Sentencing Parents, Sentencing Children: Trick or Treat Halloween Without Mom or Dad

“Trick or treat” are the cherished words I like to hear every year at Halloween when I open my door. Batman, Cinderella and the witch are yearly visitors, and I am always prepared with my small but tasty, chocolate treats. Many older children come knocking for their Halloween treats while their mom or dad, in some cases both parents – mom and dad, dad and dad or mom and mom – patiently wait by the curb with a watchful eye. This year a little one came to my door in her daddy’s arms, experiencing this Western tradition for the first time.  Dad urged her to utter those cherished words. The sweet girl in her cat costume shyly said in a practically indiscernible voice, “Trick or Treat”.  Her dad proudly flashed a beaming smile while the little girl lite up as I deposited M&M chocolates in her orange, plastic pumpkin container.  Watching them leave my porch, I was struck by the thought that this Halloween over 2.7 million American children were not being accompanied by their mother or father due to the cruel separation that is enforced by parental incarceration.

Decades of conclusive research show us that children who have parents who are incarcerated experience both short and long-term trauma. Prison visitation programs are just a Ban-Aid solution for the deep and gaping wound that is caused by parental incarceration. Sporadic visits, long distances to travel, ill-equipped prisons and inadequately trained prison staff are just a few of the difficulties that perpetuate the trauma visited on our children.  
When a father or mother is wrenched out of a child’s life by incarceration, a child is bound to experience a multitude of intense traumatic emotions – fear, anger, sadness, etc. It’s inevitable. But what is not inevitable, and -- I might add -- runs contrary to the values we hold about the integrity of the family, is that a child’s interests and needs are almost completely ignored during a parent’s criminal proceedings. 

It need not be that way, and criminal courts can do better. It is critical that we address the need for basic reforms of our criminal legal processes that could drastically reduce the number of children who are needlessly separated from a parent by imprisonment. Our civil legal system has a long established three-pronged test to determine whether the court should hear from a person interested in a particular court matter (i.e. be given legal “standing” to assure that their interests are considered).  The court can ask three key questions to determine whether someone should be heard at a legal hearing:

1. “Injury-in-fact.” Does the matter before the court directly affect you? Could you experience harm?

2.  “Causation.” Is there a causal connection between the action of the court and harm caused to the person seeking standing in the matter before the court?

3.  “Redressability.” Does the court have the power to rectify or avoid the harm? 

This simple test should equally apply to establish the “standing” of children who are the innocent victims of a parent’s conduct. At sentencing, a judge should take into account that sending a mother or father to prison means that the child’s parental support, love and affection are being removed, thus possibly inflicting a grave and cruel injury to that child. Moreover, the very act of placing that parent behind bars, often very far away, is the clear cause of serious harms to that child -- emotional, psychological, and financial.  In very many cases a judge could and should provide redress by sentencing a parent to an alternative to incarceration, so the parent can serve their time in the community, obtain the services they may need to turn their life around, and sustain a close and healthy relationship with the child.

It is time to refocus our attention on the children left behind as a result of parental incarceration. These children are the silent victims of our country’s tough on crime policies. We can help all families thrive by honoring the right to family unity for children who have a mother or father facing a possible prison term, by promoting alternatives to incarceration for parents, and by offering the necessary socio-economic supports.  We can prioritize the needs of children, their families and their communities while improving public safety.  Advancing family unity for all enhances public safety for everyone.

Whether it be at the state or federal level, our children should be considered by the judiciary and lawmakers. As we reflect on President Obama call to overhaul sentencing laws,  here are four easy steps to consider for sentencing reform. Let’s start by identifying when a child needs to be considered.  At the pre-sentencing hearing of an individual convicted of an offense, the judge should be required to inquire whether the person is a parent.  If the individual is a parent, then the judge should be required to hear and consider -- through the means of a Family Impact Statement -- what the impact of incarcerating that parent will be on their children. After assessing all the facts before him or her, a sentencing judge should be encouraged to exercise sound judicial discretion with respect to sentencing a parent to an alternative to prison which is likely to promote family unity (i.e. probation; education or job training programs; housing support; social, and psychotherapeutic supports; and medical supports including drug treatment). And last, but not least, as sentencing laws are being overhauled, lawmakers should assess the likely impact the new laws or policies will have on the children of individuals directly affected by them.

Children whose parents face a possible prison sentence need to be recognized as innocent victims of adult conduct. Fortunately in the United States, we have the legal tools to give children a voice in criminal proceedings. It is time that the best interest of all children be considered. 

First posted at Daily Kos:  http://www.dailykos.com/story/2015/11/02/1443449/-Sentencing-Parents-Sentencing-Children-Trick-or-Treat-Halloween-Without-Mom-or-Dad#comments

 

Patricia Allard

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