PARENTAL PRISONERS: THE INCARCERATED MOTHER'S CONSTITUTIONAL RIGHT TO PARENT.

• Author: Halter, Emily

INTRODUCTION

"My little baby, she doesn't even know what's coming." (1) New mother, Kayla, cried on the phone to her mother and sister while shackled to the hospital bed. (2) Just hours before, she had given birth to a beautiful, healthy baby girl. (3) However, Kayla's experience is far from the experience of most mothers in the United States. During her pregnancy, Kayla was serving a prison sentence at Logan Correctional Center in Lincoln, Illinois. (4) She was pregnant at the time of her arrest, and thus was required to carry her pregnancy to term from inside the prison walls. (5) Treated differently from the beginning, she was ordered to wear a pink jumpsuit, designating her soon-to-be mother status. (6) Rather than decorate a nursery and pick out baby clothes in anticipation of her daughter's arrival, Kayla was forced to fear the day she would meet her daughter and soon after say goodbye to her. Kayla knew that right after giving birth, she would return to prison alone, without her daughter. (7)

As her due date approached, she was taken to the hospital, and her labor was induced. (8) None of her family members were allowed to be present. (9) The only people allowed in the room with Kayla during some of the most unpleasant, yet life-changing, hours of her life were the prison guards and medical personnel. (10) After meeting her daughter, Angelica, Kayla had fewer than two days with her before Angelica was taken and Kayla returned to prison alone, without the child that she had carried inside her for the previous nine months. (11) The only communication she was permitted to have with the outside world during this time was "one call" with her mother and sister. (12) As she held her daughter close, savoring every precious second, she cried: "Oh my God, she is so beautiful. And I love her, I love her, I love her, and I just want to hold her forever." (13)

This is the true story of one woman's experience giving birth while incarcerated, which is further detailed in Maya Schenwar's Locked Down, Locked Out: Why Prison Doesn't Work and How We Can Do It Better. (14) This story, while unbelievably tragic, is not all that unique or uncommon for incarcerated women. (15) Mothers in both jails and prisons across the country go through similarly tragic experiences. (16) The vast majority of incarcerated women carry their pregnancies to term, give birth in isolation, and are then separated from their children immediately. (17) Often, incarcerated mothers struggle to get to know their children or maintain a positive relationship upon release. (18) Kayla was fortunate because her new daughter was able to live with family while she served the remainder of her sentence. (19) However, many mothers are not as lucky. Other incarcerated women end up at least temporarily losing their children to the foster care system, and some lose custody permanently. (20)

Though incarceration rates in the United States have started to decrease, there are still far too many people in prison. (21) As of 2016, state and federal prisons in the United States held a combined total of roughly 1.6 million people. (22) Women uniquely feel the effects of mass incarceration. (23) For a number of reasons, the number of incarcerated women has continued to increase, jumping 646% between 1980 and 2012, far quicker than the speed of male incarceration. (24) Women are currently the fastest growing segment of the prison population, accounting for a larger portion than ever before. (25) In 2014, there were a total of 215,332 women incarcerated, with 106,232 women in prisons and 109,100 in jails. (26)

The high rate of female incarceration is made more problematic when looking at the effect that it has on the rest of society. Almost two-thirds of incarcerated women in U.S. prisons are mothers. (27) Because the median age of incarcerated women is thirty-four, many of these women are new mothers with young children, and 60% of women in state prisons have children under the age of eighteen. (29) Once incarcerated, mothers are frequently separated from their young children for considerable amounts of time, given that the average sentence for a mother is over four years. (30) As a result, of the 74 million children in the United States in mid-2007, 1.7 million, or 2.3%, had a mother or father in prison. (31) At that time, prisons held 744,200 fathers and 65,600 mothers, with the number of mothers growing faster than the number of fathers. (32) According to a 2004 survey conducted by the Bureau of Justice Statistics, 16% of the children of federally incarcerated inmates and 23% of state inmates were age four or younger. (33) More than one-third of children would reach the age of eighteen before their parents were released from prison. (34) Experts believe that the number of children with incarcerated mothers is actually much higher than the recorded numbers because law-enforcement agencies are not required to gather specific information on prisoners' children, and many women fear that they will lose their children to the child welfare system if they disclose their children's existence to law enforcement. (35)

Estimates are that between 4% and 7% of women entering prison are pregnant, and most carry their pregnancies to term. (36) A small portion of these women become pregnant while in prison as a result of rape by prison guards." Unfortunately, after giving birth, most of these women still have time left on their sentences, which separates new mothers from their infants for various periods of time. (38) On average, pregnant prisoners serve an additional six to twelve months after having their babies. (39)

After giving birth in prison, women face a host of physical and emotional problems. Perhaps the most difficult problem is being separated from their children. In most states, incarcerated women must give up their newborn babies within a few hours of delivery. (40) As a result, mothers are frequently denied the ability to nurse their newborns or to spend time and bond with them. (41) To make matters worse, these women are also frequently denied postpartum placement counseling and have a limited role in choosing who will raise their children during their incarceration. (42)

States take different approaches in addressing how much time an incarcerated mother may spend with her newborn. (43) Most states allow mothers twenty-four hours with their infants, while some allow forty-eight. (44) However, some states have prison nursery programs that allow mothers to stay with their babies for a longer period of time. (5) As an alternative to prison nursery programs, a few states also offer community-based residential parenting programs. (46)

If programs like these are not an option for a new mother, which is the case for a majority of incarcerated women in the United States, she has a few options. (47) She can put the newborn up for adoption, put the newborn into foster care, or give the newborn to relatives. (48) For many incarcerated mothers, there is a decent chance that the court will terminate their parental rights as a result of incarceration. (49) If parental rights are terminated, the mother is not legally the child's parent anymore. (50) She loses the right to visit or talk with the child and the right to decide how the child is raised and taken care of. (51) The child may also be adopted without her permission. (52) This harsh reality is unsettling and arguably unconstitutional. Forcing incarcerated mothers and their children to live apart is a tragic policy, and one that separates the United States from most other countries in the world. (53) It is impractical and ill-advised and has life-long detrimental effects on both mother and child.

For decades, the Supreme Court has recognized the constitutionally protected right to parent under the Fourteenth Amendment. (54) While the Supreme Court has chipped away at the rights of prisoners in other areas, finding that many rights are forfeited at the prison doors, it has never ruled on the status of parental rights during incarceration. (55)

This Comment argues that incarcerated mothers have a right to parent their children under the Fourteenth Amendment, and thus, infants should be allowed to remain with their incarcerated mothers for some period of time through programs such as prison nurseries or community-based alternatives. However, even if courts do not find that such a right guarantees mothers the physical right to parent while incarcerated, legislatures should protect incarcerated women's ability to parent for policy reasons. Part I briefly discusses the few programs that currently exist to allow incarcerated mothers to remain with their infants and young children. (56) Part II outlines what happens to parental rights once a mother is incarcerated, considering who generally cares for the children and how difficult it is for a mother to regain parental rights once she loses them. (57) Part III gets to the heart of this legal issue by illustrating that the Supreme Court has, for years, read the Fourteenth Amendment to establish and protect a fundamental right to parent. (58) This Part ends with a discussion of Turner v. Safley, (59) which justifies protecting the parental rights of incarcerated mothers. (60) Part IV continues to apply the logic used by the Court in Turner (61) to evince that the parental rights of incarcerated mothers are protected under the Fourteenth Amendment and should be treated by courts as such. (62) Part V addresses the policy arguments for and against allowing incarcerated mothers to remain with their infants. Finally, Part VI explains two particular policies that disproportionately impact incarcerated mothers and further support the protection of an incarcerated mother's right to parent. (64) This Comment concludes by acknowledging that while the parental rights of incarcerated mothers should be protected, it is difficult to identify the best method for protecting those rights...