Legal, Ethical, and Developmental Considerations Concerning Children in Prison Nursery Programs

• DOI: http://doi.org/10.1111/fcre.12468
• Author: Caroline Beit
• Date: 01 October 2020
• Published date: 01 October 2020

ARTICLE

LEGAL, ETHICAL, AND DEVELOPMENTAL CONSIDERATIONS

CONCERNING CHILDREN IN PRISON NURSERY PROGRAMS

Caroline Beit

Prison nurseries are contentious both ethically and legally in the U.S. because of the tension between supporting the child’s

best interest and putting an innocent child in prison with their incarcerated parent. The majority of the research advocating

for prison nurseries focuses primarily on justifying such programs through a utilitarian perspective of maximizing well-being

for society. Research has not focused on justifying prison nurseries as ethical from the perspectiveof the child. This research

expands the purview of the Eighth amendment and argues that separating a child from his or her incarcerated parents repre-

sents a cruel and unusual punishment because of the multitude of adverse effects on the child. This paper builds off of the

existing utilitarian narrative, while also advancing the argument that prison nurseries are ethical because of children’s inherent

and fundamental rights to have a relationship with his or her parent, prison nurseries limitation of the negative effects of

parental incarceration and child because of society’s duty to protect the bestinterest of the child. This paper argues that sepa-

rating children from their incarcerated parents is unethical and that prison nurseries are just based on a mixture of a utilitarian

framework and the inherent and fundamental rights of the child.

Key Points for the Family Court Community:

Children’sRights

Prison Ethics

Legal Ethics

Best interest of the child

Prison Nurseries

Keywords: Children; Ethics; Prison; Prison Nurseries.

What is in the best interest of a child? This is a difficult question to answer both legally and mor-

ally and is an especially tough question when the child’s life is complicated by the incarceration of

a parent. In the United States, parental incarceration is not uncommon: “1 in every 28 children (3.6

percent) has a parent incarcerated”(The Pew Charitable Trusts, 2010, p. 4). Pregnancy in females

who are incarcerated is also fairly prevalent, with “an estimated 3% to 5%”pregnant upon incarcer-

ation (Schaefer-Riley, 2019). Children of inmates are heavily burdened by mass-incarceration. Some

progress, however, has been made in the U.S., especially in the form of prison nurseries: innovative

programs that allow women to keep their babies with them after birth ranging “from thirty days

(South Dakota) to three years (Washington State)”(Byrne, Goshin, & Joestl, 2010). These pro-

grams are not the norm as “fewer than a dozen”operate in the U.S. (Schaefer-Riley, 2019). Many

questions surface in relation to them, especially: Is it ethical to keep an innocent child behind bars

with a convicted criminal? This paper argues the following: (1) the mainstream policy of separating

infants and young children from their incarcerated parents is unethical and a cruel and unusual pun-

ishment because of developmental considerations; and (2) prison nurseries are ethical because of

the child’s right to a relationship with a parent, beneficial health outcomes, and the state’s duty to

Correspondence: caroline.beit@yale.edu

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 1040–1048, doi: 10.1111/fcre.12468

© 2020 Association of Family and Conciliation Courts