reforms that could fill the gaps left by constitutional consent doctrine and demonstrates the necessity of distinguishing between reforms seeking to limit or abolish consent (“consent reforms”) and reforms seeking to limit or abolish searches (“search reforms”).
Jurisdictions across the country have begun enacting consent reforms in the family regulation and criminal legal systems.
This Article surfaces a fundamental limit of consent reforms: They leave intact a vast search apparatus fueled by an altered consent doctrine or by warrants.
Thus, this Article reframes the consent search problem. Are we opposed to consent in its current form serving as a justification for searches? Or are we opposed to the searches themselves, regardless their justification? This Article points to a clear answer: Mitigating the harms of family regulation consent searches—and consent searches across the carceral state—requires recognizing surveillance itself as the problem.
This Article’s examination of reforms to consent searches in the family regulation system also provides new insights into the utility of such reforms in the criminal legal system. In this sense, it is a practical companion to recent criminal law scholarship advocating for limiting or abolishing consent.
It also stands for a larger theoretical point. Family law scholars point out that the family regulation system is one strand of a larger carceral web, not collateral to the criminal legal system but interwoven with it and other systems of control.
Yet too often, family and criminal law scholars default to the criminal legal system as a descriptive and normative baseline.
This Article shows how taking a wider view of the carceral state—one that de-centers the criminal legal system—can reveal dynamics and paradigms that a narrower focus on criminal law obscures.
This Article proceeds in three parts. Part I describes the role of searches in family regulation investigations. It then situates those searches within a constitutional framework, explaining how the Fourth Amendment incentivizes reliance on consent searches and reviewing common critiques of consent.
Part II contends that routine family regulation investigative practices violate even the lax standard for voluntariness that governs in consent search jurisprudence. After describing some of those practices, it draws on case law stretching back more than sixty years—and reaching up to the Supreme Court—to show how these practices vitiate consent. Turning to practical implications, this Part describes the promise and limits of constitutional principles as a mechanism for increasing the privacy, dignity, and security of race–class subjugated families.
Part III shifts focus to state-law reforms aimed at remedying constitutional consent search deficiencies. It does not offer a conclusive set of policy recommendations. Instead, it outlines the stakes of how “the consent search problem” is framed. Different reforms flow from framing consent doctrine as the problem versus framing the searches themselves as the problem. This distinction raises a more fundamental point: Protecting race–class subjugated families from state overreach requires grappling with surveillance itself, not just legal justifications for it.