Amicus Curiae Brief — Overton v. Bazzetta

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No. 02-94 |

In the

Supreme Court of the Anited States

WILLIAM OvERTON, DIRECTOR OF MICHIGAN DEPARTMENT

OF CORRECTIONS, MICHIGAN DEPARTMENT OF CORRECTIONS,

Petitioners,

Vv.

MICHELLE BAZETTA, ET AL.,

Respondents.

On Writ Or CERTIORARI 10 THe UNITED STATES

Court oF APPEALS For THe S1xtH Circuit

BRIEF OF THE NATIONAL COUNCIL ON CRIME AND

DELINQUENCY; JUVENILE JUSTICE COMMITTEE OF THE

CRIMINAL LAW SECTION OF THE AMERICAN BAR

ASSOCIATION; CENTER FOR CHILDREN OF INCARCERATED

PARENTS; THE CHILD WELFARE LEAGUE OF AMERICA;

NATIONAL ASSOCIATION OF SOCIAL WORKERS;

MICHIGAN CHAPTER OF NATIONAL ASSOCIATION OF SOCIAL

WORKERS; CENTERS FOR YOUTH AND FAMILIES; CENTER

FOR THE STUDY OF SOCIAL POLICY; ARKANSAS VOICES FOR THE

CHILDREN LEFT BEHIND; FAMILY AND CORRECTIONS NETWORK;

(Amici Curiae continued on inside cover)

Jitt M. WHEATON

Counsel of Record

DYKEMA GOSSETT PLLC

400 RENAISSANCE CENTER

Detroit, MI 48243-1668

(313) 568-6551

Attorney for Amici Curiae

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 809-890-5001

———— eA =

IBEST AVAILABLE C

CHEYENNE RIVER SIOUX TRIBE; MICHIGAN COUNCIL ON CRIME

AND DELINQUENCY; MICHIGAN FEDERATION FOR CHILDREN AND

FAMILIES; CHILDREN AND FAMILY JUSTICE CENTER; MICHIGAN

PROTECTION AND ADVOCACY SERVICE; NATIONAL NETWORK

FOR WOMEN IN PRISON; LEGAL SERVICES FOR PRISONERS WITH

CHILDREN; UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL

OF SOCIAL WORK; CHICAGO LEGAL ADVOCACY TO

INCARCERATED MOTHERS; MICHIGAN ASSOCIATION FOR

CHILDREN WITH EMOTIONAL DISORDERS; PRISON REFORM

ADVOCACY CENTER; PORTIA PROJECT/PROJECT LINK-UP; PRISON

ACTIVIST RESOURCE CENTER; YOUTH LAW CENTER; ROSEMARY

SARRI, Ph.D.;AARON MCNEECE Ph.D.; HAROLD S. GAZAN, M.S.W.;

JAMES E. ROLLIN, Ph.D.;PATRICIA RIDEOUT; ROSARIO CEBALO, Ph.D.;

TOM CROXTON, M.S.W.;BARBARA BADEAR ALDAVE AND MICHIGAN

STATE SENATORS ELIZABETH BRATER; GILDA JACOBS: AND

MARTHA G. SCOTT AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

AND SEEKING AFFIRMANCE

Page

TE, « «204 0660900000085 iv

INTERESTS OF THE AMICI CURIAE .......... l

SUMMARY OF ARGUMENT ................ 4

ARGUMENT 20... cece cece rece cesccceens 5

I. CHILDREN ARE _ SIGNIFICANTLY

HARMED WHEN THEY CANNOT VISIT

THEIR PARENTS OR OTHER CLOSE

RELATIVES IN PRISON ........-02000:. 5

A. The Number Of Children Who May Be

DT cess Gneeeeeedencnadecc< 6

B. The MDOC Regulations Restrict

Children From Visiting Incarcerated

Parents And Other Close Relatives 7

1. Minor nieces and nephews of

prisoners may not visit ....... 7

2. Children for whom parental

rights have been terminated

may not visit their parents ..... 8

TABLE OF CONTENTS

3. Prohibition of visits by former A. Familial Relationships Are Protected

prisoners who are _ not By The First And Fourteenth

immediate family members can Amendments ..... 19

excludethe only adultavailable

to accompany a visiting child. .. . 10 Ill. THE MDOC REGULATIONS ARE NOT

. an REASONABLY RELATED TO A

4. The requirement that visiting LEGITIMATE PENOLOGICAL INTEREST .. 21

children be accompanied by an

adult immediate family member A. There Is No Valid Connection Between

or legal guardian denies The Regulations Restricting Visitation

visitation to children ......... 10 By Children And A _ Legitimate

DE 66 évenndnenes

5. Permanent bans on visitation ee =

completely exclude children B. There Are No Adequate Alternative

PG coscannseeseeeeen 12 Means Available To Exercise The

Right To Familial Association Other

.. Failure To Visit Imprisoned Parents Than Visitation ....... 24

Or Other Close Family Members SERPS hs Mn 8 = finns nioieniany meget a vine yok Gwin

Causes Significant Emotional, | Di ckcccctseceuesaaes 26

Psychological And Developmental i.) A. Si rier ON Rice OT nice

i i . in ok owe bbe 6 OKs 12 EE trite Saad eet on ob Raa la

D. State And Federal Policies And |

Practices Encourage And Facilitate

Visitation Between Parents And

Children, And Presume That Such

Visitation Is Beneficial ............ 17 |

THE RESPONDENTS, INCLUDING THE

CHILDREN, HAVE A FUNDAMENTAL

RIGHT TO FAMILY INTEGRITY,

INCLUDING THE RIGHT TO

NON-CONTACT VISITATION ........... 19

TABLE OF AUTHORITIES

Page

Cases

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........... 20

Meyer v. Nebraska, 262 U.S. 390 (1923) ........-. 20

Moore v. City of East Cleveland, 431 U.S. 494 (1977) . 20

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..... 20

Prince v. Massachusetts, 321 U.S. 158 (1944) ....... 20

Quilloin v. Walcott, 434 U.S. 246 (1978) .........- 20

Roberts v. United States Jaycees, 468 U.S. 609 (1984) . 20

Santosky v. Kramer, 455 U.S. 745 (1982) .......-.. 20

Smith v. OFFER, 431 U.S. 816 (1977) ............ 21

Stanley v. Illinois, 405 U.S. 645 (1972) .......---. 20

Troxel v. Granville, 530 U.S. 57 (2000) ....... 8, 19, 23

Turner v. Safley, 482 U.S. 78 (1987)... .....0655. 21

Wisconsin v. Yoder, 406 U.S. 205 (1972) suweneceeos 20

Statutes and Rules

2B C.PR. 6 S4D4O 2. ccc cece sccccccsccveces 18

iv

—_—_—— ——

Adult Education and Family Literacy Act, Title II of

Workforce Investment Act of 1998, Pub. L. 105-220 . 24

Even Start Family Literacy Act, Pub. L. 106-554 .... 24

Federal Adoption and Safe Families Act of 1997,

Pub. L. No. 105-89, § 103(a(E) .............. 9

Mich. Admin. Code R. 791.6609 et seq. ....... passim

Mich. Comp. Laws § 712A.2 nee 11

Mich. Comp. Laws § 712A.13a ................ 17

Mich. Comp. Laws §712A.18f ................ 17

Mich. Comp. Laws §712A.19b ................ 11

Mich. Comp. Laws § 722.27a ................. 18

Treatises, Articles, and Other Publications

American Correctional Assoc. Standard 34440 ...... 18

Barnhill, Presentation at Woman Offender Symposium:

Through the Eyes of a Child (Sept. 2000) .......... 14

Bernert & Ikle, Evacuation and the Cohesion of Urban

Groups, 58 Amer. J. Sociology 133 (1952) ......... 13

Dowden & Andrews, What Works For Female Offenders:

138 ee ee 15

Gauch, When Mothers Go To Prison: When You're Behind

Bars, Does Your Family Life Have To Crumble?

16 Human Relations 33 (1959) ..... 2... 6. eee eee 14

Florida Corrections Commission 2001 Annual Report . . 15

Hairston, Family Ties During Imprisonment: Do They

Influence Future Criminal Activity? 52 Federal Probation

4B (1988) wee eee ee ewes eneeee 15

Hairston, Prisoners and Families: Parenting Issues During

Incarceration, prepared for U.S. Dept. of Health and

Human Svcs. "From Prisons to Home" Conference

(Jam. 2002) 0... ce ee eee renee eeeees 15, 25

Krisberg & Temin, The Plight of Children Whose Parents Are

in Prison, for the Federal Sentencing Report

1 ites) ) ee 14

Mumola, Incarcerated Parents and Their Children,

U.S. Department of Justice, Bureau of Justice

Statistics Special Report (Aug. 2000) ..... 6, 9, 11, 24

On Prisoners and Parenting: Preserving the Tie That Binds,

87 Yale L.J. 1408 (1978) ......-- eee cere eens 16

Odlum, Psychological Effects of the War on British

Children, 2 American Medical Women’s Ass’n

ATE CIBET) ow ccc ccccecccccerssvesevccens 13

Parke & Clarke-Stewart, Effects of Parental Incarceration on

Young Children, prepared for U.S. Dep't of Health &

Human Svcs."From Prison to Home"Conference

(Jam. BOOZ) 0. ccc cccceccccsnvcccsvess 14

vi

Rallying the Armies of Compassion, White House News

Ph dekudhed eeu kduenbsiee> 7

Sack & Seidler, Should Children Visit Their Parents in

Prison? 23 Law & Human Behavior 261 (1978) ..... 15

Sarri, Children of Incarcerated Mothers, in What About Me?

Children of Incarcerated Parents (Trzeninski,

Satyanathan & Ferro, ed.) (March 2002) ......... 15

Satyanathan, Overview, in What about Me?

Children with Incarcerated Parents (Trzeinski,

Satyanathan & Ferro, ed.) (March 2002) ..... 7,9, 24

Skinner & Swartz, The Consequences for Preschool Children

of a Parent's Detention: a Preliminary South African

Clinical Study of Caregiver's Reports, 30 Child

Psychology & Psychiatry & Allied Disciplines 243

DEE. £64 G4 Ghe nee Obe eee eebhaseess 13

Slaight, Family And Offender Treatment; Focusing On The

Family In The Treatment Of Substance Abusing

Criminal Offenders, 19 J. Drug Education 53 (1999) . 15

Travis, Waul, & Solomon, The Impact of Incarceration and

Re-entry on Children, Families and Communities, for

the U.S. Dept. of Health & Human Svcs. "From Prisons

to Home" Conference (Jan. 2002) .............. 6

Understanding and Supporting Foster Children With

Incarcerated Parents, Jordan Institute for Families

PC Se6 Ce beet ceases oe aseeenesés oe 14

United Nations Minimum Rules for the Treatment

i de 18

INTERESTS OF THE AMICI CURIAE’

Pursuant to Supreme Court Rule 37.3, the parties have

consented to the filing of this brief. Letters confirming such

consent have been filed with the Court.

The National Council on Crime and Delinquency is

a nonprofit organization dedicated to preventing and reducing

crime. It, and the Michigan Council on Crime and

Delinquency, are interested in this case because there is

strong evidence that contact between children and their

incarcerated parents ameliorates the children’s problems and

helps the parents upon release.

The Juvenile Justice Committee of the Criminal

Law Section of the American Bar Association is interested

in this case because the ABA Legal Status of Prisoners

Standard 23-6.2(d) states, “prisoners should be able to receive

any visitor not excluded by correctional authorities for good

cause.” The Children and Family Justice Center is a

children’s law center serving the children of Chicago. The

Youth Law Center is a non-profit public interest law office

serving abused and at-risk children.

The Child Welfare League of America is a national

association of public and private child and family-service

organizations, and is interested in this case because it supports

all efforts to facilitate visitation between children and

incarcerated family members as visitation reassures children

of their parents’ love, and motivates parents in their

' Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae has authored this brief in whole. Dykema Gossett PLLC,

amici’s counsel, has paid entirely for the preparation and

submission of the brief as part of its pro bono program.

l

rehabilitation efforts.

The National Association of Social Workers

(“NASW”) is a professional organization with 150,000

members. The NASW and the Michigan Chapter of the

NASW are interested in this case because the NASW

Statement on Correctional Social Work states that social

workers should develop and advocate necessary family

programs for incarcerated individuals. The School of Social

Work at the University of Arkansas at Little Rock is

interested in this case because the denial of visitation is

detrimental to children already traumatized by parental

incarceration. The Center for the Study of Social Policy is

interested in this case because it believes that children have

the right, and need, to see their incarcerated family members.

The Centers for Youth and Families and the

Arkansas Voices of the Children Left Behind consist of

professionals and volunteers serving incarcerated parents and

their children in Arkansas. Family and Corrections

Network is a nonprofit organization of agencies and

individuals concerned with issues facing families of prisoners.

The Center for Children of Incarcerated Parents is a non-

profit organization which provides programs for children of

incarcerated parents. The above are interested in this case

because they believe that visitation with incarcerated family

members is fundamertal to the well-being of children and

families.

The National Network for Women in Prison

advocates on behalf of female inmates nationwide and The

Portia Project/Project Link-Up provides services to women

in Oregon prisons. Legal Services for Prisoners with

Children and Chicago Legal Advocacy to Incarcerated

sD

Mothers provide legal services to incarcerated parents and

their children.

The Michigan Federation for Children and Families

is a Statewide association of child and family service agencies,

interested in this case because they believe visitation with

imprisoned parents is critical to children’s development and

adjustment. The Michigan Protection and Advocacy Service

is a non-profit organization designed to protect and advocate

the rights of individuals with disabilities, including prisoners.

The Michigan Association for Children With Emotional

Problems is a nonprofit organization that wants to ensure that

children with emotional disorders are not deprived of

visitation with incarcerated family members, which is

essential to the children’s development.

The Prison Activist Resource Center in Oakland,

California and the Prison Reform Advocacy Center in

Cincinnati, Ohio are interested in this case because they

provide advocacy and resources to prisoners and their family

and friends.

The Cheyenne River Sioux Tribe of South Dakota is

a federally recognized tribe of 13,270 Native Americans,

interested in this case because Native Americans are

significantly over-represented in state prisons, therefore, such

children are disproportionately impacted by family visitation

restrictions.

Prof. Emeritus Rosemary Sarri, Ph.D., Univ. of

Mich. social worker, has found that women prisoners often

encounter problems in parental legal matters due to the fact

that courts expect there will be some face-to-face contact

between mother and child. Prof. Aaron McNeece, Ph.D..,

Florida State Univ. social worker, has found that inmates who

3

have regular visits from their families adjust better within the

prison and have a reduced likelihood of recidivism. Harold

Gazan, M.S.W. served as Director of the Mich. Dep’t. of

Social Services, Bureau of Child and Family Services, and

believes that visitation by children with their incarcerated

parents is necessary to maintain the child’s emotional bonds

with the parent. Prof. James Rollin, Jane Addams College

of Social Work, believes that children who fail to bond with

their parents by lack of contact are at increased risk of social

problems.

Patricia Rideout, J.D. has twenty-two years

experience as a guardian ad litem, Juvenile Court referee, and

child welfare agency administrator, and believes the

regulations at issue are detrimental to most children of

prisoners, especially those in foster care. Prof. Emeritus

Tom Croxton, J.D., M.S.W., Univ. of Mich., is a former

juvenile court director who believes that the regulations at

issue unfairly punish children and are counterproductive.

Prof. Rosario Ceballo, Ph.D., Univ. of Mich. Dep’t. of

Psychology, believes visitation between children and

incarcerated parents is in the best interest of the child.

Barbara Bader Aldave is a Professor at the Univ. of Oregon

School of Law. Elizabeth S. Brater, Gilda Jacobs, and

Martha G. Scott are Michigan State Senators from the 18",

14", and 2™ Districts, respectively.

SUMMARY OF ARGUMENT

Over one and a half million children in the United

States have a parent in prison. Social science data

demonstrates that visitation with imprisoned parents or other

close family members benefits, rather than harms, children.

Moreover, such visitation is a necessary and indispensable

component of the right of familial association, long recognized

4

by this Court as one of the most fundamental of Constitutional

rights. The visitation restrictions at issue are not reasonably

related to a legitimate penological interest, and there are no

adequate alternative means to exercise the right of familial

association other than visitation. It must be borne in mind that

the Petitioners are applying the restrictions at issue to non-

contact visits, the very nature of which eliminates many of the

concerns expressed by the MDOC. Amici curiae urge the

Court to affirm the decision of the United States Court of

Appeals of the Sixth Circuit, and strike down the regulations

as unconstitutional.

ARGUMENT

I. CHILDREN ARE’ SIGNIFICANTLY

HARMED WHEN THEY CANNOT VISIT

THEIR PARENTS OR OTHER CLOSE

RELATIVES IN PRISON.

. The challenged regulations have the effect of denying

children, who are not responsible for the incarceration, the

opportunity to visit their imprisoned parents and other close

relatives. Studies show that the children will be emotionally,

psychologically, and developmentally harmed by this

additional forced separation from their loved ones. In

addition, the regulations are directly contrary to well-settled

policies, which hold that children have a right to visitation

with parents and other relatives when it is in their best

interest, even if their parents may have been found to be

neglectful or abusive in the past.

A. The Number Of Children Who May

Be Affected.

Although the regulations at issue are currently in place

only in Michigan, Petitioners have asked this Court to rule

that there is no constitutional right whatsoever to visitation.

Such a ruling would, of course, apply to all states and the

federal system. It is therefore important to point out the

number of children who will be affected by this Court's

decision.

As of 2000, almost 1.5 million children in the United

States had a parent in prison. Christopher Mumola,

Incarcerated Parents and Their Children, U.S. Department of

Justice, Bureau of Justice Statistics Special Report (Aug.

2000). (Attached as Appendix A.) Fifty-six percent of all

state and federal prisoners have minor children. (/d.) Fifty-

eight percent of the children with incarcerated parents are

under ten years old, with a mean age of eight. (/d.) Twenty-

two percent of these children are under age five. There are

racial and ethnic disparities as well: almost seven percent of

all African-American children, three percent of all Hispanic

children, and one percent of all white children in the total

population have a parent in prison. (/d.)

These children are already considered to be at high

risk by social workers and child welfare agencies. They

typically live in poverty, suffer feelings of fear, anxiety,

abandonment, embarrassment and guilt, and are at increased

risk for poor academic performance, gang participation,

substance abuse, teen pregnancy and juvenile delinquency.

See, e.g., Jeremy Travis, Michelle Waul & Amy Solomon,

The Impact of Incarceration and Re-entry on Children,

Families and Communities, a Background Paper for the U.S.

Dept. of Health & Human Svcs. “From Prisons to Home”

6

Conference (Jan. 2002); Deborah Satyanathan, Overview

contained in What about Me? Children with Incarcerated

Parents (E. Trzeinski, D. Satyanathan & L. Ferro, ed.)

(March 2002). (Attached as Appendix B.) President Bush

has recognized the special needs of these children, initiating

a federal program providing grants to organizations providing

services to the children of prisoners, and calling for volunteers

to serve as mentors to these children. See, e.g., Rallying the

Armies of Compassion, White House News Report (Jan.

2001). As then Governor George Bush said

t

NAACP Convention: . mime ane

More than a million children have one or both

parents in prison. These are forgotten children

~ almost six times more likely to go to prison

themselves. And they should not be punished

for the sins of their fathers. . . . Let us bring

help and hope to these innocent victims of

crime.

B. The MDOC Regulations Restrict

Children From Visiting Incarcerated

Parents And Other Close Relatives.

. Each of the MDOC visitation policies at issue results

in the denial of visitation to children, as specified below.

1. Minor nieces and nephews of

prisoners may not visit.

Under Mich. Admin. Code R. 791.6609(2)(b) only

minors who are children, stepchildren, grandchildren or

siblings of the prisoner may visit. By excluding minor

nieces, nephews or cousins, the regulation terminates the

ability of these children to visit family members who often

play a significant role in their lives. Should the regulation

again be changed to exclude siblings, it would be all the more

harsh. Minor nieces and nephews are unable to visit, even if

the prisoner served as the child's surrogate parent prior to

incarceration.’ This restriction also ignores the structure of

modern families, where aunts and uncles can be as close to a

child as a parep’ = . As this Court noted in

Troxel v. Graréile, 530 U.S. 57, 63 (2000), “the

: demographic changes of the past century make it difficult to

speak of an average American family.” The important role of

extended family members is especially true in African-

American and Hispanic families, which make up the majority

of children of prisoners.

2. Children for whom parental

rights have been terminated

may not visit their parents.

The regulations at issue also prohibit children from

visiting their parents if the parental rights have been legally

terminated. Mich. Admin. Code R. 791.6609(6)(a). In the

2 After the district court entered its opinion, MDOC

changed its regulations to allow visits from minor siblings, which

it had previously prohibited. However, because the MDOC

appears to assert its right to impose this restriction again if it so

fesires, amici address this restriction herein.

’ Illogically, the regulations define aunts and uncles who

served as the prisoner’s surrogate parent as immediate family

members (Mich. Admin. Code R. 791.6609(9)(k)), but fail to

recognize that the prisoner him or herself may have played the

same role for nieces and nephews.

» : PS ed wey om er

prison setting, the legal termination of parental ri

does not signal the intended end a pene

relationship. Prisoners often voluntarily terminate parental

rights in order to enhance their child’s stability by allowing

relatives and friends to adopt them. The adoptive parents

however, have every intention of allowing the child to

continue his or her relationship with the prisoner parent. (See

testimony of Dr. Terry Kupers at TR Vol. 6, pp. 147-148;

Suellyn Scarnecchia at TR Vol. 1, pp. 195-197.) Therefore.

the regulations cut off a parent-child relationship even where

all involved intend the relationship to continue.

| Or, in a Catch-22 situation, parental rights ma

terminated due to the incarceration itself. phe

of mothers in prison report that their children are in foster

care during their incarceration. Mumola, Appendix A at la.

Under the Federal Adoption and Safe Families Act of 1997

Pub. L. No. 105-89, § 103(a)(E), if a child is in foster care

for fifteen of the last twenty-two months, the state can begin

proceedings to terminate parental rights. Moreover,

imprisonment itself may be considered neglect or

abandonment, resulting in the termination of parental rights.

Satyanathan, What About Me?, Appendix B at 19a. Thus. the

fact of the parent’s imprisonment, or the child’s placement in

foster care during the incarceration, may result in the

termination of parental rights, which then results in the loss of

visitation under the regulations.

3. Prohibition of visits by former

prisoners who are not

immediate family members

can exclude the only adult

available to accompany @

visiting child.

If a child’s unrelated legal custodian happens to be a

former prisoner, regardless of the offense or the date of the

offense, he or she cannot, because of the regulations,

accompany the child to visit in prison, thus excluding the

child from visits altogether. Mich. Admin. Code R.

791.6609(7). For example, a child’s unmarried father could

not accompany the child to visit because he is not the mother's

immediate family member and had a conviction twenty-three

years ago. (See testimony of Dr. Terry Kupers, TR Vol. 6,

p. 146.) This also prevents former prisoners who have turned

their lives around from assisting current prisoners on a

professional or volunteer basis. (See testimony of Joyce

Dixson, TR Vol. 7, pp. 130-32, former prisoner who is now

a social worker working with children of the incarcerated, but

who may not take these children to visit their parents.)

4. The requirement that visiting

children be accompanied by

an adult immediate family

member or legal guardian

denies visitation to children.

This rule, Mich. Admin. Code R. coma

excludes two different groups of children from visiting. irst,

the requirement that a child be accompanied by an adult

accompanying children due to the regulation’s definition of

10

_—

“immediate family” ,* which excludes relatives who may be

the child’s caretaker, such as the prisoner’s sister- or brother-

in-law, cousin, niece or nephew, and excludes friends or

neighbors serving as caretaker. Significantly, the Dep’t. of

Justice statistics show that over ten percent of prisoners report

that during their incarceration, their children were placed with

friends or other persons to whom the prisoner was not related.

Mumola, Appendix A at 3a. The restriction also excludes

foster parents or foster care workers, and ten percent of

children of prisoners are in foster care. Id.

Second, a legal guardianship in Michigan requires the

filing of papers with the court, the payment of a fee, and

regular reports to the court, and can require one or more court

appearance. (See testimony of Prof. Scarnecchia, TR Vol. 1,

pp. 190-91.) In addition, a legal guardianship places the

parent's right to regain custody after incarceration at risk. See

Mich. Comp. Laws § 712A.2(b)(3-5) (guardianship is a basis

for taking abuse/neglect jurisdiction over child); Mich. Comp.

Laws §712A.19b(3)(d-f) (guardianship is a basis for

termination of parental rights). There is an alternative legal

means available to provide custody to a non-parent. A parent

may provide a power of attorney to the caretaker by filling out

a single form and having his or her signature witnessed and

notarized. Typically, there is no cost or court involvement

and, most significantly, the parent does not place his or her

parental rights at risk. (See testimony of Prof. Scarnecchia,

TR Vol. 1, p. 189.) Under the regulations, however, children

’ Immediate family is defined as a “grandparent, parent

stepparent, spouse, mother-in-law, father-in-law, child, step-child

— der thet

served as a surrogate parent.” Mich. Admin. Code

who are in the custody of an unrelated adult with a legal

power of attorney cannot be accompanied by that adult to

visit, thus denying the child visitation.°

5. Permanent bans on visitation

completely exclude children

from visits.

When a prisoner is banned permanently from all

visitation under Mich. Admin. Code R. 791.6609(11), the

prisoner’s children and minor relatives are also completely

barred — even from non-contact visits. The next section

outlines the severe impact on children of this permanent ban,

as well as the other denials of visitation described above.

Cc. Failure To Visit Imprisoned Parents

Or Other Close Family Members

Causes Significant Emotional,

Psychological And Developmental

Harm To Children.

Dr. Terry Kupers testified in the district court

as follows:

[L]iterature in the mental health field stresses

the importance of visitation [between parents

and children] to somehow counteract

those...negative tendencies of separation.

’ Prior to the regulations at issue, a power of attorney was

sufficient. Although the MDOC’s purported reason for changing

the regulation was that powers of attorney were too easy to forge

(see testimony of Marjorie Van Ochten, TR Vol 1, p. 85, Kenneth

McGinnis, TR Vol. 8, p. 36), the MDOC provided no evidence of

any instance of forgery of a power of attorney.

12

Separation is an extremely traumatic event for

children. If separation is relatively benign, it

is relatively benign to have a divorce in the

family and to have both parents remain in close

contact with the child, still, children

experience this as a massive trauma depending

on their age and situation. Well, having a

parent in prison is a much more massive

trauma, and then being cut off from that parent

is just often insurmountable in terms of the

child’s psychological development.

(TR Vol. 6, pp. 148-149.)

When parents and children are separated, regardless of

the reason, the child typically focuses more on what may

happen to the parent than on what may happen to them.

Donald Skinner & Leslie Swartz, The Consequences for

Preschool Children of a Parent’s Detention: a Preliminary

South African Clinical Study of Caregiver’s Reports, Child

Psychology & Psychiatry & Allied Disciplines 243 (March

1989). Studies indicate that children are more stressed by

being separated from parents than by being with them in

unsafe places. Children also fear the unknown, and suffer

anxiety if they cannot picture where their parent is and see for

* Doris Odlum, Psychological Effects of the War on

British Children, 2 American Medical Women’s Ass’n 172 (1947)

(children evacuated from London to other areas during World War

II without their parents had far more behavioral problems related

to separation from their parents than children who remained in

London with their families); Eleanor Bernert & Fred Ikle,

Evacuation <nd the Cohesion of Urban Groups, 58 Amer. J.

Sociology .33 (1952) (children prefer to remain with parents in the

city despite the risk of air attacks, even when the family home has

been lost).

13

themselves that Mom or Dad is all right. “Children need to

know where their mothers are, what it is like there, and that

their mothers are safe.” Sandra Barnhill, Executive Director,

Aid for Children of Imprisoned Mothers, Presentation at

Woman Offender Symposium: Through the Eyes of a Child

(Sept. 2000).

Social workers emphasize the need in most cases for

children to maintain close ties with their imprisoned parent.

See, e.g., Understanding and Supporting Foster Children With

Incarcerated Parents, Jordan Institute for Families (Jan.

2002); Barry Krisberg & Hon. Carolyn Engel Temin, The

Plight of Children Whose Parents Are in Prison, prepared for

the Federal Sentencing Report (Jan. 2001) (attached as

Appendix C) at 32a-33a. In fact, the two major determinants

of a child’s emotional stability during a parent’s incarceration

are the quality of care provided by the alternate caregiver and

the opportunities to maintain contact with the incarcerated

parent. Ross D. Parke & K. Allison Clarke-Stewart, Effects

of Parental Incarceration on Young Children, prepared for

U.S. Dep’t of Health & Human Svcs. “From Prison to

Home” Conference (Jan. 2002) (attached as Appendix D) at

58a. Parke and Clarke-Stewart report that studies show no

evidence of long-term negative consequences of prison visits

on children and state that, to the contrary, “visiting can calm

children’s fears about their parent’s welfare as well as their

concerns about the parent’s feelings for them.” Jd. at 61a.

One study found that the children’s chances for

delinquency increase dramatically when they are denied visits.

Sarah Gauch, When Mothers Go To Prison: When You're

Behind Bars, Does Your Family Life Have To Crumble? 16

Human Relations 33 (1959). Another study of children of

male prisoners showed that visitation served as an important

link to continuity in the parental relationship and counteracted

14

the children’s fears regarding their father’s incarceration.

W.H. Sack & J. Seidler, Should Children Visit Their Parents

in Prison? 23 Law & Human Behavior 261 (1978).”

It must also be borne in mind that, upon release, many

of the prisoners will return to live with their children.

Rosemary Sarri, Children of Incarcerated Mothers, in What

About Me? Children of Incarcerated Parents, supra, p. 18

(March 2002). (Attached as Appendix F.) It cannot be

denied that maintaining contact between parents and children

during incarceration will help the family make this later

transition.*

7

See also, Florida Corrections Commission 2001 A

Report, Section 3(A)(1)(C) (“child welfare literature pence =

importance of frequent, regular parent-child visitation following

Separation to diminish risk factors”); Creasie Finney Hairston

Prisoners and Families: Parenting Issues During Incarceration,

prepared for U.S. Dept. of Health and Human Svcs. “From Prison

to Home Conference (Jan., 2002) (attached as Appendix E) at 92a

(“the maintenance of family ties for incarcerated individuals has

been found to be important for juveniles as well as adults. ”)

—_

___ Visitation benefits the prisoners as well as the chil

Studies have shown that male prisoners who maintain strong rear

ties during imprisonment have higher rates of post release success

than those who do not. Creasey Finney Hairston, Family Ties

During Imprisonment: Do They Influence Future Criminal Activity ?

52 Federal Probation 48 (1988). Likewise, family relationships

during incarceration were the strongest predictor of female

offenders’ post-release success. C. Dowden & D.A. Andrews

What Works For Female Offenders: A Meta-Analytic Review, 45

Crime & Delinquency 438 (1999). See also E. Slaight, Family And

Offender Treatment: Focusing On The Family In The Treatment Of

Substance Abusing Criminal Offenders, 19 J. Drug Education 53

(1999) (finding family relationships have significant influence on

relapse prevention among parolees).

15

The MDOC has ——- seca See

hatsoever to s rt its suggestion visi

a children. MDOC Deputy Director Dan Bolden admitted at

trial that he had read no studies or literature that support the

view that children may become too comfortable with the

prison environment when visiting. (TR Vol 3, pp. 23-24.)

The MDOC also admitted in discovery requests that a survey

of all state correctional facilities revealed no records reflecting

any incidents of sexual abuse or misconduct of minors

occurring during a non-contact visit since January ® 1984.

(Dist. Ct. Opinion, p. 28.) The MDOC also admitted that it

knew of no instances of children being injured in the visitation

waiting rooms. (Testimony of Mr. Bolden, TR Vol 3, pp. 39-

40.)

In sum,

It is clear...that separation from a parent

jeopardizes the psychological and emotional

development of a child; any state practice,

therefore, that invariably separates a child

from her parent while the parent is

incarcerated and that does not provide for

maintenance of the parent-child relationship

during the period of separation undermines the

state goal of protecting the best interests of the

child.

Note, On Prisoners and Parenting: Preserving the Tie That

Binds, 87 Yale L.J. 1408, 1419 (1978).

16

D. State And Federal Policies And

Practices Encourage And Facilitate

Visitation Between Parents And

Children, And Presume That Such

Visitation Is Beneficial.

Michigan law presumes that children have the right to

regular access to their parents.” Even when a child has been

removed from the home because of parental abuse or neglect,

the Michigan Juvenile Code requires “regular and frequent

parenting time between the child and his or her parent,”

comprising at least once weekly visits. Mich. Comp. Laws

§ 712A.18f (3)(e). “[I]f parenting time, even if supervised,

may be harmful to the juvenile, the court shall order the child

to have a psychological evaluation or counseling, or both, to

determine the appropriateness and the conditions of parenting

time.” Mich. Comp. Laws § 712A.13a(11). The court may

not deny visitation based on its own assessment; an expert

evaluation is required.

The Preamble to the Michigan Child Custody Act

States that it is an act “to declare the inherent rights of minor

children” and states:

It is presumed to be in the best interests of a

child for the child to have a strong relationship

with both of his or her parents. Except as

otherwise provided in this section, parenting

time shall be granted to a parent in a

frequency, duration, and type reasonably

*Visitation is referred to as “parenting time” in the

Michigan Code.

17

calculated to promote a strong relationship

between the child and the parent....

Mich. Comp. Laws § 722.27a(1) (emphasis added).

The Federal Bureau of Prisons also presumes the

importance of visitation:

The Bureau of Prisons encourages visiting by

family, friends, and community groups to

maintain the morale of the inmate and to

develop closer relationships between the

inmate and family members or others in the

community.

28 C.F.R. § 540.40. Similarly, the American Correctional

Association standards provide that “inmates should not be

denied access to visits with persons of their choice except

when the warden/superintendent...can present clear and

convincing evidence that such visitation jeopardizes the safety

and security of the institution or. the visitors.” A.C.A.

Standard 3-4440. Even the United Nations Minimum Rules

for the Treatment of Prisoners, Rule 37, provides that

“prisoners shall be allowed...to communicate with their

family...at regular intervals, both by correspondence and by

receiving visits.”

Children who are prohibited from seeing their parents

and other close relatives in prison are denied the right of

regular visits which are otherwise guaranteed under Michigan

law, and which the state and federal government have deemed

to be in everyone’s best interest.

18

II. | THE RESPONDENTS, INCLUDING THE

CHILDREN, HAVE A FUNDAMENTAL

RIGHT TO FAMILY INTEGRITY,

INCLUDING THE RIGHT TO NON-

CONTACT VISITATION.

It must be borne in mind that the plaintiff class in this

matter Consists not only of prisoners, but also of their family

members, including their children. The plaintiffs, including

the non-prisoner plaintiffs, have a constitutionally protected

right to relationships with their parents and other family

members. The denial of visitation resulting from the MDOC

regulations violates the Constitutional right to family integrity.

A. Familial Relationships Are Protected

By The First And Fourteenth

Amendments.

- The severance of family ties through th i

visitation to the children implicates anane amaeies

rights. This Court has repeatedly recognized a family

member Ss fundamental right to familial association under the

First and Fourteenth Amendments. As the Court stated in

Troxel, “the liberty interest at issue in this case - the interest

of parents in the care, custody and control of their

children—is perhaps the oldest of the fundamental liberty

interests recognized by the Court.” 530 U.S. at 65. The

Court went on to state:

The child is not the mere creature of the State,

those who nurture him and direct his destiny

have the right, coupled with the highest duty,

to recognize and prepare him for additional

obligations....[W]e have recognized the

fundamental right of parents to make decisions

19

concerning the care, custody and control of

their children.

530 U.S. at 66. This Court has also stated that “the history

and culture of Western civilization reflect a strong tradition of

parental concern for the nurture and upbringing of their

children. This primary role of the parents in the upbringing

of their children is now established beyond debate as an

enduring American tradition.” Wisconsin v. Yoder, 406 U.S.

205 (1972)."°

In fact, the right to family integrity is one of the most

fundamental of all human rights. This Court has had “the

unanimous view that ‘[f]ew consequences of judicial action are

so grave as the severance of natural family ties."” M.L.B. v.

S.L.J., 519 U.S. 102, 109 (1996), quoting Santosky v.

Kramer, 455 U.S. 745. Nor is the fundamental right of

familial association limited solely to parents and children. In

Moore v. City of East Cleveland, 431 U.S. 494, 505 (1977),

this Court recognized the constitutionally protected nature of

the extended family relationship:

10 See also, Roberts v. United States Jaycees, 468 USS.

609, 617 (1984) (the First Amendment provides certain highly

personal relationships a substantial measure of sanctuary from

unjustified interference by the State” and “family relationships, by

their nature, involve deep attachments and commitments to the

necessarily few other individuals with whom one shares not only a

special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life”); Quilloin v. Walcott,

434 U.S. 246 (1978) (“we have recognized on numerous occasions

that the relationship between parent and child is constitutionally

protected”); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v.

Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts,

321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972);

Santosky v. Kramer, 455 U.S. 745 (1982).

20

SL —— — <->

Ours is by no means a tradition limited to

respect for the bonds uniting the members of

the nuclear family. The tradition of uncles,

aunts, cousins and especially grandparents

sharing a household along with parents and

children has roots equally venerable and

equally deserving of constitutional recognition.

Similarly, in Smith v. OFFER, 431 U.S. 816, 843 n. 49

(1977), the Court noted “the scope of these rights extends

beyond natural parents.”

Ill. THE MDOC REGULATIONS ARE NOT

REASONABLY RELATED TO A

LEGITIMATE PENOLOGICAL

INTEREST.

It is well settled that prisoners retain most of their

Constitutional rights. “Prison walls do not form a barrier

separating prison inmates from the protections of the

Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

Hence, unless and until the MDOC can show otherwise, it is

presumed that Respondents retain their constitutional right to

familial association. In Turner, this Court noted the difficulty

when determining the constitutionality of prison regulations

between balancing a prisoner’s constitutional rights and

acknowledging the expertise of corrections officials. Thus,

the rule set forth in Turner is that “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to a legitimate penological

interest.” 482 U.S. at 89. It is important to note that this test

does not give carte blanche to corrections departments, and

prison regulations are not immune from meaningful scrutiny.

Rather, a number of factors are looked at in determining the

reasonableness of the subject restriction, including, inter alia,

21

whether there is a rational connection between the regulation

and the legitimate government interest assciced, and whether

there are alternative means available for exercising the right.

A. There Is No Valid Connection

Between The Regulations Restricting

Visitation By Children And A

Legitimate Penological Interest.

The penological interests the MDOC asserts for the

restrictions on visitation by children are to better supervise the

children; to prevent the children from being subject to

physical or emotional abuse; and to prevent them from being

used to smuggle contraband into the prison. (Petitioner’s

Brief, p. 29.) As for the first goal, the MDOC is presumably

referring to its argument at trial that small children who are

not properly supervised during a visit may be physically

injured. However, as shown above, the MDOC has offered

no evidence that any child has ever been injured during a

visit. In addition, MDOC officials testified at trial that their

visiting rooms are safe and secure. (Testimony of Dan

Bolden, TR Vol. 3, p. 66; Pamela Withrow, MDOC Warden,

TR Vol. 8, p. 146; Joan Yukins, MDOC Warden, TR Vol. 6,

p. 52.)

As for the goal of preventing abuse, the state makes

much of two incidents where a child reportedly witnessed

sexual activity by a prisoner. While it is certainly regrettable

if this occurred, these are only two out of hundreds of

thousands of visits. To drastically restrict children’s visitation

as a result of these very few incidents is using the proverbial

cannon to kill a fly. Nor did the MDOC provide any evidence

that visitation is emotionally harmful for children. Indeed, the

social science data summarized earlier makes clear that the far

greater danger to children comes from being prevented from

22

seeing their loved ones. Most importantly, the regulations run

directly contrary to Troxel, which holds that it is the province

of the parent, not the state, to make decisions regarding the

care of their children. For example, if a prisoner determines

that his or her child would benefit from visitation, the child

should be able to visit, even if he or she is, for example, in

the care of a friend or non-immediate family member.

Similarly, if a non-prisoner parent determines that it is in his

or her child’s best interest to visit an incarcerated family

member, such as an aunt or uncle, the child should be allowed

to visit. Under the regulations, neither such visit is possible.

The third goal, the prevention of smuggling of

contraband, is, unlike the prior two, clearly a ar in

penological objective. However, the restrictions on visitation

by children are not reasonably related to this goal. The

MDOC has provided no evidence that children are more likely

to smuggle contraband into a prison than adult visitors; even

the suggestion defies common sense. Moreover, this case

concerns non-contact visitation, in which, according to the

MDOC’s own witnesses, the possibility for smuggling is

extremely remote. (See testimony of Barry Mintzes, former

MDOC Warden, TR Vol 5, p. 133; Mr. Bolden, TR Vol 4,

pp. 65-66 (admitting he has no proof of smuggling in non-

contact visits); Marjorie VanOchten, MDOC administrator,

TR 1, p. 77 (non-contact visitation eliminates the opportunity

to smuggle)). The regulations directed at eliminating or

reducing visits by children specifically are not reasonably

related to a legitimate penological objective.

23

B. There Are No Adequate Alternative

Means Available To Exercise The

Right To Familial Association Other

Than Visitation.

The MDOC argues that phone calls and letters are

adequate alternative means available to Petitioners to exercise

their right to familial association. The MDOC is wrong.

Regardless of the specific number of prisoners who are

functionally illiterate, it cannot be debated that a significant

number of them are.'' Nor can it be debated that infants,

toddlers, and pre-schoolers are not capable of writing letters

to, or reading letters from, incarcerated family members.

(Recall that the average age of a child in the United States

with an incarcerated parent is eight, with almost one quarter

of the children of prisoners under age five. (Mumola,

Appendix A at 2a.)) In addition, twenty-five percent of

women are pregnant or have recently given birth when they

enter prison. Satyanathan, Overview, Appendix B at 15a.

For these children, it will be many years before they are able

to make phone calls or write letters and, if restricted to these

methods of communication, there will be many years of

missed contact with their parent.

As for the alleged alternative of phone calls, the calls

must be initiated by the prisoner, and must be made collect.

Such calls are extremely expensive - three to five times more

expensive than calls made from the outside, and are frequently

11 Indeed, the federal government has specifically included

prisoners and their families in recent federal legislation aimed at

combating illiteracy. See Even Start Family Literacy Act, Pub. L.

106-554 and the Adult Education and Family Literacy Act, Title Il

of the Workforce Investment Act of 1998, Pub. L. 105-220, §

225(c).

24

Xe ERIE Rey

disconnected or interrupted. (Testimony of Dr. Kupers, TR

Vol. 6, p. 144.) According to one author, a thirty minute

phone call from a prison once a week can cost $125 or more.

Hairston, Prisoners and Families, p. 7. The cost alone is

prohibitive for many families of prisoners, most of whom live

in poverty, and foster parents may not accept collect phone

calls from the parents of their foster children due to their

substantial cost.

Finally, when it comes to maintaining famil

relationships, phone calls and letters are simply not 4

adequate substitute for face-to-face contact. As discussed

above, children need to physically see their parent in order to

assure themselves that the parent is okay. The same is true

for incarcerated parents, who want to see the children for

themselves to ensure that their children are being adequately

cared for. As any parent or child can testify, although the

sound of your loved one’s voice, or a letter from your loved

one, are wonderful, they are simply no substitute for seeing

your child’s face, or your mother or father’s face.

CONCLUSION

The combination of the severe, almost unthinkable,

harm suffered by emotionally vulnerable children who are

denied visitation with their parents and other loved ones, the

clear legal presumption favoring visitation reflected in the

law, and the extraordinarily weak and factually unsupported

justifications offered by MDOC for the unprecedented

violations of the constitutional rights of the Respondents,

requires affirmance of the Sixth Circuit Court of Appeals’

decision.

Jill M. Wheaton, Counsel of Record

Laura Sagolla

DYKEMA GOSSETT PLLC

400 Renaissance Center

Detroit Michigan 48243-1668

26

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me eew—erg ~~

APPENDIX A

[fold-out exhibit]

Bureau of Justice Statistics

SPECIAL REPORT

Incarcerated Parents

and Their Children

pp. la-12a

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12a

APPENDIX B

What about Me?

Children with

Incarcerated Parents

Michigan Family Impact Seminars

Briefing Report No. 2002-1

Edited by

Eileen Trzcinski, Associate Professor ;

Deborah Satyanathan, M.S.W.

Lynda Ferro, M.S.W.

School of Social Work

Wayne State University

March 2002

Michigan Family Impact Seminars are jointly sponsored by

The Skillman Foundation

Detroit, Michigan

School of Social Work

Wayne State University

Michigan State University

Institute for Children, Youth, and Families

Families and Communities Together Coalition

ed

l3a

Deborah Satyanathan, Overview

Copies of this report are available from Eileen Trzcinski,

Ph.D. School of Social Work Wayne State

University 340 Thompson Home Detroit, Michigan

48202 Phone: (313) 577-4422

Audiotape available on request

An electronic version is also available at

www.icyf.msu.edu_

www.socialwork. wayne.edu

OVERVIEW

Deborah Satyanathan

Scope of the Problem

The U.S. Department of Justice has estimated that nationally

approximately 1.5 million children under the age of 18 had an

incarcerated parent in 1999 [10]. These children, their parents

and their caregivers have special needs that are currently not

being met by child welfare agencies or the criminal justice

system. As the incarcerated population grows by an average

of 6.5% every year [13], the number of children with

incarcerated parents will also increase.

Little data exists regarding the number of children affected.

However, nationally, we do know:

bd Approximately two-thirds of incarcerated women and

55% of incarcerated men have children below 18

years old [4].

® Most (72%) of the incarcerated mothers lived with

their children before entering prison [4].

14a

Deborah Satyanathan, Overview

Ld Approximately 25% of women are pregnant or have

recently delivered when they enter prison [9].

Approximately two-thirds of incarcerated

women and 55% of incarcerated men have

children below 18 years old

Approximately 25% of women are pregnant or

have recently delivered when they enter prison

Children of incarcerated parents are often uprooted from their

homes and placed with relatives or in foster care. The living

arrangements for children with incarcerated fathers and

imprisoned mothers differ in the following ways:

® Most (90%) children with incarcerated fathers live

with their mother [9].

ad Only approximately 25% of children with incarcerated

mothers live with their fathers [9].

. One half of children with incarcerated mothers live

with their grandparents [4].

e An additional 2% of children with fathers in prison

and 10% of children with mothers in prison live in a

foster care home or an institution [4].

Children of incarcerated parents are often

uprooted from their homes and placed with

relatives or in foster care

15a

Deborah Satyanathan, Overview

It is not known how many Michigan children are affected by

parental incarceration. According to the Michigan Department

of Corrections, the total prisoner population in 1999 was

46,617, with women prisoners totaling 2,018 [8]. From this

data, we can estimate:

bd Approximately 1,345 incarcerated women and 24,975

incarcerated men in Michigan have children under the

age of 18.

sd Because studies have shown that mothers average 2.4

children and fathers average 2.0 children [13], then

3,229 Michigan children below 18 years old have an

incarcerated mother, and 49,951 children have an

imprisoned father.

How are children affected when parents are incarcerated?

Children are deeply affected when their parents are

incarcerated, beginning at the time of the parent’s arrest and

continuing after the parent is released. Common harmful

results include:

. Emotional problems, including feelings of fear,

anxiety, abandonment, embarrassment, shame and

guilt [1,5,13].

° Behavioral symptoms, with increased risk for poor

academic performance, truancy, gang participation,

substance abuse and early pregnancy [1,5,13].

Ld Increased risk for delinquency: It is estimated that one

half of juveniles in detention have an incarcerated

parent [6] and that children with an incarcerated

parent are five to six times more likely than those

without imprisoned parents to enter the criminal

l6a

Deborah Satyanathan, Overview

justice system [1].

bd Permanent separation from parents.

Children are deeply affected when their

parents are incarcerated

Which prison conditions contribute to the negative affects

of incarcerated parents and their children?

Conditions in women’s prisons have a large effect on mothers

and children post-release. When these women are released

from prison, they may have difficulty finding housing and

jobs; they still have many of the same emotional and physical

problems (or more) with which they entered the criminal

justice system. Because of these muliiple problems, many

mothers have difficulty regaining custody of their children

upon release. Some of these difficult prison conditions

include:

e Physical abuse and/or rape by other inmates or guards

[11].

bd A lack of educational services and job training [ 11).

° A lack of mental health services for mental illness and

other common problems such as substance abuse,

childhood physical and/or sexual abuse, and domestic

violence [ 11].

hd Inadequate health care [3,11].

When women are released from prison, they

may have difficulty finding housing and jobs;

17a

Deborah Satyanathan, Overview

they still have many of the same emotional and

physical problems (or more) with which they

entered the criminal justice system.

Prison visitation policies hinder contact between incarcerated

parents and their children. Only 10% of mothers receive

regular visits from their children, and approximately half do

not receive any visits from their children at all [3]. Reasons

for this lack of visitation between children and their

imprisoned parents include:

e Geographical distance and transportation costs [5].

e Intimidating and non-child-friendly visiting areas [5].

hd Lack of information about visiting hours and

procedures [13].

bd Non-contact visitation (i.e. no hugs or sitting on a

parent’s lap) in jails [7].

bd Reluctance on the part of parents or caregivers to have

children visit their parents in a prison setting [13].

Only 10% of mothers receive regular visits

from their children, and approximately half do

not receive any visits from their children at all

Phone calls are also difficult. Parents are only allowed to

_ make collect calls out of the prison, and the charges for these

calls are much higher than a collect call made from a pay

phone [5]. Due to the financial burdens of the children’s

caregivers, they may not be able to accept many collect calls

18a

Deborah Satyanathan, Overview

from the children’s parents.

Which state and federal policies negatively affect

incarcerated parents and their children?

The Federal Adoption and Safe Families Act of 1997. For

those children who entered the child welfare system due to

their parents’ incarceration, permanency planning must begin

within 12 months of their original placement [13]. Because a

woman’s average prison sentence is 24-36 months [1] and

imprisonment may be considered neglect or abandonment of

her children [2], her parental rights may be terminated while

she is incarcerated. Many of these women are not notified of

the court hearings related to their children, and legal

assistance for these women is limited [1].

Many incarcerated women with children are

not notified of the court hearings related to

their children, and legal assistance for these

women is limited

Foster Care Polices. Licensed foster care parents receive

financial support for caring for children. However, many

children of incarcerated parents are cared for by grandparents

or other relatives. These helpful kin do not receive financial

support from the state [1], and many caregivers report that

they do not have the financial resources to properly care for

the children [11]. Therefore, many children live in poverty

while their parents are in prison.

— 19a

Deborah Satyanathan, Overview

Many caregivers report that they do not have

the financial resources to properly care for the

children . Therefore, many children live in

poverty while their parents are in prison.

The Personal Responsibility and Work Opportunity

Reconciliation Act (PRWORA) of 1996. One provision of

PRWORA provides that any person convicted of a drug crime

is no longer eligible to receive I «porary Aid for Need

Families (TANF) [13]. In 1998, 72% of women in federal

prisons were incarcerated for a drug offense [13]. Therefore

many mothers may have financial difficulties once they are

released from prison. This difficulty may hinder them from

regaining custody of their children or may place their children

in poverty post-release.

Mandatory Sentencing Laws. Throughout the nation,

approximately 70% of imprisoned women commiited a drug

or other non-violent crime [3]. Many of these crimes now

have mandatory sentences, reducing a judge’s flexibility in

determining the best interests for convicted parents and their

children [13}.

How does the lack of collaboration between the child

welfare system and the criminal justice system contribute

to the xnmet needs of families?

bd Families may receive duplicate or unnecessary

services from both systems, such as parenting classes

or drug counseling, and not obtain other needed

services [7].

20a

i ee id

Deborah Satyanathan, Overview

od Prison inmates usually are not allowed to receive

incoming phone calls [2]. Child welfare workers also

struggle with the same visitation rules as do children

and caregivers. They may not know visitation policies

and procedures, or the prison may simply be too far to

travel. Therefore it is difficult for child welfare

workers to contact imprisoned parents.

bd Some correctional agencies prohibit contact between

prisoners and child welfare workers [13].

bd Incarcerated women may have no idea where their

children are placed, or they may not know the name of

their children’s child welfare worker [2].

Incarcerated women may have no idea where

their children are placed, or they may not

know the name of their children’s child

welfare worker.

Why should we care?

According to Pimlott and Sarri (2002), “Studies of prisoners

consistently show that those who maintain strong family and

friendship ties during imprisonment and assume responsible

marital and parental roles upon release have lower recidivism

rates than those who function without family ties, expectation

and obligations” {13, p. 27]. In addition, if women receive

proper educational and job training and mental health services

(especially for substance abuse), they are less likely to re-

enter the criminal justice system. If recidivism rates decrease,

then state and federal costs for building prisons and

maintaining prisoners also decrease.

2la

Deborah Satyanathan, Overview

What policy and program decisions can be made to ensure

that Michigan is meeting the needs of incarcerated parents

_ and their children?

As the number of parents who are incarcerated increases, and

therefore the number of children affected increases, Michigan

policymakers, child welfare agencies and correctional systems

can make policy and program decisions to assist incarcerated

parents, their children and their children’s caregivers,

including:

1. Increased Research

e Data collection on the number of children

affected by their parents’ incarceration and

how they are affected

bd Longitudinal studies on the long-term effects

of parental incarceration.

ad Evaluation and replication of existing

programs

2. Changes in Public Policy

e Exceptions to the 12-month termination of

parental rights statute for imprisoned parents

d Increased financial support for relatives caring

for children of incarcerated parents

e Financial support for those convicted of drug

crimes post-release

e Community-based alternatives to imprisonment

for non-violent offenders.

22a

Deborah Satyanathan, Overview

Changes in Prison and Jail Policies and Services

Supportive visitation and increased flexibility

with phone calls

Improved mental health services, including

substance abuse counseling, and physical

health care

Educational services and employment training

In:nate safety from abuse or rape

Collaboration between the Criminal Justice and Child

Welfare Systems

Cross-training of criminal justice and child

welfare personnel

A central database holding information

regarding children, parents and incarceration

Implementation of Programs and Services for Children

and their Caregivers

bd Counseling and support groups for parents,

children and caregivers

° Transportation services

bd Legal assistance for parents in prison who risk

having their children removed from their

custody.

bd Parental involvement in the permanency

planning of their children

e Parenting education.

23a

Deborah Satyanathan, Overview

Studies of prisoners consistently show that

those who maintain strong family and

friendship ties during imprisonment and

assume responsible marital and parental roles

upon release have lower recidivism rates than

those who function without family ties,

expectation and obligations.

Overview

Ascione, W. & Dixson, J. (2002). Children and their

incarcerated mothers. In J. Figueira-~McDonough and

R. Sarri (Eds.) Women at the Margins: Neglect,

Punishment and Resistance. Binghampton, NY:

Hayworth Press (forthcoming).

Beckerman, A. (1998). Charting a course: Meeting

the challenge of permanency planning for children

with incarcerated mothers. Child Welfare 77 (5), 513-

529.

Bortner, M. A. (2002). Controlled and excluded:

Reproduction and motherhood among poor and

imprisoned women. In J. Figueira-~McDonough and R.

Sarri (Eds.) Women at the Margins: Neglect,

Punishment and Resistance. Binghampton, NY:

Hayworth Press (forthcoming).

Child Welfare League of America. (1998). An

overview aieruyen [Fact Sheet].

24a

10.

11.

12.

13.

Deborah Satyanathan, Overview

Child Welfare League of America. (1998). What

happens to the children? [Report].

(http://www.cwla.org/programs/incarcerated/whatha

ppens. htm)

Dressel, P., Porterfield, J. & Barnhill, S. K. (1998).

Mothers behind bars. Corrections Today 60 (7), 90-

94.

Katz, P. C. (1998). Supporting families and children

of mothers in jail: An integrated child welfare and

criminal justice strategy. Child Welfare 77 (5),

495511.

Michigan Department of Corrections. (1999). 1999

Statistical Report.

Morton, J. B. & Williams, D. M. (1998).

Mother/child bonding. Corrections Today 60 (7), 98-

104.

Mumola, C. (August, 2000). Incarcerated Parents and

their Children. Washington, D.C.: U.S. Department

of Justice.

Phillips, S. & Bloom, B. (1998). In whose best

interest? The impact of changing public policy on

relatives caring for children with incarcerated parents.

Child Welfare 77 (5), 531-541.

Pimlott, S. & Sarri, R. (2002). The forgotten group:

Women in prisons and jails. In J. Figueira-

McDonough and R. Sarri (Eds.) Women at the

Margins: Neglect, Punishment and resistance.

Binghampton, NY: Hayworth Press (forthcoming).

Seymour, C. (1998). Children with parents in prison:

Child welfare policy, program and practice issues.

Child Welfare 77 (5), 469-493.

25a

Deborah Satyanathan, Overview

State and Federal Policy Response

l.

Child Welfare League of America. (1998). State

agency survey on children with incarcerated parents.

[Report]

(http://www .cwla.org/programs/incarcerated/98state

agencysurvey .htm)

Genty, P. M. (1998). Permanency planning in the

context of parental incarceration: Legal issues and

recommendations. Child Welfare 77 (5), 543-559.

Johnson, T., Selber, K. & Lauderdale, M. (1998).

Developing quality services for offenders and families:

An innovative partnership. Child Welfare 77 (5), 595-

615.

26a

APPENDIX C

THE PLIGHT OF CHILDREN

WHOSE PARENTS ARE IN PRISON

Prepared by

Barry A. Krisberg, Ph.D.

and

Hon. Carolyn Engel Temin

for an upcoming issue of

The Federal Sentencing Report

January 8, 2001

National Council On Crime And Delinquency

Headquarters Office 1970 Broadway, Suite 500

Oakland, CA 94612

(510) 208-0500

(510) 208-0511 fax

Midwest Office 4236 South Yellowstone Drive

Suite 250, Madison, WI 53719

(608) 831-8882, (608) 831-6446 fax

27a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

THE PLIGHT OF CHILDREN

WHOSE PARENTS ARE IN PRISON

Barry A. Krisberg, Ph.D.

Hon. Carolyn Engel Temin

Incarcerated Parents: A Growing National Problem

Traditional discussions about sentencing policy pay

scant attention to the effects of imprisonment on parents and

their children. However, the enormous rise in the numbers of

people behind bars, especially women, has brought this issue

to prominence. In 1999, more than half of all state and federal

prisoners reported having a child under the age of 18. Over

721,500 parents of an estimated 1,324,900 minor children are

confined in prisons. Since 45 percent of these incarcerated

parents reported that they resided with their children prior to

entering prison, the Bureau of Justice Statistics estimates that

336,300 U.S. households with minor children are impacted by

the imprisonment of a parent (Mumola, 2000). African

American children are nine times more likely to have an

incarcerated parent than white children. Latino children are

three times more likely to have an imprisoned parent than

white children. These numbers increased steadily during the

1990s -- the number of minor children whose parents were

locked up increased by over 500,000 during this period.

The alarming rise in the number of women inmates has

exerted a profound impact on this issue. Children are far more

likely to live with their mother rather than their father prior

to parental incarceration (64 percent versus 44 percent,

28a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Mumola, ibid). After parental incarceration, a child whose

father is imprisoned usually lives with the mother, while the

child of an incarcerated mother is much more likely to live

with grandparents, other relatives, or to be placed with foster

care agencies. The children of incarcerated women are more

than five times more likely to enter the foster care system than

children whose male parents were in prison. Thus, the

decision to incarcerate a woman with minor children often

creates immediate problems for the child welfare system

(Bloom and Steinhart, 1993; Acoca and Raeder, 1999). There

are several other important concerns unique to incarcerated

mothers that we will discuss later in this paper.

The Bureau of Justice reports that the majority of

children have never had a personal visit with their

incarcerated parent after prison admission, although the vast

majority of inmates say that they stay in touch with their

children on a weekly basis via letters and telephone calls

(Mumola, 2000). Sheer distance seems to be a major

impediment to children visiting their imprisoned parents.

Most parents are confined in facilities that are more than 100

miles from their last place of residence. Because there are

fewer women’s prisons, their children often must travel

greater distances to visit with their mothers. The barriers to

visits are especially difficult for federal prisoners whose place

of incarceration is typically very remote from their place of

last residence.

Children Adrift

Nearly a quarter century ago, the National Council on

Crime and Delinquency (NCCD) and the Children’s Defense

29a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Fund (CDF) chronicled the plight of children with

incarcerated parents (McGowan and Blumenthal, 1978).

Fifteen years later, the NCCD replicated this national study

and found that the number of incarcerated women and men

had grown tremendously, but there was little or no

improvement in the response to their children (Bloom and

Steinhart, 1993). Both studies used the title “Why Punish The

Children?”. The simple, but crucial point was that the

children of offenders had committed no offenses, yet they

were made to suffer from the “not so benign neglect” of

governmental agencies. Both studies documented how neither

courts, corrections departments, nor social welfare agencies

took any meaningful actions to care for the children of

incarcerated parents. These children were often adrift amid a

range of official policies and procedures that seemed illogical,

at best, and often anti-child at worst.

For example, children who visited their incarcerated

parents had to participate in the mass visiting process of state

prisons, with no provisions for their childhood needs. NCCD

found that it was not unusual for infants and small children to

be subjected to strip searches and body cavity intrusions. The

children were often left to fend for themselves as the adult

visitors discussed a range of complex legal and financial

issues.

Social workers were rarely encouraged to facilitate

prison visits between children and their parents. There were

few provisions for transportation of children to remote prison

locations. Those social welfare staff who did try to keep

families connected were also subjected to humiliating

treatment by corrections officials who claimed to be guarding

30a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

against smuggling of illicit goods into the prisons. Children

were often quickly moved into foster care settings with little

planning for permanent living arrangements. A frequent social

welfare response was to place the children with relatives

(often grandparents) - this permitted the social welfare agency

to provide minimal (or, in some cases, no) financial aid to the

“kinship caretakers.” Laws in some states prohibited foster

care payments to the relatives of incarcerated parents (Bloom

and Steinhart, 1993). Kinship care givers are often faced with

immediate financial hardships, and they usually !ack the legal

advocacy resources to navigate through the complex web of

welfare regulations. Further, there was little or no screening

to determine the fitness of kinship care givers to take custody

of a minor child.

Sometimes the children were told that their parent had ~

died, later the story would change (McGowan and

Blumenthal, 1978). Few, if any, counseling resources

specifically designed to address the needs of those with

incarcerated parents were available to the children themselves,

or their care givers. Both NCCD studies found that the

children of incarcerated parents did not thrive. Parents

reported that the children experienced severe problems in

school and showed signs of serious mental health and

behavioral problems. There is growing research evidence that

the children of incarcerated parents (especially those whose

mothers are in prison) show much higher rates of subsequent

criminal behavior and incarceration (Acoca, 2000; Acoca and

Dedel, 1998; Gabel and Johnston, 1995; American

Correctional Association, 1990). Thus, the problems of

children whose parents are in prison, if not attended to,

produce inter-generational patterns o£ crime and violence.

3la

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

It is not difficult to imagine how the experience of

having a parent locked away in a distant prison would create

such adverse impacts on children. For example, the Center for

Children of Incarcerated Parents studied the effects of

incarceration on 56 children from South Central Los Angeles.

The study noted that these children had been subject to a

broad range of adverse experiences including extreme

poverty, exposure to violence, pre-natal drug exposure, and

violent deaths of family members. Added to these extreme

stress factors was the forced removal of the parent from the

household. The Center found that these children were even

more vulnerable to the impact of separation from parents,

leading to severe traumatic stress. The traditional role of the

parent in helping children deal with difficult life situations is

greatly diminished in these families. Stable, nurturing home

environments that are key to building resiliency among young

children are often absent (Center for Children of Incarcerated

Parents, 1992).

The overwhelming evidence from research on early

childhood development demonstrates the critical importance

of establishing a “strong and enduring attachment bond to at

least one care giver during infancy” (Yale Law Journal,

1978:1411-1412). Many scholars have underscored the role

of parental attachment in the formulation of healthy emotional

and cognitive competencies (Bowlby, 1953; Ainsworth, 1973;

Goldstein, Freud, and Solnit, 1973). Moreover, there is

strong evidence that the removal of a child from a family may

cause additional psychological damage (Wald, 1975). In

particular, children who are shifted among multiple care

givers often experience great difficulties in establishing close

interpersonal relationships. Research has indicated that the

32a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

first two years after a child’s birth are particularly critical for

forming parent-child attachments, although the long-term

impact of early separation can he reduced if the child and

parent are reunited within a brief time frame (Yale Law

Journal, 1978). Little is known about whether the long-term

negative consequences of lengthy early childhood separation

from parents can be reversed later in life.

Decisions to sever parent-child ties must be grounded

in a very careful analysis of potential harms to the child.

Families awash in mental illness, drug abuse, violence, and

other personal forms of dysfunction can be very hurtful to

children. Child welfare professionals must make “life or

death” decisions regarding the removal or maintenance of a

child in an abusive or neglectful home environment. Social

work professionals must also assess whether the provision of

appropriate treatment services can greatly reduce the threats

to the child while averting the problems created by separation

(Wald, 1975). When the case involves incarcerated parents,

careful assessment of “best interests of the child” is rare.

Parental incarceration often is viewed, per se, as evidence of

extreme neglect. The virtual absence of programs that could

maintain infant and parent bonds during the criminal sentence

makes such considerations moot (Morash et al., 1995). Since

it is rare that criminal courts and family courts coordinate

their planning, the question of what will become of the child

is often an afterthought for the justice system.

Special Burdens of Incarcerated Mothers

No analysis of the problems of children whose parents

are incarcerated can ignore the special plight of women in

33a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

prison. As noted earlier, women are most likely to be the

prime and sole caretakers of their children, and they are more

likely to be living in extreme poverty or homelessness Prior

to their imprisonment (Mumola, 2000). The incarceration of

women has grown rapidly in recent years, particularly as

states and the federal government have instituted tough new

mandatory sentencing policies as part of the “War on Drugs”

(Acoca and Raeder, 1999). Incarceration has displaced

probation as the prime sentencing option for many women

offenders. Sentencing guidelines have “bootstrapped”

sentences for women to more closely resemble the statistical

average for men (Acoca and Raeder, 1999). While these

changes have been justified in terms of greater equity in the

sentencing process, many believe that grave injustices are

being perpetrated in the name of gender fairness (Chesney-

Lind, 1991; Amnesty International, 1999).

Research has consistently demonstrated that women

are most likely to be imprisoned for non-violent crime --

almost 74 percent of women in state prisons were admitted for

non-violent offenses, while the majority of men behind bars

were convicted of violent crimes (Mumola, 2000). Women

are more likely to be low level couriers in drug transactions,

and to commit their offenses to satisfy their addictions( Acoca

and Austin, 1996). Women are less likely to be disruptive

inmates, and have lower rates of recidivism (Acoca and

Raeder, 1999). Despite these findings, the reduced danger to

public safety posed by women offenders seems is not given

any weight as jurisdictions move to more rigid sentencing

schemes. Parenting considerations are almost never

considered by judges as they set penalties within statutory

guidelines systems. This is particularly ironic since an

34a

a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

offender’s value to his/her employer can be considered to

ameliorate some sentencing guidelines, but their value as a

sole care giver is not deemed relevant. Since men are more

likely to be employed, and women more likely to be primary

care givers, the superficial pursuit of “gender neutrality”

produces greater gender discrimination (Raeder, 1993).

Women, unlike men, sometimes are pregnant and give

birth while behind bars. Amnesty International (1999) and the

United Nations Special Rapporteur on Violence Against

Women (1999) have documented the virtual absence of pre-

natal care for incarcerated women (Barry, 1991). They have

reported several incidences of women forced to give birth in

prison cells or corridors, often while they are shackled.

Morever, it is customary that babies born to prison inmates

are immediately separated from their mothers and placed in

emergency foster care or with any relative willing to assume

the burden.

This extreme cruelty towards women inmates fits a

historical pattern in which women inmates have endured harsh

conditions of confinement and been subject sexual abuse by

guards (Immarigeon and Chesney-Lind, 1992). Abusive

experiences in prison are tragic continuations of physical and

psychological abuse that many inmates have endured

throughout their lives (Owen and Bloom, 1995; Acoca and

Dedel, 1998).

Other social policies have exerted an adverse impact

on inmate mothers. National and state reforms in welfare and

adoption laws have made it easier to eliminate welfare benefits

for women offenders, and have created nearly insurmountable

35a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

barriers for inmate mothers who want to be eventually

reunited with their children. For example, new federal laws

had very negative impacts on inmate mothers. The Personal

Responsibility and Work Reconciliation Act of 1996 made it

far easier to drop families from the welfare rolls if the parents

had criminal convictions for a drug offense. The Adoption

and Safe Families Act of 1997 imposed tighter time frames for

family courts and the provision of child welfare services to

preserve families. Incarcerated women are now much more

likely to lose their children to adoption, and less likely to

qualify for family preservation services of any sort (Acoca

and Raeder, 1999).

Policy and Program Alternatives

The problems of children whose parents are in prison

must be addressed, not only for humanitarian reasons, but to

attempt to interrupt the intergenerational cycle of crime and

violence. The nation can no longer tolerate having over 1.5

million minor children in limbo. The policy and program

options are clear, and many sensible solutions have been

advocated by many professional groups such as the National

Association of Women Judges, the American Bar Association,

the American Correctional Association, the Child Welfare

League of America, and the National Council on Crime and

Delinquency. It is now time for elected officials, courts, and

public agencies to begin to implement the necessary reforms.

First and foremost, sentencing options must be

expanded to be responsive to the needs of the children of

incarcerated parents. This could mean changing sentencing

provisions to allow for qualified, low-risk offenders to serve

36a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

their sentences in non-institutional settings. Sentencing

guidelines must be re-examined to determine if they are

overly rigid, and if they create defacto discrimination against

parents, especially the primary care givers. Whenever

possible these reforms should create alternative sentencing

options that permit children to continue to reside with their

parents. Where current laws permit, judges should take the

offender’s care giver role into consideration as part of the pre-

sentence investigation. Judges should consider a range of

sentencing options that tend to preserve family attachments.

These steps presuppose adequate funding of community

corrections programs to give the courts appropriate sentencing

alternatives that keep families together whenever this is

feasible. Legislation enacted in California, and at the federal

level, has attempted to dedicate funding for community-based

- correctional alternatives that keep children and their parents

together, but funding for these programs has been woefully

inadequate or virtually non-existent.

The child welfare system must accept increased

responsibility for the grave challenges faced by children of

incarcerated parents. Mechanisms must be established or

strengthened to coordinate family reunification services with

the courts and corrections agencies. Child welfare agencies

should make reasonable efforts to keep siblings together, to

place children with responsible relatives, and to facilitate

visits between children and their incarcerated parents.

Imprisonment, and the barriers faced by incarcerated parents

in maintaining frequent contacts with their children, should

not be the sole basis for recommendations to terminate

parental rights. Policies denying full foster care benefits to

legitimate kinship care givers should be eliminated.

37a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Government agencies should develop and fund community

agencies who can provide a wide range of support services for

incarcerated parents, and the children’s care givers. These

services should include legal advocacy, training and support

for kinship care givers, and additional medical and mental

health services for the children, as needed. Existing state and

federal child welfare laws should be reviewed to eliminate any

unnecessary obstacles or disadvantages created for the

children of incarcerated parents

Corrections agencies should implement policies and

procedures that promote positive contacts between

incarcerated parents and their children. These steps might

include placing parents in institutions closest to their

children’s residence, expanded visiting programs, including

special visiting areas for minor children, and increased

transportation and visitor support services. Such programs

will not only reduce the negative effects of imprisonment on

children, but have been shown to reduce recidivism rates

(Acoca and Raeder, 1999).

Health care practices must be reformed to provide an

appropriate level of care for pregnant inmates. Whenever

possible, correctional officials should create nOn-institutional

settings for pregnant inmates, and for an appropriate period

after the child’s birth. In-prison nurseries are a possible

option but non-institutional placements are the preferred

program option. Corrections agencies should contract with

community agencies which have extensive experience working

with low-income families.

38a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Pre-release programs for inmates should include training

for inmate parents returning to their families, assisting them

to regain custody of their children when appropriate, to help

secure decent housing, and to find employment. Similar

services for inmate parents should be included in parole

planning.

Concluding Thoughts

We are still punishing the children. Yet, in punishing

the children of inmates, we are ultimately punishing

ourselves. The ongoing pattern of societal neglect, and

ofttimes hostility, comes back to haunt us in terms of creating

more social problems such as violence, drug abuse, and

mental illness. Ignoring the problem solves nothing. The

number of innocent children who are impacted has grown

geometrically, and they will be living in our communities for

many years to come. In our collective zeal to condemn

lawbreakers, we have inadvertently condemned their children.

Basic humanitarian values and considerations of fairness

demand that we change existing laws, policies, and practices.

Alleviating the plight of the children of incarcerated

parents does not excuse the misdeeds of the parents, nor

should it be viewed as ignoring the serious social and

psychological problems faced by those inmate parents (many

of whom were themselves the children of prison inmates).

But, this growing social time bomb must be defused with

sound and rational public policies. Greater public awareness

Of crises faced by these families is a good start. Frank re-

examinations of criminal justice and child welfare policies that

have worsened this problem should proceed immediately .

39a

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Judges can play a crucial leadership role in publicizing

the inflexibility and dysfunctional aspects of existing

sentencing codes. The judiciary can exercise their discretion.

to promote sentencing alternatives that attempt to preserve the

bonds of parents and children. Advocacy and community-

based social service agencies can play a key role in proposing

meaningful alternative programs. Corrections and welfare

officials need to yrovide greater training to their staff on the

plight of these children and their parents. Budgets for

remedial programs must be created and sustained.

It is sometimes fashionable in professional or political

conversations to speak cynically about “writing off” this

generation of incarcerated Americans. These spokespersons

tell us to invest in the next generation -- to provide better

health care, more Headstart programs, more after school

centers. The plight of the children of America’s prisoners

shows the obvious vacuousness of these views. Generations

are connected. You cannot eliminate the parents without

profoundly harming their children. Rescuing these children

will require far more rational and enlightened legal policies

toward their parents. In the end, saving the innocents is one

sure way to save our communities and our own families from

the cycle of violence that cannot be safely contained by prison

walls.

References

1978 “On Prisoners and Parenting: Preserving the Tie That

Binds,” Yale Law Journal, 87, (7), 1408-1429

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Acoca, Leslie

2000 Educate or Incarcerate: Girls in the Florida and

Duval County Juvenile Justice Systems, Oakland,

California: National Council on Crime and

Delinquency

Acoca, Leslie and James Austin

1996 The Crisis -- The Women Offender Sentencing Study

and Alternative Sentencing Recommendations Project:

Women in Prison. Washington, DC: National Council

on Crime & Delinquency

Acoca, Leslie and Kelly Dedel

1998 No Place to Hide. Understanding and Meeting the

Needs of Girls in the California Juvenile Justice

System. San Francisco, California: National Council

on Crime and Delinquency

Acoca, Leslie and Myma S. Raeder

1999 “Severing Family Ties: The Plight of Nonviolent

Female Offenders and Their Children,” Stanford Law

Policy Review, 11 (1):133-151

Ainsworth, Peter B.

1973 “The Development of Infant-Mother Attachment,”

Review of Child Development Research I, 33

American Correctional Association Task Force on the

Female Offender

1990 The Female Offender: What Does the Future Hold?

Laurel, Maryland: American Correctional Association

4la

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Amnesty International

1999 Not Part of My Sentence: Violations of the Human

Rights of Women in Custody. New York, New York:

Amnesty International

Bloom, Barbara, David Steinhart

1993 Why Punish the Children? A Reappraisal of the

Children of Incarcerated Mothers in America, San

Francisco, California: National Council on Crime and

Delinquency

Bowlby, J.

1969 Attachment and Loss, New York: Basic Books

Center for Children of Incarcerated Parents

1992 Report No. 6. Children of Ojfencers, Pasadena,

California; Pacific Oaks College

Gabel Katherine and Denise Johnston (eds.)

1995 Children of Incarcerated Parents, New York, New

York: Lexington Books

Goldstein, Joseph; Anna Freud; Albert J. Solnit

1973 Beyond the Best Interests of the Child, New York,

New York: Free Press.

Harris, M. Kay, Marvin Zalman, Allen Breed, et. al.

1991 “Judicial Intervention in Local Jails, Il,” Prison

Journal, 71, (1) 1-92.

42a

PUBLISHER'S NOTE:

Page(s) Ado. missing in original.

Krisberg and Temin, The Plight of Children

Whose Parents are in Prison

Wald, Michael

1975 “State Intervention on Behalf of ‘Neglected’ Children:

a Search for Realistic Standards,” Stanford Law

Review, 27, (4)

Barry Krisberg is president of the National Council on Crime

and Delinquency. Carolyn Engel Temin is a judge of the

Court of Common Pleas, First Judicial District, Pennsylvania.

APPENDIX D

NATIONAL POLICY CONFERENCE

From Prison to Home:

The Effect of Incarceration and Reentry on Children, Families

and Communities

January 30-31, 2002

U.S. Department of Health and Human Services

The Urban Institute

Effects of Parental Incarceration

on Young Children

Ross D. Parke

University California, Riverside

K. Alison Clarke-Stewart

University California, Irvine

December 2001

Effects of Parental Incarceration on Young Children

For imprisoned mothers, one of the greatest

punishments incarceration carries with it is separation from

their children. As one mother put it, “I can do time alone OK.

But its not knowing what’s happening to my son that hurts

45a

Parke and Clarke-Stewart, The Effects of Parental

Incarceration on Young Children

most” (Baunach, 1988, p. 121, cited in Garcia Coil et al.,

1998). As this quote suggests, when parents are incarcerated,

“what’s happening” to their children is a great concern. It is

a concern for us as well. Our goal in this paper is to examine

the impact of parental incarceration on children’s well-being

and development, to determine just what is happening to these

children. .

Several assumptions guided our examination of this

problem. First, we assumed that the child is located in a

family system and to understand the impact of incarceration

on the child, the network of relationships within the family

system needed to be considered (Belsky, 1984; Sameroff,

1994). Second, we assumed that the developmental level of

the child at the time of parental incarceration and the quality

of the relationship the child had developed with the

incarcerated parent needed to be considered (Bowlby, 1973).

Third, the gender of the incarcerated parent was examined,

because separation from mother may affect children

differently from separation from father (Parke, 2001) Fourth,

characteristics of the extended kin network in which the

family of the incarcerated parent is located were considered

(Cochran & Brassard, 1979). Finally, the nature and

availability of formal institutional supports for the family of

the incarcerated parent were given attention (Bronfenbrenner

& Morris, 1998).

Scope of the Problem

Who is incarcerated and how many of those

incarcerated are parents? According to recent estimates

(Mumola, 2000), nearly 3.6 million parents are under some

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form of correctional supervision, including parole. Of these

parents, almost 1.1 million are incarcerated in federal, state,

or local jails. These parents have an estimated 2.3 million

children. Alarmingly, the rate of parental incarceration has

gone up sharply in the last decade. In 1991, there were

452,500 parents in state and federal prisons, with 936,500

minor children. By 2000, the number of parents in prisons

had nearly doubled to 737,400, and the number of children

affected rose by over a third to 1,531,500 (Mumola, 2001).

Although the absolute numbers have increased, however, the

percentage of state and federal prisoners with minor children

has not changed over this time period. In 1991, 57% of

prisoners had minor children; in 2000, 56% were in the same

situation. Moreover, the increase in parents who became

prisoners (63%) was similar to the rate of growth for non-

parental prisoners (69%) -- a finding that suggests that being

a parent is not necessarily a protective factor in reducing the

chances of incarceration.

Gender of parent is a major factor in patterns of

incarceration; fathers account for 90% of incarcerated

parents. However, the number of mothers in prison grew at

a faster rate than the number of incarcerated fathers across the

decade 1991-2000. There was an 87% increase for mothers,

but only a 61% increase for fathers. Not surprisingly, in view

of their unequal rates of incarceration, the parents’ ethnicity

matters, too. As expected, in both state and federal prisons,

there are more African American parents (47% and 49% in

state and federal prisons respectively) than either Hispanic

parents (19% and 30%) or white non-Hispanic parents (29%

and 22%). Stating this racial disparity in terms of minor-age

children, nearly 7% of African American children, 3% of

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Hispanic children, and 1% of white children of the total

population of children in the United States had an incarcerated

parent (Mumola, 2000).

In terms of age, 58% of children with incarcerated

parents are under 10 years of age, with 8 years being the

mean age. Nearly half (48%) of the parents in state facilities

and over a third in federal prisons (38%) were never married;

25-28% were divorced or separated. Only 23% of state

inmate parents and 36% of federal inmate parents were

married. In terms of education, most did not have a high

school diploma (7% in state prison; 6% in federal prison), but

nearly 30% had obtained a GED. Only 13% of state inmate

parents reported any college education, but 25% of federal

inmate parents reported some college education.

To understand the impact of parental incarceration, it

is important to determine the nature of the family living

arrangements prior to incarceration. Many of these children

were living with non-parental caregivers prior to the

incarceration of their mother or father. In fact, only half of

the inmate parents in either state (43%) or federal prison

(57%) lived with their children at the time of admission to

prison. Gender differences are again evident. Specifically,

mothers in either state (64%) or federal (84%) prisons were

living with their children at the time of admission to prison,

in contrast, only half of the fathers were living with their

children at the time of their incarceration (44% for state and

55% for federal prison). Unfortunately the nature of the prior

living arrangements is not generally considered in assessments

of the impact of incarceration or children, but it would be

expected that incarceration would carry different meanings

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and have different consequences for children who do or do not

reside with their parents before incarceration. As we know

from other research literatures, meaningful social

relationships may or may not exist between children and their

non-resident parent (Furstenberg, Morgan, & Allison, 1987;

Garfinkel, McLanahan, Meyer, & Seltzer, 1998). The extent

to which incarceration disrupts the contact patterns between

these non-residential parents and their children, as well as the

effects of incarceration on children who were living with their

parent at the time of imprisonment, are both issues that merits

examination.

Another important issue is who looks after the children

when parents are incarcerated. Again the answer varies with

the gender of the parent. For incarcerated fathers, the child’s

mother is the usual caregiver before the father is arrested, and

in the case of both state and federal incarceration, 90% of the

time, mothers assume the caregiving responsibility after the

father goes to prison. On the other hand, when mothers are

put in prison, fathers assume responsibility only 28% - 31%

of the time. Instead, most commonly, the grandparent

becomes the caregiver (53% of the time for state

incarcerations and 45% of federal). Other relatives in the kin

network pick up the parenting role for between 26% and 34%

of the cases. Friends do so about 10% - 12% of the time.

Fewer than 10% of the children of mothers in state prisons

and fewer than 4% of the children of mothers in federal

prisons are in foster care. These disparities in parenting

responsibilities mirror the larger picture in our society

whereby mothers assume the largest share of parenting in

intact families (Coltrane, 1996; Parke, 1996; 2002) and post-

divorce families (Hetherington & Kelley, 2001).

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On average, mothers and fathers also spend different

lengths of time away from their children. Fathers serve 80

months in state prison and 103 months in federal prison, on

average, whereas mothers serve 49 months and 66 months in

state and federal prison respectively. The lengths of

incarceration reflect the nature of the different offenses

committed by males and females. Fathers are more likely than

mothers to be in prison for violent crimes (45% vs. 26% in

state prison; 12% vs. 6% in federal prison). Mothers, on the

other hand, are more likely to be in prison for drug-related

offenses (35% vs. 23%) and fraud (11% vs. 2%). Therefore,

in answering the question of the impact of incarceration on the

mother-child versus father-child relationship it is important to

consider these gender-related patterns of incarceration. As we

note below, although the short-term impact on children may

be greater when mothers are imprisoned, the long-term impact

of the lengthier period of separation of fathers may bode

poorly for maintenance of father-child ties (Gadsden &

Rethemeyer, 2001).

The I 7 , Child

Incarceration is not a single or discrete event but a

dynamic process that unfolds over time. To understand the

impact of the incarceration process on children it is necessary

to consider separately the short-term effects of the arrest and

separation of the child from the parent, the impact of the

unavailability of the parent to the child during the period of

incarceration, and the effects -- both positive and negative --of

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It is also critical to consider whether the chiid is living

with the parent at the time of incarceration, whether a single

or two-parent household is involved, and, in the case of a

two-pareut household, which parent is incarcerated. As we

have noted, only a small percentage of children live with their

father as the sole caregiver; it is more usual for children to be

living with a single mother prior to incarceration. The most

recent figures (Mumola, 2000) indicate that 36% of state and

16% of federal inmate mothers were not living with their

children at the time of admission. In contrast, 56% of state

and 45% of federal inmate fathers were not living with their

children at the time of their incarceration. Thus, when a

parent is incarcerated, it is more likely that children will

experience separation from mother than separation from

father.

Short-term Effects

The arrest phase. Unfortunately, only an incomplete

picture of the impact of the initial arrest on children is

available. According to Johnson (1991), one in five children

is present at the time of the arrest and witnesses the mother

being taken away by authorities. More than half of the

children who witness this traumatic event are under 7 years of

age and in the sole care of their mother. Jose-Kampfner

(1995) interviewed 30 children who witnessed their mother’s

arrest and reported that these children suffered nightmares and

flashbacks to the arrest incident. Children in middle childhood

who are in school at the time of the arrest may return to an

empty residence and be unaware of the arrest of their mother

(Fishman, 1983). The impact of father’s versus mother's

arrest is unknown and needs to be assessed in future research.

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Parke and Clarke-Stewart, The Effects of Parental

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The management of the explanation. There is

controversy surrounding the wisdom of providing children

with information concerning the arrest and the reasons for

their parent’s incarceration. Some argue that children ought

to be protected from the knowledge that their parents are

incarcerated as a way of minimizing the trauma associated

with the separation (Becker & Margolin, 1967). Others argue

that the emotional distress of children is exacerbated by the

unwillingness of family, friends or caregivers to discuss their

parent’s incarceration (Snyder-Joy & Carlo, 1998). This

failure to disclose has been variously termed the “conspiracy

of silence” (Jose-Kampfner, 1995) or “forced silence”

(Johnson, 1995). Mothers are usually the ones who take

responsibility for explaining the situation to the children -

regardless of whether or not they are the incarcerated parent.

For example, Sack, Seidler and Thomas (1976) found that in

only 7 of 31 cases did the father or both parents together offer

the child an explanation. Moreover, when explanations were

provided, they were often vague and general; one typical

mother told her children that their father “did wrong and had

to be punished.” Other explanations were distorted or

deceitful. Deception took a variety of forms, from total lies to

strong shading of the truth, in which prison was referred to as

an army camp, a hospital or a school. Total deception

occurred in 4 of the 31 families in the study, and partial

deception occurred in another 6 families. In other words,

nearly a third of the families engaged in some form of

deception. Similarly in a much larger study carried out in

England, Morris (1965) reported that 38% of the families

used partial or total deception in explaining a parent’s

incarceration to the children.

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What is the impact of this “conspiracy of silence” or

deception on children? In light of the literature on children’s

coping (Ayers, Sandier, West, & Roosa. 1996; Compas,

1987), which suggests that uncertainty and lack of information

undermines children’s ability to cope, it is not surprising that

children who are uninformed about their parent's

incarceration are more anxious and fearful (Johnson, 1995).

Although the situation of a parent lost through death is more

extreme, some of the insights gained from this literature

concerning ways of helping children cope with loss is

instructive. As Nolen-Hoeksema and Larson (1999) argue,

children need honest, factual information, and they need to

have their experience validated. Providing children with

reliable, dependable information allows them to begin to make

sense of their situation and begin the dual processes of

grieving the loss of their parent and coping with their new life

circumstances. On the other hand, silence about the parental

incarceration often results not from a deliberate attempt to

deceive the children but from an effort to avoid other

complications. As Johnson (1995, p. 74) notes “There may be

a very good reason for such a forced silence; family jobs,

welfare payments, child custody, and even housing may be

jeopardized when others become aware of the parents’

whereabouts. However, children of prisoners are more likely

to have negative reactions to the experience when they cannot

talk about it.”

Long-term Effects

A variety of long-term effects of parental incarceration

on children have been identified. The long-term impact varies

with a variety of factors, including the developmental level of

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the child.

Incarceration and infants. A small number of women

(6%, U.S. Department of Justice, 1994) are pregnant at the

time of their incarceration, but few prisons in the United

States permit mother to keep their infants with them during

incarceration (Gabel & Girard, 1995). In most cases, mothers

of newborn infants are permitted only a few days of contact

before they must relinquish their infant and return to prison.

As a result, there is little opportunity for the mother to

develop a bond to the baby or for the baby to become familiar

with the mother and form an attachment to her -- a critical

developmental task for both mothers and infants. As Myers et

al. (1999) note, after the mother’s is released, she comes

home to an infant or young child with whom she has not

developed an emotional bond and who is not attached to her,

with the likely result that the children will have emotional and

behavioral problems.

Incarceration and young children. Even if a child-

parent attachment bond has already developed, as in the case

of infants who have been in their mother’s or father’s care for

the first 9 to 12 months of life, the disruption associated with

parental incarceration will likely adversely affect the quality

of the child’s attachment to their parent (see Thompson, 1998,

for a general discussion of the effects of separation on

attachment in non-incarcerated samples). Even less drastic

changes such as job loss, divorce, or residential re-location

have been found to adversely affect the quality of the infant or

toddler child-parent attachment quality (Thompson, Lamb, &

Estes, 1982; Vaughn et al., 1979). Insecure attachments -- a

consequence of adverse shifts in life circumstances -- in turn,

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Parke and Clarke-Stewart, The Effects of Parental

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have been linked to a variety of child outcomes, including

poorer peer relationships and diminished cognitive abilities

(Sroufe, 1988). In light of the results of this research on

separation and attachment, it is not surprising that when their

parents are incarcerated, young children (ages 2 - 6 years)

have been observed to suffer a variety of adverse outcomes

that are consistent with the research on the effects of insecure

attachments (Johnson, 1995). In fact, according to one

estimate (Baunach, 1985), 70% of young children with

incarcerated mothers had emotional or psychological

problems. Children exhibit internalizing problems, such as

anxiety, withdrawal, hypervigilance, depression, shame and

guilt (Bloom & Steinhart, 1993; Dressier et al., 1992). They

exhibit somatic p.vblems such as eating disorde:s. And,

perhaps most clearly, young children exhibit externalizing

behaviors such as anger, aggression, and hostility toward

caregivers and siblings (Fishman, 1983; Gaudin, 1984;

Johnston, 1995; Jose-Kampfner, 1995; Sack et al., 1976).

Incarceration and school-age children. School-age

children of incarcerated parents exhibit school-related

problems and problems with peer relationships. Sack et al.

(1976) reported that over 50% of the children of incarcerated

parents had school problems, such as poor grades or instances

of aggression, albeit many of these problems were temporary.

Among the younger children (6-8 years old) in the Sac - et al.

(1987) study, 16% exhibited transient school phobias and

were unwilling to go to school for a 4-6week period after their

parent’s incarceration. In another report, Stanton (1980) found

even higher rates of school problems: 70% of 166 children of

incarcerated mothers showed poor academic performance and

5% exhibited classroom behavior problems. Another school-

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Parke and Clarke-Stewart, The Effects of Parental

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based problem is that children are sometimes teased or

ostracized by other children as a result of their parent’s

incarceration (Jose-Kampfner, 1991). As Reid and Eddy (this

volume) note, as children reach adolescence, suspension and

dropout rates are higher for these children (Trice, 1997).

Effects of incarceration on boys verus girls. Although

it would be expected that boys would be more adversely

affected by this stressful separation -- in light of evidence that

boys are more vulnerable to stressful changes than girls are,

in general (e.g., Hetherington et al., 1998), the evidence on

this issue is unclear. Instead, the most likely scenario is that

both boys and girls are adversely affected by parental

incarceration, but their modes of expressing their reactions

differ. Boys are more likely to exhibit externalizing behavior

problems, while girls are more likely to display internalizing

problems (Cowan et al., 1994; Cummings, Davies, &

Campbell, 2000).

What leads to these problems? The answer to this

question is not simple. There are a number of interpretative

problems that merit elaboration. First, incarceration is often

preceded by a period of familial instability, poverty, child

abuse or neglect, marital discord and conflict, or father

absence. A combination of these conditions may have already

wicreased the base rates of children’s problem behaviors.

Consequently, without measures of the child’s environment

and behavior prior to incarceration, it is difficult to attribute

the problem behaviors to incarceration per se. Other events

also transpire at the time of incarceration that could account

for some of the negative effects on children. Re-location and

placement with alternative caregivers are both major

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disruptions in the children’s lives, which past research has

shown to be detrimental to children (Rutter, 1987). A similar

set of interpretative problems has plagued the literature on the

effects of other kinds of stress, such as divorce on children’s

functioning (Hetherington & Kelley, 2002; Hetherington et

al., 1998).

Modifiers of Children’s Reacti I :

Before the incarceration, during incarceration, and

during the reunion phase after incarceration, different factors

modify children’s reactions.

Pre-incarceration conditions. The most important

predictor of how well the child will adjust to the immediate

separation is the quality of the parent-child relationship.

Theoretically, a high quality parent-child relationship should

serve as a protective or buffering factor in helping the child

cope with the temporary loss of a parent (Myers et al., 1999;

Thompson, 1998). Unfortunately, however, many parents

who end up in prison are limited in their parenting abilities,

and thus this potential protective factor is unavailable to their

children (Johnston, 1991). Unfortunately, research is not

available to determine empirically whether children with a

closer relationship with their parent transcend the separation

with greater ease.

Another predictor or how well the child adjusts to

parental incarceration is likely to be the quality of

relationships with the extended family and non-family

informal social networks This support is especially relevant

when the father is incarcerated and leaves the mother to cope

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as a single parent. There is an extensive literature that

suggests that the quality of family ties within the extended

family network is related to mothers’ more positive parenting

attitudes and behavior (Cochran & Brassard, 1979; Cochran,

1995). In addition, Crnic, Greenberg, Ragozin, Robinson,

and Basham (1983) reported that mothers with higher levels

of informal social support were more responsive and

affectionate with their infants. More recently Goldstein,

Diener, and Mangelsdorf (1995), similarly, found that women

with larger social networks were found to be more sensitive

in interactions with their infants. In turn, the children of

parents who receive more social, emotional, and physical

support are better adjusted than children of parents with

limited kin or network support (Thompson, 1995). Moreover,

when it is the mother rather than the father who is

incarcerated, extended family members such as grandmothers

often assume the role of primary caregiver (Mumola, 2000).

To the extent that the child has already established close

emotional relationships with the extended family, the trauma

of transition to grandmother care will be lessened (Bloom &

Steinhart, 1993).

Factors during incarceration. The major determinants

of child adjustment during the period of parental incarceration

are (1) the nature and quality of the alternative caregiving

arrangements and (2) the opp

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