Reform Efforts Implemented by States to Address Family Separation Due to Incarceration

By Cynthia Hoang-Duong

EASTHAMPTON, MA – Writing for the Prison Policy Initiative, Emma Williams, a consultant at the organization, examined the adverse impacts of incarceration on the family unit and the reform efforts, including legislation, proposed and implemented to address them.

In reviewing such adverse effects and legislative action, Williams underscored the importance of protecting the parental rights of incarcerated individuals and relieving the burden of incarceration on their children.

The author contended, “A criminal sentence should not equate to a termination of parental rights, and children of incarcerated parents should not bear the brunt of their parents’ punishment. Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue.”

According to Williams, the Annie E. Casey Foundation’s report found that more than five million children with incarcerated parents have confronted family separation that is detrimental to their welfare.

For example, the author cited the Marshall Project that highlights the gender divide in incarcerated individuals who lose their parental rights and whose children face the foster care system. According to the organization, mothers are five times more likely to experience such ramifications than fathers due to incarceration.

Noting the correlation between parental incarceration and the higher probability of incarceration for their children, Williams expanded on the enduring effects on children with incarcerated parents, including harm to their health, employment, and education.

Williams said because of this, parental incarceration constitutes an “Adverse Childhood Experience” or a traumatic experience occurring in a child’s developmental years.

As the author argued, such statistics and evidence regarding the ramifications of incarceration on children due to the separation from their caregivers demonstrate the urgency of addressing the issue.

She critiqued the conventional approaches implemented by states that promote family separation, such as foster care placements and the loss of parental rights.

However, in response to these staggering statistics, she named 12 states, along with the federal prison system, with promising attempts to alleviate the negative effects of parental incarceration through legislation: Washington, Oregon, California, Hawaii, Illinois, Montana, Louisiana, Tennessee, Florida, New York, New Jersey, and Massachusetts.

The author commended the efforts of formerly incarcerated women who have spearheaded the movement of legislatures to tackle the issue.

According to Williams, to circumvent family separation due to incarceration, several states in the U.S. enacted mitigation laws that include caregiver status as a mitigating factor. Others, she added, have implemented diversion laws to guarantee parents priority for diversion or alternative programs instead of incarceration, such as drug treatment and electronic incarceration.

Highlighting the success of such laws in states with ranging positions on the political spectrum, the author emphasized that “this is a type of criminal justice reform which—since it places the welfare of children at the center—draws support from legislators across political divides.”

However, in light of such success, she also stated the limits on the alternative-to-incarceration and diversion programs, including lack of funding and available programs and the tentative nature of certain programs due to sunset provisions that specify a termination date and “pilot programs.”

Regarding insufficient funding, Williams elaborated on the shortage of the programs and their resources due to excess demand. To avoid overburdening such programs, she suggested mitigation and diversion legislation must add provisions for funding.

For example, said Williams, in 2021, Senator Ron Wyden (D-Oregon) and House Representative Pramila Jayapal (D-Washington 7th District) introduced the FAMILIES ACT, a bill that sought to divert caregivers to alternative programs and provide funds for more diversion programs.

The author compared the weight of current caregiver legislation, noting while some mitigation or diversion laws merely urge judges to consider caregiver status as a mitigation factor, others, such as Massachusetts, instruct that judges must grant an alternative sentence or provide a justification for their refusal.

Oftentimes, Williams wrote, diversion programs fail to offer individuals the opportunity to avoid incarceration because of eligibility requirements that prevent individuals, particularly violent offenders, from enrolling in them. Thus, she argued against broad exclusions for diversion programs of individuals based on the classification of their offense.

Further, Williams considered the advantages and challenges of proximity laws that set a maximum distance between incarcerated parents and their children to maintain the bond and contact between parent and child.

The author anticipates that the limited distance will facilitate in-person contact between the parent and child, improving the mental health of both and narrowing the parent’s likelihood of recidivism.

However, geographical challenges to such proximity laws undermine their effectiveness, according to Williams. She quoted the Florida Bar that stated “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”

New York is not an exception, Williams demonstrated. The Prison Policy Initiative presented the disproportionate number of incarcerated New Yorkers and the available prison facilities.

PPI noted while 41 percent of incarcerated individuals reside in New York City, most of the prisons are far from the city.

In fact, the author said the small number of women’s prisons in the U.S. that are often in rural areas. Contributing to the gender divide mentioned earlier by Williams, this places a strain on the relationship between incarcerated mothers and their children in cities.

The author also added that commuting to the facilities can often prove difficult for families because of a lack of time and transportation.

Though free “reunification rides” offer a potential solution, Williams recommended that proximity laws must pair with provisions for funding and constructing infrastructure that allows for families to transport to and visit their incarcerated family members.

Given such limits to mitigation or diversion and proximity legislation, Williams believes reform efforts must be improved to deal with issues such as resource-strained programs, exclusionary eligibility requirements and geographical challenges that weaken the effectiveness of such reforms.

As she wrote, “Future laws should focus on making reforms applicable to as many people as possible, maximizing the time shared between parents and children, and minimizing the burden on families for pursuing that time together.”

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