Supporting Families Facing Parental Incarceration: An Academic Research, Report, and Article Update

In the last few months we have seen more and more studies, reports and articles that can be used to help keep families together and help our judicial system make necessary changes. In particular, we are seeing continued support for the use of family impact statements--a set of questions incorporated into presentence investigation reports to solicit information regarding the defendant’s children and family members, as well as his or her roles in and responsibilities to the family— in our criminal justice system. In the last couple months on our blog we have discussed an article and a policy brief on incarceration and the foster care system as well as a study on the public health impacts on adults who experienced parental incarceration as children. With more studies and more reports like these, hopefully we can provide the support for the advocacy and change we wish to see.

 

  1. Study: Fwd.us and Cornell, “Every Second: The Impact of the Incarceration Crisis on America’s Families”

“Nearly half of all people living in the United States have experienced incarceration in their family.”-fwd.us

The new research from FWD.us and Cornell University shows that nearly one in two adults — approximately 113 million people living in the United States — has an immediate family member who is currently or formerly incarcerated. One in seven adults have had an immediate family member incarcerated for more than one year, and one in 34 has had a family member incarcerated for 10 years or more. Unsurprisingly, these experiences are not shouldered equally. Black people are 50% more likely to have an immediate family member behind bars and people living in poverty and in certain parts of the country are also disproportionately exposed to incarceration in their families. People in these same groups are much more likely to have had a family member incarcerated for longer periods of time.

Slide show here. Full report here

 

  1. Report: Human Rights Watch, “You Miss So Much When You’re Gone: The Lasting Harm of Jailing Mothers Before Trial in Oklahoma”

This report draws from from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees. The report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services. 

Full report and video here.

 

  1. Law Review Article: Georgetown Law Journal, Law Review Article: “Jail as Injunction,” by Russell M. Gold.

 

Russell M. Gold argues that criminal courts should consider defendants’ personal and professional lives when determining whether to grant bail, according to a forthcoming paper in the Georgetown Law Journal . Gold argues for a “civil-like” approach to criminal cases. He says half of people sitting in jails every day have not been convicted but merely accused but will face the impacts that pretrial detention has individuals lives: loss of child custody, jobs, housing, the increase in likelihood of crime, mental and physical harms. Courts do not have to weigh these harms when deciding whether a defendant will lose their liberty through incarceration. To justify detaining defendants in criminal cases, he suggests a more civil-like approach to applying an injunction theory. 

An article on the report here, and full report here.

 

  1. Law Review Article: Maryland Law Review, Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents

 

Often when we talk about legal avenues to support families facing parental incarceration, we talk about what changes in existing law that we need. However, a recent law review article addresses action that can be taken now using existing law to support the use of family impact statements, instead of waiting for new legislation in a political climate that is reverting back to “tough on crime” polices. Although the law review article is timely, and highlights tools that are indeed necessary, the frame is similar to the rhetoric that has failed those fighting to supporting immigrant youth—labeling the children as “invisible victims” and bearing the “sins” of their parents. Although this may help build sympathy and support for children, it works to separate parents out as “bad actors.” This most often leads to policies that fail to support the entire family. Except in rare cases of abuse, helping children requires us to also support their incarcerated parents. This narrow rhetoric also does not recognize the root causes of systemic inequity such as poverty and racism, nor the traumatic impacts of those systems that places parents on a path to prison. That said, there are valuable tools and strategies to gain from the article.

The full article can be found here.

 

In line with these recent academic research reports and studies, Justice Strategies has been a proponent and advocate for the use of family impact statements for many years. Most recently our efforts led to advocating for the United States Sentencing Commission to consider the need of a study of family ties and responsibilities and implement the use of family impact statements. Sadly, while Commissioner Barko made a valiant effort in raising the need for a study of family ties and responsibilities, the Commission chose to not adopt it as a policy priority for 2018-2019.  Here is the USSC Chair's response which does suggest that there is current policy to use family impacts in sentencing by using the “downward departure provision” provided by the Guidelines Manual described below:  

The public will see that two items that were listed in our notice of tentative priorities but not in our final priorities, but not because they are not important… 

Second, the Commission has also chosen not to proceed with further study regarding the guidelines for family ties and responsibilities of the defendant. The Commission understands and appreciates the tremendous impact incarceration has on the families and children of defendants. While not ordinarily relevant, the Guidelines Manual does have a downward departure provision based on loss of caretaking and financial support when the defendant’s service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendant’s family. The provision provides further guidance to the court by providing a non-exhaustive list of factors to consider in determining whether a downward departure is warranted. The Commission believes that the current policy statement operates as intended.

Riley Hewko, Esq.

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