Children of incarcerated parents: the child's constitutional right to the family relationship.

• Author: Boudin, Chesa

1. INTRODUCTION

   When judges sentence people to prison, and when prison administrators determine visitation policies, minor children are often ignored. (1) This is not an obscure issue but rather has significant, daily ramifications for a generation of American youth. As incarceration rates have spiraled by over 500% in the last thirty years, (2) so have the number of children who have lost parents to the prison system. (3) In fact, in the United States, there are more children with incarcerated parents than there are people in prison. (4) Incarcerating parents of minor children is not just an issue for those sentenced to prison; the practice also generates third party harms for the children, their caregivers, the welfare apparatus of the state, the prison system, and the law. (5) Specifically, parental incarceration has implications for myriad legal issues related to custody, (6) communication, (7) visitation, (8) conditions of confinement, (9) international standards, (10) and more. (11) Studying parental incarceration through a legal frame of analysis may shed light on, or at least raise revealing questions about, the children left behind. While there is a body of literature on the social issues presented by parental incarceration (12) and an assortment of services and programs offered for children and families of prisoners, (13) there is surprisingly little written about the relevant legal issues. (14) This Article's research and analysis begin to fill the lacuna. Future research might productively draw on legal theory and practice in other related areas: parent-child separation in the context of divorce and immigration. (15)

   This Article grapples with a series of key questions: What is the relevance, if any, of children of offenders in sentencing, prison locations, and conditions of confinement? To what extent and with what limitations or exceptions is there a societal interest in children maintaining a relationship with their convicted parents? If children have a right to be considered in sentencing and in visitation policies, what is the legal basis for that right? This Article focuses on minor children and their biological parents, legal guardians, or primary caregivers. (16) The central goal of this Article is to reframe the problem of third party harm to children from current sentencing law and prison visitation policy through the lens of children's rights, rather than the traditional frame of prisoners' rights. Drawing on international law and practice, this Article puts forward a theory for the relevance of children to the sentencing process and development of visitation policy. (17) It suggests that this relevance has a sound, if underdeveloped, legal basis grounded in children's First Amendment freedom of association and their due process liberty interests. Today, however, minor dependent children are, as a matter of law and standard procedure, a non-factor in sentencing and statutory visitation guidelines. Even within the narrow sentencing guidelines in most jurisdictions, there is no formal mechanism for family status or dependent children to come to the attention of a judge. When individual prisons or jails offer child-friendly visiting facilities, the practice is regarded as a privilege, not a right. (18)

   This Article is organized into four parts. Part II provides an overview of the group that is at the heart of this inquiry: children of prisoners. Part III draws on international law and practice to theorize the parent-child relationship in the context of the U.S. criminal justice system. Part IV considers the failure of the status quo to adequately factor children into key decisions that impact their lives in the context of parental incarceration. Specifically, Part IV reviews prison sentencing and visitation policies in two jurisdictions--the federal system and New York's state system (19)--to evaluate whether and how dependent children are taken into consideration. While sentencing and visitation are only two of the myriad areas in the criminal justice process where children's rights should be recognized, they are two of the most important and can serve as proxies for other areas, including parole, alternatives to incarceration, furloughs, phone calls, and so forth.

   Finally, Part V puts forward the First Amendment freedom of association and the due process liberty interest as the legal bases for children's fight to a relationship with their convicted parents. Part V also engages and rebuts possible counter-arguments. It then concludes by describing, in concrete terms, what the practical implications of the argument advanced here may be for sentencing, prison visitation, and more.

2. THE POPULATION IMPACTED BY PARENTAL INCARCERATION AND THE ISSUES AT STAKE

   Of the 74 million children in the United States in mid-2007, 1.7 million, or 2.3%, had a parent in prison. (20) This figure represents an 82% increase since 1991 that does not include the growing numbers of children with parents incarcerated in jails as opposed to prisons. (21) Roughly half of these children are under ten years old. (22) Due to long prison sentences, more than a third of them will reach the age of eighteen while their parents are still in prison. Thus, several hundred thousand more people, now adults, experienced parental incarceration as minors, (23) and the number would surely be far larger if parents in jail were considered as well. As in the prison population, black and Hispanic children are greatly overrepresented among those with a parent behind bars: more than 70% are children of color. (24) One out of every forty-three American children had a parent in prison; for black children, the number was one out of fifteen, while for white children, the figure was one out of one hundred and eleven. (25)

   Switching the focus to the prisoners rather than the children is also revealing. Most of the more than 1.5 million prisoners in the country (26) in mid-2007 were parents of children under the age of eighteen. (27) Put differently, 63% of federal inmates and 52% of state inmates reported having minor children. (28) Because women account for just 7% of inmates, or 114,852 prisoners, (29) the vast majority of parents in prison are men; in 2007, the nation's prisons held 744,200 fathers but only 65,600 mothers. (30) On average, mothers in prison each have approximately 2.4 children while fathers each have 2.0 children. (31) Prior to their arrest, 64% of incarcerated mothers and 46% of incarcerated fathers lived with their minor children. (32)

   When criminal justice policy leads to the incarceration of parents with dependent children, what happens to the children left behind? When the father is incarcerated, 88% of the children live with their mother, 12% live with grandparents, and 2% are sent to a foster home or agency. (33) When the mother is incarcerated, 45% live with grandparents, 37% of children live with their father, and 11% are sent to foster homes or agencies. (34) Where, for how long, and with whom children end up living are often determining factors in child development. (35) Yet children's interests are not, as a matter of right, factored into criminal justice determinations involving their parents. The psycho-social challenges faced by children with incarcerated parents and the pros and cons of prison visitation have been well-studied elsewhere. (36) The fact that parent-child visitation can help children overcome the challenges of parental separation and reduce recidivism rates is well-documented. (37) The central inquiry of this Article, however, is less well-understood: legal rights of children to a relationship with their parents.

3. THE RIGHTS OF THE CHILD: LESSONS FROM INTERNATIONAL LAW

   International law offers a range of approaches to children's rights that may provide a basis for children to claim a relationship with incarcerated parents. The argument here is not concerned with the enforceability of international legal standards or foreign law in the United States, (38) but rather with the development of a practicable legal basis for children's rights to a relationship with incarcerated parents. First, a more general review of the theory of the rights of the child is in order.

   1. THE CONVENTION ON THE RIGHTS OF THE CHILD

      The Convention on the Rights of the Child (CRC) (39) has been universally ratified by every country in the world except Somalia and the United States. (40) Nonetheless, the United States played a key role in the development of the CRC, (41) and its approach to children's rights is a valuable point of reference in theorizing children's rights in the United States. The CRC does not specifically contemplate children with incarcerated parents, except to guarantee them the right to information about their parents' whereabouts. (42) Nonetheless, its provisions create a strong legal basis for a child-oriented approach to sentencing and visitation policy.

      A criminal conviction of a parent or parents should in no way diminish or undermine the rights of the child. The CRC requires that parties ensure children's rights are protected "irrespective of the child's or his or her parent's or legal guardians' ... status." (43) The CRC goes on to recognize the child's right to "know and be cared for by his or her parents." (44) This language need not be incompatible with parental incarceration, and can easily be read as having implications for when incarceration is appropriate and the kinds of visitation that should be available. This CRC language creates potential for tension between the child's fight to "know and be cared for by his or her parents" and whatever societal interests may be served by incarceration.

      Children must have a voice, either by themselves or through representation, (45) in proceedings that directly affect their well-being. The CRC mandates that children be given a voice in all issues of import to their lives, including "the opportunity to be heard in any judicial and...