The Rights of Children of Incarcerated and their Parents a Human Rights Issue

Justice Strategies (JS) is working to address the impact of parental incarceration on children as a human rights issue and will be attending and presenting at the 2017 Advancing Human Rights Conference in Atlanta December 7-10th. With over two million children in the United States experiencing parental incarceration, children of color are impacted disproportionately. In 2014, in response to advocacy by JS, the United Nations’ CERD Committee (Convention for the Elimination of all forms of Racial Discrimination) made observations which included concerns on the negative impact of parental incarceration on children of color and called upon the US government to promote the use of alternatives to prison for parents of minor children. On July 24th , 2017, JS attended the US State Department’s Civil Society Consultation in Washington D.C. and made a statement to the department’s CERD Team urging the US government to uphold the observations regarding children of incarcerated parents at the federal, state and local level. We will continue to work to advance the rights of children of incarcerated and their parents as a human rights issue. Here is our full statement: 

TO: The State Department CERD Team

FROM:  Lillian M. Hewko and Patricia Allard, Justice Strategies

Date:    July 24, 2017

Re:  State Department Consultation on UNCERD: Impact of Parental Incarceration on Children.

Recent research documents the harmful impact of parental incarceration on children and has led to a growing interest from policymakers and practitioners to mitigate the long-term harms to children. In 2014, Justice Strategies raised the need for US policymakers to consider the diversion of parents before the United Nations’ CERD committee (Convention for the Elimination of all forms of Racial Discrimination). In its concluding observations on the combined seventh to night periodic reports of the United States of America, the committee expressed the following to the US government under the criminal justice system observations:

“The Committee is also concerned at the negative impact of parental incarceration on children from racial and ethnic minorities (arts. 2, 5 and 6).”

And:

“The Committee calls upon the State party to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system… including by…ensuring that the impact of incarceration on children and/or other dependents is taken into account when sentencing an individual convicted of a non-violent offence and promoting the use of alternatives to imprisonment.”[1]

The scope of the problem

National Data. Over two million children in the United States experience parental incarceration. Recent research on the problem has described how mass incarceration involving generations of young Black men and women has had devastating effects on their vulnerable children, increasing mental health and behavioral problems, contributing to child homelessness, and intensifying intergenerational inequalities.

Approximately 50 percent of incarcerated individuals in U.S. prisons are parents. The acute racial disparity within the prison system is reflected among the children of incarcerated parents, where Black children are eight times more likely than white children to experience parental incarceration. For those born in 1990, white children have a 1 in 25 rate of experiencing parental incarceration by age 14 – for Black children, the rate is 1 in 4.[2] Indigenous and Latino children also experience alarming rates of parental incarceration that far exceeds their white counterparts.

Research Findings. Decades of research documenting the detrimental impact of parental incarceration on children has shown a close yet complex connection between parental incarceration and adverse outcomes for children. Parental incarceration is considered an adverse childhood experience (ACE), or as an experience that may affect children long after the event has occurred. Studies have documented children’s experiences during parental incarceration, which have documented the difficulties that can occur for some children, including, psychological distress, confused explanations given to children, changes in child care arrangements, difficulties in maintaining contact with incarcerated parents, loss of family income, stigma associated with parental incarceration and home and school moves.[3] 

Additionally, parental incarceration has significant social costs, among those being the intergenerational transmission of inequality.[4] Research has found that the concentration of risk found within many families and communities facing parental incarceration, such as poverty, adverse neighborhood conditions, and violence exposure, may be predictive of an intergenerational cycle of criminality.[5]

Further warranting response, these outcomes fall disproportionately on Black and Latino children.[6] The authors of the recent book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality, examined how parental incarceration perpetuates the stark racial inequalities between White and Black children. For instance, they have found that, “increase[d] racial gaps in homelessness affect children by a staggering 65 percent.”[7] The authors have taken us a step further in our understanding, pointing to how the long-term consequences of imprisonment may last over many decades due to the intergenerational transmission of racial inequality. “This information is especially important because it suggests that the prison boom might have long-term consequences for racial inequalities even if the imprisonment rate were to return to its 1970s level today.”[8]

As most people in prison will be released from prison at some point and return to their communities,[9] it is important that we find ways to support family connections through a parent’s incarceration and as they return home. Studies on the state level show that family ties are the number one predictor of successful reentry and family members are the greatest anticipated source of financial resources, housing and emotional support before people in prison are released.[10] After release, families provide the greatest tangible and emotional support.[11]

Unfortunately, more often than not instead of supporting family connection, our criminal justice system operates to sever the ties and relationships between incarcerated individuals and their families. No matter the number of years, the time spent away missing moments of childhood can’t be recaptured-and these missed experiences may be crucial for a child’s well-being and development.

Solutions. The UNCERD Committee has urged that the U.S. government take steps to assure that the interests of children are taken into account when sentencing fathers and mothers with minor children, and to promote the use of alternatives.  There are numerous ways to address the Committee’s requests. The key solution would be to keep individuals out of prison in the first place with parental diversion options at pretrial and sentencing. But we must also find solutions for already sentenced incarcerated parents to release early.

At the federal level, the United States Sentencing Commission (USSC) could take steps to address the needs of children of parents being sentenced for federal offenses. The United States Sentencing Commission’s reported in March 2003 that more than half of both district and circuit court judges “would like to see more emphasis at sentencing placed on the offender’s family ties and responsibilities.”[12]  Federal Judges appear to be as eager as other policymakers, practitioners and researchers to examine and mitigate the harms of parental incarceration on children. 

Yet little is known about the specific impacts of incarceration on the children of people sentenced to serve time in our federal prison system.  How many children are impacted? What type of information about the offender’s family ties and responsibilities do federal judges seek? How might the Sentencing Guidelines be amended to allow more judicial discretion when considering the appropriate sentence for a father or mother with minor children?

Justice Strategies has recently requested that the USSC undertake the following steps:

            (1) assess the scope of the problem at the federal level, and

(2) consider whether the guidelines should be amended to provide judges more authority to depart from a recommended guideline sentence range when appropriate to address the needs of children of incarcerated parents.

The Bureau of Justice Assistance in the Department of Justice could provide funding to encourage federal, state and local correctional agencies to development diversion programs for parents.

Further, Washington State has developed an excellent model program for diversion that provides supervision and guidance for fathers and mothers as they care for their children in the community.[13] The Family Offender Sentencing Program (FOSA) gives judges the option to divert parents at sentencing, as well as providing an opportunity for those that are sentenced to prison to serve their last year at home with their children.[14]

Additionally, family impact statements [15] create an opportunity for judges in courts at all levels to consider the consequences of sentencing and incarceration on the families of those being sentenced. A pre-sentence investigation report that includes the defendant’s responses to family impact questions empowers judges to make informed sentencing and supervision decisions that take into account the potential consequences for the defendant’s family. Once the needs are identified, the family impact statement can be used to recommend alternative sentencing options that are appropriate for the parent’s offense as well as taking into consideration the needs of the family. Using family impact statements better allows parents to fulfill their roles as parents, and maintain and even strengthen the relationships with their children. Thus, mitigating the negative effects of parental incarceration on children.

The Issue is Timely. In 2014 UNCERD made specifics observations on the need to address children of incarcerated parents.

Conclusion

Usually, criminal justice policy is aimed at reducing crime and criminality, eradicating drug use or gun violence, it is not generally formulated with family well-being as an explicit outcome. However, parental incarceration affects individuals, their families and our entire communities for years to come. Therefore, creating alternatives to incarceration and examining how incarceration affects the imprisoned parent, family stability, the quality of family relationships, and the family’s ability to carry out its responsibilities and functions can actually help us meet our most important criminal justice policy goals.

In sum, we urge the US. Government to ensure that the above cited UNCERD observations are upheld by encouraging the reforms recommended above at both the federal, state and local level.

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