How 12 states are addressing family separation by incarceration — and why they can and should do more
Defending incarcerated parents’ rights and attending to the needs of the children are vital goals that more states should pursue.
by Emma Peyton Williams, February 27, 2023
Family separation due to a parent’s incarceration has impacted over 5 million children and has profound negative impacts on a child’s well-being. 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 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. 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.
Parental incarceration can have lasting effects on children into adulthood. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience,” 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, but advocates are fighting for creative and holistic solutions.
As a result of tireless advocacy, often led by formerly incarcerated women, 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. (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 and Massachusetts, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California,1 Louisiana, Oregon,2 Tennessee, Washington, and Missouri, 3 4 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 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 and Los Angeles). 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, 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,5 and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category) — 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 can mitigate harmful impacts when a parent is incarcerated. Between 2007 and 2020, Florida, Hawaii, New Jersey, New York, and the federal prison system 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 and a reduced risk of recidivism.6
Unfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, 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.’”7 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.8 Further, many states only have one women’s prison 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,”9 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 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 Minnesota advocates in their campaign to pass the Justice for Incarcerated Moms Act
- Model legislation: the original draft of the Tennessee legislation, shared by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and a 2018 Louisiana bill drafted by Operation Restoration, which would have also allowed courts to vacate the judgment of conviction with successful completion of the program, and would broaden eligibility to include caretakers of people with mental or physical disabilities of any age who cannot take care of themselves.13
Are you aware of resources or advocacy efforts that aren’t mentioned in this briefing? Let us know through our contact page.
Most of these states’ laws create diversion programs that begin during the sentencing process, allowing defendants to avoid incarceration but not a criminal conviction. California’s law goes further: Its program diverts primary caregivers from incarceration during the pretrial period, and individuals who successfully complete the program avoid not just incarceration, but the collateral consequences of a criminal conviction. ↩
Oregon’s law, passed in 2015, established a “Family Sentencing Alternative Pilot Program,” to sunset in 2025 (or, presumably, to be replaced with more permanent legislation). Currently, the diversion program is only active in 5 of the state’s counties: Deschutes, Jackson, Marion, Multnomah, and Washington. The linked report includes more information about outcomes of the program. ↩
One more state — Minnesota — is not on this list but deserves a mention. In 2021, Minnesota passed the “Healthy Start Act,” allowing the Department of Corrections Commissioner to conditionally release people to community-based programming who are pregnant or immediately postpartum for up to 12 months. We did not include this among the states that have passed primary caregiver legislation because of how few caregivers are eligible for this program and for how limited the diversionary period is. However, it is a vast improvement on the previous law, which only allowed a 36-to-72 hour departure from the correctional facility for a mother to give birth and separated mothers from their newborns immediately. ↩
Read more about the limitations of electronic monitoring programs in the Brennan Center’s report How Electronic Monitoring Incentivizes Prolonged Punishment. ↩
This study states that “Recidivism, the outcome variable, was measured two different ways in this study. It was operationalized as 1) a reconviction for a felony-level offense, and 2) a revocation for a technical violation.” We believe that how you measure “recidivism” is complex and that the equation of these two outcomes is problematic, as is outlined here. ↩
Operation Restoration also successfully passed a related Primary Caretakers Arrest Bill in 2021, which sets out training and procedures for arrests of people caring for minor children, to reduce the traumatic impact of primary caretakers’ arrests on children. ↩