This contribution was written by guest authors Michal Gilad and Tal Gat. Michal Gilad is an AAUW International Fellow. Tal Gat is a graduate of the IDC Radzyner School of Law. This post is based on their article, U.S. v. My Mommy: Evaluation of Prison Nurseries as a Solution for Children of Incarcerated Women, which will appear in NYU Review of Law & Social Change (forthcoming 2012).
Since the mid-1980’s the U.S. women prison population has increased by more than 430%.[i] More than 66% of incarcerated women are mothers.[ii] It was estimated that in the U.S. alone more than 250,000 minor children suffer from maternal separation due to incarceration.[iii] Similar trends of a growing number of children affected by maternal incarceration are also identified in Europe and other regions.[iv] We argue that, in this reality, Prison Nursery Programs (PNPs), which allow children to accompany their mothers to prison, provide a valuable alternative. These programs, if properly implemented, can benefit not only the best interests of the child, but also the mother, the state and the general public.
PNPs aim to prevent separation of mother and child during a crucial period of early child development,[v] allow maternal bonding in ways that are impossible through visitations,[vi] and prepare the inmate to fulfill her parental obligations upon release.[vii] Programs normally consist of distinct wings within prison facilities, where the inmates and their infants reside together, separate from the general prison population.[viii] In most programs, special services are provided to both mother and child, including parenting classes,[ix] educational programs,[x] vocational training, substance-abuse treatment,[xi] counseling, daycare,[xii] HeadStart, developmental therapy, and nutritional monitoring.[xiii]
The current scope of PNPs in the U.S. is extremely limited. Only 13 states provide for PNPs of different capacities.[xiv] All existing programs accommodate only infants born in state custody, while minor children born prior to the commencement of the mother’s incarceration are excluded.[xv] The maximum allowable duration of a child’s stay at the prison ranges from 30-days to 3-years, with an average of 12-24 months at most facilities.[xvi] This is in stark contrast to the situation in Europe, where PNPs are extremely prevalent. Virtually all European states allow children to accompany their mothers to prison,[xvii] program capacities are larger,[xviii] children not born in state custody are admitted, and the most common maximum age of stay is 3-years.[xix] Differently than Europe where regional efforts are made to promote awareness to PNPs and regulate standards of conditions and services,[xx] no such attempts have been made in the U.S. to date. This broader and better-regulated implementation of PNPs reduces the chance of forced separation of children from their mother in contradiction to their best interests.
Children are greatly affected by the incarceration of either parent, but typically experience greater harm when their mother is imprisoned.[xxi] Studies reveal an array of detrimental effects of such maternal separation to the child, including emotional, developmental, cognitive and behavioral problems.[xxii] Risk for substance-abuse and criminal behavior later in life is also observed.[xxiii] When the mother is the sole caregiver, the child is at risk of being moved frequently among caregivers,[xxiv] spending prolonged periods as a ward of the state,[xxv] and being permanently separated from the mother.[xxvi] The ability of PNPs to facilitate maternal bonding, prevent separation, and maintain consistency in care, is shown to alleviate some of these imminent harms.[xxvii] Despite the controversy whether prison is an appropriate environment for children, and concerns due to the lack of comprehensive understanding of the effect prison stay can have on children,[xxviii] so far, no long-term or permanent negative effects to the child could be identified.[xxix] In fact, data demonstrates that “‘infants and children are far safer in mother-child correctional settings than they are in most low income communities or in foster care.”[xxx] Thus, there are strong indications that PNPs can promote the child’s best interests, safety, and well-being.
Although the best interests of the child is the guiding standard when any decision affecting children’s lives is made,[xxxi] the effect of a policy on other entities should not be ignored. Like children, most mothers suffer severe effects due to separation, including depression, attachment disorders, and anxiety.[xxxii] Women prison facilities are scarce and geographically distant, which makes visitation or continuous contact with the child nearly impossible.[xxxiii] Under existing statutory constructions, including ASFA,[xxxiv] there is a great likelihood of permanent irrevocable termination of parental rights,[xxxv] and infringement of the mother’s fundamental liberty interest in custody and care of her children protected by the Fourteenth Amendment and recognized by the Supreme Court.[xxxvi] Participation in PNPs minimizes deprivation of the mother’s parental rights, while serving the state’s interest to impose retributive sentences and protect public safety. Although results are far from perfect,[xxxvii] studies also demonstrate PNPs’ potential in enhancing rehabilitation[xxxviii] and treatment efficacy,[xxxix] reducing recidivism rates,[xl] and providing tools to better cope with parenthood and life following release.[xli]
Opponents argue that by breaking the law the mother demonstrated moral and motivational inadequacy to perform her parental role.[xlii] Others assert that separation from the child is a foreseeable by-product of incarceration, which the mother, as a rational adult, should bear as consequence of her criminal behavior. While these arguments may have some political currency, one should remember that not only the inmate, but also the innocent child, bears the consequences. The arguments are also inconsistent with legal standards. In Santosky v. Kramer the Supreme Court clarifies that the fundamental liberty interest in parenting does not evaporate due to lack of model parenting.[xliii] From a realistic standpoint, despite their criminal conviction, most incarcerated mothers proceed to act as caregivers for their children upon release. PNPs can help assure that they have the tools to fulfill this role and are not estranged from the child as a result of the incarceration.[xliv] The mother’s fitness to fulfill a parenting role ought to be a factual matter that should be determined according to the set statutory procedures, based on the individual circumstances of both mother and child.
In addition to personal advantages to mother and child, PNPs can also benefit the state and the public. Such general gains are often overlooked by scholars, ignoring the fact that they form the strongest incentives and motivations for policy implementation by the state. Evidence show that participation in PNPs can reduce criminal behavior of both mother[xlv] and child,[xlvi] and thus promote public safety, and alleviate prison overcrowding as well as costs associated with future imprisonment. Since the annual cost of keeping a child in foster care is 4 times greater than PNP participation,[xlvii] significant fiscal savings are permitted. Prevention of separation was also shown to reduce future psychosocial problems for the child and their associated burdens on the state.[xlviii] Such funds can be channeled more effectively to promote the public good. Furthermore, the implementation of well-designed PNPs facilitate the state in striking a desirable balance between its competing interests and responsibilities, including criminal deterrence, protection of public safety, Parens Patriae responsibilities[xlix] and “reasonable efforts” obligations under ASFA,[l] as well as respecting the fundamental liberty interest in parenting.
With the steadily growing number of incarcerated mothers, solutions must be sought for the invisible and often forgotten victims of crime – infants and minor children. Unless there is willingness to reduce incarceration rates, or develop alternative sentencing programs, the expansion of PNPs should be seriously considered. As illustrated in this article, these programs serve a broad spectrum of interests and needs. Critics should overcome the controversial image of a young child confined behind bars. Instead, they should pursue empirical studies that evaluate the true effect of PNPs on these children, and devise strategies to improve these programs and eliminate factors that compromise the child’s well-being. Moreover, this solution should always be evaluated against the existing alternatives, which, sadly, are not promising. The relevant authorities in the U.S. have the privilege of an opportunity to learn from the accumulated European experience with PNPs, and learn important lessons from its strengths and weaknesses. This will of course require careful analysis and adaptation to the unique characteristics of the American correctional system and criminal justice practices. Nevertheless, the marked parallels in the nature and extent of the problem of children with incarcerated mothers in the two regions could make such inferences extremely valuable.
[i] Calculated based of statistical reports of the Bureau of Justice Statistics, available at: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbse&sid=40 See also: Lawrence A. Greenfeld and Tracy L. Snell, NCJ 175688, Women Offenders 1 (Bureau of Justice Statistics 1999). Available at: http://bjs.ojp.usdoj.gov/content/pub/pdf/wo.pdf
[ii] Barbara Bloom et al., Gender Responsive Strategies: Research, Practice, and Guiding Principles for Women Offenders 1, 7 (Nat’l Inst. of Corr. 2003). Also, studies estimate that 70-90% of incarcerated mothers in the U.S. are the sole caregivers of their minor children (Nicole S. Mauskopf, Reaching Beyond The Bars: An Analysis of Prison Nurseries, 5 Cardozo Women’s L.J. 101, 116 (1998)).
[iii] Id. Bloon, at 7.
[iv] Eur. Parl. Ass., Women in prison, resolution 1663, 13th sess. (2009), available at: http://www.assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta09/ERES1663.htm (the Parliamentary Assembly of the European Council acknowledged that the “number of women in prison in Europe is growing”); World Health Organization [WHO], Women’s Health In Prison: correcting gender inequity in prison health (2009), available at: http://www.euro.who.int/__data/assets/pdf_file/0004/76513/E92347.pdf (Over 100,000 female prisoners in European prisons on every given day. The number of incarcerated women in England and Wales has increased by more than 200% in the past 10 years); Jean Tomkin, Quaker United Nations Office, Orphans of Justice: In Search of the Best Interests of the Child When A Parent Is Imprisoned: A Legal Analysis 37 (2009), available at: http://www.crin.org/docs/Orphans%20of%20Justice.pdf (Estimates that there are as many as 700,000 children across Europe affected by maternal incarceration).
[v] The Rebecca Project for Human Rights and the National Women’s Law Center, Mothers Behind Bars: A State-by-State Report Card and Analysis of Federal Policies on Conditions of Confinement for Pregnant and Parenting Women and The Effect on Their Children, p. 13 (Oct. 2010).
[vi] Id. at 30-1.
[vii] Id. at 30.
[viii] Chandra Kring Villanueva et al., Women’s Prison Association, Mothers, Infants and Imprisonment A National Look at Prison Nurseries and Community-Based Alternatives, p. 10 (2009). Available at: http://www.wpaonline.org/pdf/Mothers%20Infants%20and%20Imprisonment%202009.pdf; Mauskopf, supra note 2, at 109; Moms and Babies—First Anniversary, Jan. 2009 Newsletter (Ass’n on Program for Female Offenders, Chicago, Ill.) (Jan. 2009), available at: http://www.apfonews.org/page_three.htm.
[ix] The Rebecca Project, supra note 5, at 30 (The inmates are often required to participate in child development and parental skills classes, to improve child-rearing skills in anticipation of their eventual release).
[x] Kring Villanueva et al., supra note 8, at 10 (2009) (GED classes are often provided).
[xii] Daycare options allow the mothers to attend their prison jobs and classes.
[xiii] The Rebecca Project, supra note 5, at 30. Also see: Kring Villanueva et al., supra note 8, at 10. Note that the quality and variety of services and facilities provided vary substantially from one institution to the nest.
[xiv] The Rebecca Project, supra note 5, at 8 (States with Prison Nurseries: California, Idaho, Illinois, Indiana, Massachusetts, Nebraska, New York, Ohio, South Dakota, Tennessee, Texas, Washington and West Virginia)
[xv] Kring Villanueva et al., supra note 8, at 9 (2009).
[xvi] Id. at 10.
[xvii] The Quaker Council for European Affairs [QCEA], Women in Prison – A Review of the Conditions in Member States of the Council of Europe 48 (2007), available at: http://www.drugsandalcohol.ie/15405/1/WomenFinal_Report_Part1%5B1%5D.pdf (Even in countries where there are no established PNPs, babies are permitted to accompany their mothers, and are housed in special cells, usually more spacious and accustomed to their needs. The exceptions are Norway and Malta.)
[xviii] While in the U.S. the total capacity of all programs is approximately 150 mother-baby pairs, in Europe the total capacity is 400 pairs. This is despite the fact that the number of female prisoners in the U.S. is slightly higher than the number in all European countries combined. See id. QCEA, at 48-53.
[xix] Id. at 48-53 (There is substantial variation among countries, ranging from 6 months (Netherlands, Hungary) to 6 years (Germany)).
[xx] See Eur. Parl. Ass., Mothers and babies in prison – Recommendation 1469 (2000), 740 meeting (January 2, 2001), available at: http://www.coe.int/document-library/default.asp?urlwcd=https://wcd.coe.int/ViewDoc.jsp?id=185207; Eur. Ministers’ Deputies, Opinion of the European Committee on Crime Problems on Assembly Recommendation 1469 (2000) https://wcd.coe.int/ViewDoc.jsp?Ref=CM%282001%2915&Language=lanEnglish&Site=COE&ShowBanner=no&Target=_self&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864; Eur. Parl. Ass., Women in prison, resolution 1663, 13th sess. (2009), available at: http://www.assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta09/ERES1663.htm; European Prison Rules, Recommendation Rec(2006)2 § 36 (2006), available at: https://wcd.coe.int/ViewDoc.jsp?id=955747#P6_138.
[xxi] Tiffany Conway and Rutledge Q. Hutson, Parental Incarceration: How to Avoid a “Death Sentence” for Families, 41(3-4) Clearinghouse Review Journal of Poverty Law and Policy 212, 212 (Jul.-Aug. 2007). Available at: http://www.clasp.org/admin/site/publications/files/0396.pdf. See also: Consideration of the Reports submitted by State Parties under Article 44 of the Convention of the Rights of the Child, Concluding observations: Thailand, CRC/C/THA/CO/2, paragraph 48 (The UN Committee for the Rights of the Child recognized children of mothers in prison as among the most vulnerable groups).
[xxii] The Rebecca Project, supra note 5, at 9 (separation due to maternal incarceration increases vulnerability and fragility of the child); John J. Sheridan, Inmates May be Parents, too, Corrections Today (Aug. 1996) (early separation impairs the child’s ability to sympathize or show concern for others); Jessica Y. Kim, In-Prison Day Care: A Correctional Alternative For Women Offender, 7 Cardozo Women’s L.J. 221, 228 (2001); Leda M. Pojman, Cuffed Love: Do Prison Babies Ever Smile? 10 Buff. Women’s L. J. 46, 62 (2002) (common symptoms of maternal separation are attachment disorders; aggression and anger; developmental and behavioral problems; sleeping, eating, or attention disorders; delays in educational development and achievement; excessive hostile behaviors toward peers; problems with social adaptation; greater likelihood to develop addicted to drugs or alcohol or engage in criminal activity; manifestation of sexually promiscuous behavior); In re Lilley, 719 A.2d 327, 335 (Pa. Super. Ct. 1998); J.B. v. Superior Court, 2009 Cal. App. Unpub. 19-20 (Cal. App. 2d Dist. Aug. 18, 2009) (“[c]hildren who have stable, predictable care ‘can overcome great adversity,’ … Conversely, adults who grow up in temporary homes often suffer … The majority hold low-skilled jobs; up to 50% spend some time on public assistance. Drug use is common. Nearly one third of males commit crimes as adults. Among the homeless, as many as 39% spent years in foster care as kids”).
[xxiii] The Rebecca Project, supra note 5, at 13.
[xxv] Conway & Hutson, supra note 21, at 212. See also: Dr. Susan Sharp and Emily Pain, Study of Incarcerated Mothers and Their children, Oklahoma Commission of Children and Youth, p. 8 (2009). Available at: http://www.okkids.org/documents/Study%20of%20Incarcerated%20Women%20and%20Their%20Children%20-%20Report%20-%202010%20%28Final%29.pdf
[xxvi] The Rebecca Project, supra note 5, at 12-3; Kathleen S. Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321, 348-59 (2005). See also United States v. Pokuaa 782 F. Supp. 747 (E.D.N.Y. 1992).
[xxvii] The Rebecca Project, supra note 5, at 30 (Participation in PNPs help children fulfill important developmental and emotional milestones, reduces rates of attachment disorders and other developmental difficulties); Kring Villanueva et al., supra note 8, at 20-21 (PNPs foster strong, healthy attachment between mothers and their infants); Mauskopf, supra note 2, at 111-12 (children in PNPs are happy, healthy, alert and developmentally advanced because their mothers are guided by people who know a lot about raising kids, a skill which hopefully transfers to the inmate).
[xxviii] Pojman, supra note 22, at 65 (prison is not a normal environment, children missed the opportunity for everyday activities and lacked contact with males). See also Honorable Consuelo Marshall, Symposium: 200 Years of the Penitentiary: Criminal, Social and Economic Justice, 34 How. L.J. 512, 519 (1991); Mauskopf, supra note 2, at 110-11 (prisons cannot provide children with the optimal environment to meet their basic nutritional and emotional needs); Kring Villanueva et al., supra note 8, at 20-21 (some temporary developmental and motor-skills delays were observed by researchers).
[xxix] Id. Kring Villanueva et al. (all observed developmental delays were not permanent and disappeared immediately after the child left the PNP and integrated back into society with the mother); J.B. v. Superior Court, supra note 22, at 22-23 (no incidents of serious child harm or abuse were reported in PNPs).
[xxx] Id. J.B. v. Superior Court.
[xxxi] Child Welfare Gateway (US Department of Health & Human Services), Determining the Best Interests of the Child: Summary of State Laws (March 2010). Available at: http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.cfm. See also: Parham v. J.R., 442 U.S. 584 (1979).
[xxxii] Joseph Goldstein et al., Beyond the Best Interests of the Child 57 (1973)
[xxxiii] Conway & Hutson, supra note 21, at 215 (Only 42% of mothers in prison reported some type of weakly contact with their children, more than 50% reported they never had an in-person visit with their child).
[xxxiv] Adoption and Safe Families Act of 1997, 111 Stat. 2115.
[xxxv] Phillip M. Gentry, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J. Fam. L. 757, 764 (1992) (85% of incarcerated mothers in the U.S. are involuntarily separated from their child due to incarceration, although they are fit to fulfill their parental obligations and strive to do so). See also US v. Ekwunoh, 813 F. Supp. 168, 180 (1993).
[xxxvi] See Stanley v. Illinois, 405 U. S. 645, 651 (1972); Meyer v. Nebraska, 262 U. S. 390,399 (1923); Skinner v. Oklahoma, 316 U. S. 535, 541 (1942); May v. Anderson, 345 U. S. 528, 533 (1953); US v. Ekwunoh, 813 F. Supp. 168, 180 (1993).
[xxxvii] Kring Villanueva et al., supra note 8, at 16-18 (Not all women succeed in meeting the program’s requirements, and some fail to maintain custody of their child following release).
[xxxviii] Moms and Babies, supra note 8 (PNPs provide a strong incentive for inmates to make significant rehabilitation efforts in order to gain the privilege of keeping their child, and the presence of the baby motivates the mother to better herself).
[xxxix] Jordana Hart, Bill Lets Mothers In Prison Keep Tots, Benefits To Parent And Child Are Cited, The Boston Globe, (June 26 1997); Kring Villanueva et al., supra note 8, at 17. See also J.B. v. Superior Court, supra note 22, at 20.
[xl] Id. Kring Villanueva et al., at 5, 16-18 (In Nebraska, recidivism rate of PNP mothers was 9%, in comparison to 33% rate for women who gave birth in custody and were immediately separated from their child. In Ohio only 3% of PNP participants recidivate, in comparison to the general recidivism rate of 38%. A tested sample of mothers released from PNPs in New York indicated a 13.4% recidivism rate, compared to 25.9%).
[xli] The Rebecca Project, supra note 5, at 30; id. Kring Villanueva et al., at 9.
[xliii] Santosky v. Kramer 455 U.S. 745, 753 (1982).
[xlv] See notes 38-9 supra.
[xlvi] See Mauskopf, supra note 2, at 115. See also: Brooks & Kimberly Bahna, “It’s a Family Affair”– The Incarceration of the American Family: Confronting Legal and Social Issues, 28 U.S.F. L. Rev. 271 (1994).
[xlvii] Compare Lawrence Adams, A Voice for the Previous Voiceless, FCAA: Foster Care Alumni of America (Aug. 2006). Available at: http://www.associatedcontent.com/article/50411/fcaa_foster_care_alumni_of_america.html
[xlvii] See Mauskopf, supra note 2, at 115 (average annual costs of foster care pare child is approximately $40,000 while annual PNP participation cost is approximately $11,000 per child).
[xlviii] Moms and Babies, supra note 8.
[xlix] Santosky v. Kramer 455 U.S. 745, 766-7 (1982); Mary V. Deck, Incarcerated Mothers and Their Infants: Separation or Legislation, 29 Boston College Law Review 689, 680 (1988).
[l] 42 U.S.C. § 671(a)(15)(A).