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Legally Speaking


Issue: February, 2009
Author: Dona Playton

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Incarceration and the Sentences for the Children Left Behind

In a society focused on meting out punishment, it is no surprise that the prison population has grown dramatically. Today, mothers are the fastest growing segment of the U.S. prison population. The majority of women inmates are incarcerated for non-violent crimes such as prostitution, fraud or drug offenses. Many were caught up in criminal behavior as a result of being in an abusive relationship. “Indeed, female convicts across the board report alarming rates of abuse: in 1999, the federal government found that close to sixty percent of all women in state prisons nationwide suffered abusive histories.”

The incarceration of women uniquely impacts families and communities because women are often the primary caregivers of children. “This change in the U.S. prison population has taken place with little to no understanding of the long-term effects on these women's ability to function as a parent, or the consequences for their children.” Three times the number of women have been put behind bars in the last ten years, over 75 percent of whom have minor children. “Yet when a mother is arrested, there is no specific public policy nor routine process to coordinate what happens to the children, even immediately after childbirth.”

Understanding how the sentencing of an adult impacts a child’s future is not readily contemplated. However, the reality is that the lives of millions of children have been impacted by the incarceration of one or both of their parents. About three quarters of all female prisoners and two thirds of all male prisoners are parents with an average of 2.4 and 2.0 children each, respectively. The nation’s prisons held approximately 744,200 fathers and 65,600 mothers at midyear 2007. “Parents held in the nation’s prisons—52% of state inmates and 63% of federal inmates—reported having an estimated 1,706,600 minor children, accounting for 2.3% of the U.S. resident population under age 18.” Among mothers, 48 percent were white, 28 percent were black, and 17 percent were Hispanic. A significant but unknown proportion of the children of incarcerated mothers also have an incarcerated father.

Just what happens to the children when their parent or parents are incarcerated depends. “During their parent’s incarceration, 90 percent of children with a father in prison live with their mother, whereas almost 80 percent of children with an incarcerated mother live with a grandparent (53 percent) or other relative (26 percent).” Ten percent of children with mothers in prison are sent to foster homes. Though the majority of children with a mom in prison live with grandparents, when a grandparent is forced to take on the role of parent to young children, the nature of the grandparent-grandchild relationship is forever changed.

In addition and unfortunately, for many grandparents and other extended family members, the resources that are available to foster parents are not available to them. This is an extremely important distinction because children who have a parent in prison face many challenges and most would benefit from the type of social services available to children in foster care. Risk factors such as parental mental illness, parental substance abuse, family violence and poverty were present in many children’s homes and lives prior to their parents’ incarceration. Some characteristics that distinguish children of incarcerated parents from their peers include inadequate quality of care, mainly due to poverty; lack of family support; and enduring childhood trauma. The need for support is even greater for children with special needs. “Nationwide, of those children being cared for by relatives in 1999, only about a quarter received financial support in the form of either foster care or TANF payments.” While most grandparents are not willing to place their grandchildren in state custody so that the children can benefit from a monthly stipend, many have no choice.

For children in non-relative foster care, the Adoption and Safe Families Act of 1997 will no doubt cut ties of children to their parents in prison, as it allows courts to terminate parental rights if a child is in foster care for 15 months out of any 22-month period. While the law requires the state to make reasonable efforts to reunite parents with their abused or neglected children, many consider a long prison sentence for a parent a reason not to engage in reunification efforts. And for those parents fighting not to have their rights terminated, visitation and contact with their children is not only critical but almost impossible. In addition to lowering the likelihood of recidivism among incarcerated parents, there is evidence that maintaining contact with one’s incarcerated parent improves a child’s emotional response to the incarceration and supports parent-child attachment. However, “prisoners face tremendous obstacles to maintaining relationships with children in foster care—and with the social workers who act as gatekeepers to those children.” Add to this the rural, often isolated, location of the prison, unannounced transfers of prisoners, limited telephone access and short court notices for hearings, and it is no wonder only about 13 percent of prisoners’ children in long-term foster care visit their mothers, and fewer than five percent visit incarcerated fathers.

For those parents denied access to their children or who are facing the likely reality of having their rights terminated, the mood is nothing short of despair. Most don’t understand the significance of the legal documents they receive and most receive no timely legal advice explaining the nature of the proceedings and the finality of the consequences. For those who manage to get out of prison with some parental rights intact, the process of reunifying with their children in the state’s custody is daunting. Many need assistance and legal advice to know what resources, if any, are available to them. Having a felony limits the prospects of welfare benefits, housing, education and job opportunities. If a child support order was entered before or while the parent was in prison, the arrears can be overwhelming. Many prisoners reentering society can benefit greatly from legal advice before, during and after incarceration. Waiting until the gates open and they are released may be too late. On the other hand, contemplating the restorative needs of prisoners and their children prior to release can be a powerful force for personal and community recovery. Unfortunately, most states lack the funding stream and pro bono services necessary to provide civil legal assistance to low income people, and some legal services providers are actually prohibited from representing prisoners.

While terminating the rights of some parents in prison to their children is appropriate, proceeding to do so should not occur without serious consideration of the impacts on the children. It is imperative that comprehensive policies be created coordinating efforts of social services, legal services providers, child advocates, counsel for parents, schools and the judiciary. Programs that focus on substance abuse and alternatives to incarceration for nonviolent offenders have shown promise and financial savings in states that have implemented them. A policy that provides for screening of criminal justice-involved parents and resources to preserve family relationships and make informed decisions about the care and custody of children is a step in the right direction. Paying more attention to the plight of children whose parents are incarcerated will shed light on effective ways the state can increase its investment in programs to improve the outcomes for these offenders and their children.

Dona Playton is the Director of the University of Wyoming Domestic Violence Legal Assistance Project.

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