Juveniles in Adult Prisons and Jails

Since 1992, 45 states have passed or amended legislation making it easier to prosecute juveniles as adults. The result is that the number of youth under 18 confined in adult prisons has more than doubled in the past decade. This phenomenon is challenging the belief, enshrined in our justice system a century ago, that children and young adolescents should be adjudicated and confined in a separate system focused on their rehabilitation.

      In 1997, the Bureau of Justice Assistance funded a nationwide study of juveniles in adult correctional facilities to help policymakers and criminal justice practitioners form an effective response to this critical issue. Juveniles in Adult Prisons and Jails: A National Assessment is the product of that study. This report begins to answer important questions about this vulnerable population: What is the extent of juvenile confinement in federal, state, and local facilities? What types of facilities are used to house juvenile offenders? What happens to juveniles in the adult system? Are juveniles in adult facilities educated, treated for substance abuse, and taught skills that will help them find a job after their incarceration? Are prisons and jails protecting young offenders from physical, sexual, and psychological abuse? What are the alternative strategies for housing offenders sentenced to long terms in adult facilities?

      As the findings of this study show, there are important steps we can take now to improve the well-being of juvenile offenders in adult facilities. We can develop specialized vocational, sex offender, and substance abuse programs tailored to the developmental needs of youth. We can ensure that staff in adult facilities take seriously their federal mandate to provide regular and special education services to youth in their care. And we can do much more to ensure the safety and care of young offenders who interact with adult offenders.

      The development of a distinct justice system tailored to recognize the mitigating factors associated with juvenile crime is recognized as one of the most progressive developments in the evolution of criminal justice in the United States. Until the 20th century, no formal differentiation had been made between society’s response to crimes committed by juveniles and its response to crimes committed by adults. Beginning in Illinois in 1899, juvenile court systems were instituted throughout the United States to place greater emphasis on the welfare and rehabilitation of youth in the justice system. Specialized detention centers, training schools, and youth centers were developed to confine and treat delinquent youth apart from adult offenders.

These facilities were to provide a structured, rehabilitative environment in which the educational, psychological, and vocational needs of youthful offenders could be addressed. Although system crowding and funding shortfalls have frequently compromised achievement of these objectives, the goal of the juvenile court system has remained focused on protecting the welfare of youthful offenders.

      This concept of a distinct justice system for juveniles focused upon treatment has come under attack in recent years. Beginning in the late 1980s, communities across the nation began to experience dramatically increased rates of juvenile crime. The arrest rate for violent crimes of both males and females began to increase in 1987 and continued to escalate until the mid-1990s. Although this trend appears to have reversed, rates of serious crimes committed by juveniles remain well above historical levels.

      The increasing incidence and severity of crimes committed by juveniles led many to question the efficacy of the juvenile court system and to call for a harsher response to juvenile crime. Juvenile delinquency that results in serious offenses has come to be viewed as more a criminal problem than a behavioral problem, resulting in a shift in public response to the management of juvenile offenders. Researchers have noted this shift in trends toward more arrests, longer periods of incarceration, fewer opportunities for rehabilitation, and, most significantly, increases in the transfer of juveniles to the adult criminal justice system.

      Juveniles are increasingly placed in adult correctional facilities. Concerned that the juvenile justice system may be ill equipped to handle youth charged with serious crimes and that the juvenile court may be too lenient in its punishment and control of such youth, many states have begun amending their criminal codes so that youth charged with certain crimes can be tried in adult courts and sentenced as adults.

What can the legislature do to improve collaboration among the stakeholders that must be involved in efforts to improve the lives of children of incarcerated parents?

Many—if not most—of the policy actions described above require the active involvement of multiple systems working together to achieve positive results for the children of imprisoned parents. As in other areas of human services, however, such collaboration may first require action on the part of policymakers, including state legislators. Some experts on children of incarcerated parents have noted that legislation is needed at both the state and federal levels to fully address the complex range of issues facing incarcerated parents and their children.

To lay the groundwork for such collaboration, an initial approach legislators might consider is a broad statement of legislative intent that the relationship between an incarcerated parent and his or her child should be recognized, preserved and strengthened when in the best interest of the child. Such statement of intent could be coupled with two requirements:

• That all systems that touch the lives of such children and parents—including law enforcement, corrections,

child welfare, education and the judiciary—jointly assess the effects of their policies, programs and practices

on children of incarcerated parents; and

• That these various state agencies undertake to collect, share, analyze and regularly report on data regarding children of incarcerated parents to better understand their service needs and the needs of their caregivers.

In the past decade, legislatures in several states have required broad-based policy reviews, multidisciplinary planning, and data collection to address the issues facing children of incarcerated parents.

• In 1998, the Missouri legislature required the state Children’s Services Commission to evaluate state laws

and policies that affect incarcerated parents and their children and to recommend legislative proposals and

state and local programs to respond to the needs of such children.

• In 2001, Oregon established by legislation a planning and advisory committee to make recommendations

on how to increase family bonding for children of incarcerated parents. The legislation required representation by the corrections department, the state youth authority, the state court administrator, the state Commission on Children and Families, the Department of Education, the Department of Human Services, and several local boards and councils. The committee issued a report to the legislature in 2002,66 and in 2005, the legislature extended the committee through the 2005-2007 biennium.

      As one of the first states to address this issue at a high level, Oregon is now considered a national model for inter-agency collaboration and innovation. Oregon’s effort began in 2000 with a Children’s Project work group consisting of over 20 organizations. The work group focused on changes in the prison system to include parent education classes, a therapeutic child-centered facility to serve children of female inmates, and improved policies regarding contact and visitation.

• Hawaii adopted a resolution in 2005 requesting the departments of public safety and human services to form a task force to identify and develop appropriate programs and services for children of incarcerated parents and to provide support for incarcerated parents, where appropriate. The task force issued a report to the Legislature,71 and was extended through 2012.

      Hawaii also enacted legislation in 2008 to articulate guiding principles for use by state agencies when dealing with children of incarcerated parents. The principles were adapted from the Incarcerated Parents Bill of Rights created by the San Francisco Children of Incarcerated Parents Partnership. The principles include “children should be kept safe and informed at the time of the parent’s arrest;” “the children’s wishes should be taken into consideration regarding any decisions made concerning their welfare;” “if the children so choose, communication avenues should be made available such that children should have opportunities to see, speak to, or visit parents, where appropriate,” and “children should receive support for the desire to retain a relationship with an incarcerated parent, where appropriate.”

• In 2005, Washington required the Department of Corrections and the Department of Social and Health Services to establish an oversight committee to develop an inter-agency plan for services and supports to children with incarcerated parents. Washington followed up on its 2005 legislation with a 2007 law that requires a broad array of agencies—including corrections, social services, education, early learning and economic development—to adopt policies to encourage familial contact between inmates and their children, facilitate normal child development, and reduce recidivism and inter-generational incarceration. These agencies also must gather and evaluate data on children of incarcerated parents. Finally, the law requires creation of an advisory committee to gather the data collected by the departments, monitor implementation of existing recommendations, identify needs, and provide advice regarding funding of community programs. The state budget for the 2007-2009 biennium contains $1.086 million, divided among various departments, to fund this legislation.

      Pursuant to the legislation, the Washington Department of Social and Health Services embarked on a

comprehensive analysis of administrative data to determine the extent services are received by children and

families of incarcerated parents and to identify the social service systems that are involved with such families.

Department staff also prepared an excellent policy paper on the issue.

• In 2007, the Virginia General Assembly required that an integrated system be established to coordinate planning and service provision so children and their incarcerated parents could maintain their relationships.

• The Vermont legislature required in 2008 that the Corrections Oversight Committee investigate issues regarding children of incarcerated parents and make recommendations on how to increase appropriate contact between minor children and their parents. The committee also was to determine data that should be collected to enable the legislature to better understand the effects of parental incarceration on minor children,

among other things.

• Also in 2008, the Tennessee legislature passed a joint resolution urging the state Department of Corrections to examine the Children of Incarcerated Parents Bill of Rights and to incorporate appropriate principles to help the state achieve its goal to eliminate inter-generational crime.

      State legislators also can initiate a dialogue about changing the cultures of disparate systems to ensure that the needs of children of incarcerated parents do not get lost between agencies. Even without legislation, the attention and influence of state legislators could help change attitudes that have hindered better results. The culture and mission of the correctional system, for example, could be expanded to include reducing recidivism and improving public safety by facilitating maintenance of parent-child relationships during a parent’s imprisonment. The culture and mission of child welfare could be changed so that parental incarceration no longer is viewed as an automatic bar to providing reunification services and regular visitation. Juvenile and family court judges could be encouraged to hold child welfare agencies accountable for maintaining connections between a child in foster care and an incarcerated parent and delivering appropriate reunification services to the parent when it is in the child’s best interest.

      The many issues that face children of incarcerated parents and their families are complex and cross the jurisdictional boundaries of multiple agencies and service systems. In addition, thoughtful policy making in this area is hindered by lack of reliable data on the characteristics of these children and a paucity of sound research on both the effects of parental incarceration and the effectiveness of interventions. Nevertheless, a growing number of state policymakers are taking an active interest in helping children of incarcerated parents. This paper provides a preliminary framework for those who must deal with this critical policy issue.

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.