States can take steps to end the crisis of family separation by incarceration.

Prison Policy Initiative updates for February 27, 2023 Exposing how mass incarceration harms communities and our national welfare

How 12 states are addressing family separation by incarceration — and why they can and should do more [[link removed]] Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. [[link removed]]

by Emma Williams

Family separation due to a parent’s incarceration has impacted over 5 million children [[link removed]] and has profound negative impacts on a child’s well-being. [[link removed]] But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects.

Incarcerated women have been one of the fastest-growing prison populations [[link removed]] in recent decades, and incarcerated mothers are five times as likely to have their children placed in foster care and are more likely to have their parental rights terminated due to incarceration than fathers [[link removed]].These trends suggest that the number of kids separated from their primary caregivers by incarceration may be growing, increasing the urgency of an already serious problem.

Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue. Parental incarceration increases a child’s likelihood of becoming incarcerated [[link removed]]. Child development experts consider a child’s household member becoming incarcerated an “ Adverse Childhood Experience [[link removed]],” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights [[link removed]], but advocates are fighting for creative and holistic solutions [[link removed]].

As a result of tireless advocacy, often led by formerly incarcerated women [[link removed]], legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs [[link removed]]. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)

Caregiver mitigation and diversion laws: The best existing reform targeting family separation

Of course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois [[link removed]] and Massachusetts [[link removed]], require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California [[link removed]], Louisiana [[link removed]], Oregon [[link removed]], Tennessee [[link removed]], Washington [[link removed]], and Missouri [[link removed]], caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests 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. (For model legislation, see the original bill [[link removed]] proposed in Tennessee.)

It’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.

Unfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle [[link removed]] and Los Angeles [[link removed]]). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act, [[link removed]] introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)

Even when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway [[link removed]], and strict eligibility policies often exclude deserving individuals — especially those with violent offenses ( a problematic and fluid category [[link removed]]) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.

Proximity laws: A promising reform facing major implementation challenges

While the best scenario is for children and parents to remain in the home together, continued family contact [[link removed]] can mitigate harmful impacts when a parent is incarcerated. Between 2007 and 2020, Florida [[link removed]], Hawaii [[link removed]], New Jersey [[link removed]], New York [[link removed]], and the federal prison system [[link removed]] created a maximum distance allowed between parent and child. Ideally, this decreased distance will make in-person visits more accessible, which can lead not only to benefits for the child but improvements in the incarcerated parent’s mental health [[link removed]'_Well-Being_Prison_Rule_Breaking_and_Recidivism_A_Review_of_Research_Since_1991] and a reduced risk of recidivism [[link removed]].

Many states only have one women’s prison that is often located rurally.Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas [[link removed]], which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “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.’” Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city. Further, many states only have one women’s prison [[link removed]] that is often located rurally. This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.

Quality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,” such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.

Considerations for successful policy and advocacy efforts

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. While caregiver mitigation or diversion and proximity laws are positive first steps, these laws are too often hindered by overreliance on under-resourced diversion programs, a failure to educate judges and attorneys on changes in the law, and a lack of transportation infrastructure for kids of incarcerated parents. Furthermore, some laws bar people convicted of any violent offense from benefiting from the reforms at all. 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.

Further reading for advocates and policymakers interested in protecting incarcerated caregivers and their children:

State-specific reports and fact sheets [[link removed]] supporting the successful legislative advocacy of Free Hearts in Tennessee, Operation Restoration in Louisiana, and Families for Justice as Healing, from Human Impact Partners Lessons learned from [[link removed]] Minnesota advocates [[link removed]] in their campaign to pass the Justice for Incarcerated Moms Act Model legislation: the original draft of the Tennessee legislation [[link removed]], shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls

Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page. [[link removed]]

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For more information, including a case study on efforts to address family separation in Illinois and detailed footnotes, see the full version of this briefing [[link removed]] on our website.

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Other news: Both sides of the bars: How mass incarceration punishes families [[link removed]]

Did you know that 39% of women in state prisons were single mothers living with their kids at the time of their arrest?

In this briefing from last year [[link removed]] we shed light on this and other key statistics about the family relationships of people behind bars and the consequences of locking up people with children.

Please support our work [[link removed]]

Our work is made possible by private donations. Can you help us keep going? We can accept tax-deductible gifts online [[link removed]] or via paper checks sent to PO Box 127 Northampton MA 01061. Thank you!

Our other newsletters Ending prison gerrymandering ( archives [[link removed]]) Criminal justice research library ( archives [[link removed]])

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