States Take Legislative Action to Address Family Separation by Incarceration
by Jordan Arizmendi
When incarceration begins for a prisoner, a separate punishment also begins for his or her children. On February 27, 2023, Prison Policy Initiative (PPI) published its findings in How 12 States Are Addressing Family Separation by Incarceration – and Why They Can and Should Do More. The report summarizes state laws to alleviate incarceration’s impact on families.
In the federal prison system and five states – Florida, Hawaii, New York, Montana and New Jersey – requirements have been enacted to keep incarcerated parents within geographic proximity to their children. Seven more states – Massachusetts, Washington, Oregon, California, Louisiana, Illinois and Tennessee – have passed legislation in which caregiver status is a mitigating factor in sentencing or access to alternatives to incarceration.
Proximity laws ensure a child and an incarcerated parent are never too far apart. After all, the single most important demand in a parent-child relationship is time together. But many states have only one or two prisons for women, often in rural locations far from cities. Also, not every child has someone to make the drive to a parent’s lockup. As a result, if the proximity legislation does not include funding for visitation as well as transportation for prisoners’ children, the legislation will fail its fundamental purpose.
Helping ensure parent and child can meet face-to-face – or even talk on the phone in the same time zone – not only benefits the child but improves the incarcerated parent’s emotional well-being. It also lowers the risk of recidivism.
“Caregiver diversion” laws replace detention with programs such as drug treatment or electronic monitoring. But nationally, “diversion and alternative sentencing programs are underfunded,” PPI noted. “Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle and Los Angeles).”
Notably, the laws span states with different political climates, suggesting this effort has bi-partisan support. But the success of such laws depends on budgeting, of course. For example, a state can send a parent to a drug treatment program and not a prison only so long as that drug treatment program is funded.
“Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence,” PPI noted, “these laws risk enhancing the burden on already overburdened programs.”
According to Washington State Department of Corrections Parenting Sentencing Alternative, SB 6639, enacted in June 2010, some offenders who are parents can avoid prison so that they can fulfill their obligations to their kids. Under the law, a prisoner must have up to 12 months remaining to serve, have a relationship with a child or serve as a legal guardian and not have any current convictions for felony sex and/or violent offences, among other factors.