The Poverty Defense

60 Pages Posted: 16 Jan 2013  

Michele E. Gilman

University of Baltimore - School of Law

Date Written: January 15, 2013

Abstract

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant's mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty's coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent with American norms of individual responsibility, but also practically impossible. This vigorous debate has been deemed an ivory tower exercise. Yet scholars have entirely overlooked that a poverty defense is utilized in thousands of cases a year. In both civil and criminal child neglect cases, various states excuse conduct that would otherwise be neglect on account of a parent's poverty. In short, a poverty defense is not hypothetical. Courts' interpretations of the poverty defense in child neglect cases reflect the various theoretical strands posited by scholars. The case law reveals that a poverty defense is workable, but that its potential to help poor defendants is limited unless courts have a rich, multi-dimensional understanding of the causes and effects of poverty. This article explains how the poverty defense works in practice in child welfare cases, and can guide scholars, and more importantly, lawmakers and courts, in considering whether to extend a poverty defense to other areas of the law.

Keywords: child welfare, child neglect, poverty, social justice, criminal defense

JEL Classification: I30, I31, I32, I38, K14, K41

Suggested Citation

Gilman, Michele E., The Poverty Defense (January 15, 2013). University of Richmond Law Review, Vol. 47, p. 495, 2013; University of Baltimore School of Law Legal Studies Research Paper No. 2013-02. Available at SSRN: https://ssrn.com/abstract=2201065

Michele E. Gilman (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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