Scores of children filed out of a building on 68th Street and Lexington in New York City on a bright spring day in 1958. The gathering included dozens of infants who were cradled by a small army of nurses, physicians, and nuns belonging to the Sisters of Charity. With “military precision,” as one report described it, this unusual street gathering did exactly what they had rehearsed for days: they walked a block and half and entered another building.^{Footnote 1} Following this short but nerve-wracking parade, the move of the New York Foundling Hospital from its original home to its new facility was complete.

The relocation to a larger and better-equipped building was destined the day the New York State’s Department of Welfare listed the old New York Foundling Hospital as a fire hazard, a fact that had long been known, but one that inspectors had previously left for discreet hectoring of the Sisters of Charity in annual reviews. In the postwar era of professionalized social work, the Foundling Hospital faced new pressure to perform “up to code.” Moving to its new location marked only one aspect of the hospital’s efforts to meet the increasingly elaborate expectations of New York State. New requirements of different kinds strained the Foundling at the very moment that the hospital found it more difficult to fulfill its mission. More babies, and, owing to changing city demographics, more babies who were African American or Puerto Rican, made it much harder to place Foundling charges in the hospital’s network of white ethnic family homes. In many ways the parade down Lexington Avenue signaled much more than a change of address; it symbolized the institution passing from the provincial arms of largely Catholic supervision to a Department of Welfare more apt, in the resentful words of one Foundling report, to see the hospital as “an agency owned by them.”^{Footnote 2}

As regulations strapped the nation’s largest child-care institution, state legal codes had revised criminal statutes on abandonment from a misdemeanor that was difficult to prove into a more closely written statute, usually with two components: a parent who surrendered an infant to chance (abandonment), and a parent who absconded and failed to support his family (desertion). Revised codes specified time intervals and types of contact between parent and child that clarified the law and enhanced the ability to charge parents with either crime. While these changes were presented as a way to punish fathers who deserted their families and crossed state lines to avoid obligations to dependents, they had the effect of strengthening the criminal penalties of abandonment as well. Significantly, this latter charge was enforced with particular attention to mothers who received support from the federal welfare program, Aid to Dependent Children (ADC).^{Footnote 3} Since mothers often did not flee jurisdiction, and because mothers who received support from the state were monitored more closely than wage-earning males, a disparity in likely apprehension accompanied these dual revisions in the code, resulting in a gender inequity. Viewed in the institutional context surrounding these changes, it is possible to make a different but related set of points regarding how this increased punishment of infant abandonment constituted, in effect, a functional transfer from private institution to criminal law. Whereas the Sisters of Charity (and other religious communities like it) had once presided over the response to abandonment, the state, and in particular its legal codes, now set the terms of both the perception and practicality of abandonment—or, as it has been known for ages, “exposure.”

Throughout history, abandonment has been a common practice, though not one that was well documented. Historian John Boswell produced an authoritative history of premodern exposure that takes a sweeping approach from Antiquity to the Renaissance. Doing so enabled him to make a number of claims that still resonate, including: abandonment occurred for a number of reasons, and was not considered by parents or observers to be equal to infanticide; and, significantly, “[m]ost ethical systems . . . either tolerated or regulated it.”^{Footnote 4} Other academic treatments of abandonment focus on the modern era,^{Footnote 5} and most approach the subject as a way to locate prevailing ideas about childhood.^{Footnote 6} Likewise, some historians of marriage^{Footnote 7} or adoption^{Footnote 8} treat exposure, though none at great length. Julie Miller’s monograph devoted to abandonment in nineteenth-century New York City features a conceptual frame that mirrors that of Boswell: she traces the “discovery” of foundlings, followed by the institutional response, and eventually the ways in which these institutions were eclipsed by the system of foster care and adoption.^{Footnote 9} Taken together, these works aim to uncover the phenomenon of abandonment, including some estimation of its frequency, how it related to contemporaneous child-rearing norms, and the reasons for its decline.

Here I seek to lay bare a different phenomenon—that of U.S. state development—and I will use abandonment as an opportunity to fit state legal codes, private benevolent institutions, and the choices confronting parents unable or unwilling to care for their child into that narrative. Catholic charities like the New York Foundling locate these dynamic forces particularly well: founded out of a desire to provide an alternative to Protestant-run institutions, these charities survived long after sectarian rivalry waned—or, as was the view of some Catholics, after Protestant efforts evolved from competing institutions into scrutiny from professional social workers. Positioned between voluntarism’s apex and government supremacy, the heyday of Catholic charities shaped the terms—and supplied a critique—of the emerging reliance upon the state. The New York Foundling also highlights an internal shift in the culture governing religious charities from a custodial and philanthropic approach to a professional and therapeutic response.^{Footnote 10} In the wake of these various changes, instances of distress that remained beyond the reach of social provision, and intractable in the face of professional care, would be left to criminal law.

While social historians focused on child-care regimes generally end their abandonment histories with Progressive Era attempts to “resolve” the issue with the introduction of widows’ pensions, there is a more belated heritage to the decline and ultimate collapse of institutions like foundling homes. Carrying this “deinstitutionalization” story forward into the post–World War II era foregrounds the responsibilities assigned to criminal law, an important but neglected piece of the modern U.S. state. I argue that one important reason the United States has such a punitive legal system, especially when it comes to issues of distress (vagrancy, addiction, or abandonment), stems from the way in which the New Deal and postwar era challenged the customary operation of private benevolent institutions. These challenges are conveyed in dramatic form through the experience of the New York Foundling, a major operator in a city that, for most of the twentieth century, depended upon sectarian institutions to care for nearly three quarters of all dependent children. As the modern era tested the Foundling and institutions like it, no public institutional network was erected to perform in their stead. Instead, social workers inherited abandonment, as well as other cases of “distress,” and the criminal code became, in effect, their case referral agency, a profound shift in the nature of public child care provided in New York City. This move in favor of the criminal justice system bears a resemblance to the vibrant courthouse atmosphere depicted by historians David S. Tanenhaus and Michael Willrich, both of whom position Chicago’s Progressive Era courts as a focal point of social welfare outreach.^{Footnote 11} But such was the case in the context of an equally vibrant world of private benevolent institutions. Hence, while the postwar reliance on courts harkens back to an earlier time, this similarity does make allowance for the fact that when foundling homes closed, a mother who abandoned a baby had no practical, humane, or legal way to do so; she faced only punishment.

Boswell concludes his encompassing history of child abandonment with the inauguration of the “institutional era,” a time when different European societies attempted to deal with foundlings by creating special homes for their care. As he also notes, this development led to horrific death rates for abandoned babies. With the health of infants so poorly understood, and with the care of so many fragile babies so poorly handled, consignment to a foundling home meant that an abandoned baby would survive as often as it did not.

The New York Foundling was by no means exempt from this centuries-old danger. Though it began in the post–Civil War era, a time when medical science gained new prominence, and it worked to stay abreast of evolving child-care regimes, the hospital received a remarkably even average of 125 abandoned babies per month, and suffered a death rate of about 15 at the same rate. Only the precarious state of many of these infants and their otherwise doubtful fate assuaged any grief of the hospital staff; apart from some isolated scandals, few outside the Foundling learned of the hospital’s struggle to keep its babies alive.

Instead, publicly circulated accounts of the hospital usually included the story of the Foundling’s creation, when Sister Mary Irene Fitzgibbon founded the home in response to widespread infanticide in Reconstruction-era New York City. Unmentioned in popular accounts, but no doubt influential in the start of the Foundling, was the same impulse guiding other similar endeavors: the desire to keep destitute Catholic babies alive and out of the hands of Protestant charity networks and public poorhouses.^{Footnote 12} Fitzgibbon and her fellow Sisters of Charity also exemplified the more applied and active life of American women religious, who were, generally speaking, less cloistered than their European counterparts.^{Footnote 13} Following the life and vision of their order’s foundress, Elizabeth Ann Seton, the Sisters directed their energy toward care of the children of the poor, viewing the Foundling as a successor to those efforts.

In its daily operation, the Foundling had to abide by a basic set of rules in order to receive financial support from the state of New York. First the Foundling accepted all charges, and for much of its history it did so with no questions asked—an approach typical of Catholic charities in general. Because of the Foundling’s open-door acceptance policy, police in New York City were instructed to deliver recovered babies to the hospital. A baby abandoned with identifying information (sometimes a first name), a talisman (perhaps a cross), or left in a church would retain the aspects of identity either named in or inferred from the circumstances of his or her discovery. Those without any of these markers were assigned a name, ticked off from a roll provided by the state. Babies would also be assigned care (and most likely a religion) in a Catholic or Protestant institution depending upon the time of day he or she was discovered: Catholics received foundlings from noon to midnight, and Protestants received charges discovered from midnight to noon. Infants abandoned with Jewish markers were a rare event, and, when it occurred, the hospital or other authorities turned the foundling over to Jewish charities; by the 1930s, the clout of Jewish agencies was such that they could join the foundling rotation.^{Footnote 14}

Like other sectarian institutions, the Foundling was a private organization that operated for public benefit and received taxpayer support. As time went on, the state stipulated greater demands in exchange for funding. Although New York State had always insisted on some oversight over the Foundling Hospital, this scrutiny initially came at the hands of the New York State Board of Charities—later renamed the State Board of Welfare—and its supervision of private benevolent institutions like the Foundling resembled, in the words of one social worker, an approach that could be summarized as “pat them on the back and visit them.”^{Footnote 15} Moreover, the State Board was well in the hand of New York City’s Democratic Party machine and, as Dorothy Brown and Elizabeth McKeown point out, the ethnic ties that ran from City Hall to the institutions of Catholic life guaranteed the Sisters political support and protection for their endeavors, a bond that remained resilient for decades. But on the eve of World War I, when Catholic orphanages came under criticism for indifferent care and, as some investigators discovered, profitable operation at the expense of the orphans’ well-being, the church launched an aggressive response that included placing diocesan charities under the bureaucracy of the bishop.^{Footnote 16} As a result, the Sisters as well as numerous lay organizations lost executive control over the philanthropic network that they had helped to found and to sustain.

This development toward more autocratic control within the church coincided with the professionalization of social welfare work, a trend greatly accelerated by the war itself. With members of a young profession that was still developing and sometimes in turmoil, professional social workers nevertheless resolved to reform the work of religious charities. Throughout the 1920s, they mobilized their training, professional discourse, and standing, as well as the leverage of community “chests” and “funds,” local collective charity fund-raising, to exact concessions from private benevolent institutions.^{Footnote 17} This encounter between religious charities and professional social work played out in disparate settings, was generally hostile, and occasionally took dramatic turns. One social worker trained at the University of Chicago School of Social Work returned home to Seattle, Washington, to guide the community chest into a more critical posture toward religious charities. She recalled asking one Catholic orphanage, “Well, do you know where the [birth] parents are?” “Well,” she remembered the Sisters responding, “we think that if [the orphans] came, God sent them.” “And they would take the child in when anybody requested it,” she marveled, unable to reconcile her training, which emphasized a thorough case history and individualized care, to the approach of the orphanage, which chose to preserve confidentiality simply by preserving anonymity. As she demanded changes to the customary operations of the orphanage, its founder denounced her in tears and left the interview in anger.^{Footnote 18} Ultimately, state agencies resorted to threatening an institutional license unless a case history was taken.^{Footnote 19}

In New York, as in Seattle and elsewhere, the ascendance of professional social work meant that visits and supervision from the State Board became far less perfunctory. Starting in the 1920s, the Foundling received annual rebukes on dated facilities and, more serious, warnings of fire hazards. When the Home became a hospital, the American College of Surgeons accompanied the board on visits to the Foundling, and the organization added to the litany of expectations—and shortcomings—that the institution confronted. By the time the Board of Charities became the Board of Welfare, the Foundling Hospital had embraced the “boarding out” and “placing out” system of child care, policies that received official sanction at the White House Conference on Dependent Children in 1909. The consensus that emerged from the conference urged the adoption of practices designed to permanently or temporarily place infants and children in a family home in order to avoid housing a child in an institution, now seen as detrimental to a child’s emotional growth and physical health.^{Footnote 20} Though “placing out” and “boarding out” began modestly and sometimes approached economic indenture, by the turn of the twentieth century the nation’s social welfare and charity network strongly favored this approach and denounced the poor outcomes and chilling impersonality of children’s institutions, especially the orphanage.^{Footnote 21} Eventually, placing out and boarding out culminated in the modern system of foster care.^{Footnote 22} But, as historian Mary Oates relates in her history of Catholic philanthropy, sisters “found the argument that the institutional approach to charity was now outmoded very hard to accept.”^{Footnote 23}

Indeed, the reliance upon foster care and its antecedents meant that the Foundling maintained itself as something of an anachronism: an institution operating under a professional ethos that had rejected institutionalization. Yet, as Julie Miller notes, while widows’ pensions and a robust system of adoption diminished the need for foundling homes, neither totally eradicated it. The New York Foundling stayed open because, as much as anything else, it was still needed. Some birth parents still abandoned babies. In addition, aspects of the Foundling Hospital helped to maintain the institution. First and foremost, it operated in a city that celebrated its commitment to sectarian care for dependent children. Second, the hospital benefited from a steady source of employees at a discount: novitiates and nuns belonging to the Sisters of Charity, and “reimbursed” not on the basis of their skilled labor, but on their position in their order. Indeed, viewed in retrospect, as an agent of social welfare provision, the magnitude and influence of women religious has yet to be fully appreciated.^{Footnote 24}

A steady increase of babies and other young children during the Great Depression challenged the Foundling, but it also brought the hospital greater recognition and support. In difficult times, stories of abandonment served as an evocative reminder of and metaphor for others whose fate was left to chance. News accounts accordingly emphasized the economic hardship of the caretaker, almost always a mother, and underscored the aspects of abandonment that bespoke her maternal affection. In typical fashion, one news story related that an abandoned baby found with “extra food and clothing” offered “eloquent evidence of the mother’s concern for her child,” and, the reporter concluded, it was “evident that the mother had planned abandonment of the child meticulously, that she did it reluctantly, that she made punctilious preparation for her baby’s comfort before she took him to the church.”^{Footnote 25} Poignant stories like these raised the profile of the Foundling and maintained its local reputation. During the war, soldiers on furlough in New York City for the Christmas holidays routinely dropped off gifts for the babies, and the social hosting services of the military (WACs and WAVES) put together fund-raising benefits and visits to the hospital.

While World War II represented the pinnacle of the Foundling’s public relations, the social dynamics of the war furnished the hospital with even more babies and, ultimately, ushered in the era of its decline. In 1943, the New York Foundling received seventy-five foundlings, its highest number since 1935.^{Footnote 26} That same year, as one newspaper reported, “showed an alarming rise” in the number of abandoned babies nationwide.^{Footnote 27} Despite the conformist silence maintained in the media, much of the public was aware, to varying degrees, that the drama of the war as well as its practical impositions loosened sexual mores, as more Americans—both soldier and civilian—moved about the country, often well outside the surveillance inherent in their former lives.^{Footnote 28} This meant more sex, and more sex meant more unwanted babies. One judge was more direct than most when he offered his own commentary of so-called “Victory Girls”: “Our emotions are becoming rampant because of the changed conditions in the world due to the war,” and, Judge Bullock added, the “moral restraints have been loosened and it is sad that there are many women and girls who seem to think that they’re being patriotic.”^{Footnote 29}

During this critical time, the Foundling took its direction from a charismatic and controversial figure: New York’s Roman Catholic leader, Francis Cardinal Spellman, elevated from archbishop in 1946. Publicly Spellman drew attention for his conservative views, including his denunciation of Eleanor Roosevelt and promotion of Senator Joseph McCarthy, and, within conversational circles in the New York he also attracted notice for the rumors of his homosexual liaisons. Yet the dramatic flourishes of Spellman’s life, public and private, deflect attention from his more mundane but equally noteworthy gifts as a “bureaucratic entrepreneur.”^{Footnote 30} No person did more to expand and justify the institutions of American Catholic life in the modern era than Spellman. And, if asked to name his favorite charity, Spellman would have pointed to the New York Foundling Hospital; in 1951, he authored a novel to dramatize the plight of foundlings and raise money for support of the hospital.^{Footnote 31}

To ensure the Foundling’s success, Spellman installed his close associate Monsignor John Reilly to run it. When Reilly arrived in 1946, he faced mounting debt at the Foundling and a building that failed to meet standards. He and Spellman responded by viewing the crisis as an opportunity, launching a concerted public appeal and outreach effort intended to raise funds for a new building.^{Footnote 32} Here Reilly and his mentor made a serious but understandable miscalculation: their response to the Foundling’s difficulties was guided by an understanding of it as a charity, not a highly specialized institution, hence their effort to save it focused on reviving its fund-raising.

Unfortunately for these men, such endeavors could energize support for the Foundling, but they could not divert the crises born from the growing complexity of its mission. With more babies and more responsibilities to the state, the Foundling Hospital showed signs of struggle. Personnel problems were recurrent and, in some cases, intractable. It was easy to detect the frustration of the authors of the 1953 annual report, who confided that the “high rate of labor turnover in the Housekeeping and Laundry Departments” was owing to the fact that the staff hired “were only the floater-type, insufficient and inefficient.”^{Footnote 33} While the Foundling had long presented itself as an attractive alternative to the state of New York because its labor force came at a discount, its pay scale became a source of contention in postwar years. In 1958, the administrators of the Catholic Child Caring Agencies of the Archdiocese formed a committee “to review and revise the present personnel practices, and salary scales so that our institutions would be better able to attract competent personnel.” This move was accompanied by an agreement between the Foundling and the Sisters of Charity, which came at the behest of the state: a formal document of compensation “to be paid to the Religious Community for the services of the Sisters who have been assigned full time to the institution.” As the report of this agreement clarified, the contract “verif[ied] for the Auditors of the Department of Welfare the legitimacy of the institution’s claim for funds.”^{Footnote 34} If the Sisters worked for less, state officials reasoned, then why should it reimburse the Foundling at the same rate as it did other institutions? In this way, New York forced the hand of the hospital, at times guiding, and at other times dictating, a formalization of its employment structure.

Financing personnel was not the only employment challenge facing the Foundling; the increasingly strenuous training and credentialing requirements of the state posed even greater problems. The entire Catholic network of institutionalized charities felt the effects of amendments to the Social Security Act passed throughout the 1950s, which stipulated greater regulation of care for beneficiaries housed in institutions and imposed more training requirements upon personnel.^{Footnote 35} The National Conference of Catholic Charities (NCCC), the bureaucratic steering office of diocesan charities that were, in aggregate, the nation’s largest network of private social provision (and remain so today), kept a watchful eye on all of these amendments. Already accustomed to individual state regulation of children’s institutions justified under the same logic—that is, that state support demanded state oversight—the charities varied in their reaction to the federal supervision of even more of its work that went into effect in 1953. Some dioceses welcomed the scrutiny, expressing approval of “any move for higher standards”; others denounced it—at the height of McCarthyism no less—as evidence of “socialistic tendencies”; and still other dioceses took a shrewd approach, like the monsignor who recommended that church officials curry favor with State Fire Marshals “so as to be able to participate in the requirements which they make.”^{Footnote 36} Most, including the NCCC hierarchy, worried along with one monsignor that training and qualification requirements might remain “out of the reach for our Catholic institutions,” despite the creation of and tremendous support given to schools of social work at Catholic universities across the United States.^{Footnote 37} By 1943, there were eight such schools operating in the United States, including the flagship efforts at Fordham and Catholic Universities.^{Footnote 38}

Yet the difficulty in acquiring properly credentialed professionals was particularly acute at the Foundling, especially since its staff was drawn largely from the Sisters of Charity, most of whom had reconciled themselves to a custodial model of care rather than a professional, social work approach. To facilitate the transition, mothers superior sent women religious to train in Catholic professional schools of social work. As students, the sisters betrayed a generally cooperative but highly guarded attitude toward their education. Shielded by the anonymity offered in a confidential interview, one nun attending Catholic University’s School of Work confessed that she “expected to find a Catholic viewpoint prevailing in all courses,” but such “was not evident.” Another confided a willingness to learn all that she could from “the pagan philosophy of social work.” Not surprisingly, even sympathetic faculty found the women religious hostile toward “case work concepts” and in agreement with their clerical brethren that social work was a “pseudo-profession.”^{Footnote 39}

While many Catholics were suspicious of professional social work, they were powerless to stop its advance. Administrators of the Foundling kept a close watch over changing guidelines; in 1959, they noted that new guidelines were “now imposing very rigid educational standards.” While grateful that, “[a]s yet our institutions are not affected by the new revision of the New York City code,” the hospital staff wisely guessed that “it may not be long before the State incorporates into its own regulations these new requirements.” The solution was to plan ahead, and further encourage the professionalization of Catholic social service with these requirements in mind. Women called to God might be surprised to learn of the very specific educational components entailed in their vocation—but, by 1960, toiling in the Lord’s vineyard meant laboring under a secular overseer.^{Footnote 40}

The Foundling’s move to a new hospital in 1958 brought the demands of their worldly taskmaster into sharp focus. The transfer was itself precipitated by the Board of Welfare’s decision to classify the old building as a fire hazard; with characteristic resiliency, Cardinal Spellman and Monsignor Reilly seized upon the crisis as an opportunity to modernize one of the Cardinal’s most prized charities. As they worked to raise money for a new building, planning went forward. Medical director Dr. Vignec informed the Sisters of Charity that a morgue would not be necessary in the new building, and so the Sisters could not conceal their frustration when Vignec later told them a morgue would be required in order receive accreditation from the American Hospital Association. Facing unanticipated demands, the Sisters’ questioned the “need for a medical unit in our program.” Spellman, initially supportive of a retaining such a unit, received a full press from the Sisters, who let his Eminence know that “[d]uring the five and half months we have occupied the new building, we have not needed to use the medical floor while the rest of the nurseries have been overcrowded and Catholic babies are on a waiting list, waiting for us to admit them.”^{Footnote 41} Days later the Foundling’s director fumed in a letter to Spellman: “We have found that, since moving into the new building, the Department of Welfare has practically regarded us as an agency owned by them and, therefore, when they are confronted with problems of placing children in other agencies or homes, they have been making very little effort and have been sending the children directly to us.”

As the sisters struggled to reconcile their sectarian commitment and customary operations with the obligations that accompanied public funding, they provided assurances to the Board of Welfare that, “in cases of true abandonment we would also care for Department of Welfare children.” But, as the discord over the new building suggested, they now felt the Foundling was left with babies that should have been sent elsewhere. The Sisters identified these as the large number of “Protestant Negro children,” abandoned and left to the Foundling, refused acceptance elsewhere, and unlikely to find a home in the hospital’s boarding-out network. Secondarily and almost as frequently, the Sisters expressed frustration over placing Puerto Rican babies as well.^{Footnote 42} As a charity built on the premise of placing white, European Catholic babies out to white, European Catholic families, the hospital found itself ill-suited to perform up to the task of placing these babies, yet doing so remained imperative if the hospital wished to maintain the support of the state of New York.

The problems encountered when attempting to place foundlings and orphans who were not white extended well beyond New York. In Chicago, officials estimated in 1954 that almost four thousand black children born out of wedlock each year would go homeless for want of placement in a foster home.^{Footnote 43} Like New York and other large cities, Chicago resorted to housing dependent children in detention facilities, a shameful fate that spurred several lawsuits.^{Footnote 44} The Foundling attempted to avoid stranding nonwhite children in institutional life, including its own hospital, by several means. First, the Hospital attempted an aggressive assimilation plan for Puerto Rican children in the early 1950s. Two years after proclaiming the program’s experimental phase a success, the Foundling joined “Adopt-A-Child,” an interfaith program designed to find foster and adoptive homes for African American and Puerto Rican children. Despite these efforts, officials at the Foundling and throughout the city estimated that over half of the children in long-term care were black, and the remainder was divided in roughly equal percentages between Puerto Rican and white children.

By the time the Foundling observed its one-hundredth anniversary in 1969, it faced critical decisions. As a new prelate, Cardinal Terence Cooke, celebrated mass to honor the institution, he recognized his predecessor’s contributions to keeping the Foundling a vital charity serving New York. But it did so on a new footing. After a century of operation, the institution was comprised of a home for dependent and neglected children (increasingly, children with special needs), a delivery unit for unwed mothers, a nursing school, and a foster care and adoption center. As the number of young white infants continued to decline, the Foundling confronted frustrated birth or adopted parents critical of the hospital’s placement decisions. Judge Lester Holtzman was unsparing of the New York Foundling in a 1969 opinion. Although he acknowledged that the Foundling operated under “stringent statutory requirements,” he nonetheless found the Foundling’s hasty placement decision in the case before him more typical of a “cold and heartless business.”^{Footnote 45} Finally, in 1970, a highly controversial case where the Foundling awarded custody of an abandoned child to a birth mother despite a history of abuse in the home, and, upon the baby’s return, the stepfather beat the child to death, led to a reorganization that entrusted placement decisions to the City’s Commissioner of Social Services.^{Footnote 46}

Errors in planning, combined with the difficulties and conflicts that arose from its mission, led the Foundling to jettison critical medical functions almost as soon as it came to its new home in 1958. Years later, when New York City took charge of placement in 1970, the Foundling closed most of its nurseries.^{Footnote 47} Although it continued to function as a charity that provided special help to poor, single mothers, the Foundling lost its original charge of caring for abandoned babies. The reasons for this were many—abandonment rates declined, for one—but the Foundling’s mission was hardly obsolete. As one of a dwindling number of foundling homes still in operation on the eve of World War II (the Catholic Church maintained forty-nine maternity hospitals and infant asylums in 1939), the New York Foundling Hospital survived the forces of Progressive politics and deinstitutionalization, only to be overcome in the end by the difficulty of placing a racially diverse set of babies and the more rigorous demands placed upon it by the state. The final blow to the Foundling came with the Wilder v. Sugarman suit filed by the American Civil Liberties Union on behalf of Shirley Wilder in 1974.^{Footnote 48} Wilder was one of thousands of African American children who had been subjected to horrifying conditions in state detention and delinquent facilities because sectarian institutions claimed to be unable to board her. As the lawsuit gained traction in the legal system in the 1970s, foster-care advocates used it as a cudgel to advance publicly managed foster care in New York City, ending sectarian dominance over the lives of dependent children once and for all.

Like any institution confronted with choices and limited resources, the Catholic hierarchy chose to meet demands for increased professionalization of women religious principally in those fields that continued to function for the benefit of their co-religionists, like parochial education or hospitals, both of which flourished during this time period.^{Footnote 49} As distress, especially distress that remained outside the reach of public social provision, became less and less a defining feature of Catholic life in America, the church became less able and less invested in ministering to those who endured it, leaving that work largely in the hands of lay Catholic women and outside of specialized institutions.

At the same time as the Foundling faced these challenges, state legal codes dealing with abandonment were clarified and strengthened. This development did not take place with reference to struggling institutions like the Foundling, nor did it seem to be a self-aware movement of any kind. Harsher criminal penalties attached to abandonment were not a part of any openly professed project of social control of women, though this result was hard to ignore. Nor did the pronounced exultation of childbearing, so important to the construction of postwar female domesticity and pro-natal policies, culminate in the changes to abandonment statutes—though, again, these cultural imprints are easy enough to discern, as news coverage once sympathetic to the distress of caretakers was now almost always written from the invented and projected perspective of the foundling.^{Footnote 50} “Where’s My Mommy?” one headline asked readers to ponder, and followed with the additional news that a “dragnet” had been launched to find the child’s birth mother.^{Footnote 51}

These cultural dynamics structured and legitimized, but did not launch, the move to arrest women who abandoned babies. Instead, the criminal approach to abandonment was the result of state legislatures that reinvigorated abandonment statutes in response to two identifiable pressures: the incredible postwar demand for adoption, and the “discovery” of deserting fathers who fled jurisdiction. Because abandonment and desertion shared a place in most legal codes, changes to one led to changes in the other. And because an abandonment charge was the quickest and surest way to remove parent custody rights, social workers resorted to the charge in order to deliver more babies up for adoption. To ease their ability to do so, state legislatures clarified the abandonment statute, often declaring a time interval during which a parent must demonstrate support; if he or she could not, the child would be considered abandoned.

The statutory language that legislatures revised dated back to Reconstruction-era legal codes. The various modes of abandonment identified in the original law suggest a regular and diverse experience with exposure. For example, Massachusetts left no form of abandonment unaddressed: separate sections existed for punishing abandonment with the intent to indenture a child, abandonment, aiding or abetting abandonment, awarding the state Board of Welfare custody, and procedures for turning the infant over to the Tewksberry State Hospital (originally the Tewksberry Almshouse).^{Footnote 52} In general, legal codes formed and amended from Reconstruction through the Progressive Era suggest that older forms of abandonment—giving children up under a contract of labor, for instance—had an established place as the country developed into an industrial titan. Though a criminal misdemeanor, abandonment charges were rarely pressed; according to one scholar who examined the Foundling Hospital during World War II, this was especially true in New York, where the Sisters of Charity stood ready to receive abandoned babies.^{Footnote 53}

Yet it was during that very time that state legislatures began to revisit their prohibitions against abandonment. In 1939, Pennsylvania increased the criminal penalties of abandonment. Illinois, which had already held abandonment a felony, meted out stronger punishment for it (1949). Texas found that destitute or mistreated children could be turned over to the state for custody in 1948, and a pocket note elaborated on its abandonment statute (43-2330). In strengthening desertion statutes, Connecticut is instructive in both nature and timing. The state made changes to its code in 1949, and the revised language made it clear that desertion was punishable no matter where the perpetrator of it resided.^{Footnote 54} Connecticut’s example is also instructive in that the state decided to strengthen its abandonment statute at the very same time, increasing the criminal penalties sought in the case of abandonment.^{Footnote 55}

As states reworked their legal codes, Congress routinely heard proposals to make male breadwinner desertion a federal offense if the father in question crossed state lines. These ideas caught the attention of officials at the federal Children’s Bureau, an office that kept close watch over desertion legislation as well as the unfolding statutory transformation in the states.^{Footnote 56} Located in the Federal Security Agency, soon to be rechristened the Department of Health, Education, and Welfare (HEW), the largely female workforce (or “female dominion”) of the bureau might have been expected to cheer on the forces attempting to impose greater penalties for desertion and serve as a rallying point for their cause. Struggling foundling homes and charities might have also anticipated finding a stalwart ally in the bureau, and they may well have hoped that this federal office would devote itself to fending off the demands of state inspectors.^{Footnote 57}

But such was not the case. Bureau officials cast a skeptical eye on both federal penalties for male breadwinner desertion and the world of sectarian institutions, viewing both as unwelcome competitors to their desired solution for all forms of family crisis: state social workers, the bureau’s principal constituency. As historian Regina Kunzel points out, the professional ethos of midcentury social work entailed certain political commitments. Not only were professional social workers aligned against institutional (or congregate) care, they were reliable critics of sectarian efforts.^{Footnote 58} This hostility was more than reciprocated by the NCCC. Representatives of Catholic Charities voiced criticism over what they saw as excessive regulation by the bureau, and pointed out—not without cause—that public institutions for detention and delinquency went without such rigorous oversight.

In a tense rivalry, individual state statutory punishment for desertion or abandonment represented one welcome point of agreement between the Bureau and the NCCC. Undoubtedly this was in part because of the effectiveness of these charges in surrendering more children for adoption. One secretary of a “Committee on Unmarried Parenthood” in St. Louis, Missouri, stressed the desirability of this move when she requested that the Bureau share information on precisely what constituted abandonment in other states, including whether such definitions covered “a parent who leaves child in an institution or with an agency without relinquishment and refuses to give it, though shows clearly that they have no interest in the child.” While she conceded that “they may telephone or see child at infrequent intervals,” the secretary and her fellow volunteers believed “that many a child’s life has been ruined by such parents.” As a result, she wondered if “any of the states defined abandonment in such cases?”^{Footnote 59} While the bureau had no compilation of state laws, the office’s response pointed out what the secretary surely already knew—that is, that “the provisions in State laws which provide that consent to adoption of a child may be dispensed with in certain cases of abandonment or desertion.” Invoking the common refrain of much of its correspondence, the Bureau admonished the women in St. Louis not to “minimize the importance of the case work aspects.”^{Footnote 60}

Casework, the bureau hoped, would mitigate the potential for contested custodial awards. Officials of the agency feared that using abandonment findings too cavalierly would introduce “the danger that the natural parents may refute the declaration of abandonment by substantial evidence.” Like others invested in at least some notion of parental safeguards, the bureau “believe[d] that termination of parental rights for abandonment, as well as for other reasons, and the granting of an adoption decree should be separate proceedings.”^{Footnote 61} This was a source of tension for some advocates, who pointed to cases where courts found “abandonment,” but a parent or parents still refused consent in adoption. In the words of one legal scholar writing in 1951, the “old abandonment doctrines often frustrate the desirable objectives of adoption statutes.”^{Footnote 62} The reason: “willful” intent to abandon represented a high bar, and one that was distinct from the extent and quality of care furnished to a child. As he also pointed out, courts erred on the side of parental rights, in part because these were well ingrained in jurisprudence, whereas adoption had no place at common law and was thus solely a function of statutes. In response, he urged state legislatures to adopt “a short statute of limitations.” This so-called “conclusive presumption” soon became commonplace in abandonment codes, as did the specification of the time which would have to elapse before such presumption could be made.

Legal journals began to take note of this statutory change. One author noted that “in proceedings which no personal jurisdiction was obtained of a non-consenting parent,” courts went ahead with adoption because of a finding that “the non-consenting parent had abandoned the child.”^{Footnote 63} More revealing was a journal article authored by Helen Simpson: “The Unfit Parent: Conditions Under Which a Child May be Adopted Without the Consent of His Parent.”^{Footnote 64} Published in 1962, the article evaluated over a decade of reform. As Simpson observed in her opening, “very few states have failed to revise thoroughly their statutes [on abandonment and desertion] in recent years.”^{Footnote 65} She then identified the impulse guiding these changes: “revisions have generally strengthened the nonconsensual provisions of the adoption statutes, especially in defining abandonment so that more of these unfortunate children may be released for adoption.”^{Footnote 66} Across the country, courts enhanced their ability to expeditiously dispense with parental rights so as to move more quickly towards adoption proceedings.^{Footnote 67} In fact, many states added an entirely new section to their code—so-called “termination of parental rights” statutes—that referred to abandonment and desertion as among the findings that would end parental rights to a child.^{Footnote 68}

This reliance upon criminal law coincided with the move away from congregate or institutional care for foundlings. To be sure, this development was a long time in the making, and for the Children’s Bureau it could not come quickly enough. By 1958, the Children’s Bureau noted with satisfaction that congregate care for foundlings had “been largely eliminated.”^{Footnote 69} In the eyes of agency officials, the reasons for this were clear. Expanded use of the Aid to Dependent Children (changed in 1960 to Aid to Families with Dependent Children) meant that single mothers who had once abandoned babies for reasons of poverty no longer needed to do so.^{Footnote 70}

Significantly, however, ADC became an instrument by which the government enforced criminal punishment for abandonment. Title IV Amendments to the Social Security Act in 1952 required prompt notification of police in ADC cases involving either desertion or abandonment. This change came as a result of a suggested amendment from the Bureau of Public Assistance, the FSA office in charge of implementing ADC, to expand the program to include any family whose children needed assistance, and not just households headed by a single mother. Skeptical senators questioned Jane Hoey, director of the bureau: would not assistance to families with a father present expand the program into a general welfare program, or even a competing source of unemployment compensation? Hoey responded that, confined to single mothers, the program unwittingly incentivized the breakup of family homes, as some impoverished households saw more financial gain if a father left. Conservatives compelled to agree, like Senate Finance Chair Walter George, rectified the problem by ordering law enforcement notification in cases of desertion—and, as was typical, abandonment followed in the statutory change.^{Footnote 71} Rather than contemplate an extension of ADC to households including a father and a more general form of welfare, political leaders instead invested the resources of the state into selective criminal enforcement designed to reinforce traditional male breadwinner and female caregiver roles.^{Footnote 72}

While certain behavioral guidelines had always accompanied the program, the move to monitor ADC mothers more closely using criminal law gave the program a distinctive policing character, including enhanced surveillance and enforcement powers of the state. Yet the Catholic Charities failed to apprehend fully the significance of this reliance upon criminal law, perhaps because Monsignor O’Grady remained critical of ADC, which he and others at the NCCC considered a threat to the Catholic world of adoption and foster care by enabling a single mother or her immediate kin to care for a child rather than surrendering that child to an institution. Discouraged but resolute in his censure of the program, O’Grady expressed his fear in 1956 that a “greatly expanded ADC program gradually involving more and more foster care” would lead to Catholic Charities being “wiped out within a generation.”^{Footnote 73} Many of O’Grady’s successors during the Kennedy era would support the expansion of ADC, and heartily participate in the attempt to rehabilitate the program’s public image, so it would be wrong to assume that O’Grady’s hostility represented a uniform Catholic view. It would be just as wrong, however, to fail to connect O’Grady’s hostility toward ADC to the institutional world of charities he was attempting to defend and sustain—charities that did not demand the same resources or loyalty from his successors—even if his defense of these institutions was as parochial (in both senses) as his condemnation of unwed mothers.

Despite the expanded and increasingly controversial use of ADC throughout the 1950s, birth parents still abandoned babies, and after the closing of foundling homes they did so at the risk of criminal prosecution no matter how or why they did so. One jury found itself deadlocked when considering abandonment charges against a mother in 1968; though the mother certainly violated the statute as written, when she took to the stand to tell of the reasons why she left her two-year-old son in K-Mart, ten of the twelve jurors found that they could not convict.^{Footnote 74} Like some other birth parents, she was apprehended for her crime not because of her indifference, but for her lingering sentimental attachment. Returning to the store months after the abandonment, she was arrested by police after asking questions about the fate of her son. Similarly, in 1959 and again in 1963, birth parents were arrested for abandonment after police found newspaper articles concerning the foundling in their possession; in the former case, police happened upon the clippings as they searched the birth parents for evidence in other crimes.^{Footnote 75} In both instances the birth parents left their babies in or at the door of a church—a method of exposure intended, in years past, to deliver the baby to a safe haven, but now one that was subject to criminal prosecution.

Other arrests for abandonment underscored the racial dimension to the criminal prosecution of birth mothers, especially in episodes that involved a mother leaving children at home alone for extended periods of time. In New York and Chicago, two African American mothers who left young children behind at home to search for food and money from relatives in one case and to plead her case to the welfare authorities in another were arrested. The case was dropped in New York, when it was found that welfare authorities inappropriately dropped the mother from ADC, while the mother in Chicago served five days in prison.^{Footnote 76}

Nothing about the persistence of abandonment is surprising. As historian John Boswell argues, the reasons for abandonment are many; poverty is but one. Irresponsibility, derangement, and callousness certainly explain a fair share of abandonment cases, and the inability to accept a parenting role—owing to incest, or specific contexts where an illegitimate child is untenable to the mother—surely explains even more. Because these motivations remained as concrete and convincing as ever, parents continued to abandon babies throughout the postwar era, as they sometimes do today. Infants who die for want of a safe haven appear in headlines regularly.^{Footnote 77} If the criminal punishment of abandonment was designed to steer cases of distress into the hands of the courts and the preferred “solution” of social workers, then the system has failed the foundlings most in need of protection. In some states, tragic cases of exposure led to a wave of “safe place” sanctions in the 1990s: a caregiver could leave a child in a designated place (often a fire station or hospital) in order to escape criminal charges for abandonment.^{Footnote 78} Hence, two decades after the Foundling closed its doors to abandoned babies, many lawmakers came to the conclusion that, in cases of distress, criminal codes could punish and perhaps deter certain kinds of behavior, but they could not banish it, nor could penalties alone ensure the safety of the innocent most in need of protection.

Some developments deserve to be placed in conversation with each other, even when they are not in direct dialogue. Closing orphanages led to new laws against truancy; Ronald Reagan’s move to deinstitutionalize the mentally ill, a project initiated years earlier by John F. Kennedy, effectively added tens of thousands to the nation’s homeless population, and some nontrivial number of these men and women are regularly reinstitutionalized through arrest for vagrancy.^{Footnote 79} As these various institutions were “abandoned,” and different aspects of their operation were renegotiated in different venues, it is important to acknowledge that the closing of orphanages, foundling homes, and homes for the mentally ill all represented projects of liberation, whether viewed through the eyes of proponents who argued for the change, the experience of institutional charges and clients, or by any reasonable normative standard.

The particularities of the American renegotiation of these various institutions deserve further comment, however. Private institutions of distress did not fully or functionally migrate to public institutions or social provision; much of their charge became the province of criminal law. In other Western countries, the pivot away from sectarian institutions enhanced a robust public social welfare network embedded in a strong central state. But Americans invested much of the functional responsibilities of private charity in the courts. The celebration of private charity and the enduring significance of its provision notwithstanding, benevolent institutions were no longer seen as the principal response to a situation of distress. The dissipating need for their work, as well as their inability to extend their services beyond traditional racial boundaries, all factored in their demise. So too did the regulatory burden imposed by the state. And, without minimizing their importance, the nation’s network of social workers cannot be viewed as an alternative distinct from the criminalization of distress; it is rather more accurate to say that social work complements and often arises from the functional transfer of “distress” to criminal law.

The consequences of this shift were many, and many of these were welcome. Yet, asylums and almshouses, orphanages and foundling homes, all scandalized by notorious behavior—and condemned even when operating appropriately, but with callous indifference—nevertheless also functioned so as to remove personal tragedies from the public domain, and hence from public deliberation. “A major benefit of the foundling-home system,” as Boswell observes, “was that the problem of unwanted children was removed from the streets and the view of ordinary citizens.”^{Footnote 80} The displacement of private charity exposed its would-be clients to a more public form of distress, narrowed their options, and subjected them to new forms of criminal regulation. This shift can be presented and appreciated in a variety of frames; here, I have presented it as a story of state.^{Footnote 81}

Similar frameworks assessing the law’s functional role have a more established place in historiography of the nineteenth-century United States. In that literature, the law has been presented variously as the preserver of the “well-ordered community,”^{Footnote 82} a site to function in lieu of a national administrative apparatus,^{Footnote 83} or a tool to propitiate capital.^{Footnote 84} More recently, the expansive function of courts during the Progressive Era has received attention from social welfare scholars and political historians. In their telling, the courts served as a focus for a host of activities that included punishment, surveillance of poor and mostly immigrant families, and dispensation to those found deserving in the eyes of social workers. This tightly woven set of state interventions tied to and anchored by the courts may well find ready analogy to the continuing work of juvenile courts and the more recent invention of “drug courts,” but the revival of court-centered welfare does not fully encompass or account for the shift in law examined here.

Instead, the foundling story underscores the necessity of studying criminal law development in the twentieth century; as Douglas Husak notes, “the absence of a viable account of criminalization constitutes the single, glaring failure of penal theory as it has developed on both sides of the Atlantic.”^{Footnote 85} Sociologist John D. Skretny agrees, noting the neglect of criminal law in a review of scholarship that surveys how the law has been analyzed in American political development. Those who do attempt to examine what some scholars have dubbed “overcriminalization” have tended to stress the particular advantages of relying on criminal law from the perspective of the courts or the prosecutors. Yet, as Daniel Richman points out, many external incentives drive the expansion of criminal law, including, as we have seen, the failure to transfer private benevolent charity into instruments of a welfare state.^{Footnote 86}

This pronounced and distinctive preference for punishment in modern America has garnered attention from sociologists and others who search for “external” explanations for it. James Q. Whitman, foremost among them, has stressed the “cultural roots of harsh criminal punishment” in the United States, arguing that the American embrace of degrading punishment, including its severity, cannot be explained without reference to nineteenth-century moves to reform punishment regimes in both continental Europe and the United States.^{Footnote 87} In the case of the former, advocates insisted that republican norms of equality dictated that all suspects and criminals be accorded “high status” treatment and punishment—that is, that the treatment once reserved for aristocrats charged with and convicted of crimes be generalized to all citizens. In contrast, American reformers “moved strongly to abolish high status treatment,” interpreting equality as the eradication of distinctions that rested upon status, and subjecting all to the “harsh punishment” that was characteristic of the United States, including that which was inflicted upon slaves.^{Footnote 88}

Whitman’s account is framed as an explanation for the character of punishment, and not the reliance upon the criminal law as such. Yet despite his injunctions that the history of slavery must be “carefully traced and carefully weighed,” his narrative fails to do so—leaving important questions regarding the nature and extent of punishment and enforcement power unanswered. Nor does his account deal with the law’s most enduring status distinction—gender—an oversight that complicates his arguments regarding American egalitarianism in unexpected ways. Women convicted of crimes were often imprisoned in institutions designed precisely to diminish the “harshness” of incarceration.^{Footnote 89} Similarly problematic is Whitman’s contention that the antistatist strains of American political culture, so prevalent and enduring, rendered the criminal justice apparatus susceptible to the feverish campaigns of various populist movements and the politicians quick to appease them.^{Footnote 90} As has been argued elsewhere, the United States is not so much a weak state as much as it is an uneven one, with some components of state power quite strong, and others decidedly not.^{Footnote 91} This very unevenness produces distinctive results; critically, in the recent past, some of the stories that eventuate in a legal dominion or “overcriminalization” embark from a particular reservoir of state strength, whether these are regulatory regimes or liability law.^{Footnote 92}

However one accounts for it, criminal law and enforcement are undeniably important functional features of the modern American state. While students of American political development have neglected its significance, other scholars writing in that vein have recently drawn attention to the expansion of “standing” in tort law and the political incentives designed to encourage “private enforcement,” or lawsuits, permitted by different regulations enacted by Congress or another legislative body.^{Footnote 93} These various appraisals of the law are mixed in terms of their normative views and vary in their scope and historical depth. Yet all seek to examine the recent past with a structural eye and functional inquiry—that is, with attention to the “how” question—foregrounding proximate causes and immediate contests of power, while attending to variation and unintended consequences. This analytic, familiar to all students of American political development, allows the changing investments in and instrumentalities of the law to emerge. Using this register, analytical priorities shift as well, embracing not only reformulations of the law as written, but also changing penalty regimes, moves toward legal codification and uniformity, and procedural changes, such as shifts in the purview and structure of courts, as well as patterns of enforcement.

We have every reason to apply this developmental and institutional frame to criminal law, especially given its dialectical and constitutive relation to the traditional categories of disempowerment—class, race, and gender. In democratic regimes, universality is one important component of the law’s legitimacy. Yet juridical “blindness” is both contingent and conditioned, and theories anchored in the modality, outcomes, or intent of the law leave us ill-equipped to deal with systematic discrepancies unless one is willing to declare all such discrepancies as either totally unintended or structurally determined.

Neither view would explain adequately the situation facing birth mothers who abandoned babies in postwar America and confronted a criminal regime and institutional options shaped by forces more diverse than simply the desire to punish them.^{Footnote 94} In this way, the functional analytic of American political development not only produces a narrative that captures shifts from institution to the law, it augments and further clarifies the scholarship devoted to the state and single mothers, which has been thus far largely focused on social provision and welfare. By separating intent from outcome, the fate of women who endure new forms of criminal regulation can be seen as one dimension to patriarchal power, even if that power manifests most frequently as indifference. There is also a similarity between pressing for historical inquiry to stretch beyond the celebrated legislative agendas of the state in the field of politics, and to encompass more than the obvious and self-aware victims of and crusaders against patriarchy in the field of women’s history. Neither claim would trouble practitioners in their respective fields; their combination, however, has not been fully leveraged, especially in instances when criminal regulation resulted from a chain of causality more complicated or coincidental than the regulation of female sexuality.

Historical attention to these very instances produces a history that has application and relevance beyond the lives of women; it provides insight into the fundamental operations of state. Situations of distress like abandonment are not just the measure between the idyll and the practice. In more historical terms, distress is not simply a marker of the distance between a particular moral code and an array of recurrent or even repugnant set of behaviors. Distress and the response to it are historical expressions; not a wreckage of despair surveyed only by the “angel of history,” but, on the contrary, a vital revelation.^{Footnote 95} The prominent and thoroughly discussed problems of a society say much, but its negotiation of unwanted problems says more. Unanticipated and, in the eyes of many, unimportant, situations of distress unveil techniques at the core of the social apparatus, that which is most common and essential. If we accept the special purchase of “distress” and the larger range of disorder studies of which it is a part, then we have every reason to attach greater priority to the historical experience and status of women who endure hardship. Though their burdens may never be properly weighed, nor their own responsibilities (including culpability) fully explained or understood, their struggles open up a neglected chapter in the story of the state. While it might be pleasant to think that vulnerability and despair elicit compassion, in point of fact they meet with abrupt responses improvised from the tools at hand.