APPENDIX V: ACCESS TO CHILDREN, LOVED ONES, AND INTIMATE RELATIONS

In the United States, part of the meaning and purpose of incarceration is removal from social and familial relationships. Standard prison rules severely restrict the ability of people in prison to visit with friends and family, or to engage in physical or sexual contact with people outside the prison. Logistical and financial barriers make it difficult to take advantage of even the limited possibilities for contact and communication through authorized visits, telephone calls,²⁰⁶ and mail. Relationships and intimacy are restricted within prisons as well: consensual sexual activity between people in prison is generally prohibited, and social deprivation—in the form of administrative segregation or solitary confinement—is one of the most severe punishments inflicted there.

For many imprisoned parents, regardless of gender, one of the most devastating aspects of imprisonment is forcible separation from their children. Women in prison face particular challenges relating to infants and children, in part because they are more likely than male prisoners to be primary caretakers.²⁰⁷ Women may lose custody of their children while they are imprisoned, and even if custody is maintained, prisons make it difficult for women to visit with their children and infants. For all of these reasons, maternal incarceration is very destabilizing to a family’s health and stability.²⁰⁸

The Legal Framework of Maternal Incarceration

The U.S. Supreme Court has recognized certain rights relating to children, family, and consensual sexual activity. Specifically, it has found that a parent’s right to raise his or her own children is fundamental,²⁰⁹ and that a parent’s interest in the care and custody of his or her children does not “evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.”²¹⁰ The Supreme Court has also found that consensual sexual intimacy is a form of liberty that receives special protection under the Constitution.²¹¹ These constitutional protections, however, are precarious in the context of the prison, where the “rights” and “liberties” that exist in the outside world are necessarily compromised.

The Adoption and Safe Families Act (ASFA), passed by Congress in 1997, was designed to move children from the foster-care system into permanent homes and to prioritize children’s health and safety over biological family reunification.²¹² Referred to as “the most sweeping change to the nation’s adoption and foster-care system in nearly two decades,”²¹³ ASFA has made it easier for states to terminate the parental rights of imprisoned mothers whose children have been placed in foster care. Most significantly, ASFA requires states to file a petition terminating parental rights when a child has been in foster care for fifteen of the most recent twenty-two months, unless a relative is caring for the child or there is a compelling reason why termination would not be in the child’s best interests.²¹⁴ AFSA does, however, also allow states to bypass the duty to make a “reasonable effort” to reunite children with their biological parents in certain situations.²¹⁵ Additionally, ASFA provides cash bonuses to states that increase their adoption rates—sums of $4,000 for each child adopted above the previous year’s number, and $6,000 for the adoption of a child who has a physical or emotional disability. Because custody issues are handled through state courts and as a civil matter, mothers facing the termination of their parental rights have no automatic right to counsel.

There is considerable variation in how ASFA is applied across the states. While ASFA requires the initiation of termination proceedings, the law of a given individual state specifies how the actual termination of rights is to be determined and carried out, and how the state’s interest in the child’s welfare is to be balanced with the parental rights of incarcerated mothers. While some state laws consider a variety of factors when deciding whether to terminate parental rights, other states authorize termination based on single, bright-line rules, such as whether the mother is serving a sentence of a particular length, whether she has had a certain number of contact visits with her child, or by the type of conviction she received.216

While ASFA has increased the nationwide adoption rate, it has also resulted in incarcerated women losing their parental rights, not because they were abusive or neglectful, but because the placement of their children into foster care made them unable to maintain contact over the required fifteen months. Data from the Bureau of Justice Statistics suggests that ASFA may have a disparate impact on women, since women in prison are more likely than men to have children in foster care²¹⁷—since they are more likely than their male counterparts to have been primary caregivers of young children prior to imprisonment,²¹⁸ they are less able to rely on their children’s other parent to take on the caregiving role for the duration of their sentence.²¹⁹

Even when able to retain custody, most women in prison have few opportunities to see their children. There are fewer correctional facilities for women, and most of these are located in remote, rural areas, far from many of the women’s homes and communities. This distance creates a major logistical and financial barrier to visitation.²²⁰ More than half of imprisoned mothers never receive visits from their children during their time inside.²²¹

Considering that a large percentage of women in prison are there serving sentences for nonviolent, drug-related crimes, and that separating mothers and children is detrimental to mothers, children, and communities alike,²²² many advocates support sentencing alternatives that would allow mothers and children to stay together. The Rebecca Project for Human Rights, an organization that is one of the foremost experts on incarcerated mothers, strongly supports family-based programs that provide services such as therapy, parenting classes, and substance-abuse treatment.²²³ Thirty-four states already make alternative-sentencing programs of some kind available to women, although they may have limited capacity. Prison nurseries are available in thirteen states, and, though inferior to family-based alternative sentencing, they offer some opportunity for mother-child bonding. Seventeen states do not offer family-based treatment programs of any kind.²²⁴