Unocal's settlement with Burmese villagers may spur better corporate conduct.
Daphne Eviatar has written on Africa for the New York Times Magazine and the Boston Globe, among other publications. She last wrote for The Nation on Angola.
Western firms and government leaders, not the people, benefit from Angola's wealth.
The Pentagon was selling a patriotic tale. It found many eager buyers.
Unocal's pipeline in Burma becomes a test case in corporate responsibility.
After years of collecting evidence against Slobodan Milosevic, the
prosecutors at The Hague expected a decisive victory. But as the former
Yugoslav president, who insisted on defending himself, began his opening
statement at his war crimes trial last February, his accusers realized
they'd got more than they
had bargained for. Ever the wily politician, Milosevic railed that the
trial was a political farce staged by an illegal court determined to
rewrite history and condemn not only him but the entire Serbian nation.
But if Milosevic's assault was an irritant, it should have come as no
surprise. After all, his arguments hark back to those of one of our most
renowned modern philosophers. Indeed, behind every contemporary war
crimes tribunal, it seems, looms the shadow of Hannah Arendt. Reflecting
on the 1961 trial of Adolph Eichmann, Arendt raised some of the same
sorts of objections. In Eichmann in Jerusalem, Arendt took to
task the prosecution, which she claimed transformed the trial of one
Nazi functionary into a stage for manipulating history and
indoctrinating future generations. For prosecutors to use the trial of
an individual to expose and judge the atrocities of an entire war,
Arendt wrote, "can only detract from the law's main business: to weigh
the charges brought against the accused, to render judgment and to mete
out due punishment." To Arendt, a criminal trial could never truly
respond to the scale of Nazi atrocities: "It is quite conceivable that
certain political responsibilities among nations might some day be
adjudicated in an international court; what is inconceivable is that
such a court would be a criminal tribunal which pronounced on the guilt
or innocence of individuals."
Yet modern war crimes tribunals are attempting to do just that, and
Arendt's arguments stand as a persistent challenge--one that is sure to
take on more urgency as the first permanent international criminal court
begins its work, over vehement US opposition (the Bush Administration
has just announced it is renouncing President Clinton's signature of the
treaty creating the court). In The Key to My Neighbor's House,
Elizabeth Neuffer, a reporter for the Boston Globe, implicitly
takes it on. Although Neuffer doesn't discuss Arendt's views directly,
her portrayal of the international criminal tribunals for the former
Yugoslavia and Rwanda ultimately serve as a persuasive reply.
Neuffer devotes the first half of her book to the 1990s conflicts in the
Balkans and Rwanda, interspersing stories of survivors with historical
and political analysis and intermittent on-the-scenes reporting. She
recounts how in each region, power-hungry nationalists exploited old
ethnic tensions to spark a genocide with political aims. Although not
always artfully told, the narrative effectively conveys the tragedy of
each war, highlighting horrors such as the shelling and siege of
Sarajevo, the fall of Srebrenica and the subsequent mass execution of
Muslim men and boys. Concerning Rwanda, she describes how escalating
tensions between Hutus and Tutsis grew increasingly violent until they
culminated in the slaughter of 800,000 Tutsis and moderate Hutus in less
than 100 days. Although detailed and heartfelt, such stories have been
told before (Philip Gourevitch's We Wish to Inform You That Tomorrow
We Will Be Killed With Our Families has become a classic on the
genocide in Rwanda). What Neuffer adds is a revealing portrait of the
two international tribunals where survivors eventually sought justice.
Her portrayal serves as convincing evidence that, contrary to Arendt's
contention, these courts can and should play more than a traditional
Consider the story of Hamdo Kahrimanovic. A Muslim elementary school
principal from the Bosnian town of Kozarac, Hamdo was imprisoned in the
Omarska concentration camp in June 1992 after Serb nationalists took
over his hometown. At Omarska, Hamdo encountered his former student,
Dusan Tadic, now a gangster brutalizing camp inmates. When, four years
later, the Yugoslavia tribunal declared its first trial in session,
Tadic was in the dock. Hamdo, who had known Tadic all his life, was
called to testify.
At the trial, Neuffer recounts, the earnest American judge struggled to
understand how Bosnia could have so quickly degenerated from a
harmonious multi-ethnic state into a scene of genocide. "Perhaps you can
help me to understand since I am not from that area," she said. "How did
that happen?" Hamdo was at a loss. "I had the key to my next-door
neighbor's [house] who was a Serb and he had my key," he said, giving
Neuffer the title for her book. "That is how we looked after each
other." After the war broke out, "one did not know who to trust anymore
and I do not have a word of explanation for that."
As a legal matter, Hamdo's testimony was probably irrelevant to Tadic's
case. Yet it captured an important element of the tragedy of the Bosnian
war and haunted the judge long afterward. In contrast to Arendt's
formalistic view of a trial, Neuffer suggests here that the court's
attempt to record and understand the crimes that occurred is as
important as its judgment of any individual who caused the events.
In the end, Tadic was convicted of crimes against humanity but acquitted
of murder. Unfortunately, the press had lost interest by the time the
verdict was announced; few Bosnians even heard about it. Still, Neuffer
believes the trial was important, for "there is an innate human need for
some kind of reckoning, an accounting," she writes. Over time, such
accountings begin to have a palpable effect on survivors' lives. By
1999, the tribunal had indicted and arrested most of Kozarac's local
warlords, and Hamdo, his wife and about 240 other Muslim families were
able to return home, beginning the process of reconciliation.
The Rwanda tribunal's consequences similarly reach beyond isolated
convictions. We see this through the harrowing story of Witness JJ, as
she's called by the tribunal to protect her identity. A young Tutsi
woman, JJ managed to escape when Hutu extremists attacked her small
farming village of Taba. She sought refuge at the offices of the popular
local mayor, Jean-Paul Akayesu, whom she'd known since she was a girl.
But Akayesu soon turned on JJ and the other Tutsi women, joining in the
genocide and, as the tribunal's investigators eventually learned,
plotting a mass rape. JJ became one of those gang-rape victims, barely
escaping death. When Akayesu went on trial in 1997, JJ was called to
JJ provided critical testimony at Akayesu's trial--the first in which
rape was deemed an act of genocide and a crime against humanity. But the
experience contributed more than a legal precedent. Neuffer describes
how JJ, initially intimidated by the imposing courtroom, lawyers and
judges, began her testimony hesitantly. But she gained confidence as she
told her story, even under harsh cross-examination. "When I saw Akayesu
with my eyes in court, I was afraid," JJ said later. "But at the same
time, I had something heavy on my heart. After I testified, it went
Unfortunately, the tribunal offered JJ little beyond that therapeutic
effect: It neither provided restitution nor helped survivors discover
what happened to lost family members. And to many Rwandans, tribunal
justice seems patently unfair: While more than 100,000 lower-level
accused genocidaires pack local prisons awaiting trials where
they face the death penalty, their ringleaders sat in a UN-run jail--with
its "state-of-the-art exercise room and wide-screen TV," as Neuffer
describes it. At most, they will receive life in prison.
The tribunals' problems, moreover, have been compounded by the West's
reluctance to provide necessary support. Created by the UN Security
Council, largely out of shame at the UN failure to intervene effectively
in either conflict, both courts have been stymied by lack of funds,
poorly trained staff, mismanagement and the inherent challenge of
creating a court that functions outside any established legal system.
The Yugoslavia tribunal, based in The Hague, faced in addition a
political snare: Peace negotiations were ongoing, so NATO members were
loath to have their troops arrest indicted war criminals still in
positions of power. The Rwanda tribunal, meanwhile, located in Arusha,
Tanzania, was marred by allegations of corruption.
Over time, both tribunals have improved. Neuffer's final assessment,
although qualified, is positive: "Tribunals, truth commissions, local
trials, government inquiries--are all part of the answer," she writes.
Neuffer's book is similarly a qualified success. While well researched
and comprehensive, it tries to do too much. Neuffer is so eager to
humanize the survivors, for example, that she frequently tries to
re-create their sentiments in a manner that seems forced and
unnecessary. And Neuffer's personal commentary is sometimes strained. In
an apparent nod to Arendt's famous observation about the banality of
evil, Neuffer ponders her meeting with a man who participated in the
Srebrenica massacre: "The evil I glimpsed in him was the potential for
evil we all share.... What's most chilling when you meet a murderer is
that you meet yourself." Such extrapolations are neither convincing nor
necessary. As Arendt herself recognized, we don't all have the potential
to become thoughtless murderers. Moreover, Neuffer would surely agree
that those who commit the crime ought to be held responsible. Indeed,
she takes the point further: Even if Tadic, like Adolf Eichmann, was
only a cog in a murderous machine, the goal of such a prosecution is
greater than the conviction of the individual.
Lawrence Douglas makes that argument forcefully in The Memory of
Judgment. An associate professor of law, jurisprudence and social
thought at Amherst College, Douglas writes about the trials of the
Holocaust. Though he takes a more analytic approach than Neuffer's,
examining in often painstaking detail the legal charges and evidence
introduced to support them, Douglas arrives at a similar judgment:
Despite their problems, these legal proceedings provide a form of
justice that's more comprehensive than any individual verdict.
Beginning with the 1945-46 Nuremberg trial of Nazi leaders, Douglas goes
on to discuss Israel's prosecution of Eichmann, followed by several more
recent trials: the 1987 Israeli trial of John (Ivan) Demjanjuk; the
French trial of Klaus Barbie that same year; and Canada's two trials of
a Holocaust denier, Ernst Zundel, in 1985 and 1988. Although a critic of
the trial strategies, Douglas comes down a champion of law's potential.
Unlike Neuffer, Douglas takes on Arendt directly, challenging her view
that the law should judge only the guilt or innocence of the accused.
Although he recognizes the tension between strictly applying law to the
facts of one case and creating a broader historical record, he believes
a war crimes tribunal can do both. Unlike Arendt, he's not bothered by
the idea of a show trial--indeed, the spectacle is precisely one of the
aims. Although he concludes that the Nuremberg and Eichmann trials were
more successful in their didactic aims than were the trials of
Demjanjuk, Barbie and Zundel, all were, in a sense, show trials,
"designed to show the world the facts of astonishing crimes and to
demonstrate the power of law to reintroduce order into a space evacuated
of legal and moral sense."
Nuremberg, of course, was the touchstone. But Douglas believes that
trial was hampered by the prosecutor's insistence on fitting the Nazis'
unprecedented crimes into conventional legal standards--precisely the
legalistic approach Arendt might have advocated. Eager to use the most
reliable proof, they based their case on documents, flooding the court
with paper and numbing the audience to its contents. The result was an
eleven-month trial that produced, as Rebecca West wrote in The New
Yorker, "boredom on a huge historic scale."
The more dramatic moments of the trial, meanwhile, were the most legally
problematic. Take, for example, the screening of the innocuously titled
film Nazi Concentration Camps, which Douglas analyzes in detail.
Made by Allied army officers at the time of liberation, the hourlong
black-and-white documentary reveals camp prisoners with "the twisted
facial geometries and afflicted eyes of the demented," writes Douglas.
The horrors increase as the camera moves from one camp to the next,
lingering on emaciated, naked bodies piled upon one another, unclear if
they are dead or alive. German citizens, meanwhile, are presented as
complicit: "smiling Weimar women, dressed in their Sunday best,
strolling along a tree-lined road, on their way to view the camps by
'invitation' of the Americans."
The response in the courtroom, Douglas recounts, was a stunned silence.
The images, it seemed, spoke for themselves. But what exactly did they
say? The film, whose introduction violated basic rules of evidence,
never indicated who was responsible for the horrors portrayed. Nor did
it name or even accurately convey the crimes committed. Instead of
defining them as crimes against humanity, it presented them as crimes of
war. For political and procedural reasons, crimes against humanity were
defined in such a cramped manner that the term barely surfaced during
the trial. Likewise, genocide, although mentioned in the indictment and
in closing arguments, was otherwise never raised. So eager were the
prosecutors to fit the square peg of the Holocaust atrocities into the
round hole of conventional legal forms that they ultimately distorted
the truth. Although the defendants were appropriately convicted, Douglas
maintains that the historic and didactic impact of the trial was
severely limited by the prosecution's adherence to the most conventional
construction of the law.
In the Eichmann trial, the Israeli prosecutors were determined to do
better. Here, survivor testimony, rather than documents, was central to
the case, providing "the dramatic focus of the trial" and building "a
bridge from the accused to the world of ashes," writes Douglas. But the
Eichmann prosecution made miscalculations of its own. In the Israeli
attorney general's effort to reach beyond proving Eichmann's guilt to
portraying the vast crimes of the entire Holocaust, he opened himself up
to Arendt's criticism that the trial had lost its legitimacy. More than
100 survivors testified about their experiences--a form of "national
group therapy." But while their stories reminded the world of the Nazi
atrocities, they were mostly not about Eichmann.
Eichmann, meanwhile, eerily encased in a glass booth, was presented as a
vicious animal. As the Gestapo's expert on Jewish affairs, though,
Eichmann was not a Nazi leader; he was a bureaucrat, the epitome of what
Arendt describes as "the terrifyingly normal" person who commits
horrendous crimes. Yet the portrayal of him as a monster served the
prosecution's aim of reminding the public of the Third Reich's evil, as
well as the laws demanding that Eichmann's crimes be intentional ones.
To Arendt, the trial also failed as a legal matter because rather than
charging Eichmann with crimes against humanity, the prosecutors, eager
to bolster the political identity of the state of Israel and its new
citizens, framed the charges more narrowly, as crimes against the Jews.
By rejecting the broader legal category, argues Arendt, the prosecutors
failed to create what should have been an important precedent for future
Douglas acknowledges these problems but insists that Arendt's criteria
for success are too narrow. Such trials should do more than apply the
law and reach a judgment; they should create an accurate historical
record and shape collective memory, he maintains. The Eichmann trial was
a legal success, then, "insofar as it transformed understanding of what
the law can and should do in the wake of traumatic history."
Douglas is far less sanguine about the later Holocaust trials, which he
claims obfuscated the very history they were intended to enlighten. The
Zundel trial, in particular, applied legal procedural rules so strictly
that much of the evidence of Nazi crimes was excluded, allowing
Holocaust deniers to turn the trial into a forum for revisionist
Although for the most part he is thorough and convincing, Douglas
occasionally stumbles. For example, he doesn't adequately respond to
Arendt's charge that a domestic trial of an individual accused of
committing an international atrocity can fall prey to political agendas
that distort the historical record. His point about truth commissions
also misses the mark. Douglas maintains that truth commissions are
inadequate because "a trial without judgment is like a race without a
finish--it lacks the sine qua non of dramatic closure that frames and
adds meaning to the shared narratives." But the real shortcoming of
truth commissions is that they don't fulfill two important aims of
criminal law: retribution and deterrence. Douglas is dismissive of the
notion that war crimes trials can have a deterrent effect, but he
shouldn't be. Domestic courts or ad hoc tribunals may be less likely to
deter would-be international law violators, but a permanent
international criminal court that systematically and effectively
prosecutes perpetrators could certainly, over time, do just that.
In coining the phrase "the banality of evil," Arendt observed that an
unthinking person might discard his own moral compass when a new one is
imposed. Ironically, that notion cries out for a far broader role for
criminal tribunals than Arendt would have countenanced. An established
international court that both judges individuals accused of widespread
atrocities and records the experiences of survivors could act as a moral
counterweight to domestic totalitarian leaders. Such a court holds out
the promise not only of deterring the potential architects of organized
brutality but of humanizing their victims in a way that even the most
thoughtless functionary might find difficult to ignore.
While the United States has spent the past few weeks imploring other countries to cooperate with our war on terrorism, behind the scenes it's apparently retaining an isolationist agenda. In a particularly ill-timed maneuver, the Administration on September 25 pledged to support the deceptively titled American Servicemembers Protection Act (ASPA), sponsored by Republicans Jesse Helms, Henry Hyde and Tom DeLay.
Although it has largely eluded public attention, ASPA is a slap in the face to the many allies that have spent years struggling to construct a legitimate vehicle for combating the most vicious war crimes, crimes against humanity and genocide. For ASPA not only prohibits all US cooperation with the International Criminal Court (ICC), it suspends military assistance to any non-NATO member (except certain allies like Israel, Japan and Egypt) that joins the court, rejects participation in any UN peacekeeping operations unless the Security Council exempts American soldiers from prosecution by the court and authorizes the President to use "all means necessary" to liberate Americans or allies held by the international tribunal (hence its European nickname, "The Hague Invasion Act").
Until now, the bill might have been dismissed as meaningless venting by a handful of extremists. But the Administration's support gives it a far more sober--and sinister--tone. The Administration signed on after negotiating changes that eliminate some of the original bill's thornier constitutional problems. (The President could now provide military assistance to a country that participates in the ICC if he deems it in the national interest, for example.) But those changes and Bush's support also make it far more likely that this public proclamation opposing an international effort to bring perpetrators of terrorism and genocide to justice will become law.
This obstruction is particularly ironic now, when the United States is insisting on world collaboration against terrorism. But it's also distressing because our government is a signatory to the 1998 Rome treaty that created the court. Although Clinton expressed reservations when he signed it, he at least committed the United States to work toward creating an international court it could support. Even if this Administration won't ratify the treaty in its current form, supporting a bill that undermines a treaty we've already signed and threatening the treaty's supporters is a remarkably underhanded maneuver, given the mask of international cooperation we're now strutting out on the world stage.
Sure, Jesse Helms labels it a "kangaroo court," but keep in mind what the International Criminal Court will be. Hammered out over more than five years by hundreds of international lawyers, scholars and diplomats, including many Americans, the court--which is expected to receive the necessary sixty ratifications by next summer--will be a permanent institution based in The Hague equipped to try, in addition to genocide and strictly defined war crimes, just the sort of crime against humanity we saw on September 11. Setting aside whether military action is justified to seize the perpetrators, if the court existed today it's possible we could have avoided the issue altogether. An international court holds a legitimacy in the eyes of the international community that a United States court cannot. Even a government like the Taliban might have a harder time refusing to turn over suspected terrorists to an international tribunal than to what it views as suspect US authorities.
Opponents claim the court would place American soldiers and officials at risk of frivolous political prosecutions. That ignores the many elaborate constraints written into the Rome statute. Moreover, the court will be controlled by our allies. Right now, we're aligned with countries like Iraq that oppose it. But all NATO members (except Turkey) have signed and most have ratified the treaty, as have most of the nations in the EU, which has announced its intent to ratify, calling it "an essential means of promoting respect for international humanitarian law and human rights." Recently, Great Britain--now our closest ally in the war against terrorism--became the forty-second country to ratify. (Switzerland is the latest to follow suit.)
Republicans have whipped up fears that the ICC is a rogue court that would prosecute Americans and deny them due process. But the treaty provides virtually all rights guaranteed by the US Constitution except a jury trial. Notably, the American Bar Association--always sensitive to such concerns and hardly a body of radicals--is a strong ICC supporter.
Given all the statute's safeguards, the only people truly threatened by the International Criminal Court are those who commit genocide, intentional large-scale war crimes or "widespread or systematic" crimes against humanity. The Administration's support for ASPA suggests it wants to raise American officials above international law. This is a bad time to be pressing that point, both on our allies and before our enemies. For if part of what sparks hostility toward the United States is our arrogance, then actively undermining this landmark step toward worldwide enforcement of the rule of law will only fuel it.
In 1995 the brutal slaying of Elisa Izquierdo by her crack-addicted mother seized headlines. Responding to the public's outrage that city officials had ignored obvious signs that the 6-year-old was being tortured at home, New York Mayor Rudolph Giuliani declared that he was creating a new children's agency with a tough new executive in charge and adopting a stringent new policy of removing children from their homes at the first signs of danger.
Of course, Elisa Izquierdo was not the first child supposedly under the watch of authorities to die at the hands of her caretaker--there were twenty-six others in New York City in that year alone. But only when these gruesome stories make the nightly news do politicians step into the spotlight and announce innovative new policies as solutions to this newfound concern. In fact, abuse and neglect of children have always been with us, and the answer to the problem is neither new nor complicated.
The mid-nineteenth century might seem an unlikely place to embark on an exploration of the failings of modern child welfare. But in Orphan Trains: The Story of Charles Loring Brace and the Children He Saved and Failed, Stephen O'Connor reveals the value of tracing a dysfunctional system back to its troubled origins. By telling the story of the father of modern foster care, O'Connor illustrates how the haphazard amalgam of paltry efforts we today call a child-welfare "system" developed out of well-intentioned but frequently misguided notions about children, poverty and social responsibility.
When Charles Loring Brace arrived in New York in 1848, fresh out of Yale Divinity School, he found a city in chaos. The "belles and beaus of high society" strolled down Broadway alongside the most wretched of the poor. Nearby, slums overflowed with immigrants and workers who had flocked to the factories that proliferated with the boom of industrialization. Working-class families lived on the edge of poverty; when they slipped over that line, their children were forced to supplement their parents' income with what they could earn on the streets. Those from the most destitute families--ravaged by disease, alcoholism and violence--often never returned home.
Brace, of course, was not among this crowd. Although at 22 he'd ostensibly come to New York to teach, write and continue his theological studies, he was a confident young man-about-town who spent much of his time with prominent friends like Frederick Law Olmsted, enjoying the "rush and whirl" of Manhattan in posh clubs and hotels. The son of a minister with a keen interest in moral philosophy, Brace had some sympathy for the poor, but it was not until his sister fell seriously ill that he began to act upon it. He started by preaching at almshouses, where he found solace in a belief in God and a conviction that he, as a gifted young man, could do God's work. As his sister, Emma, neared death, Brace wrote to her of his growing concern: "You can have no idea, Emma, what an immense vat of misery and crime and filth much of this great city is! I realize it more and more. Think of ten thousand children growing up almost sure to be prostitutes and rogues!"
It is telling that Brace chose to describe them that way. As O'Connor carefully documents, relying on letters and Brace's published writing, when Brace founded the Children's Aid Society (CAS) three years later, his motives were twofold: He wanted to help poor children but also to rid the city's upper classes of the frightening vagrants who preyed upon them. Such children were destined, he believed, to "poison society," growing up to become what he later termed, in the title of his 1872 book, The Dangerous Classes.
Confident in his own superior intellectual and moral fiber and mindful that taking the lead on such an issue could do much for his social standing, Brace helped to found the Children's Aid Society, which provided religious, vocational and academic instruction and created the first shelters for runaways. But the agency was soon overwhelmed by the demand of thousands of needy children for its services. In 1853, Brace and his colleagues hit upon what they deemed a brilliant idea: If the conditions for the poor were so miserable in the city, why not send their offspring to the country? In Brace's idealized vision, country folk were solid, virtuous people of the soil, thriving on fresh air and abundant food and opening their arms to strangers. Surely, Brace thought, children would be better off with them than with their wretched parents in the city's slums. Brace began to advertise vagrant children to country families and made the earliest placements in this manner. But he soon decided upon an easier and far cheaper way to place children: Simply round up a group and send them on a train headed west. When they arrive at their destination--usually an isolated farming town--the local residents could look them over and choose the ones they liked best.
Not surprisingly, this didn't turn out to be the best way to forge new families. Using original testimony and vivid accounts of a sampling of children, O'Connor illustrates the harsh consequences of taking children from their impoverished parents and placing them in poorly screened and supervised homes with strangers. Although some of these "orphan train" riders were apparently successful, at least professionally--two became governors, another became a Supreme Court Justice and several more held other public offices--many fared poorly. Some became criminals, and at least one became a murderer.
But perhaps most significant is that we know almost nothing about what happened to the vast majority of them. For the agency not only made little attempt to investigate the families that received children, it made even less effort to determine what happened to the children after they arrived. Record-keeping was so poor that estimates of the number of children the society placed between 1854, when the first train took forty-six children to Dowagiac, Michigan, and 1929, when the CAS sent its last batch from New York City to Sulphur Springs, Texas, range from 32,000 to 300,000. O'Connor concludes that roughly 250,000 city children found foster homes via orphan trains, run not only by CAS but eventually by various other agencies that followed suit.
The impression of this venture is, to say the least, disturbing by today's standards. But O'Connor is careful to point out that Brace, despite his flaws, was revolutionary in his thinking about child welfare. In an era when poor, orphaned and abused children were either left on the streets, thrown in prison or warehoused in orphanages, he was the first to articulate and act upon the belief that if at all possible, children should be raised in families. Rejecting the Puritan notion that children are damned and must be saved through strict discipline and piety, Brace adopted the Victorian conception of them as innocents in need of protection.
That notion of children persists today. Unfortunately, so does the complete failure of society to invest the resources necessary in a system that can protect and nurture them. O'Connor follows his well-told account of Brace's life with a thoughtful examination of his legacy. Sadly, there are countless parallels between the failures of the Children's Aid Society's early attempts at child-saving and the shortfalls of our child-welfare system today.
Although we no longer send them half-way across the country, the more than half- million children in contemporary foster care face a similarly uncertain future, frequently bounced from one ill-prepared home to another, placed with families set up for failure because they rarely receive the support they need. And although these days preservation of the birth family is at least a stated goal of child welfare policy, effective programs to accomplish it are sorely lacking, and often the first slice off a child welfare agency's budget. Caseworkers receive minimal training, too many cases and inadequate pay, and rarely stay in the job long enough to learn how to do it well. Poor record-keeping and computer systems compound the problem, making it often impossible to monitor progress of any given child.
Many of those shortcomings, and the difficulties contemporary child-savers encounter in trying to solve them, are exemplified in the saga of Shirley Wilder and the lawsuit brought in her name, told in Nina Bernstein's The Lost Children of Wilder.
Shirley Wilder was a 13-year-old runaway when her father went to Manhattan family court asking that she be "put away." Unfortunately, there was no good place to put her. By the time she entered foster care in 1971, Shirley had endured the death of her mother and grandmother, and the abuse by her father and stepmother, who had taken her in. It was clear she needed intensive therapy in a residential treatment center. But none of the private agencies that ran them would accept her. The judge had no choice but to send Shirley, who had not been accused of any crime, to a harsh reformatory for delinquents that provided virtually no psychiatric or therapeutic services. "Hadn't the time come," a frustrated judge asked Shirley's lawyer in court, "for the law guardians of New York County to...sue the state on behalf of children like Shirley?"
The problem was that although the system was ostensibly run by the city and state, it was largely controlled by private religious agencies that contracted with government to provide foster care. Mostly Catholic and Jewish, they were legally allowed to discriminate in favor of children of their "own kind." That meant that children like Shirley--African-American Protestants--were stuck with the worst the child-welfare system offered: the most underfunded and poorly managed foster care and institutions.
This was what Marcia Robinson Lowry, then a 32-year-old lawyer at the New York Civil Liberties Union, hoped to change when she filed a class-action lawsuit in federal court in 1973. Charging that the system violated the Constitution's First, Eighth and Fourteenth amendments, Lowry sought to end the use of religious agencies to provide child-welfare services in New York City.
It was a bold move on Lowry's part, for in suing the city, state and seventy-seven private agencies, she was taking on not only the government but also some of New York's most influential power brokers, including the Catholic Church and the distinguished lawyers and businessmen who sat on the agencies' boards. As one advocate put it, "She was fighting against the most powerful, wealthy people in New York, and they had God on their side."
But Lowry was not deterred. On the contrary, the challenge was intoxicating. But her determination and ambition could be blinding, and, matched with poor public relations skills, it only exacerbated the animosity of her opponents and hampered the possibility of an earlier and more productive compromise. Indeed, many of her adversaries recognized that the system was unfair; they just didn't believe the answer was to cut out the religious agencies, which provided far better services than the city-run facilities. But for years, the remedy was not open for discussion.
Bernstein intersperses chapters chronicling the behind-the-scenes drama of this bitterly fought lawsuit with the disheartening narrative of Shirley's life, emphasizing the disconnection between the battle of the advocates and the lives of the children they aimed to represent. At 14, Shirley gave birth to a son, Lamont. She had little choice but to relinquish him to foster care. Although he was initially sent to what seemed a promising home, it was destined to be temporary. Like so many, writes Bernstein, "Lamont's placement...had been selected not through some conscious weighing of alternatives informed by law and social policy, but in a kind of paroxysm of bureaucratic improvisation."
Like the early Children's Aid Society, the modern foster-care system Bernstein illustrates is plagued by chronic shortages: of decent foster homes and of sufficient staff trained to screen and supervise them. The children in care, moreover, rarely get the help they need. Lamont, for instance, was shunted from one failed foster home to another, to a psychiatric hospital and then to a frightening institution. He was denied medical care and inappropriately diagnosed for his all-too-predictable emotional disorders. Lost files and glaring gaps in record-keeping over the years hampered the ability of even the most well-meaning caseworkers to help him, and frequent staff turnover only reinforced his sense of instability.
Lowry's lawsuit, meanwhile, was stymied by hostile opponents, obstructionist judges and the inflated egos of lawyers on both sides. While the attorneys fought over settlement details, New York City and its child-welfare system sped beyond it; the crack epidemic in the 1980s devastated inner-city families and overwhelmed the city's social-service systems. By 1988, when the Wilder settlement was finally approved by the Court of Appeals, it had become irrelevant: The overwhelming majority of children in the child-welfare system were black Protestants, and the agencies had little choice but to accept them.
The settlement decree, moreover, had spawned a bureaucratic thicket that arguably did more harm than good. A professor of social work and member of the panel created to oversee the settlement's implementation called it "a quagmire." It's "the most frustrating thing I've ever been involved with.... I can't even explain it to myself at the end of the day." Although no longer placed according to religion, children were now placed in foster care according to "hit-or-miss telephone brokerage."
Like Charles Loring Brace, the child-savers of the modern world, Bernstein shows us, are limited by personal ambition, overconfidence and limited means. A lawyer like Lowry can pursue ideals unimpeded by the political and financial considerations that restrain government officials. But the pace of a lawsuit snaking its way through the court system is out of sync with the rapid changes in the life of a child. While the twenty-six-year action dragged on, Shirley's life descended into crack addiction, homelessness and chaos. The same week the lawsuit ended, 39-year-old Shirley died alone in an AIDS hospice. Lamont was working in a barber shop but living a marginal existence, intermittently homeless and unable to support his estranged girlfriend, who struggled to keep their son out of foster care.
Unfortunately, that is where Bernstein leaves us. Although she provides an effective narrative of the dour lives of foster children and the immense efforts made on their behalf, Bernstein never analyzes the problems or suggests ways of fixing them. As a result, The Lost Children of Wilder implies that the child-welfare system and attempts to improve it are hopeless. That's the wrong message. Like Brace, child advocates of today may be flawed, but they play an important role by prodding an otherwise intransigent system. Indeed, New York has begun to improve foster-care services partly in response to a lawsuit Lowry and her colleagues brought in late 1995 that reached beyond the Wilder case.
Still, far more remains to be done. New York foster children spend too long in care: four and a half years on average, excluding the very short-term cases. Improvident placement means most have to switch homes at least once, and some 7 percent of the 32,000 suffer that trauma five or more times. Meanwhile, abuse in foster homes seems to be on the rise: Substantiated reports of maltreatment more than doubled between 1996 and 2000, although the city's foster care population declined by almost 25 percent in that time. And New York's system is no worse than many others: conditions are so bad around the country that since 1980, sixty-five class actions have been filed against child welfare systems for failure to meet minimum legal standards.
The consequences of such failures are explored well in another recent book, Michael Shapiro's Solomon's Sword: Two Families and the Children the State Took Away. More than just a sensitive account of two ruptured families, it also provides an insightful analysis of child welfare policy and practice and offers prescriptive suggestions.
As O'Connor aptly concludes, "the simple truth is that if we are going to have a child welfare system that does everything we know it can do, and that ostensibly we want it to do, we are going to have to spend more money."
They distort. They decide.