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
wee
ca tO
——t <P
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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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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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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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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