What policy options are available to state legislators to improve the lives of children of incarcerated parents?

Parental incarceration is not an isolated event, it is a process that unfolds over time. To protect children from the harmful effects of parental incarceration, the interests of children should be considered at each stage of the process, including arrest, sentencing, intake, incarceration and re-entry. Because the process involves many agencies and individuals who do not routinely coordinate their efforts or communicate with one another, a key policy goal is to ensure that such agencies and individuals work together to promote the best interests of children when their parents go to jail or prison. Possible policy interventions at each stage of the incarceration process follows.

Arrest Phase:

      The arrest of a parent can be highly traumatic to a child, yet most police departments have no protocols to protect children, explain to them what is happening and ensure that they are properly cared for after a parent is arrested. To ensure that the needs of children are taken into account during an arrest, some jurisdictions have replicated a program called Child Development-Community Policing (CD-CP), a collaboration between the New Haven Department of Police Service and the Yale Child Study Center. The program trains police in child development, provides clinicians to work with children at the scene of an arrest, provides treatment and counseling for such children, and provides ongoing consultation for police and child welfare workers.

      At least two states enacted legislation to address the needs of children at the time a parent is arrested. California law encourages law enforcement personnel and child welfare agencies to develop protocols and apply for federal training funds to learn to better cooperate in the arrest of a parent to ensure a child’s safety and well-being. California also allows arrestees, during the booking process, to make two additional telephone calls to arrange for care for their children. New Mexico law requires that law enforcement training include how to ensure child safety during the arrest of a parent. It also includes a requirement that a law enforcement officer who makes an arrest inquire whether the arrestees is a parent or guardian of a child who may be at risk because of the arrest and to make reasonable efforts to ensure the safety of the child in accordance with guidelines established by the Department of Public Safety.

      States also can consider ways to divert children from foster care at the point of arrest. It is not uncommon for drug offenders to cycle in and out of local jails during the course of a year. In fact, most people who go to jail have been there before and do not go on to prison. Given this pattern of repeated arrests and jail stays, it can be anticipated that the children of such offenders will need substitute care for relatively short periods of time, but at more frequent intervals. Family group conferencing, arranged by the public child welfare agency, can be used to develop safety plans for such children, during which a relative agrees to provide short-term care for a child when the child’s parent is arrested and jailed. This arrangement—although perhaps preferable to extended stays in non-relative foster care—still is disruptive and potentially harmful to the child. Therefore, alternative care for the child should be accompanied by appropriate services and interventions for the parent to break the cycle of arrest and incarceration.

Sentencing Phase:

      Much discussion of how sentencing affects children has centered on the effect of mandatory minimum sentencing laws enacted as part of the “war on drugs” in the 1980s. Observers point out that these laws have disproportionately affected women. From 1986 to 1996, the number of women incarcerated in state facilities for drug offenses increased by 888 percent, compared to a rise of 129 percent for non-drug offenses.36 Whether or not states amend their mandatory minimum sentencing laws, they still can ensure that children’s interests are considered during sentencing.

• State law could be amended to explicitly require judges, at sentencing, to consider the effects of a parent’s

incarceration on children. At least one state—Oklahoma—requires judges to inquire whether a convicted

individual is a single custodial parent and, if so, to inquire about arrangements for care of the child.

• States could require, in appropriate cases, that pre-sentence investigation reports include a family impact

statement, including recommendations for the “least detrimental alternative” sentence and for services to and supports for children during a parent’s imprisonment. These statements are being used to a limited extent in Arkansas and Tennessee. Family advocates in other states, including Texas, are developing templates and working with the judiciary system to integrate them into sentencing in select cases. One Tennessee judge routinely requests that a video of the parent interacting with the child accompany family impact statements.

Placement/Intake Phase:

      Corrections officials usually do not inquire whether a newly committed inmate is a parent and how incarceration is likely to affect the parent-child relationship, if at all. State legislators may want to consider requiring that prison officials make such inquiries. There are several reasons for doing so. First, a major barrier to regular visitation between children and their incarcerated parents is placement of inmates in facilities located far from where the children live. State law could require corrections officials to consider the effects of inmate placement on maintaining family relationships.

• Hawaii, for example, enacted legislation in 2007 that, among other things, requires the director of public

safety to establish policies that parent inmates be placed in facilities, consistent with public safety and inmate

security, based on the best interest of the family rather than on economic or administrative factors. The legislation also requires consideration when making prison placements of an offender’s capacity to maintain

parent-child contact.

• California law requires the director of corrections to examine newly committed inmates to determine the

existence of any strong community and family ties, the maintenance of which could aid in the inmate’s rehabilitation, and, when reasonable, to assign a prisoner to the appropriate facility nearest his or her home.

      A second reason for requiring prison officials to routinely collect information about new inmates’ parental status is to ensure that their children receive the services and supports to which they are entitled and to fill some of the gaps in data that hinder research and policy making.

• Colorado law, for example, requires corrections officials to determine whether an inmate is a parent and, if

so, whether the child is in school. The department of corrections also must collect and compile information

related to programs that help students whose parents are incarcerated.

• A 2007 Hawaii provision appropriates funding to support, among other things, the collection of data on

children of incarcerated parents, including the number of children each inmate has, the children’s ages,

schools, caregiving arrangements and needed services.

Incarceration Phase:

      Entry of a parent into jail or prison presents an opportunity for a coordinated response by multiple systems to ensure that children’s best interests are protected and to accomplish the following goals.

• Manage the disruptive effects of a parent’s incarceration. Options include minimizing disruptions in a child’s

residence, school attendance, friendships and caregiving arrangements, and minimizing economic hardship following a parent’s imprisonment. One type of care giving arrangement that deserves special consideration is care by non-parent relatives. Although kinship care has many advantages over other forms of care giving arrangements, such as non-relative foster care, it also poses some risks to children’s healthy development. Research on kinship care in general has shown that many grandparent caregivers are poor, physically frail and in poor mental health.

      Kin caregivers of children of incarcerated parents face additional challenges. These include coping with the social stigma associated with incarceration of a family member, the added expense of long-distance telephone calls from prison and travel to prisons for visits, and anger about the parent’s poor choices and behaviors that resulted in imprisonment.

      Although many policies exist for kinship care, in general, no state or federal legislation addresses the unique circumstances and needs of relatives who care for children of incarcerated parents. Policymakers might want to examine whether existing state kinship care policies and programs meet the needs of this subset of relative caregivers.

• Maintain regular, meaningful contact between children and their incarcerated parents. Policies and programs can address some, but not all, the barriers children face in contact with their incarcerated parents. Some children either never had a relationship with their incarcerated parents or lost contact with them long before arrest, sentencing and imprisonment. In other cases, children might have a relationship with their incarcerated parents but are denied access to them by their custodial parents or relative caregivers.

      Accordingly, policies should target those children who have a relationship with their incarcerated parent, who would benefit from maintaining that relationship, and who face the barriers that state policies can address. Such policies include assigning inmates to facilities close to home (see discussion in Placement/Intake Phase, above), requiring child-friendly visiting areas within prisons and jails, requiring training for corrections staff on treatment of visiting children, and reviewing and revising prison visiting policies to identify and remove unnecessary barriers to regular visitation. Michigan, for example, included in its 2007 corrections appropriations bill a requirement that the state allocate sufficient funds from the appropriation to develop a pilot children’s visitation program, which is to include parenting skills instruction.

What are the challenges to children and parents associated with discharge from prison?

The effects of parental incarceration on children do not end with a parent’s discharge from prison. Approximately 650,000 people are released from state and federal prisons annually, and a much larger number are released

from local jails. Many parents who are discharged from prisons intend to reunite with their minor children, but may not anticipate the difficulties associated with doing so. Former inmates face immense challenges, both

internal and external, to build productive lives for themselves, including finding jobs, housing and health care and avoiding further involvement with the criminal justice system. Many grapple with paying off debts that have accumulated during imprisonment, including child support arrangement's, criminal fines, court and legal fees, and restitution. These challenges have been extensively documented and discussed elsewhere.

      Re-entry can be even more daunting for women with children than for men. Compared to male former inmates, women are more likely to be dealing with the psychological effects of past trauma and abuse and are more likely to have abused drugs, alcohol or both at the time of imprisonment. At the same time, reunification with children is likely to be a more important part of re-entry for women than it is for men.

      Prisoner re-entry also can be challenging and stressful for children. Children grow, change and often form relationships with new parental figures during a parent’s incarceration. These parental figures—and perhaps other family members—often are reluctant to allow a child to re-establish a relationship with a parent upon release. Such family conflicts can destabilize already fragile families and leave children confused and torn. More important, the return of a violent offender can increase the risk that a child will be subjected or exposed to domestic violence.

How to prevent the termination of parental rights, incarcerated parents face three challenges.

First, regular contact, preferably visitation, with a child in foster care is critical. Unless termination of parental rights is clearly in the child’s best interest, a court will be less likely to terminate the rights of a parent who can demonstrate ongoing positive contact with a child and involvement in his or her life. In California, for example, the statutory list of circumstances that constitute exceptions to termination includes that, “the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

      Ironically, though contact and visitation are most important for incarcerated parents whose children are in foster care, some evidence suggests that such children are the least likely to visit their parents in prison. That is because visits must be authorized and arranged by child welfare caseworkers who carry high caseloads and who may be inclined to “abandon” the prospect of reunification with an imprisoned parent.

      Second, incarcerated parents who want to avoid termination of parental rights should participate to the fullest extent possible in their children’s dependency proceedings, including case planning, hearings and court orders. Parents, however, are often dependent upon caseworkers for information and guidance to navigate the dependency process. Unfortunately, some studies have found that caseworkers rarely communicate with parents in prison, inform them of hearings or involve them in case planning.

      Third, incarcerated parents need access to reunification services, such as substance abuse treatment, mental health services and parenting classes. In the BJS study, more than half of parents in state prison (55 percent of fathers and 74 percent of mothers) reported a mental health problem and more than two-thirds (67 percent of fathers and 70 percent of mothers) reported substance dependence or abuse. Only four in 10 of these parents, however, reported receiving treatment for substance abuse since admission, and only one-third received treatment for mental health problems.

      In short, unique policy and practice issues can adversely affect children in foster care and their incarcerated parents. State policymakers, however, have options to mitigate the potentially harmful consequences of these policies and practices. The options are discussed later in this paper.