REFORM OF THE CRIMINAL JUSTICE SYSTEM FOR EFFECTIVELY MAINTAINING PARENTAL RIGHTS AND FAMILIAL BONDS DURING PARENTAL INCARCERATION.

INTRODUCTION

Pamela, a Colorado resident, lost her husband to a heart attack in late November 1997. (2) This left her as a single mother to care for her two small children, a seven-year-old son and four-year-old daughter. (3) Due to Pamela's untreated mental health condition, coupled with the loss of her husband, Pamela escalated her drug use. (4) In early December of 1997, Pamela was arrested for drug possession. (5) Due to an earlier felony conviction, Pamela was sentenced to six years in prison with a mandatory three years of parole. (6) Pamela's children were placed in the foster care system as a result of her conviction and long-term sentencing. (7) Eighteen months into Pamela's incarceration, she received notice of a termination of parental rights hearing, which she was not allowed to attend. (8) Two weeks later, she was contacted by her caseworker who informed her that her parental rights had been terminated. (9) Pamela recalled of the Court's decision: "They just took my kids because there was no place for them to go. They said there was no hope for me, for rehabilitation." (10) Ultimately, after Pamela's incarceration, she worked extremely hard taking parenting courses and other forms of treatment, and after fourteen years was able to regain custody of her children. (11) Pamela's story is all too common for incarcerated parents and reveals the lasting impact of incarceration on both parents and children.

According to statistics available through the Federal Bureau of Investigation, the American criminal justice system housed between 2.1 and 2.3 million people on average during 2020. (12) These two million people were incarcerated in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities,* and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. (13) As of 2009, more than seven million Americans were under some form of corrections supervision, including probation and parole. (14) According to one study, in 2010 more than 2.7 million children in the U.S. had an incarcerated parent.' (5) One in nine African American children (11.4%), one in twenty-eight Hispanic children (3.5%), and one in fifty-seven white children (1.8%) in the United States had at least one incarcerated parent. (16) Further, approximately ten million children had experienced parental incarceration at some point in their lives. (17) Nearly half the minor children with an incarcerated parent were under ten years old. (18)

A 2007 comprehensive review of research on children with incarcerated parents suggested "[t]he arrest and removal of a mother or father from a child's life forces that child to confront emotional, social and economic consequences that may trigger behavior problems, poor outcomes in school, and a disruption or severance of the relationship with the incarcerated parent that may persist even after the parent is released from prison." (19) Research that focuses on children whose parents are incarcerated has been quite lengthy; however, despite the growing number of children who are affected by the imprisonment of their mother or father, no real solutions have been presented. (20)

This comment aims to close the gap between research which has already been conducted regarding parental incarceration and newly proposed solutions to be implemented system-wide from pre-arrest to sentencing, and throughout incarceration to reconcile the relationship between incarcerated parent and child. The focus of this comment is to keep the child in mind throughout the entirety of the parents contact with the criminal justice system and to re-orient the system to be more family friendly.

This comment proceeds in three parts. Part I will focus on what is already known; the statistics, the background, and the current laws and policies related to incarcerated parents' ability to maintain contact with their children. Part II will discuss the impact of the current laws on children, i.e., what it does to the familial structure, stability, and the short and long-term effects have on children's development. Part III will consider previous research and what was proposed to help alleviate these problems and why they did not or have not worked. It will then incorporate several proposed changes to the system to help break the cycle and will conclude with a brief roadmap for moving forward.

I. THE HISTORICAL BACKGROUND & CURRENT TRENDS

Many scholars have proposed that the 1980's "war on drugs" orchestrated by President Ronald Reagan was the beginning of a phenomenon that has been termed "mass incarceration," specifically for black and brown persons in the U.S. (21) Prior to the enactment of Reagan's criminal drug policies, "from the 1920s to the early 1970s the incarceration rate in the United States averaged 110 inmates per 100,000 persons. This rate of incarceration varied so little in the United States and internationally that many scholars believed the nation and the world were experiencing a stable equilibrium of punishment." (22) Then, riding on the coattails of the war on drug policies, complete with sentencing disparities for crack cocaine, the incarceration rate in the United States accelerated dramatically, reaching unfathomable levels by the late 1990s and early 2000s. (23) Incarceration in the United States was so prevalent in the early 2000s that it became a normal life event for many disadvantaged youths, specifically, "young men, with some segments of the population more likely to end up in prison than attend college." (24) In the name of getting "tough on crime," in 2009 there were more Americans in Federal, State, and local prisons and jails than the populations of either New Mexico or West Virginia, a number that exceeded 2.1 million. (25) Along with incarcerating minorities, the largest population of incarcerated individuals are ages twenty-six to forty. (26) According to the Federal Bureau of Prisons, as of March 23, 2021, there were 71,152 adults, ages twenty-six to forty, imprisoned in the federal system in the U.S. (27) That number was 47% of the total prison population. (28) The Center for Disease Control (CDC) recognizes persons ages twenty-six to forty as likely to be beginning to or already building their families. (29) One study suggests that a large percentage of parents who are incarcerated have been convicted of drug trafficking charges, which in turn led them to report lengthier average sentences, which topped twelve years for state offenders and ten years for federal offenders. (30)

Critics of the "war on drugs" say the policies adversely affect minorities due to the sentencing differences between cocaine in its powder form and crack cocaine. (31) Specifically stating that the sentencing disparity is racially bias in that the sentencing for crack cocaine is much harsher and crack is the least expensive of the two forms and is mainly associated with use in African American communities. (32) It should also be noted that the chemical signature of both drugs is nearly identical, asking some to question: "why the sentencing difference?" Scholars have proposed an answer that prior to the 1980s era model of tough on crime and the criminal-juridical model, the U.S. used a more medical-juridical model which promoted drug treatment and intervention versus punishment and confinement. (33) Research has also revealed that Black women are more likely than White women to be imprisoned for drug violations. (34) That same study also revealed that although Black women and White women are imprisoned at different rates for drugs, they are imprisoned at nearly equal rates for violent crime. (35) This trend is common throughout Black males and White males as well. (36) A study from 1999 showed that 65% of women and 77% of men imprisoned in state facilities had a history of prior convictions. (37) Also common among those inmates was a history of sexual and/or physical abuse, low socioeconomic status, and parental incarceration. (38) Overall research indicated the presence of multiple risk factors in the lives of incarcerated parents and their children. (39)

These "risk factors" are referred to as Adverse Childhood Experiences (ACEs), a term which originates from a 1995 study in Southern California by the Centers for Disease Control (CDC) and Kaiser Permanente, a healthcare organization. (40) That study provided a scoresheet of points, one point for each ACE, which helps identify those who are most at risk to face other problems throughout their lives. (41) These ACEs were first linked to toxic stress by Dr. Nadine Burke-Harris and have since been shown to lead to significant health problems later in life. (42) Examples of ACEs include incidence of an alcoholic parent or an incarcerated family member. (43) A selection of "yes" increases an individual's ACEs score by one. (44) Other adverse childhood experiences include sexual assault, abandonment through death, divorce, or other causes, witnessing a parent being abused, etc. (45) These ACEs can ultimately affect a child throughout their lifetime. Factors known to promote resilience can offset the ACEs. (46) Things like selecting "yes" to "I believed my father loved me when I was little" or "Someone in my family cared about how I was doing in school" are factors that can offset a child's ACEs score. (47)

The high number of incarcerated people, especially during the prime childbearing and child-rearing ages of twenty-six to forty, raises the question of what happens to the children of the two-million incarcerated individuals who are parenting? Because this area of research is still relatively new and some statistics are not available, little is known about the long-term effects and magnitude of the problem parental incarceration has on America's children. One study suggests that parents who are incarcerated do not...