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Releasing Prisoners, Redeeming Communities. Anthony C. Thompson
Читать онлайн.Название Releasing Prisoners, Redeeming Communities
Год выпуска 0
isbn 9780814783160
Автор произведения Anthony C. Thompson
Жанр Юриспруденция, право
Издательство Ingram
One of the most punitive and detrimental effects of incarcerating women is the physical separation of mothers from children. There are few women’s prisons throughout the country. States generally have one or two women’s facilities, while the federal government maintains and operates relatively few institutions exclusively for women serving federal sentences.31 The limited number of institutions often means that women will be sent far away from their home communities and may often be housed in a separate state. A common side effect of this housing pattern is that women receive fewer visits from their children and family than men. Maintaining parental ties becomes all the more difficult. Children are often left to the care of the mother’s relatives or in the state’s foster care system when women are incarcerated. Consequently, women are often dependent on others to establish contact with their children. Women prisoners often must become accustomed to a lack of contact with their children.
As one would expect, the toll of this separation on mothers can be quite severe. Mothers commonly suffer from overwhelming anxiety and concern for their children. In many instances, the anxiety springs from the uncertainty of their children’s living situation. Mothers in custody have often made only temporary arrangements for their children. This instability of care arrangements becomes a continuing source of stress. Mothers in custody routinely report being overwhelmed by feelings of helplessness and hopelessness, which undoubtedly contribute to the higher incidences of clinical depression among women prisoners. This emotional and mental health toll can adversely affect the physical well-being of these women as well. Whatever the manifestation, the tremendous emotional burden that women carry is only complicated by the realization that they may ultimately lose custody of their children as they struggle to make sense of the legal system.
Physical and emotional separation from their mothers can cause severe emotional damage in children. Constancy and continuity of relationships, especially in the mother-child relationship, is essential for a child’s normal development during different life stages. Interruptions in those relationships can have a lasting impact on the child’s ability to bond with others. To the extent that infants and toddlers change—and must adjust to new—caretakers, they will often experience setbacks in their emotional development. Attachments, particularly at younger ages, are critical, and yet the imprisonment of their mothers often means that they will not have the benefit of constant, uninterrupted presence and attention from a familiar adult. When infants and young children find themselves abandoned by a parent, or shuffled between relatives, they may suffer separation distress and anxiety that will have long-term implications for their mental health.
The stress experienced by single mothers may be the most acute. They often risk termination of their parental rights simply due to the fact of their incarceration. A significant number of state prisoners find that following their admission to prison a court will place their children in the legal custody of others—often through the foster care system. In many instances these children enter the foster care system because no family member is available to care for them. When children are placed in the foster care system, the chances for permanent separation of mother and child become greater because it is more likely that a court will terminate the mother’s parental rights. Typically, once this has occurred, the mother will lose all rights related to her children and her children will be eligible for adoption—often without her knowledge or consent. Not only is there no guarantee that all the children awaiting adoption will be placed in adoptive homes, “but adoption does nothing to address the needs of poor families who are most at risk of involvement in the child welfare system.”32 This policy has a two-fold effect: it burdens the biological parents and simultaneously puts the children at risk of being cast into the system of child welfare. This happens with the greatest frequency to children of color.33
There are a number of reasons why an incarcerated mother has an increased chance of losing permanent custody once the state places her children in the foster care system. First, the state may have specific laws aimed at terminating the rights of parents who “voluntarily abandon their children.” These laws do not adequately differentiate between physical abandonment in the traditional sense and involuntary “abandonment” as a result of incarceration. Second, despite language in many state statutes that mandates efforts toward reunifying families, incarcerated mothers rarely reap the benefits of such services. Child welfare workers and foster parents are often reluctant to facilitate visitation between children and incarcerated parents because they believe parental contact is harmful to the children, or they blame the parents for the children’s problems. Third, foster care is the first step in most jurisdictions toward a permanent termination of parental rights. “Twenty-five states have ‘termination of parental rights’ or adoptive statutes specifically for incarcerated parents, which makes the permanent loss of a child a stark reality.”34 Although the language of most statutes indicates that a state cannot terminate a parent’s right to custody of her child solely on the basis of incarceration, this prohibition tends to be honored in the breach. Some states have demonstrated a willingness to speed up termination proceedings in situations involving an incarcerated parent.
Of course, certain offenses might themselves render the offenders unfit parents. A conviction for extreme acts of domestic violence against the child or the other parent, for example, might provide sufficient grounds for terminating parental rights. But in most cases, both incarcerated parents and children have an interest in preserving their bond. In Santosky v. Kramer, the U.S. Supreme Court acknowledged this, finding that parents’ liberty interest in maintaining a relationship with their children applies equally to incarcerated mothers and fathers. The Court reasoned,
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family life.35
The Court further explained that, to terminate a parental right, courts should adhere to a standard of proof requiring a showing of “clear and convincing” evidence that the parent is unfit. In choosing this standard of proof, the Court may have been concerned about the conscious and unconscious influence of cultural or class bias in these decisions. The parents most likely to be subject to removal of their children and termination of all parental rights are often the poor, the uneducated, or members of minority groups. So, the Court may have intended the heightened standard to serve as a check against such biases.
However, the standard of proof may not be up to this considerable task. As indicated earlier, many of the women serving prison terms have been incarcerated after drug convictions. Drug dependency among this population has often contributed to involvement in the criminal justice system. Rather than seeing drug usage as a medical or public health problem, American society tends to regard it as a criminal problem. And Americans tend to reserve their most severe criticism for female drug users.36 They label drug-dependent women as, at best, neglectful parents and, at worst, abusive. While drug dependency can lead to both neglect and abuse, it does not inexorably lead to such problems. However, the perception that drug usage and abuse go hand in hand may influence decision makers in custody cases. So, many incarcerated mothers lose custody of their children for unstated assumptions that may have little bearing on whether they are actually capable or can become capable parents.
In addition to establishing the standard of proof, the Supreme Court has also broadened the factors that courts should assess in determining whether a parent is to be stripped of her parental rights. The Court directed lower courts to consider the nature of the relationship between parent and child as well as the degree to which the incarcerated parent has benefited from rehabilitation in prison. However, because many state statutes and an abundance of cases allow physical separation to serve as grounds for termination, the incarcerated mother often cannot overcome this burden since separation is likely during