Decarcerating America

by Ernest Drucker

  Family Impact Statements Prior to Sentencing

  Advocates have been working toward establishing family impact statements that take into account the impact on children and family of various sentencing options. (In New York, in order not to confuse these with victim impact statements, they are called family responsibility statements.)

  Some jurisdictions (and the federal courts) have made an effort to formally gather and consider information about the defendant’s familial role and responsibilities prior to sentencing and to consider the impact on children of sentencing decisions.34 Questions typically include whether a parent is the primary caregiver, the extent of the parent’s involvement in the child’s life and home, and the level of financial and emotional support provided; these aid in determining the degree to which the well-being of minor children is dependent on the parent’s continued presence in the home. Oklahoma has a statute that requires judges to ask if the sentenced individual is a single custodial parent and to inquire about child care arrangements. While this post-sentencing inquiry is not a family impact statement, it does require the courts to ensure that the child of a single custodial parent who is sentenced to incarceration has an adequate care plan.35

  While the acknowledgment of parenthood status in an impact statement does not automatically lead to an alternative to incarceration, it may lead the court and prosecutor to consider a sentence that does not punish the children. If those making decisions about options for responding to criminal convictions (including discharge, treatment, fines, or community-based alternatives to jail and prison) consider the defendant’s role in the lives of those who depend on him or her, judges, prosecutors, and probation departments might question whether incarceration is the best way to hold the defendant accountable for his or her actions.

  There are several high-profile precedents for considering a parent’s role, responsibilities, and importance to children in sentencing decisions. One such example is the conviction of Andrew and Lea Fastow:

  When Andrew Fastow and his wife Lea were both charged in connection with the Enron scandal, they and their lawyers made their children’s needs central to plea negotiations. The result was staggered sentences, so that the children would not be left parentless. Rather than being decried as special treatment, similar consideration should routinely be extended to children of lawbreakers whose collars are other than white.36

  In 2013, former congressman Jesse Jackson Jr. and his wife were accorded sentences to be served at different times. As reported in the New York Times, “The judge granted a request from the couple, who have two children, ages 9 and 13, that they be allowed to serve their sentences one at a time.”37 A more recent example is that of the high-profile couple from The Real Housewives of New Jersey, Teresa Giudice and her husband, Joe Giudice. The nation watched and seemed to support that the couple was being sentenced to prison consecutively, so that one of the parents would remain with the children at all times.

  In each of these cases, the defendants were wealthy or famous. Does this suggest that rich and famous parents are needed by their children, but poor parents are not?

  Proximity and Visiting

  Even if a parent is sent to prison despite the fact that the child would fare better with that parent remaining at home or in the community, the relationship can be maintained if it is acknowledged and respected by the corrections department. A child’s right to speak with, see, and touch his or her parent is dependent on access to jails or prisons. Access is abridged in county jails (located in the county of arrest, which is often the county where the children and family reside) due to a lack of visiting hours, a requirement that visits involve no physical contact, and few if any provisions for children. If a parent is sentenced to prison (for sentences that are more than one year), distance is almost always a barrier. Prisons are largely located in distant, rural areas, constructed to provide jobs for the people who live nearby. The sites are typically more than a hundred miles from the cities where most families live, and a fair distance from public transportation. Unfortunately, in most states, proximity to children and family is still not considered in correctional prison assignment and transfer policies. This is discussed further below.

  Improving Communication Between Incarcerated Parents and Their Children

  A recent analysis of the 2011–12 National Survey of Children’s Health data suggests that the trauma and stigma experienced by children of incarcerated parents can be reduced in part by improving communication between the child and the incarcerated parent and by making visits with incarcerated parents more child-friendly.38 Maintaining these connections from behind bars has been shown not only to be beneficial to the well-being of children but also to be one of the most crucial factors in success for parents returning to the community.39 A large 2011 study of the effects of visiting on people in Minnesota prisons demonstrated that visiting has a statistically significant effect on recidivism.40 The report stated that visiting “can sustain or broaden [incarcerated parents’] networks of support,” which was important to lowering recidivism; even one visit lowered the likelihood that an individual would commit future felonies or violate the conditions of their release (by 13 and 25 percent, respectively).41 Yet virtually all prison assignments ignore the location of children and families. Security levels, program availability, and medical or mental health needs are all part of the algorithm in determining which prison is assigned, even if it is farthest from the children. In fact, little information about the prisoner’s status as a parent is even collected in most jurisdictions.

  Visits are hard to navigate, are expensive, and may involve long waits, invasive searches, rude prison staff, crowded visiting rooms, and difficult conversations. And yet most people who are able to visit find it more satisfying than the alternative of not visiting. For those who cannot afford the high costs, the effects are dire. In the Ella Baker Center report Who Pays?, the authors illustrate how incarceration “damages familial relationships and stability by separating people from their support systems, disrupting continuity of families, and causing lifelong health impacts that impede families from thriving.”42 The report goes on to say:

  The high cost of maintaining contact with incarcerated family members led more than one in three families (34%) into debt to pay for phone calls and visits alone. Family members who were not able to talk or visit with their loved ones regularly were much more likely to report experiencing negative health impacts related to a family member’s incarceration.43

  If prisons continue to be in remote areas, there must be accommodation to reduce costs and increase access for families. This would begin with a fundamental acceptance that in the vast majority of cases it is beneficial to the child to be able “to speak with, see, and touch” his or her parent. The denial of contact is harmful to children and does nothing to make prisons safer or saner (and actually makes them less safe and less sane), nor does it make incarcerated people better prepared to return to the community.

  In some correctional facilities, email and video visiting are available, though video visiting sometimes requires traveling to the jail or to another site. Video visiting can increase parent-child contact when offered as a supplement to in-person visiting, but in many jails in particular, it is being used to replace face-to-face visits. In some cases, the technology companies require jails to sign a contract agreeing to eliminate face-to-face visits when they sign up for the video technology. Washington, D.C., eliminated in-person visits in their jails for men, until a lawsuit eventually mandated the restoration of face-to-face visits. In 2015, the Texas state legislature passed HB 549, ensuring that incarcerated people receive a minimum of two 20-minute in-person, face-to-face visits per week at Texas’s county jails. Sadly, these visits are non-contact, and this is very little time, especially for a child to visit a parent. Unfortunately, there is also a grandfather clause that excludes jails where creating the infrastructure for in-person visits (such as for jails recently constructed without visiting room capacity)
would impose a financial “burden.”

  Many of the methods used to increase communication (phone calls and video visiting, for example) are part of the ever-expanding “private prison” business that drives enormous profits—not only to those who operate private prisons and detention centers, but also to a wide range of companies that sell their products to law enforcement agencies, from police to parole. This is true for video visiting, where in addition to the business deals, families are often charged for video visits. Private prisons, commissaries, and phone calls have always generated profits for the private sector, but now there are security cameras, debit release cards, electronic bracelets, electronic reporting systems, tablets designed for jails, and all manner of goods and services that feed off the punishment paradigm, during and after incarceration. And the companies that profit directly by operating prisons have assured their shareholders that despite the “bipartisan” rhetoric about criminal justice reform, they are looking to a strong economic future and little danger of reduced contracts or profits.

  Despite the profit, convenience (for correctional staff), and technology-as-new-toy draws toward video visiting, we need only to go to a visiting room or speak with children to understand how in-person, face-to-face contact visits in a child-friendly environment are critically important. With the exception of those who are very young, children want to decide whether, when, and how often they visit their parents. This is true regardless of the crime for which a parent was convicted, or the length of sentence—or even if the child didn’t know the parent prior to incarceration. As Emani Davis pointed out, “Many people think we’re doing a service to children, when a parent is doing life, in having them sever contact. But as children, we understand who we are as human beings by understanding who our parents are.”44

  Through visits, children can learn to appreciate that their parents have both strengths and deficiencies, like all parents. Cecily Carr, whose father was incarcerated for more than twenty years, including most of her childhood, mentions this in the many trainings she facilitates. She says while she loves her father, visits helped her “pick up the apple and throw it far from the tree,” deciding what about her father she wanted to replicate and how she wanted to be different, while also maintaining a lifelong relationship with him.45

  Family Centers, such as those the Osborne Association offers in seven New York State prisons, provide the quality experience that nurtures parent-child communication, healing, and active parenting during visits.46 Hour Children runs a children’s center in the Bedford Hills correctional facility that is a national model for mother-child visiting.47

  Reentry and Reintegration

  Returning home would not be so difficult if people could remain meaningfully connected to their families during incarceration. Yet many of our policies are backward. For example, in New York, incarcerated people are initially placed far away from home and have to “earn” their way closer to home as they near their release. At this point, many relationships will have been severed because of distance, cost, and time. This policy certainly does not consider children’s attachment needs and the need for families to adjust to the separation by being able to see each other.

  While the most frequently asked question by children of an incarcerated parent may be “When are you coming home?” (with the answer given setting off an eager countdown), both children and families are often unprepared for what “coming home” really means. Despite increasing investment (or at least plans for future investment) in “reentry programs” and government focus on employment, housing, and treatment needs upon release, the actual reentry program of first and last resort is the family.

  As is documented in Who Pays?:

  Despite their often-limited resources, families are the primary resource for housing, employment, and health needs of their formerly incarcerated loved ones, filling the gaps left by diminishing budgets for reentry services. Two-thirds (67%) of respondents’ families helped them find housing. Nearly one in five families (18%) involved in our survey faced eviction, were denied housing, or did not qualify for public housing once their formerly incarcerated family member returned. Reentry programs, nonprofits, and faith-based organizations combined did not provide housing and other support at the levels that families did.48

  Children—especially older children—anticipating the release of their incarcerated parents think about larger community-level challenges that their parents will face, such as trying to find work. They understand that sustaining their relationship will be dependent on their parents’ ability to sustain themselves after release. This will require more than simply releasing more people or releasing them sooner (although these are good ideas, too).

  In addition to changing policies, such as public housing restrictions and parole conditions, there also needs to be support for families that now have another mouth to feed. One recommendation put forth by the Osborne Association is to implement “kinship reentry support,” similar to kinship foster care, which would temporarily compensate families who make a home for returning citizens.49

  Although criminal justice officials (and the politicians who appoint them) may bear the major responsibility for the four-decade run-up of the prison population, the solutions may lie largely outside the justice system. Many parents returning home fear being judged and do not know how to navigate their children’s schools and other bureaucracies, which can be daunting even without the stigma of a criminal conviction. Engaging schools, mental health providers, employers, and landlords to support children and their families during the reentry period would also go a long way toward promoting positive outcomes.

  For any and all of the reforms mentioned here to be meaningfully and sustainably achieved, the leadership of those directly affected will have to be nurtured and supported. Only when this happens can we truly begin to shift the current punishment paradigm that drives overincarceration toward one that embodies the realization of the Bill of Rights for the children of incarcerated parents and supports positive outcomes for the individuals inside our correctional facilities as well as for their children and families,

  We—policy makers, researchers, and service providers—should not think that we know what people need. We should ask them and support them in developing their own solutions. Young people with incarcerated parents are experts on what they need to succeed. Yet much research has not included them and has been deficit-focused, outlining the risks associated with having an incarcerated parent, not the resilience. Lifting up the voices and leadership of youth means shifting away from a currently very negative narrative—authored by others, not themselves—which actually serves to increase the risk of negative outcomes, not mitigate it. We need research that involves them, values them as experts on their own lives and experiences, and includes knowing more about what helps them succeed and be so resilient.

  This can increase their hopes for a bright future driven by their own talents and desires, not the decisions of their parents. If we focus on, support, nurture, and build upon the leadership of youth who have experienced parental incarceration, and if we truly embrace them when they say “Nothing about us without us,” we may succeed in rolling back decades of harm inflicted by mass incarceration.

  Notes

  1. M. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).

  2. Sentencing Project, Incarcerated Parents and Their Children: Trends 1991–2007 (Washington, DC: Sentencing Project, 2009); Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (Washington, DC: Pew Charitable Trusts, 2010).

  3. L.E. Glaze and L.M. Maruschak, Parents in Prison and Their Minor Children, Bureau of Justice Statistics, Department of Justice, March 30, 2010.

  4. C. Wildeman, “Parental Imprisonment, the Prison Boom, and the Concentration of Childhood Disadvantage,” Demography 46, no. 2 (May 2009): 265–80.

  5. For a recent discussion of the need to address violent crime as part of dec
arceration efforts, see J. Pfaff, “A Better Approach to Violent Crime,” Wall Street Journal, January 27, 2017.

  6. State Senator Jim Hughes, Columbus, Ohio, quoted in T. Jackson, “Kasich Signs Bill Targeting Violent Criminals,” Sandusky Register, June 16, 2016.

  7. Common Justice, Accounting for Violence, 2017.

  8. A. Geller, I. Garfinkel, and B. Western, “Paternal Incarceration and Support for Children in Fragile Families,” Demography 48, no. 1 (February 2011): 25–47; O. Schwartz-Soicher, A. Geller, and I. Garfinkel, “The Effect of Paternal Incarceration on Material Hardship,” Social Service Review 85, no. 3 (September 2011); A. Geller and A. Franklin, “Paternal Incarceration and the Housing Security of Urban Mothers,” Journal of Marriage and the Family 76, no. 2 (April 2014): 411–27; S. Wakefield and C.J. Wildeman, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality (Oxford: Oxford University Press, 2014).

  9. The Adverse Childhood Experiences questionnaire asks about ten types of childhood trauma that occurred in a child’s life before s/he reached eighteen, including three types of abuse (sexual, physical, emotional), two types of neglect (physical, emotional), and five types of family-related challenges (a parent who was incarcerated, a caregiver who was abused, a household member with a mental illness, a household member who abused alcohol or drugs, or parents who separated or divorced). See https://www.cdc.gov/violenceprevention/acestudy/about.html.