Forthcoming in The Journal of Criminal Law and Criminology, 2011

Draft

Children of Incarcerated Parents: the Child’s Constitutional Right to the Family
Relationship
Chesa Boudin*

*

Chesa Boudin is a third year law student at Yale. Special thanks to Professor Judith Resnik for her guidance and
feedback throughout the research and writing of this Article. Thanks also to Professor Philip Genty, Aileen
Campbell, Theresa Miguel, Ashley Waddell, and my mother, Kathy Boudin.

Electronic copy available at: http://ssrn.com/abstract=1708682

Table of Contents
Introduction ..................................................................................................................................... 3
I.

The Population Impacted by Parental Incarceration and the Issues at Stake .......................... 6

II.

The Rights of the Child: Lessons from International Law ..................................................... 9
A.

The Convention on the Rights of the Child ........................................................................ 9

B.

The African Charter on the Rights and Welfare of the Child ........................................... 12

C.

European Law ................................................................................................................... 14

D.

Other International Law .................................................................................................... 17

III.
A.

Sentencing Procedures Fail to Recognize Children‘s Rights ........................................... 19

B.

Visitation Policies and Children with Incarcerated Parents .............................................. 26

IV.

V.

Sentencing and Visiting: Is There a Role for the Child? .................................................. 18

Constitutional Rights of Children with Incarcerated Parents ........................................... 32

A.

First Amendment .............................................................................................................. 34

B.

Due Process ....................................................................................................................... 37

C.

Engaging Counter Arguments........................................................................................... 41

D.

Prudential Considerations ................................................................................................. 44
Conclusion ............................................................................................................................ 47

2

Electronic copy available at: http://ssrn.com/abstract=1708682

Introduction
When judges sentence people to prison, and when prison administrators determine
visitation policies, minor children are often ignored.1 This is not an obscure issue but rather has
significant, daily ramifications for a generation of American youth. As incarceration rates have
spiraled by over 500% in the last thirty years,2 so have the number of children who lose their
parent or parents to the prison system.3 In fact, in the United States there are more children with
incarcerated parents than there are people in prison.4 Incarcerating parents of minor children is
not just an issue for those sentenced to prison: it also generates third party harms for the children,
for their caregivers, for the welfare apparatus of the state, for the prison system, and for the law.5
More specifically, parental incarceration implicates myriad legal issues related to custody, 6
communication,7 visitation,8 conditions of confinement,9 international standards,10 and more.11

1

See generally NELL BERNSTEIN, ALL ALONE IN THE WORLD (2007) (detailing the plight of children with
incarcerated parents); CHILDREN OF INCARCERATED PARENTS (Katherine Gabel & Denise Johnston, eds., 1995)
(providing guidance to social workers, caregivers, and others who work with children of incarcerated parents).
2
The Sentencing Project, News, Incarceration, http://www.sentencingproject.org/template/page.cfm?id=107 (last
visited Bureau of Justice Statistics Correctional Population Trends Chart, BUREAU OF JUSTICE STATISTICS, available
at http://bjs.ojp.usdoj.gov/content/glance/corr2.cfm.
3
LAUREN E. GLAZE & LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, PARENTS IN
PRISON AND THEIR MINOR CHILDREN 1 (Aug. 2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc.pdf.
4
Id. at 1.
5
See generally RENNY GOLDEN, WAR ON THE FAMILY: MOTHERS IN PRISON AND THE FAMILIES THEY LEAVE
BEHIND (2005) (analyzing collateral impacts of mass incarceration); CHILDREN WITH PARENTS IN PRISON: CHILD
WELFARE POLICY, PROGRAM, & PRACTICAL ISSUES (Cynthia Seymour & Creasie Finney Hairston, eds., 2001)
(discussing permanency planning, best interests of the child, and child welfare policy); BARBARA BLOOM & DAVID
STEINHART, WHY PUNISH THE CHILDREN? (1993) (considering the roles and responsibilities of child welfare
agencies, corrections, caregivers, and incarcerated mothers).
6
See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (requiring a clear and convincing standard of evidence before
terminating petitioners‘ parental rights); Mariely Downey, Losing More than Time: Incarcerated Mothers and the
Adoption and Safe Families Act of 1997, 9 BUFF. WOMEN‘S L.J. 41, 45 (2000) (detailing the impact of the Adoption
and Safe Families Act on termination of parental rights of the incarcerated).
7
See, e.g., Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, (2009) (upholding New York
State Department of Correctional Services prison phone policies).
8
See, e.g., Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding department of corrections policies severely limiting
prison visitation by children of inmates).
9
See, e.g., Block v. Rutherford, 468 U.S. 576 (1984) (challenging conditions of confinement of pretrial detainees,
including access to contact visits from children).
10
See, e.g., African Charter on the Rights and Welfare of the Child (1999), art. 30 (―States Parties to the present
Charter shall undertake to provide special treatment to expectant mothers and to mothers of infants and young

3

Thus, studying parental incarceration through a legal frame of analysis might shed light on, or at
least raise revealing questions about, the children left behind. While there is a body of literature
on the social issues presented by parental incarceration,12 and on the assortment of services and
programs offered for children and families of prisoners,13 there is surprisingly little written about
the legal issues.14 The research and analysis here begins to fill that lacuna. Future research might
productively draw on legal theory and practice in other related areas: parent-child separation in
the context of divorce and immigration.15
This Article grapples with a series of key questions including: What is the relevance, if
any, of children of offenders in sentencing, prison locations, and conditions of confinement?; To
what extent and with what limitations or exceptions is there a societal interest in children
maintaining a relationship with their convicted parents?; If children have a right to be considered
in sentencing and in visitation policies, what is the legal basis for that right? The focus here is on

children… and shall in particular: a. ensure that a non-custodial sentence will always be first considered when
sentencing such mothers; b. establish and promote measures alternatives to institutional confinement for the
treatment of such mothers‖).
11
See generally Tanya Krupat, Invisibility and Children's Rights: The Consequences of Parental Incarceration, 29
WOMEN‘S RIGHTS L. REP. 39 (2007) (describing the challenges children with incarcerated parents face, and arguing
for a children‘s bill of rights).
12
See, e.g., BERNSTEIN, supra note 1; GOLDEN, supra note 5; CHILDREN OF INCARCERATED PARENTS, supra note 1;
IMPRISONING AMERICA: THE SOCIAL EFFECTS OF MASS INCARCERATION (Mary Pattillo et al. eds., 2004).
13
See Services for Families of Prison Inmates, NATIONAL INSTITUTE OF CORRECTIONS (2002) (surveying the
programs and approaches in the various states), available at http://www.nicic.org/pubs/2002/017272.pdf.
14
But see Philip M. Genty, Damage to Family Relationships as a Collateral Consequence of Parental
Incarceration, 30 FORDHAM URB. L.J. 1671 (2003) (discussing family separation); Philip M. Genty, Procedural Due
Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty State Analysis, 30 J.
FAM. L. 757 (1992) (analyzing termination of parental rights process in the context of incarceration); See also Ellen
Barry et al., Legal Issues for Prisoners with Children, in CHILDREN OF INCARCERATED PARENTS, supra note 1, 147,
147 (describing in brief a range of legal challenges facing families with incarcerated parents).
15
Citizen children of immigrant parents find their family rights limited in a range of contexts. See generally Bill
Piatt, Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents, 63 NOTRE DAME L. REV 35
(1988) (examining sanctions against citizen children for the purposes of discouraging undocumented immigration).
There is a complex body of law on child-custody in divorce proceedings focusing on the best interests of the child
and parents‘ due process rights. See generally Arthur B. LaFrance, Child Custody and Relocation: A Constitutional
Perspective, 34 U. OF LOUISVILLE J. OF FAM. L. 1 (1996) (applying the best interests of the child standard and
constitutional analysis to custody proceedings).

4

minor children and their biological parents, legal guardians, or primary caregivers. 16 The central
goal of this Article is to reframe the problem of third party harm to children from current
sentencing law and prison visitation policy through the lens of children‘s rights, rather than the
traditional frame of prisoners‘ rights. Drawing on international law and practice this Article puts
forwards a theory for the relevance of children to the sentencing process and development of
visitation policy in many cases.17 It suggests that this relevance has a sound, if underdeveloped,
legal basis grounded in children‘s First Amendment freedom of association and their due process
liberty interests. Today, however, minor dependent children are, as a matter of law and standard
procedure, a non-factor in sentencing and statutory visitation guidelines. Even within the narrow
sentencing guidelines, there is no formal mechanism for family status or dependent children to
come to the attention of a judge. When individual prisons or jails offer child-friendly visiting
facilities, it is as a privilege, not a right.18
This Article is organized into four Parts. Part I provides an overview of the group that is
at the heart of this inquiry: children of prisoners. Part II draws on international law and practice
to theorize the child-parent relationship in the context of the U.S. criminal justice system. Part III
considers the failure of the status quo to adequately factor children into key decisions that impact
16

The argument that follows might be stretched to apply to young adult children, to parents with children in prison
(instead of the other way around), to extended family, or to parental relationships no recognized by law. However,
this Article focuses on legally recognized parent-child relationships where the parent plays at least some role in
caretaking the child prior to arrest.
17
The argument does not apply to cases where maintenance of contact is not in the best interests of the child.
18
To be clear, there are three points that this Article does not argue. First, the argument here is not that children are
never taken into account, or that there is no meaningful way for them to maintain a relationship with their
incarcerated parents. They certainly are taken into account some of the time, and in some jurisdictions they can build
meaningful relationships with their incarcerated parents, but rarely, if ever, as a matter of right. Second, nor is the
argument here that children‘s rights should be the framework for approaching criminal justice. Of course other
stakeholders including the state, the offender, and the victim have essential voices in the process. This Article
modestly seeks to make room at the table for children who are directly impacted by criminal justice outcomes in
which, all too often, their rights and interests are ignored. Finally, this Article does not claim that all children benefit
from a relationship with their parents all the time, but focuses on those children whose best interests are served
through maintaining active contact.

5

their lives in the context of parental incarceration. Specifically, Part III reviews prison sentencing
and visitation policies in two jurisdictions–the federal system and New York State19–to evaluate
whether and how dependent children are taken into consideration. While sentencing and
visitation are only two of the myriad places in the criminal justice process where children‘s
rights should be recognized, they are two of the most important places and can serve as proxies
for other areas like parole, alternatives to incarceration, furloughs, phone calls, and so forth.
Finally, Part IV puts forward the First Amendment freedom of association and the due
process liberty interest as the legal basis for children‘s right to a relationship with their convicted
parents. Part IV goes on to engage and rebut possible counter arguments. It then concludes by
describing, in concrete terms, what the practical implications of the argument advanced here
might be for sentencing, prison visitation, and more.
I. The Population Impacted by Parental Incarceration and the Issues at Stake
Of the 74 million children in the United States at midyear 2007, 1.7 million, or 2.3%, had
a parent in prison.20 This figure represents an 82% increase since 1991 that does not include the

19

See infra Part III for an explanation of why these jurisdictions were chosen.
GLAZE & MARUSCHAK, supra note 3, at 1-2. Note that because these Bureau of Justice Statistics estimates are
based on numbers on a given day, a snapshot, the actual numbers of children experiencing parental incarceration at
some point in their childhood is much larger. For example, in 2008 alone 735,454 inmates were released from prison
and 739,132 new inmates entered. Id. at 3. One can easily extrapolate the numbers based on the percentages of these
inmates who are parents and their average number of children. This revolving door in prison population has vast
implications for a corresponding number of children. Moreover, this estimate may be significantly understating the
problem on at least three counts. First, this number does not include children with a parent in jail or immigration
detention – at year end 2008 over 785,000 people were held in local jails, and over 30,000 more in Immigration and
Customs enforcement detention centers. WILLIAM J. SABOL ET AL., BUREAU OF JUSTICE STATISTICS BULLETIN,
PRISONERS IN 2008, at 8, 10, Dec. 2009, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf. Thus, all in,
the United States incarcerates an estimated 2.4 million people on any given day. Id. at 8. Second, the numbers here
are based on self reporting by inmates who may be disinclined to share personal or family information with
surveyors. See GLAZE & MARUSCHAK, supra note 3, at 11 (explaining methodology and survey practice). Third, the
percentage of mothers in prison has elsewhere been estimated to be substantially higher than the estimate these
numbers are based on. Thus other reports have estimated that there are closer to 2.4 million children with a parent in
jail or prison on any given day. BERNSTEIN, supra note 1, at 2.
20

6

growing numbers of children who experience parental incarceration in jails only.21 Roughly half
of these children are under ten years old.22 Due to long prison sentences, more than a third of
them will reach the age of eighteen while their parent is still in prison–thus several hundred
thousand more people, now adults, experienced parental incarceration as minors,23 and the
number would surely be far larger if parents in jail were considered as well. As in the prison
population, black and Hispanic children are greatly overrepresented among those with a parent
behind bars: more than 70% are children of color.24 One out of every forty-three American
children had a parent or parents in prison; for black children the number was one out of fifteen,
while for white children it was one out of one hundred and eleven.25
Switching the focus to the prisoners rather than the children is also revealing. Over half
of the more than 1.5 million prisoners in the country26 at midyear 2007 were parents of children
under the age of eighteen.27 Put differently, 63% of federal inmates and 52% of state inmates
reported having minor children.28 Because just 7% of inmates are women, or 114,852
prisoners,29 the vast majority of parents in prison are men: in 2007 the nation‘s prisons held
744,200 fathers and 65,600 mothers.30 On average mothers in prison have approximately 2.4

21

SARAH SCHIRMER ET AL., THE SENTENCING PROJECT, INCARCERATED PARENTS AND THEIR CHILDREN: TRENDS
1991-2007, at 2 (2009), available at
http://www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf.
22
Id. at 6.
23
GLAZE & MARUSCHAK, supra note 3, at 3.
24
SCHIRMER ET AL., supra note 21, at 1.
25
Id. at 2.
26
SABOL ET AL., supra note 20, at 3. This is by far the highest incarceration rate in the world. Roy Walmsley, World
Prison Population List, INTERNATIONAL CENTRE FOR PRISON STUDIES 1 (2003), available at
http://kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf.
27
GLAZE & MARUSCHAK, supra note 3, at 1.
28
Id.
29
SABOL ET AL., supra note 20, at 16.
30
GLAZE & MARUSCHAK, supra note 3, at 2. This figure indicates that just 57% of women in prison are mothers,
while earlier studies, also based on BJS statistics, estimated closer to 80%. Barbara Bloom, Imprisoned Mothers, in
CHILDREN OF INCARCERATED PARENTS, supra note 1, at 21. New York State reports that 74% of its female inmates
are mothers. Michele Staley, Female Offenders: 2005-2006, NEW YORK STATE DEPARTMENT OF CORRECTIONAL

7

children each while fathers have 2.0 children each.31 Prior to their arrest 64% of incarcerated
mothers and 46% of incarcerated fathers lived with their minor children.32
When criminal justice policy leads to the incarceration of parents with dependent
children, what happens to the children left behind? When it is the father who is incarcerated,
88% of the children live with their mother, 12% live with grandparents, and just 2% are sent to a
foster home or agency.33 If the mother is incarcerated 45% live with grandparents, just 37% of
children live with their father, and 11% are sent to foster homes or agencies.34 Where and with
whom children end up living for how long is often a determining factor in their development.35
Yet children‘s interests are not, as a matter of right, factored into criminal justice determinations
involving their parents despite the fact that these determinations directly impact the children in
myriad ways. The psycho-social challenges children with incarcerated parents face and the pros
and cons of prison visitation have been well-studied elsewhere.36 The fact that parent-child
visitation can help children overcome the challenges of parental separation and reduce recidivism
rates is well-documented.37 Less well-understood is the central inquiry of this Article: legal
rights of children to a relationship with their parents.

SERVICES 3, Jan. 2008, available at http://www.docs.state.ny.us/Research/Reports/2008/Female_Offenders_20052006.pdf.
31
Denise Johnston, Effects of Parental Incarceration, in CHILDREN OF INCARCERATED PARENTS, supra note 1, at 61.
32
GLAZE & MARUSCHAK, supra note 3, at 4. The total is larger than 100 because some parents had multiple children
living with multiple caregivers.
33
Id. at 5. Alternative outcomes include living with other relatives or with friends.
34
Id.
35
CYNTHIA BEATTY, CHILD WELFARE LEAGUE OF AMERICA, PARENTS IN PRISON: CHILDREN IN CRISIS 11 (1997);
JEROME G. MILLER, SEARCH AND DESTROY: AFRICAN-AMERICAN MALES IN THE CRIMINAL JUSTICE SYSTEM 114
(1996).
36
Supra notes 12, 13; infra note 50.
37
PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND
COMMUNITIES 8 (Jeremy Travis & Michelle Waul, eds., 2003); William D. Bales & Daniel P. Mears, Inmate Social
Ties and the Transition to Society: Does Visitation Reduce Recidivism?, 45 J. RES. IN CRIM & DELINQ. 287, 304
(2008); Jeremy Travis, Families and Children, 69 FED. PROBATION 31, 31-32 (2005). See also Solangel Maldonado,
Recidivism and Paternal Engagement, 40 FAM. L.Q. 191 (2006) (analyzing the development of parenting skills in
prison).

8

II. The Rights of the Child: Lessons from International Law
International law offers a range of approaches to children‘s rights that may provide a
basis for a claim to a relationship with incarcerated parents. The argument here is not concerned
with the enforceability of international legal standards or foreign law in the United States, 38 but
rather with considering and developing a legal basis for children‘s rights to a relationship with
incarcerated parents in practice. First, however, a more general review of the theory of the rights
of the child is in order.
A. The Convention on the Rights of the Child
The Convention on the Rights of the Child (―CRC‖)39 has been universally ratified by
every country in the world except for Somalia and the United States.40 Nonetheless, the United
States played a key role in the development of the CRC,41 and its approach to children‘s rights is
a valuable point of reference in theorizing children‘s right in the United States. The CRC does
not specifically contemplate children with incarcerated parents, except to guarantee them the
right to information about their parents‘ whereabouts.42 Nonetheless, when read together, its
provisions create a strong legal basis for a child-oriented approach to sentencing and visitation
policy.

38

See John K. Setear, A Forest With No Trees: The Supreme Court and International Law in the 2003 Term, 91 VA.
L. REV. 579 (2005) (arguing that the Court repeatedly ignores international law or takes a highly constricted
approach to its application).
39
Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456.
40
Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, 34 YALE J.
INT‘L L. 389, 418 n.150 (2009). See United Nations Treaty Collection,
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en. Somalia has
reportedly taken steps towards ratification. UNICEF lauds move by Somalia to Ratify Child Convention, XINHUA
NEWS, Nov. 20, 2009, available at http://news.xinhuanet.com/english/2009-11/20/content_12510818.htm.
41
Cynthia Price Cohen, Role of the United States in Drafting the Convention on the Rights of the Child: Creating a
New World for Children, 4 LOY. POVERTY L.J. 9, 25-26 (1998).
42
Id. at art. 9(4).

9

A criminal conviction of a parent or parents should in no way diminish or undermine the
rights of the child. The CRC requires that parties ensure children‘s rights are protected
―irrespective of the child‘s or his or her parent‘s or legal guardians‘. . . status.‖43 The CRC goes
on to recognize the child‘s right to ―know and be cared for by his or her parents.‖ 44 This
language need not be incompatible with parental incarceration but it can easily be read as having
implications for when incarceration is appropriate and the kinds of visitation that should be
available. Thus this CRC language creates potential for tension between the child‘s right to
―know and be cared for by his or her parents‖ and whatever societal interests may be served by
incarceration.
Children must have a voice, either directly or through representation, 45 in proceedings
that directly implicate their well-being. The CRC mandates that children be given a voice in all
issues of import to their lives, including ―the opportunity to be heard in any judicial and
administrative proceedings affecting the child.‖46 Sentencing a parent to prison invariably has a
profound and immediate impact on the child including the possibility for multiple changes in
caregivers, addresses, loss of parental support, and even termination of parental rights. Providing
children with a voice in criminal justice proceedings involving their parents would therefore be
consistent with the CRC.
Children also have a right to contact with their incarcerated parents. Article 9 of the CRC
requires that parties ―respect the right of the child who is separated from one or both parents to
maintain personal relations and direct contact with both parents on a regular basis, except if it is

43

Convention on the Rights of the Child, supra note 39, at art. 2(2).
Id. at art. 7(1).
45
Such as a guardian ad litem or a court-appointed attorney.
46
Id. at art. 12.
44

10

contrary to the child‘s best interests.‖47 This suggests that separation due to parental
incarceration48 cannot include conditions or circumstances that preclude regular contact, except
where such contact is not in the child‘s best interests.49
Whether or not visitation is beneficial for children or for incarcerated parents is highly
dependent on the specific dynamics in each family as well as the conditions of visiting facilities
in the prison. The costs and benefits of facilitating visitation are more a question of policy and
social science than of law. However, it is safe to assume50 that accessible, child-friendly visiting
facilities can yield significant benefits for both children and their incarcerated parents. 51 Thus
policies and practices that indiscriminately make contact visitation difficult or impossible for the
majority of children with incarcerated parents are in direct tension with the approach to
children‘s rights that led to Article 9 in the CRC and its recognition of a child‘s right ―to
maintain personal relations and direct contact with both parents on a regular basis‖ when in the
―child‘s best interests.‖

47

Id. at art. 9(3).
Or myriad other causes beyond the scope of this Article including juvenile detention.
49
The issue of whether or not visitation is in the best interests of children with incarcerated parents is beyond the
scope of this Article. Here, it is enough to assume that contact visitation is in the best interests of at least some
children. It is those children and their rights that are the central concern of the argument here. See also infra notes
50, 51.
50
See generally Joseph Murray & David P. Farrington, The Effects of Parental Imprisonment on Children, 37
CRIME & JUST. 133 (2008) (reviewing literature and citing studies); Note, On Prisoners and Parenting: Preserving
the Tie That Binds, 87 YALE L.J. 1408 (1978) (arguing that facilitating child-parent bonds in the context of
incarceration is in the interests of the children).
51
Denise Johnston, Parent-Child Visitation in the Jail or Prison, in CHILDREN OF INCARCERATED PARENTS, supra
note 1, at 138; CHILDREN WITH PARENTS IN PRISON, supra note 5, at 13. Note also that visitation with children and
family members is strongly correlated with reduced recidivism rates for inmates, however that issues is beyond the
scope of this Article – the focus here is on the children not the inmates. Christy A. Visher & Jeremy Travis,
Transitions from Prison to Community: Understanding Individual Pathways, 29 ANN. REV. SOC. 89, 100 (2003).
See also Steve Christian, Children of Incarcerated Parents, NATIONAL CONFERENCE OF STATE LEGISLATURES 1,
Mar. 2009, (suggesting that visitation may be a crucial part of breaking intergenerational cycles of incarceration)
available at http://www.cga.ct.gov/COC/PDFs/fatherhood/NCSL_ChildrenOfIncarceratedParents_0309.pdf.
48

11

The ―best interests of the child‖ standard is common to both international law and United
States domestic law.52 Article 9 of the CRC relies on the ―best interests of the child‖ standard for
determining when and what contact may be appropriate. Article 3 of the CRC states that ―in all
actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall
be a primary consideration.‖ The ―best interests‖ standard has been a guiding principle in U.S.
law for over 125 years53 and is ―universally recognized across the [United States] as the core
concept of laws relating to children.‖54 All 50 states and the federal government have laws that
use the ―best interests‖ standard in one or more of their statutes concerning adoption, parental
rights, education, child labor, and other areas of child welfare. References to the ―best interests‖
standard appear frequently in State and federal court decisions.55 This common standard however
is vague on its face and is subject to wide-ranging interpretations and applications across
jurisdictions.
B. The African Charter on the Rights and Welfare of the Child
The African Charter on the Rights and Welfare of the Child (―the Charter‖) echoes the
language of the CRC in entrenching the ―best interests‖ standard56 and does specifically address
children with incarcerated mothers. The Charter requires parties ―to provide special treatment to
52

See, e.g., Troxel v. Granville, 530 U.S. 57, 84 (2000) (―myriad other state statute‘s and court decisions at least
nominally‖ apply the best interest of the child standard). (Stevens, J., dissenting).
53
M. R. GARDNER AND A.P. DUPRE, CHILDREN AND THE LAW, CASES AND MATERIALS 62 (2006).
54
Elisabeth A. Mason, The Best Interests of the Child, in THE U.N. CONVENTION ON THE RIGHTS OF THE CHILD: AN
ANALYSIS OF TREATY PROVISIONS AND IMPLICATIONS OF U.S. RATIFICATION 121 (Jonathan Todres, Mark E. Wojcik
& Cris R. Revaz eds., 2006).
55
GARDNER, supra note 53, at 62.
56
African Charter on the Rights and Welfare of the Child (1999). Article 4 reads: Best Interests of the Child, 1. In
all actions concerning the child undertaken by any person or authority the best interests of the child shall be the
primary consideration. 2. In all judicial or administrative proceedings affecting a child who is capable of
communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either
directly or through an impartial representative as a party to the proceedings, and those views shall be taken into
consideration by the relevant authority in accordance with the provisions of appropriate law.

12

expectant mothers and to mothers of infants and young children‖ when convicted of criminal
offenses and to ―ensure that a non-custodial sentence will always be first considered when
sentencing such mothers.‖57 The same Article requires that parties ―establish and promote
measures alternative to institutional confinement for the treatment of such mothers,‖ as well as
prohibiting the death penalty for mothers.58 The focus on mothers here appears to reflect the
reality in much of the world that incarcerating mothers is generally more disruptive to children‘s
lives than incarcerating fathers. However, while there are some valid, biologically-determined
gender distinctions, such as with pregnant or lactating mothers, incarcerating fathers may have
equal or greater repercussions for dependent children.59 By limiting its protection to mothers this
Article excludes the majority of prisoners and children with parents in prison. This limitation
notwithstanding, the Charter provides one of the most explicit recognitions of the rights and
interests of children with incarcerated parents anywhere in international law.60
The CRC and the Charter are more than just idealistic, aspirational documents; their
language protecting children with incarcerated parents has been incorporated into national
jurisprudence in South Africa at least. In the landmark Constitutional Court case S v. M, the
central question was: What are the duties of a sentencing court when the person being sentenced
is the primary caregiver of minor children, bearing in mind the constitutional protection of the
best interests of the child?61 Justice Sachs, writing for the Court, relied heavily on Section 28(2)

57

Id. at art. 30. It is troubling that the Charter exhibits this gender bias, although not entirely surprising given the
international reality of child rearing falling largely on mothers.
58
Id.
59
Consider, for example, a situation where the father is the sole breadwinner for the family, or where the father is
the sole caregiver.
60
See also GERALDINE VAN BUEREN, INTERNATIONAL DOCUMENTS ON CHILDREN 53 (1998) (citing European
Convention on Human Rights, 8.15).
61
S v. M 2008 (3) SA 232 (CC) (S. Afr.).

13

of the South African Constitution,62 but also cited the CRC63 and the Charter.64 Sachs also
considered the ―best interests of the child‖ standard, concluding that when it comes to
sentencing, ―[t]o apply a pre-determined formula for the sake of certainty, irrespective of the
circumstances, would in fact be contrary to the best interests of the child concerned.‖65 In
exploring the reach of these provisions in sentencing proceedings, Sachs held that the ―objective
is to ensure that the sentencing court is in a position adequately to balance all the varied interests
involved including those of the children.‖66 The opinion clearly states that the purpose ―is not to
permit errant parents unreasonably to avoid appropriate punishment. Rather, it is to protect the
innocent children.‖67 Ultimately, Sachs establishes a multipart test for sentencing parents that
clearly, but not necessarily decisively, incorporates children‘s rights. This Constitutional Court
decision is a valuable example of how children‘s right to family integrity is cognizable in the
context of parental incarceration.68
C. European Law
European law and policy also recognize, though less explicitly, the rights of children with
incarcerated parents.69 The Charter of Fundamental Rights of the European Union establishes
that ―[e]very child shall have the right to maintain on a regular basis a personal relationship and

62

―A child‘s best interests are of paramount importance in every matter concerning the child.‖ S. AFR. CONST. 1996
(28)(2).
63
S v. M 2008 (3) SA 232 (CC) at para. 16.
64
Id. at para. 31.
65
Id. at para. 24.
66
Id. at para. 33.
67
Id. at para. 35. Sachs goes to explain that a parent who would otherwise necessarily be sentenced to prison will
still have to be incarcerated. Id. at para. 39.
68
Id. at para. 36.
69
See generally D. King, Parents, Children and Prisons: Effects of Parental Imprisonment on Children, DUBLIN
INSTITUTE OF TECHNOLOGY (2002) (reviewing literature, international law, and international models of best
practice), available at http://arrow.dit.ie/cgi/viewcontent.cgi?article=1011&context=cserrep.

14

direct contact with both his or her parents, unless that is contrary to his or her interests.‖ 70 The
standard was further articulated in 2006 when the Council of Europe, Committee of Ministers,
promulgated model European Prison Rules (―the Rules‖).71 Article 24.4 of the Rules
recommends that ―arrangements for visits shall be such as to allow prisoners to maintain and
develop family relationships in as normal a manner as possible.‖ Specifically, inmates are
―allowed to communicate as often as possible by letter, telephone or other forms of
communication with their families… and to receive visits.‖72 The Rules also indicate that
―[p]risoners shall be allocated, as far as possible, to prisons close to their homes.‖73 While these
rules and recommendations are framed in terms of the prisoners‘ rights there are direct and
reciprocal implications for children of prisoners.
European law enshrines children‘s right to a family. Article 8 of the Council of Europe‘s
Convention for the Protection of Human Rights and Fundamental Freedoms establishes a right to
respect for private and family life, including ―no interference by a public authority with the
exercise of this right.‖74 The right, however, is subject to exceptions for national security, public
safety, crime prevention and more. The language of the Article appears verbatim in national
legislation as well, such as the England‘s Human Rights Act of 1998.75 The language of Article 8
suggests that any interference, presumably including incarceration in general, and lengthy
sentences or restrictive visiting conditions in particular, must serve a legitimate purpose and be
proportionate to that aim. Disproportionate restrictions on visiting or overly harsh sentences
70

Charter of Fundamental Rights of the European Union, Dec. 7, 2000, 2000 O.J. (C 364) 1, art. 24, reprinted in 40
I.L.M. 266 (2001).
71
Council of Europe, Committee of Ministers, Recommendation on European Prison Rules (Jan. 11, 2006),
available at https://wcd.coe.int/ViewDoc.jsp?id=955747.
72
Id. at art. 24.1.
73
Id. at art. 17.1.
74
European Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213
U.N.T.S. 221.
75
Human Rights Act, 1998, c. 42 (Eng.).

15

would prima facie be unjustified. While extremely limited and balanced against other societal
interests, this recognition of children‘s rights goes considerably further than the status quo
approach in the United States.76 However, the exceptions written into the Article may be
determinative for most children: despite the fact that imprisonment is clearly a gross interference
with family life, it is virtually self-justifying under the crime and public safety exceptions.
Courts interpreting Article 8 are deferential to prison authorities, but also factor in the
interests and rights of the child. For example, in R v. Secretary of State the Supreme Court of
Judicature Court of Appeal Civil Division in England considered the validity of forced
separation of infant children from their incarcerated mothers. The court recognized that in the
context of parental incarceration ―[c]ompulsory separation is, on the face of it, a serious
interference by the state in the children's right to respect for that family life.‖ 77 Like Justice
Sachs in South Africa, the court in England emphasized the need for balancing: ―[t]he more
serious the intervention in any given case (and interventions cannot come very much more
serious than the act of separating a mother from a very young child), the more compelling must
be the justification.‖78 Where ever possible courts must ―ensure that the mother can be punished
adequately for her offence without the necessity of taking her into custody away from her
children.‖79 Although R v. Secretary of State was brought by incarcerated mothers, the court
found it necessary to consider the interests of the children as well:
Were this an ordinary dispute about the enforced separation of parent and child by
the state, [the children] would have been separately represented by an expert
guardian ad litem and their own lawyers. We cannot know whether or not those

76

See infra Parts III & IV.
77 R v. Secretary of State [2001] EWCA (Civ) 1151, [83] (Eng.).
78
Id. at [73]. See also [65] for details of the balancing test.
79
Id. at [79].

16

representatives would have supported these applications, but we cannot avoid
giving separate consideration to the position of the children.80
The European Court of Human Rights has often recognized ―that the mutual enjoyment by parent
and child of each other's company constitutes a fundamental element of family life‖ protected by
Article 8.81 Yet, despite all that may be at stake and children‘s legal right to noninterference in
family life, children facing parental separation due to incarceration are not appointed a guardian
ad litem or their own lawyers. Thus there is an explicit, but underdeveloped, judicial recognition
of children‘s rights and family interests as a factor in the criminal justice processing of their
parents.
D. Other International Law
Around the world there are countries that have recognized children‘s rights in the context
of parental incarceration. The Supreme Court of South Australia found that the welfare of young,
dependent children justified conditional release of one of a married couple convicted of social
security fraud.82 New Zealand‘s Sentencing Act of 2002 requires that judges ―take into account
the offender‘s personal, family . . . background in imposing a sentence or other means of dealing
with the offender with a partly or wholly rehabilitative purpose.‖83 In Italy, criminal law provides
for house arrest for pregnant women or women with very young children.84 In Fiji, courts have
expressly considered the best interests of the child in bail hearings for parents. 85 A UN General
Assembly Resolution on the Rights of the Child provides that States should give priority
80

Id. at [82].
Id. at [83] citing cases.
82
Walsh v. Department of Social Security [1996] 67 SASR 143 (Aus.).
83
Sentencing Act 2002, 2002 S.N.Z. No. 9.
84
Finocchiaro Act, Act No. 40/01, Alternative Measures to detention with the aim of protecting the relationship
between mother detainees and their children. Article 146 of the penal code provides that ―the execution of the
detention penalty can be postponed inter alia in relation to mothers of children under the age of one.‖Article 4 of Act
No. 165/98 extended the house detention measure to mother detainees of children under the age of ten.
85
Yuen Yei Ha v. The State, [2004] FJHC 228; Devi v. The State [2003] FJHC 47.
81

17

consideration to non-custodial measures when sentencing or deciding on pre-trial measures for a
child‘s sole or primary caregiver, subject to the need to protect the public and the child and
bearing in mind the gravity of the offence.

86

Thus, there are a wide range of examples of

international and foreign jurisdictions that factor the interests of the child into the criminal justice
processing of parents and suggest possibilities for change within the U.S. Before analyzing U.S.
constitutional law, with this international and foreign law in mind, an overview of status quo
U.S. sentencing and visitation standards is in order.
III.

Sentencing and Visiting: Is There a Role for the Child?
There are two key places where the rights and interests of children might come into play

during parental incarceration. The first is in the context of a specific, one-off moment of
judicially determined sentencing.87 The second is in the much broader, temporally expansive and
multi-faceted context of visitation. This Part considers current law and practice in both
sentencing law and visitation policy with comparative analysis of the federal and New York
State systems in order to illuminate the problem at the heart of this inquiry: the denial of
children‘s rights to a relationship with their incarcerated parents.
Rather than attempting a fifty state survey, the following discussion focuses on the
federal and New York systems so as to benefit from in-depth comparative analysis. The federal
system is an obvious point of reference because of its size88 and national reach across all of the
United States. New York is an especially useful state to analyze because it is one of just six

86

G.A. Res 63/241, ¶47(a), U.N. Doc. A/RES/63/241 (Mar. 13, 2009).
This Part of the Article serves as a preliminary response to Judge Nancy Gertner, on the Federal District Court for
the District of Massachusetts, who insisted that ―the impact on families of the imprisonment of the defendant…
needs to be carefully reexamined by all the participants in the federal sentencing system. The Honorable Nancy
Gertner, Women, Justice, and Authority: How Justice Affects Women: Women Offenders and the Sentencing
Guidelines, 14 YALE J.L. & FEMINISM 291, 300 (2002).
88
The federal prison system holds over 200,000 inmates, more than any single state. SABOL ET AL., supra note 20, at
17.
87

18

States in the country that have specific statutory or administrative law language regarding
families of inmates,89 it is the leader of some twenty states that have begun to reduce their prison
populations,90 and, though it does not provide any specific legal right for children to visit like
almost all other states,91 it is one of the national leaders in family visitation opportunities and
services.92
A. Sentencing Procedures Fail to Recognize Children’s Rights
New York‘s sentencing guidelines provide precisely defined sentencing ranges that limit
judicial discretion.93 While judges still do have some discretion, the law stipulates precise ranges
for each category of offense.94 Once a prosecutor brings a particular charge and the jury convicts,
the sentencing judge is confined to a statutory range of sentencing options. The limits on judicial

89

Jade S. Laughlin et al., Incarcerated Mothers and Child Visitation: A Law, Social Science, and Policy
Perspective, 19 CRIM. JUST. POL‘Y REV. 215, 226 (2008). Figure based on a 2002 50 state survey. The other five
states included: Alaska, California, Connecticut, Florida, and Massachusetts.
90
From 2007-2008, New York‘s prison population decreased by 3.6%, more than any of the other state‘s reporting a
decline in the number of inmates. SABOL ET AL., supra note 20, at 2, 17.
91
Laughlin, supra note 89, at 226.
92
Bedford Hills Correctional Facility, for example, has long been recognized as a leading example of child-focused
programming. Katherine Gabel & Kathryn Girard, Long-Term Care Nurseries in Prisons: A Descriptive Study, in
CHILDREN OF INCARCERATED PARENTS, supra note 1, at 238-40; Denise Johnston, Intervention, in CHILDREN OF
INCARCERATED PARENTS, supra note 1, at 207; Merry Morash et al., Women Offenders: Programming Needs and
Promising Approaches, NATIONAL INSTITUTE OF JUSTICE 6, Aug. 1998; Noelle E. Fearn & Kelly Parker,
Washington State’s Residential Parenting Program: An Integrated Public Health, Education, and Social Service
Resource for Pregnant Inmates and Prison Mothers, 2 CAL. J. HEALTH PROMOTION 34, 39 (2004); Mark S. Kaplan
& Jennifer E. Sasser, Women Behind Bars: Trends and Policy Issues, 23 J. SOC. & SOC. WELFARE 43, 51 (1996);
Nicole S. Mauskopf, Reaching Beyond the Bars: An Analysis of Prison Nurseries, 5 CARDOZO WOMEN‘S L.J. 101,
101 (1998). New York is one of just six states to offer at least some of its prisoners extended ―family reunion‖
overnight visits. Kacy E. Wiggum, Defining Family in American Prisons, 30 WOMEN‘S RTS. L. REP. 357, 357
(2009).
93
N.Y. PENAL LAW at § 70.00-70.08.
94
Id. Indeed sentencing reforms and guidelines across the country were implemented in order to curb judicial
discretion. Pauline K. Brennan & Cassia Spohn, Empirical Research on the Impact of Sentencing Reforms: Recent
Studies of State and Federal Sentencing Innovations, 24 J. CONTEMP. CRIM. JUST. 340, 340 (2008). See also
SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE (1993) (describing the
history of efforts to curb discretion in sentencing); Sandra Shane-Dubow, Introduction to Models of Sentencing
Reform in the United States, 20 LAW & POL‘Y 231 (1998) (explaining the trend away from judicial discretion in
sentencing).

19

discretion in sentencing present a range of issues which have been well documented elsewhere.95
Of particular interest here is simply the fact that circumscribed judicial discretion in sentencing
means that even when judges would otherwise be inclined to investigate and factor in a convict‘s
family obligations, it is difficult to do so. Children of the convicted are essentially considered
irrelevant third parties to sentencing. However, other third parties are directly included in the
process: victims.96
Of course the sentencing guidelines limit a judge‘s ability to consider victims of offenses
too – a judge can consider victims or children of a convicted person but only within the
sentencing guideline range. Nevertheless, State law requires that the prosecutor consult with and
obtain the views of the victim or the victim‘s family in an array of circumstances throughout the
criminal justice process,97 thus giving the victims a say in what charges are brought and
ultimately what sentencing range in the guidelines a judge will have to apply. Moreover, the
sentencing guidelines themselves where developed with explicit deference to victims rights. An
Executive Order98 leads the New York State Commission on Sentencing Reform to:
ensure that appropriate consideration be given to the impact of New York‘s
sentencing laws on crime victims, their families and the community. It is
95

See, e.g., Carissa Byrne Hessick, Why Are Only Bad Acts Good Sentencing Factors, 88 B.U. L. REV. 1109 (2008)
(questioning the focus on prior bad acts at sentencing); Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind the
Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines, 40 AM. CRIM. L. REV. 19 (2003)
(considering when departure from federal sentencing guidelines may be appropriate); Ian Weinstein, How
Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing, 40 AM. CRIM. L. REV. 87 (2003)
(examining the ways in which mandatory minimum sentences undermine just sentencing); Shimica Gaskins, Note,
‘Women of Circumstance’ – The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug
Crimes, 41 AM. CRIM. L. REV. 1533 (2004) (discussing mandatory minimums specifically in the context of federal
sentencing and female drug offenders).
96
While victims might not be considered third parties, technically they are not party to criminal proceedings.
Moreover, the term victim is generally construed broadly enough to encompass the family members of murder
victims who, like children of criminals, are certainly third parties who are directly impacted. One could argue that
both families of victims and families of offenders are directly impacted and therefore not actually ―third parties‖
however for the purposes of this Article the term simply refers to anyone not party in the criminal proceedings.
97
N.Y. Exec Law §§ 642, 647 (McKinney 2006).
98
Exec. Order No. 10, Establishing The New York State Comm‘n On Sentencing Reform, Mar. 5, 2007, available
at http://criminaljustice.state.ny.us/legalservices/eo10sentencingreform.htm

20

indisputable that with the possible exception of the defendant, no one has a more
direct stake in the just outcome of a criminal case–and the propriety of any
sentence imposed–than the crime victim.99
Thus, victims and their families are rightly recognized as having a stake in the process, but
children of offenders are unfairly ignored.100 Virtually the only procedure that could possibly
alert a judge to the specific family circumstances of an offender would be the presentence
report.101
Specifically the presentence investigation ―consists of the gathering of information with
respect to the circumstances attending the commission of the offense, the defendant‘s history of
delinquency or criminality, and the defendant‘s social history, employment history, family
situation, economic status, education, and personal habits.‖102 This provision provides the only
textual opening for inclusion of minor dependent children in a presentencing report. The phrase
―family situation‖ is buried in a laundry list of other potentially relevant circumstances, is not
invested with any noticeable grammatical or linguistic significance, and does not even
specifically mention children. In contrast, the same provision of the code has an entire subsection
dedicated to the inclusion of a victim impact statement in the report. Victim impact statements
are, as a general rule, to be included in all reports.103
As in New York State, federal judges‘ discretion has been defined and circumscribed by
legislation and guidelines. In 2005, however, when the Supreme Court handed down its decision
99

THE FUTURE OF SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM, NEW YORK STATE
COMM‘N ON SENTENCING REFORM 170, Jan. 30, 2009, available at
http://www.criminaljustice.state.ny.us/pio/csr_report2-2009.pdf. The report continues, ―New York has established a
solid statutory foundation in the area of victim rights… in particular, sentencing-related matters.‖
100
Note that other third parties are not similarly included: victims are uniquely invited to participate in proceedings.
101
N.Y. CRIM. PROC. LAW §§ 390.20 – 390.50 (McKinney 2009).
102
Id. at § 390.30(1).
103
Id. Here I am not arguing that victim impact statements should be excluded – that issue is beyond the scope of
this Article. Rather, the explicit inclusion of victims in the report is noteworthy because it provides a concrete
example of the ways in which third parties – neither the state nor the convicted person – are brought to the
sentencing judges‘ attention.

21

in United States v. Booker,104 the rules of the federal sentencing game changed dramatically.
Although in the post-Booker world federal judges have substantially increased discretion, there is
still no legal recognition of children‘s rights in sentencing.
Congress mandates that federal judges weigh a number of factors at sentencing. 105
Specifically, judges are to consider: ―the nature and circumstances of the offense and the history
and characteristics of the defendant;‖106 the seriousness of the offense, deterrence to future
criminal conduct, and public safety;107 and the kinds of sentences available.108 The statute also
refers judges to the Guidelines developed by the United States Sentencing Commission
(―USSC‖).109
The Guidelines include a sentencing table that was designed to be so detailed that once a
judge identified the category of criminal history and the offense level there would be extremely
limited discretion.110 The statute limited the authority of sentencing judges to impose a sentence
below a statutory minimum to circumstances where mitigating circumstances were ―of a kind, or
to a degree, not adequately taken into consideration by the Sentencing Commission in
formulating the Guidelines.‖111 However, the USSC was supposed to take ―family ties and
responsibilities‖ into consideration, ―to the extent they do have relevance‖ in establishing

104

United States v. Booker, 543 U.S. 220 (2005).
18 U.S.C. § 3553(a) (2003).
106
Id. at (a)(1).
107
Id. at (a)(2).
108
Id. at (a)(3).
109
Id. at (a)(4), (a)(5), (b)(1).
110
The range between the minimum and the maximum sentence within a given box on the table ranges from as little
as six months up to only five years for sentences upwards of 30 years. Note that before the guidelines were in effect,
federal courts had much greater latitude in determining sentences. Bruce M. Selya and Matthew R. Kipp, An
Examination of Emerging Departure Jurisprudence Under the Federal Sentencing Guidelines, 67 NOTRE DAME L.
REV. 1, 1 (1991). While some lower courts found the Sentencing Reform Act unconstitutional on separation of
powers grounds, the Supreme Court upheld its validity in Mistretta v. United States, 488 U.S. 361 (1989).
111
18 U.S.C. § 3553(b).
105

22

categories for the Guidelines.112 This statutory mandate notwithstanding, because the majority of
prisoners have children,113 the mere existence of dependant minor children must have been
―adequately taken into consideration by the Sentencing Commission,‖ and therefore ―family ties
and responsibilities are not ordinarily relevant in determining whether a departure may be
warranted.‖114 Accordingly, even if a judge was aware of and sympathetic to minor dependent
children of a convicted person facing sentencing, she may have been unable to alter the sentence
accordingly. Judges seeking to downward depart because of family circumstances risked reversal
on appeal.115
Even as the children and families of offenders were excluded from consideration in the
sentencing process, another third party group was included. In a statutory provision titled ―Crime
Victims‘ Rights,‖ Congress provided a wide range of rights to crime victims.116 These rights
include notice of developments involving the offender and hearing ―at any public proceeding in
the district court involving release, plea, sentencing, or any parole proceeding.‖ 117 In addition,
the statute gives the victim the ―right to confer with the attorney for the Government in the
case.‖118 The point here is not to suggest that these rights are wrongly accorded to victims but
simply to highlight the fact that federal law, like New York State law, explicitly brings third
parties into the criminal justice process. Victims are guaranteed a voice and consideration in

112

28 U.S.C. § 994(d)(7) (2010).
GLAZE, supra note 3.
114
UNITED STATES SENTENCING COMMISSION, Guidelines Manual, § 5H1.6 (Nov. 2009), available at
http://www.ussc.gov/2009guid/GL2009.pdf.USSC. See also BERNSTEIN, supra note 1, at 32 (―Mandatory sentencing
[means i]f you are found to have possessed or distributed a specific amount of a particular substance, you will serve
a legislatively mandated number of years, regardless of the circumstances of your crime, your character, or any other
mitigating factors. Among the things judges are explicitly barred from considering are the needs of children.‖).
115
See infra note 121.
116
18 U.S.C. § 3771 (2009).
117
Id.
118
Id.
113

23

ways that could easily impact the specific charges brought and the sentence handed down. Yet
when it comes to children of offenders, the USSC manual instructs that ―family ties and
responsibilities are not ordinarily relevant in determining whether a departure may be
warranted.‖119 Thus the USSC makes clear that minor dependent children, present in the lives of
the majority of prisoners, are not to be taken into consideration in sentencing.
Until 2005, judges generally did not have the authority to depart from the Guidelines
because of children or family circumstances except in ―extraordinary‖ circumstances, a standard
which has been subject to grossly inconsistent interpretation.120 Judges who departed from the
guidelines were often overruled on appeal121–the law sent a clear message to sentencing judges

119

USSC, supra note 114. See United States v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996) (noting that departures on the
basis of family ties and responsibilities should be rare since the USSC considered family circumstances in
formulating the guidelines), cert. denied 519 U.S. 1018 (1996). Nonetheless, ―there is absolutely no indication that
the Commission ever considered pregnancy and single parenting, let alone the lopsided gender effect that
imprisoning single mothers has on their children.‖ Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered
Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPP.
L. REV. 905, 949 (1993). In light of this oversight Judge Gertner has suggested that downward ―departures should be
considered on the general grounds under 18 U.S.C. 3553(b), a mitigating circumstance not adequately considered by
the Commission.‖ Gertner, supra note 87, 305 n.48.
120
See United States v. Cacho, 951 F.2d 308, 311 (11th Cir. 1992) (―[T]he Fourth, Sixth and Eighth Circuits have
held that, unless there are unique or extraordinary circumstances, a downward departure from the Guidelines, based
on the defendant‘s parental responsibilities, is improper.‖); United States v. Chestna, 962 F.2d 103, 107 (1st Cir.
1992) (―[S]tatus as a single mother of three, (now four), young children simply is not, as [Defendant] contends, an
unusual family circumstance.‖). But see United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991) (finding
extraordinary family circumstances justifying downward departure where defendant lived with and supported his
wife, two daughters, disabled father, and grandmother); United States v. Galante, 111 F.3d 1029, 1035 (2d Cir.
1997) (comparing defendant‘s circumstances to those in Alba). These cases are exceptional and judges tended to
enforce the Guidelines in their sentencing procedures. However, when surveyed, numerous judges expressed
discontent with the Guidelines failure to give weight to family ties and responsibilities. LINDA D. MAXFIELD, U.S.
SENTENCING COMM‘N, FINAL REPORT: SURVEY OF ARTICLE III JUDGES ON THE FEDERAL SENTENCING GUIDELINES 8
(2003), available at http://www.ussc.gov/judsurv/jsfull.pdf.
121
See generally United States v. Rybicki, 96 F.3d 754 (4th Cir. 1996) (overruling a downward departure based, in
part, on convict‘s nine-year-old son with neurological problems and mentally ill wife); United States v. Calhoun, 49
F.3d 231 (6th Cir. 1995) (finding downward departure inappropriate in case of mother with 14-month-old infant);
United States v. Brown, 29 F.3d 953 (5th Cir. 1994) (overruling a downward departure based on convict‘s two
children under the age of five who were being placed with their impoverished great-grandmother); United States v.
Miller, 991 F.2d 552 (9th Cir. 1993) (finding convict‘s two minor children who ―would be placed at potential risk‖
insufficient grounds for downward departure); United States v. Harrison, 970 F.2d 444 (8th Cir. 1992) (applying
guidelines to sentencing of a single mother of a child who, in defendant‘s absence, would be cared for by an alleged
alcohol and drug abuser); United States v. Mogel, 956 F.2d 1555 (11th Cir. 1992) (supporting two minor children
and a dependent mother was not so unusual as to justify downward departure); United States v. Thomas, 930 F.2d
526 (7th Cir. 1991) (rejecting the possibility of downward departure for a single mother with three mentally disabled

24

and defense lawyers alike: dependent minor children do not matter. Then, in 2005, United States
v. Booker significantly changed criminal sentencing procedures.122 The Court held that the
Federal Sentencing Act provisions that made the Guidelines mandatory123 and set forth a
standard of review on appeal124 were inconsistent with the Sixth Amendment jury trial
requirements and were thus invalid.125 The Court further held that the proper standard of review
on appeal was unreasonableness.126 The result of this decision was that the Guidelines went from
being mandatory to advisory. Post-Booker sentencing judges are allowed to tailor a sentence in
light of a range of statutory concerns as long as they consider the Guidelines.127
Booker has largely liberated federal judges from the rigid Guidelines so that they can
exercise discretion.128 Yet in cases that cited Booker, family ties and responsibilities account for
just 2.2% of the sentences below the Guideline range.129 Even that diminutive percentage of
departures is probably concentrated in a relatively small number of judges. 130 Judge Gertner
explains that she ―now feel[s] that [she] ha[s] considerable discretion under United States v.

children and one grandchild); United States v. Headley, 923 F.2d 1079 (3d Cir. 1991) (upholding a denial of a
request for downward departure in the case of a single mother with five young children); United States v. Brand, 907
F.2d 31, 33 (4th Cir. 1990) (―A sole, custodial parent is not a rarity in today‘s society, and imprisoning such a parent
will by definition separate the parent from the children.‖). But see United States v. Sclamo, 997 F.2d 970, 972 (1st
Cir. 1993) (allowing downward departure where defendant had developed a ―special and crucially important
relationship‖ with his partner‘s 12-year-old son); United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) (finding
extraordinary circumstances sufficient to justify downward departure where defendant mother was the sole support
for an infant, two other young children and one grandchild).
122
United States v. Booker, 543 U.S. 220 (2005). The case made such a splash that in the less than five years since it
was published, its name has appeared in the title of thirty five separate law review or journal articles, notes, and
comments.
123
18 U.S.C. § 3553(b)(1).
124
18 U.S.C. § 3742(e).
125
Booker, 543 U.S. at 250.
126
Id. at 261.
127
―If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the
Sixth Amendment.‖ Id. at 233.
128
In fact, a subsequent Supreme Court decision held that appeals courts may not presume that a sentence outside
the Guideline range is unreasonable on that basis alone. Gall v. United States, 552 U.S. 38 (2007).
129
Id. at 82.
130
Myrna Raeder, Gender-Related Issues in a Post-Booker World, 37 MCGEORGE L. REV. 691, 716 (2006).

25

Booker.‖131 Even before Booker, she ―was a critic of the ‗extraordinary family circumstances‘
guidelines.‖132 Post-Booker she frequently departs from the Guidelines and can do so with
confidence that she will not be appealed or reversed.133 However, as her decisions indicate even
pre-Booker,134 she is clearly exceptional in her willingness to consider family circumstances at
sentencing. If judges are not required to consider children with a clear interest in an ongoing
relationship with their parents, and if children do not have an explicit legal right to be factored
into the process, then some judges will ignore them. Once parents are sentenced to prison,
visitation policies determine the quantity and quality of child-parent interaction.
B. Visitation Policies and Children with Incarcerated Parents
Most prisons make some provision for visitation.135 There is, however, tremendous
variation in prison visiting conditions between jurisdictions and even within them.136 While some
individual prisons are exemplary in their efforts to foster child-friendly visiting conditions and
programming, children and their parents have little if any legal basis for demanding particular
visiting conditions or access. Some prisons offer special visiting opportunities for families of
inmates, but even then they tend to ―narrowly define the family members who are granted
visiting privileges.‖137 Children are not always favored when it comes to visiting policies, and in

131

E-mail from Nancy Gertner, Judge, United States District Court for the District of Massachusetts, to the author
(Mar. 22, 2010, 3:48 EST) (on file with the author).
132
Id.
133
Id.
134
United States v. Jurado-Lopez, 338 F. Supp. 2d 246 (D. Mass. 2004); United States v. LaCarubba, 184 F. Supp.
2d 89 (D. Mass. 2002); United States v. Thompson, 190 F. Supp. 2d 138, 141 (D. Mass. 2002).
135
Dan MARKEL ET AL., PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES 14 (2009).
136
For example, New York‘s maximum security prisons have all day visiting hours every day of the year while
medium security prisons only allow weekend and holiday visits. State of New York Department of Correctional
Services, Directive No. 4403, Inmate Visitor Program, Nov. 10, 1993, available at
http://www.docs.state.ny.us/Directives/4403.pdf.
137
Travis, supra note 37, at 37.

26

some cases they are targeted for exclusion.138 The first part of what follows reviews New York‘s
administrative law governing prison visitation with attention to some of the disparities in
implementation. It then puts forward the family reunion program and Bedford Hills Correctional
Facility‘s (―Bedford Hills‖) visiting program as models of child-friendly approaches. The second
part focuses on the federal Bureau of Prisons where geography and policy conspire to make
visitation an intimidating proposition for many children.
New York State has a uniform, standard policy for its Inmate Visitor Program (―Visitor
Program‖), which encourages visitation.139 The Visitor Program does not cater to or make
special dispensation for children of inmates but it does refer to issues of family visitation.140
Consistent with the Visitor Program directives, each prison can develop unique visiting
conditions and practices that result in substantial variation within the state.141 In addition, New
York is one of just six states in the country to offer some of its inmates a ―family reunion
program‖ for extended overnight visitation.142
Children are mentioned in New York‘s prison visiting regulations but with few special
visiting privileges. The Directive provides for groups of children to enter a prison with an

138

See Overton v. Bazetta, 539 U.S. 126, 133 (2003) (finding a legitimate penological interest in excluding certain
children from visitation facilities).
139
Department of Correctional Services, Directive No. 4403, supra note 136. See also 7 N.Y. COMP. CODES R. &
REGS. tit. 7, §§ 200.2-5 (2010). Note that this New York State Statute provides for contact visits while many states
do not allow them. Id. at 200.2(b)(2).
140
Only six states have statutes or administrative law guidelines regarding families of inmates. Laughlin, supra note
89, at 226.
141
Department of Correctional Services, Handbook for the Families and Friends of New York State DOCS Inmates
9 (2007) (―Depending on the correctional facility, activities for children vary. Most facilities have a specialized area
where children can watch videos and play games. Normally, you can not take toys or stuffed animals into the
visiting room.‖) available at http://www.docs.state.ny.us/FamilyGuide/FamilyHandbook.pdf. Some variation
between prisons is inevitable, especially when dealing with a wide range of offenders and security classifications. In
New York State, the maximum security prisons have significantly improved access to and quality of visitation as
compared to lower security classifications. The real question is what should be the minimum standard required?
142
Supra note 92.

27

approved adult for special programs like that at Bedford Hills.143 While the Visitor Program
contemplates the need for special visiting conditions for professional meetings with attorneys
and clergy, no similar consideration is made for children. 144 Children are only referenced for
narrow bureaucratic and security related reasons and no specific provisions are made for childfriendly visiting conditions, unless at the discretion of an individual superintendent. Children are
considered as an inevitable part of the Visiting Program, but nowhere does the State recognize
anything close to a right to visitation with incarcerated parents, nor establish a standard for childfriendly facilities.145
In some of its prisons, New York offers a child-friendly visiting program called the
Family Reunion Program.146 The stated goal of the program is to ―preserve, enhance, and
strengthen family ties that have been disrupted as a result of incarceration.‖147 Of course the
State may have its own unstated, but equally valid, reasons for permitting the program that have
nothing to do with the interests or rights of the children.148 Whatever the goals, it allows minor
children of inmates to spend up to two full days inside the prison in specially equipped housing
units.149 A wide range of law and policy implications of this program have been studied
elsewhere–the results overwhelmingly illustrate the benefits for children, inmates, and the state
143

Department of Correctional Services, supra note 141, at 3.
Id. at 2.
145
This is the norm – nationwide only two states (California and Florida) have statutory language that promotes
child-parent visitation, and just four others (Alaska, Connecticut, Massachusetts, and New York) have
administrative law guidelines that specifically contemplate children of inmates. Laughlin, supra note 89, at 226.
New York does statutorily require visitation support for those children who are in state custody. N.Y. CORRECT LAW
§ 619 (McKinney 2003).
146
State of New York Department of Correctional Services, Directive No. 4500, Family Reunion Program, Jan 28,
2009, available at http://www.docs.state.ny.us/Directives/4500.pdf.
147
Id. at 1.
148
For example, as early as 1980 the New York Department of Correctional Services published findings suggesting
that the program decreased recidivism rates as much as sixty-seven percent. D. G. MacDonald & D. Kelly, FollowUp Survey of Post-Release Criminal Behavior of Participants in Family Reunion Program, NATIONAL INSTITUTE OF
JUSTICE (1980). The program also incentives good behavior as inmates with disciplinary problems are denied
access. Department of Correctional Services, Directive No. 4500, supra note 146, at 1.
149
Id. at 3.
144

28

interests at play.150 However the program is a privilege not a right. It is available to a small
proportion of children with incarcerated parents–even within New York State only eleven of the
more than sixty correctional facilities offer the Family Reunion Program. 151
New York State‘s Bedford Hills, the only maximum-security prison for women in the
state, is a model of what a children‘s rights approach to visitation might look like.152 To start,
Bedford Hills is located just forty miles from New York City and is accessible by public
transportation.153 Geography is significant because over sixty percent of inmates in New York
State prisons come from the New York City metropolitan area but most of the state prisons are
located much further away including the largest prison holding women.154 The state makes no
provision for placing parents in facilities close to their home at the time of arrest. Bedford Hills
became a national leader in incarcerated parent-child relationships when it created a prison
nursery program for women who are pregnant when they enter prison. 155 And Bedford Hills‘
visitation program has long been recognized as one of the country‘s most progressive.156 Bedford

150

See, e.g., Jennifer L. Fiorica, Note, How the Constitution Can Preserve the Strength of Existing Familial Bonds
and Foster New Relationships Between Female Inmates and Their Children, 29 WOMEN‘S RTS. L. REP. 49 (2007)
(describing the range of visiting programs and their impact on familial bonds); Rachel Wyatt, Note, Male Rape in
U.S. Prisons: Are Conjugal Visits the Answer?, 37 CASE W. RES. J. INT‘L L. 579 (2006) (considering the relationship
between conjugal visits and sexual violence in prisons). See also supra, notes 12, 13.
151
Laughlin, supra note 89, at 223; Services for Families of Prison Inmates, supra note 13 at 8; Department of
Correctional Services, Facility Listing, http://www.docs.state.ny.us/faclist.html.
152
Across the country, most parenting programs and child-friendly visitation programs that do exist are in women‘s
prisons. Elise Zealand, Protecting the Ties that Bind from Behind Bars: A Call for Equal Opportunities for
Incarcerated Fathers and Their Children to Maintain the Parent-Child Relationship, 31 COLUM. J. OF L. & SOC.
PROBS. 247, 256 (1998).
153
See Metro-North Railroad Stations, http://as0.mta.info/mnr/stations/station_detail.cfm?key=152.
154
State of New York, Department of Correctional Services, Under Custody Report: Profile of Inmate Population
Under Custody on January 1, 2009 4 (2009), available at
http://www.docs.state.ny.us/Research/Reports/2009/UnderCustody_Report_2009.pdf. New York State does provide
a free bus service that provides families of inmates with limited access to prisons that are otherwise inaccessible via
public transportation, however in practice the service is infrequent and inaccessible. Services for Families of Prison
Inmates, supra note 13, at 4.
155
Nicole S. Mauskopf, Note, Reaching Beyond the Bars: An Analysis of Prison Nurseries, 5 CARDOZO WOMEN‘S
L.J. 101, 107-10 (1998). See also Note, Development in Law: Alternatives to Incarceration, 111 HARV. L. REV.
1921 (1998) (discussing the ambivalence amongst policy makers towards prison nursery programs).
156
BLOOM & STEINHART, supra note 5, at 52.

29

Hills also operates a Parenting Center which helps mothers maintain contact and arrange visits
with their children. The facility has a large visiting room, part of which is dedicated to a
Children‘s Center, a visiting area designated exclusively for mothers and children.157 The
Children‘s Center staff also organizes a ―summer program‖ where children from New York City
visit every day for a week and engage in a range of group activities. 158 However these visiting
opportunities are not available in most of New York‘s other prisons and many states have
nothing even comparable.159 Thus, while the staff, volunteers, and inmates at Bedford Hills have
done much to improve the quality of access children have to their incarcerated mothers, the
prison and its program‘s sui generis nature highlights the fact that most children in New York
State and across the country are denied this kind of meaningful access to their incarcerated
parents.
Parental incarceration in the federal system presents a bleaker reality for the children left
behind. Though as a matter of policy ―[t]he Bureau of Prisons encourages visiting by family… to
maintain the morale of the inmate and to develop closer relationships between the inmate and
family members,‖160 in practice promoting visitation is not a priority. The Bureau of Prisons
maintains 115 facilities spread out across the United States.161 Even if a sentencing judge
requests that an inmate be sent to a prison near her or his family, the Bureau of Prisons need not
comply with that request once an inmate is in its custody.162

157

Id.; Heidi Rosenberg, Comment, California’s Incarcerated Mothers: Legal Roadblocks to Reunification, 30
GOLDEN GATE U. L. REV. 285, 313-14 (2000).
158
Rachel D. Costa, Comment, Now I Lay Me Down to Sleep: A Look at Overnight Visitation Rights Available to
Incarcerated Mothers, 29 N.E. J. ON CRIM. CIV. CON. 67, 94 (2003).
159
See BLOOM & STEINHART, supra note 5, at 53 (―Few state correctional systems can boast of mother-child
programming that is as comprehensive and nurturing as the Bedford hills program.‖).
160
28 C.F.R. § 540.40 (2010).
161
Bureau of Prisons, About the Bureau of Prisons, http://www.bop.gov/about/index.jsp.
162
Interview with Nancy Gertner, Judge, Federal District Court for the District of Massachusetts, in New Haven, CT
(Mar. 26, 2010). Even if and when the Bureau of Prisons wants to determine an inmate‘s location based on children

30

In practice, most children do not maintain active contact with their parents incarcerated in
the federal system. In 2004, 59% of parents in state correctional facilities and 45% of parents in
federal correctional facilities reported never having had a personal visit from their children, and
less than 15% received visits at least once a month.163 While numerous personal factors might
help explain this lack of contact after parental incarceration,164 there are simple structural and
policy explanations as well. For example, 62% of parents in state correctional facilities and 84%
of parents in federal facilities were incarcerated more than 100 miles from their place of
residence at arrest; only 15% of parents in state facilities and about 5% of parents in the federal
system were within fifty miles of their place of residence at arrest. 165 Moreover, prison
administrative guidelines may actively deter visitation,166 and often prisons do not have visiting
facilities that are child-friendly.167 Clearly children‘s rights and access to their incarcerated
parents are not a significant factor in choosing where to build prisons or where to house
individual inmates.

or family considerations, it is much easier to do so for men than for women because of the greater number of male
facilities. Myrna S. Raeder, A Primer on Gender-Related Issues That Affect Female Offenders, 20 CRIM. JUST. 4, 18
(2005). See also Froehlich v. State, Dept. of Corrections, 196 F.3d 800, 802 (1999) (―we do not think that
accommodation of family needs is a duty that the U.S. Constitution imposes on state prison officials.‖). The key
question here is why is the Bureau of Prisons not required to consider children and family location regardless of
whether or not the judge requests special placement?
163
SCHIRMER ET AL., supra note 20, at 7. In addition 21% of state inmates, and 9% of federal inmates reported never
having visits, phone calls, or mails with their children. Id.
164
Some parents do not want to receive visits, some caregivers do not want or cannot arrange for visits, some
children resist efforts to arrange visits or misbehave after them, some parents may be transferred to out of state
facilities, some prisons may be inaccessible with public transportation, and so on. Barbara J. Myers et al., Children
of Incarcerated Mothers, 8 J. CHILD & FAM. STUD. 11, 16 (1999).
165
SCHIRMER ET AL., supra note 21, at 8.
166
See, e.g., Mich. Dept. of Corrections, Policy Directive 05.03.140, Oct. 1, 2007, available at
http://www.michigan.gov/documents/corrections/05_03_140_210434_7.pdf (providing a ten page list of caveats and
limitations on visits from family members, including children). Note that there is tremendous variation in visiting
policies and conditions between the states and federal system, between the various state systems, and even within
individual state systems. To date there is no comprehensive jurisdiction by jurisdiction comparative analysis of
visiting policies and conditions across the country.
167
See, e.g., Myers, supra note 164, at 16 (reporting that some inmates do not want their children to visit because of
poor visiting conditions).

31

Even if and when children are able to make the long trip to their parents‘ prison, the
visiting conditions they find are highly variable. Each warden may establish a unique visiting
schedule at his/her institution,168 provided each inmate is allowed ―a minimum of four hours
visiting time per month.‖169 Prison wardens are required to dedicate a portion of the visiting
room ―to provide facilities for the children of visitors‖170 but only ―[i]f space is available.‖171
―Despite the negative impact of maternal separation on young children, relatively few programs
foster the mother-child bond.‖172 Thus the recognition of children and family visitation as
positive173 does not derive from, or lead to, any particular rights on behalf of children to access
their incarcerated parents.
IV. Constitutional Rights of Children with Incarcerated Parents
While international law and principles may not be binding within the United States 174 the
theory and practice does come to bear on domestic constitutional law. Notwithstanding the
efforts of a movement that Professor Judith Resnik has called ―exclusive sovereigntism‖ to
―buffer the United States from foreign influences,‖175 the jurisdictional interaction of
international law with national and local law has produced significant changes in U.S.
constitutional interpretation.176 Indeed there are numerous examples of how international legal

168

28 C.F.R. §540.42 (2010).
Id. at § 540.43.
170
It is unclear why the C.F.R. language focuses on children of visitors rather than children of inmates themselves.
171
28 C.F.R. § 540.41 (2010).
172
Myrna S. Raeder, A Primer on Gender-Related Issues That Affect Female Offenders, 20 CRIM. JUST. 4, 17
(2005).
173
See also DANIEL GLASER, THE EFFECTIVENESS OF A PRISON AND PAROLE SYSTEM 366 (1964); AM.
CORRECTIONAL STANDARDS 342 (1954); COMM‘N ON ACCREDITATION FOR CORRECTIONS, MANUAL OF STANDARDS
FOR ADULT CORRECTIONAL INSTITUTIONS 88 (1981).
174
See Setear, supra note 38.
175
Judith Resnik, Foreign As Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption
in Light of Translocal Internationalism, 57 EMORY L.J. 31, 33 (2007).
176
Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of
Entry, 115 YALE L.J. 1564, 1594-95 (2006) (―while aspects of the concept of dignity are implicit in the U.S.
169

32

documents, foreign law, and transnational experiences have influenced U.S. law.177 The process
and possibilities for constitutional ―cross-fertilization‖ have been well-documented elsewhere178
and are beyond the scope of this Article. The point here is simply that international law, norms,
and practice, including those detailed supra, can be of use in reframing or reinterpreting
constitutional rights in the U.S.
This Article has shown that current law and practice in the United States fail to take into
account the interests or rights of children in sentencing and incarcerating parents. Children are
rarely a factor in sentencing or visitation policy even if and when the best interests of the
children require ongoing contact and support from their parents. Select international and foreign
law demonstrates that the international community has made greater strides in factoring the best
interests of the child and children‘s rights into decisions regarding incarcerated parents than the
United States has done thus far.
This Part presents the central argument of this Article as a solution to the legal exclusion
problems that children with incarcerated parents face. It puts forward First Amendment
associational rights and a due process liberty interest in familial integrity as domestic
constitutional bases for factoring children of the incarcerated into sentencing and visitation
policy. Next it engages weaknesses and counter arguments. Finally, it sketches the practicalities
Constitution's commitment to liberty, equality, and other personal rights, the Constitution does not use the term.
Given the era in which the Constitution was written, that absence is not surprising. During the sixteenth and
seventeenth centuries, dignity was not considered to be an attribute of all persons but was, in Western nations,
reserved for nobility. However, as is detailed elsewhere, three hundred years of revolutionary ideology about the
rights of individuals, the role of governments, and popular sovereignty succeeded in expanding the categories of
persons understood as having dignity.‖ Internal citations omitted.)
177
Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of
Sovereignty, 55 STAN. L. REV. 1921, 1926 (2003).
178
Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT‘L L. 1103 (2000) (setting forth five categories of
transnational judicial interaction). See also Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony
and Dissonance, 55 Stan. L. Rev. 1863 (2003) (examining and categorizing factors influencing legal interactions
across national and international levels.

33

and policy implications of the argument. Some of the constitutional arguments put forward here
have been rejected or ignored at the Supreme Court. Nonetheless, especially informed by the
international and foreign law outlined supra, they are valuable aspirational approaches rooted in
U.S. constitutional law.
A. First Amendment
Lawyers, judges, and lawmakers should recognize children‘s First Amendment right to
freedom of association with their incarcerated parents. Framing the issue of associational rights
as a prisoners‘ rights issue—as has been the norm in much previous litigation—instead of a
children‘s rights issue may have a significant impact on the outcome of a given case. Indeed, the
Supreme Court‘s recent decision on prison visitation, Overton v. Bazetta, has been widely cited
for the proposition that ―freedom of association is among the rights least compatible with
incarceration,‖179 while the decision is silent on children‘s First Amendment rights to a
relationship with their parents. The unanimous ruling in Overton upheld Michigan Department of
Corrections‘ policies severely restricting visitation, including visitation by children, and even the
elimination of non-contact visits.180 The Sixth Circuit had upheld Michigan‘s efforts to eliminate
contact visits,181 but found that the restrictions on non-contact visits went too far and were
unrelated to legitimate penological goals.182 The Supreme Court‘s reversal, refusing to uphold
even the limited grounds on which the Sixth Circuit had based its opinion, was a definitive

179

Overton v. Bazetta, 539 U.S. 126, 131 (2003). See, e.g., Warren v. Pennsylvania, 316 Fed. Appx. 109, 113 (3d.
Cir. 2008); Jones v. Brown, 461 F.3d 353, 360 (3d Cir. 2006); Torres Garcia v. Puerto Rico, 402 F. Supp. 2d 373,
381 (D.P.R. 2005).
180
539 U.S. 126 (2003). In reaching this conclusion the Court relied heavily on the four factor Turner test. See
Turner v. Safley, 482 U.S. 78 (1987). Its application of the Turner test has been criticized. See, e.g., Marsha M.
Yasuda, Note, Taking a Step Back: The United States Supreme Court’s Ruling in Overton v. Bazetta, 37 LOY. L.A.
L. REV. 1831 (2004).
181
Bazzetta v. McGinnis, 124 F.3d 774 (6th Cir. 1997).
182
Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir. 2002).

34

affirmation of a long line of jurisprudence upholding limitations on visitation and prisoners‘
rights.183
In Overton, as in most cases,184 the key issues were framed as prisoners‘ rights rather
than children‘s rights, despite the fact that the original suit was filed on behalf of inmates and
their prospective visitors.185 This Article calls for an inversion of the traditional framework:
challenges should be brought in the name of children left behind, children who have not been
convicted of a crime and therefore cannot be similarly deprived of the full protection of the Bill
of Rights.186 Freedom of association is, by definition, a two-way street involving more than one
party; freedom to associate requires associating with someone else.
The Court has considered the bi-directional nature of First Amendment rights in the
prison context. In Procunier v. Martinez, the Court found:
183

See, e.g., Ky. Dep‘t of Corr. v. Thompson, 490 U.S. 454 (1989) (holding that inmates do not have a liberty
interest in receiving visitors that is entitled to the protections of the Due Process Clause); Block v. Rutherford, 468
U.S. 576 (1984) (finding a jail‘s blanket prohibition on contact visits to be constitutionally valid); Macedon v. Cal.
Dep‘t of Corr., 67 Fed. Appx. 407 (9th Cir. 2003) (affirming summary judgment against an inmate‘s challenge of
denial of family visits); Newman v. Ala., 559 F.2d 283, 291 (5th Cir. 1997) (leaving visitation regulations to prison
administrators); Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984) (―Prison inmates have no absolute
constitutional right to visitation.‖); Ford v. Beister, 657 F. Supp. 607, 611 (M.D. Pa. 1986) (―[T]he Constitution does
not require that detainees be allowed contact visits . . . .‖); Laaman v. Helgemoe, 437 F. Supp. 269, 322 (D.N.H.
1977) (allowing curtailment of visitation as punishment but recognizing First Amendment limits); Craig v. Hocker,
405 F. Supp. 656, 674 (D. Nev. 1975) (―So long as there are reasonable alternative means of communication, a
prisoner has no First Amendment right to associate with whomever sees fit.‖). But see Morrow v. Harwell, 768 F.2d
619 (5th Cir. 1985) (finding jail‘s policy of forbidding weekend visitation and preventing visits by minors to be
unlawful); McMurry v. Phelps, 533 F. Supp. 742, 764 (W.D. La. 1982) (rejecting a policy that prevented children
under the age of 14 from visiting their jailed parents); Valentine v. Englehardt, 474 F. Supp. 294 (D.N.J., 1979)
(holding that county jail procedures totally barring visitation by inmates‘ children are unconstitutional).
184
But see King v. Caruso, 542 F. Supp. 2d 703, (E.D. Mich. 2008) (holding that termination of spouse‘s rights to
visit her incarcerated husband did not violate her First Amendment right to freedom of association); Hernandez v.
McGinnis, 272 F. Supp. 2d 223 (W.D.N.Y. 2003) (holding that a three-year suspension of inmate‘s visitation rights
did not violate inmate or his family‘s right to freedom of association, due process, or constitute cruel and unusual
punishment).
185
Bazetta v. McGinnis, 148 F. Supp. 2d 813, 815 (E.D. Mich. 2001). When the case reached the Supreme Court,
there was an amicus brief filed on behalf of the sons and daughters of the incarcerated. Brief for the Sons and
Daughters of the Incarcerated as Amicus Curiae Supporting Appellees, Overton v. Bazetta, 539 U.S. 126 (2003)
(No. 01-01635).
186
The argument might similarly be made on behalf of spouses or other family members of inmates. However
minor, dependent children may be particularly vulnerable and in need of protection given the negative outcomes
associated with parental incarceration. See generally Denise Johnston, Effects of Parental Incarceration, in
CHILDREN OF INCARCERATED PARENTS, supra note 1.

35

no occasion to consider the extent to which an individual‘s right to free speech
survives incarceration, for a narrower basis of decision is at hand. In the case of
direct personal correspondence between inmates and those who have a
particularized interest in communicating with them, mail censorship implicates
more than the right of prisoners.187
The reasoning of the Court in Martinez clearly illustrates the disadvantages to approaching First
Amendment rights based claims from the perspective of the prisoner. However, in subsequent
cases the Court has been hesitant to ―forge a separate standard for cases implicating the rights of
outsiders,‖ essentially overruling the Martinez approach.188 Thus, since Martinez, even when
litigators frame their challenges in the name of third parties whose rights are implicated by
prison policy, Courts tend to focus on the prisoner‘s rights only. However, no case mandates that
Courts ignore the rights of third parties and indeed ignoring third party rights seems a strained
approach to the First Amendment that forces the question how far could prison policies go in
restricting non-prisoners rights?
A long line of Supreme Court doctrine extends the First Amendment to family
relationships.189 When Martinez and its progeny are read together with Overton’s declaration that
―[m]any of the liberties and privileges enjoyed by other citizens must be surrendered by the
prisoner,‖190 it should be apparent that there is a need for a new framework. The argument here is
that children of prisoners, whose Constitutional rights are necessarily implicated in sentencing,
187

Procunier v. Martinez, 416 U.S. 396, 408 (1974).
Thornburgh v. Abbott, 490 U.S. 401, 411 n.9 (1989), citing Pell v. Procunier, 417 U.S. 817 (1974); Jones v.
North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); and Bell v. Wolfish, 441 U.S. 520 (1979).
189
See Bd. of Dirs. of Rotary Int‘l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (―The Court has recognized
that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of
liberty protected by the Bill of Rights.‖); Roberts v. United States, 468 U.S. 609, 618 (1984) (―The Court has long
recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and
preservation of certain kinds of highly personal relationships a substantial measure of sanctuary.‖); Quilloin v.
Walcott, 434 U.S. 246 (1978) (―[We] have recognized on numerous occasions that the relationship between parent
and child is constitutionally protected . . . .‖); Carey v. Population Servs. Int‘l, 431 U.S. 678 (1977) (extending
constitutional protections to begetting and bearing of children); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)
(recognizing fundamental constitutional rights to family relationships); Pierce v. Soc‘y of Sisters, 268 U.S. 510,
534-35 (1925) (finding that education and child rearing are protected by the Constitution).
190
Overton, 539 U.S. at 131.
188

36

placement, and visiting opportunities of their incarcerated parents, have a stronger basis for
bringing suit than the prisoners themselves.
Martinez defined a two-part test in cases in which prison regulations may justifiably
implicate the free speech rights of free citizens: ―First, the regulation or practice in question must
further an important or substantial governmental interest unrelated to the suppression of
expression . . . . Second, the limitation of First Amendment freedoms must be no greater than is
necessary or essential to the protection of the particular governmental interest involved.‖ The
Court subsequently decided to avoid clarifying the Martinez test in the context of a prisoner
marriage prohibition,191 and since then has preferred to employ a lower reasonableness standard
from Turner v. Safely.192 However, the Turner reasonableness test is generally applied to
prisoners themselves, and the goal here is to move toward a stricter standard of review through a
children‘s rights approach.193
B. Due Process
Children with incarcerated parents also have a due process liberty interest in the
maintenance of their family integrity.194 Since the New Deal era courts have referred to
―substantive due process‖ as the basis for extending unenumerated fundamental rights through
the 14th Amendment and the Due Process clause of the 5th Amendment.195 Substantive due
process has been the basis for establishing a wide range of fundamental rights including

191

Turner v. Safley, 482 U.S. 78, 97 (1987). See also Overton, 539 U.S. (applying the Turner reasonableness test).
Turner, 482 U.S. at 89; Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989).
193
Presumably any non-convict third party would have a stronger First Amendment basis for a challenge but the
focus here is on children who unique and dependent relationship on their parents might justify application of a
particularly strict standard of review.
194
See generally Kevin B. Frankel, The Fourteenth Amendment Due Process Right to Family Integrity Applied to
Custody Cases Involving Extended Family Members, 40 COLUM. J.L. & SOC. PROBS. 301, 302, 310 (2007) (outlining
a doctrinal due process right to family integrity).
195
See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (using the phrase ―substantive
due process‖ for the first time in Supreme Court history).
192

37

reproductive rights,196 the right to marry a person of a different race,197 a right to engage in
sexual with partners of the same sex,198 and more. Even if there is no substantive due process
liberty interest in visiting a prison or for prisoners to receive visits,199 children‘s interest in a
relationship with their parents should survive.200 According to the Court, the primary relationship
between parent and child ―is now established beyond debate as an enduring American
tradition.‖201 Four key cases develop a constitutional right to family integrity: Moore v. City of
East Cleveland;202 Smith v. OFFER;203 Santosky v. Kramer;204 and Troxel v. Granville.205
First, in Moore v. City of East Cleveland, the Court affirmed a long line of cases going
back to at least the 1920s206 recognizing the special common law rights of parents and children.
The decision invalidated a zoning ordinance preventing extended relatives from living in the
same home.207 In a concurring opinion Justices Brennan and Marshall wrote that ―if any freedom
not specifically mentioned in the Bill of Rights enjoys a ‗preferred position‘ in the law it is most

196

Griswold v. Connecticut, 381 U.S. 479 (1965).
Loving v. Virgina, 388 U.S. 1 (1967).
198
Lawrence v. Texas, 539 U.S. 558 (2003).
199
Mayo v. Lane, 867 F.2d 374, 375-76 (7th Cir. 1989); Southerland v. Thigpen, 784 F.2d 713 (5th Cir. 1986);
White v. Keller, 438 F. Supp. 110, 115-16 (D. Md. 1977), aff'd, 588 F.2d 913 (4th Cir. 1978) (per curiam).
200
Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Niehus v. Liberio, 973 F.2d
526, 532-33 (7th Cir. 1992); Mayo v. Lane, 867 F.2d at 375; Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir.
1993). Contra. Froehlich v. Wisconsin Dep't of Corrections, 196 F.3d 800, 802 (7th Cir. Wis. 1999) (―The
separation of family members that ensues upon the lawful incarceration of one of them is not the destruction of the
family, but merely an inevitable incident of incarceration; and no one yet has had the audacity to argue that
imprisoning a person who has children or parents violates the Constitution—that only orphans and recluses can be
imprisoned for committing crimes.‖)
201
Wisconsin v. Yoder, 406 U.S. 205 (1972).
202
Moore v. City of East Cleveland, 431 U.S. 494 (1977).
203
Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (1977).
204
Santosky v. Kramer, 455 U.S. 745 (1982).
205
Troxel v. Granville, 530 U.S. 57 (2000).
206
Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing a parent‘s due process liberty interest in establishing a
home and brining up children).
207
Moore, 431 U.S. at 499.
197

38

certainly the family.‖208 The decision further entrenched the legal protection of family and even
expanded it to include extended family.
That same year, in Smith v. OFFER, the Court considered the State‘s ability to remove
children from a foster home where they had been living for more than a year. Although the Court
found that the existing procedures for removal did not violate the due process rights of the foster
families or the foster children, Justice Brennan reasoned that ―the importance of the familial
relationship, to the individuals involved and to the society, stems from the emotional attachments
that derive from the intimacy of daily association.‖209 Courts should not permit prisons
incarcerating parents to needlessly deprive children of ―the intimacy of daily association.‖ Lower
courts have also recognized a First Amendment right of association in the context of children
visiting incarcerated parents;210 yet children whose parents are sent to prison are not provided
with any process, much less a process that could survive Constitutional scrutiny.211 The right to
association and the liberty interest in the maintenance of a family together form a legal basis for
demanding an expanded recognition of children‘s interests in sentencing, visitation and beyond.
Santosky v. Kramer built on Moore and Smith and further extended the right to family
integrity. Santosky was a custody case concerning the standard of proof required to demonstrate
parental unfitness such as to legitimate placing children in foster care. The Court found two state
interests at stake: ―a parens patriae interest in preserving and promoting the child's welfare and a
fiscal and administrative interest in reducing the cost and burden of such proceedings‖ and a

208

Id. at 312-13.
Id. at 844.
210
Nicholson v. Choctaw County, Al., 498 F. Supp. 295, 310 (D.C. Ala. 1980); O‘Bryan v. County of Saginaw, 437
F. Supp. 582, 599 (E.D. Mich. 1977).
211
See also Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005) (holding that children have a Constitutional
Due Process right to representation in abuse and neglect proceedings to protect their fundamental liberty interest in
the integrity of their family relationship).
209

39

powerful parental interest in the maintenance of family integrity.212 Santosky is significant in the
context of a right to family integrity because it expanded the traditional family right beyond just
parents to parents and children.
As described above, children‘s rights—both in the U.S. and internationally—are
generally considered through a ―best interests of the child‖ analysis. In Troxel v. Granville the
Supreme Court held unconstitutional a statute that allowed courts to grant a third party visitation
rights against the parent‘s wishes if doing so was in the best interests of the child.213 According
to the Court, ―so long as a parent adequately cares for his or her children . . . there will normally
be no reason for the State to inject itself into the private realm of the family.‖214 In his dissent in
Troxel, Justice Scalia squarely teed up and then chose not to rule on the issue at the heart of the
argument here: he noted that the respondent asserted ―only, on her own behalf, a substantive due
process right to direct the upbringing of her own children, and is not asserting, on behalf of her
children, their First Amendment rights of association or free exercise.‖215 Although the Court did
not further develop the issue Justice Scalia flagged, it did acknowledge that the liberty interest of
the parent-child relationship ―is perhaps the oldest of the fundamental liberty interests recognized
by the Court.‖216 Elsewhere the Court has had ―the unanimous view that ‗few consequences of
judicial action are so grave as the severance of natural family ties.‘‖217 Taken together, these
cases demonstrate the progression of the Court‘s recognition of a constitutional due process

212

Santosky, 455 U.S. at 766, 758-59. See also John C. Duncan Jr., The Ultimate Best Interest of the Child Enures
from Parental Reinforcement: The Journey to Family Integrity, 83 NEB. L. REV. 1240, 1257-58 n.99 (2005).
213
Troxel, 530 U.S. at 61, 71.
214
Id. at 69.
215
Id. at 93 n.2 (Scalia, J., dissenting).
216
Id. at 65. See also, Gilbert A. Holmes, The Tie That Binds: The Constitutional Right of Children to Maintain
Relationships with Parent-Like Individuals, 53 MD. L. REV. 358 (1994) (reviewing Supreme Court First Amendment
family doctrine).
217
M.L.B. v. S.L.J., 519 U.S. 102, 109 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

40

liberty interest in family integrity. That right, at least as it pertains to children, should not stop at
the prison gate.
Where it has been established that maintenance of a relationship with the parent is in a
child‘s best interests, the state should assume a parens patriae obligation to intervene in criminal
justice proceedings of the parent on behalf of the child. Thus, as in the international law outlined
supra, the state would approach criminal processing of parents with a balancing test to resolve
competing interests: the interests of society to punish crime and increase public safety; the best
interests of the child of the offender; and the interests of the victim in seeing the perpetrator
punished. This approach ensures that all parties whose rights and interests are directly implicated
will be factored into the outcome.
C. Engaging Counter Arguments
As with any innovative approach, there are weaknesses and counter arguments to the
children‘s rights approach to parental incarceration advocated here. A child‘s First Amendment
right to familial association and due process liberty interest in family integrity are not absolute.
Clearly these rights are regularly limited in the context of incarceration.218 This section engages
three related counterarguments to expanding the role and rights of children in the context of
parental incarceration.
First, some might argue that family ties already have been amply factored into various
stages of the criminal justice process. Professor Dan Markel, a leader in the field of criminal law,
sentencing and retribution, contends that ―[m]embers of state-recognized families fare better
throughout the system, which is designed quite self-consciously to make sure defendants with

218

Supra, Part III.

41

families will get benefits that others will not.‖219 He argues elsewhere that a variety of laws form
a string of ―family ties benefits‖ which pervade the criminal justice system.220 According to this
perspective any further incorporation of children‘s rights, as advocated here, would at best be
redundant and at worst actually incentivize crime.221 However, the idea that some discount in
sentencing or access to a child-friendly visiting room would incentivize crime should be absurd
on its face: it is elementary logic that criminals do not expect to be caught—otherwise, they
would not commit crimes.222 Although Markel‘s publications are chock full of concrete
examples of ways in which family can influence criminal justice outcomes, they are not
persuasive here.223 The fact that the concept of family is already incorporated into the criminal
justice system in various places—either through statutory rights and procedures, or through
voluntary services provided haphazardly and unevenly—in no way justifies the criminal justice
system‘s failure to consider the rights of children in sentencing and visitation. In fact, the
recognition of family ties elsewhere highlights its crucial importance in the context of dependent
minor children who risk losing their parents through no fault of their own.
Second, a related counter argument is simply that criminal justice proceedings should not
be driven or influenced by third parties. As Markel puts it, a ―person who commits a crime can
reasonably foresee that, if prosecuted and punished, his punishment will affect not only himself
but also his family.‖224 This argument might continue: criminal proceedings are between the state
and the offender and allowing other parties to join the table is a slippery slope with no clear cut-

219

MARKEL, supra note 135, at 19.
Dan Markel et al., Criminal Justice and the Challenge of Family Ties, 2007 U. ILL. L. REV. 1147, 1199 (2007).
221
Id.
222
See Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN L. & POL‘Y REV. 9, 11 (1999)
(concluding that harsh mandatory sentences have little effect on crime).
223
In fact Markel does not argue against recognizing children‘s rights, rather he is concerned primarily with
challenging the narrow definitions of ―family‖ that harm non-traditional care-giving units.
224
MARKEL, supra note 135, at 49.
220

42

off point. This logic also fails. Victims or their families are already guaranteed a voice at various
stages of the criminal justice process,225 and more than thirty states have a victim‘s rights
amendment to the state constitution.226 Moreover, as a matter of policy it would be irrational to
approach criminal justice issues in a vacuum when it is possible to consider and account for all
the key stakeholders in the process: victims, children, families, and communities. Surely this
country‘s legal system is sophisticated enough to approach criminal justice law and policy with a
holistic perspective that provides an appropriate, if limited, role to those most directly impacted,
and that takes a broad, long-term view of societal interest, including reducing future criminal
behavior.
Third, some may argue that incorporating children‘s rights into sentencing or visitation
policies will introduce unjust discrepancies in outcomes for otherwise similarly situated
offenders. Significant discrepancies have in fact been the result in widely cited cases like United
States v. Johnson,227 where two defendants were convicted of the same crime but received
disparate sentences because one of them was the mother of four dependent children. Factoring
children into the process ―facilitate[s] ad hoc disparities between offenders who are otherwise
similarly situated across cases, it also creates inequalities between persons involved in the very
same cases.‖228 Indeed the Sentencing Reform Act of 1984229 created the USSC to, among other
things, examine and eliminate ―unwarranted disparity in federal sentencing policy.‖ 230 But minor
dependent children are a real factor that has implications not only for the children themselves

225

See supra notes 96-99, 103, 116.
Rachel King, Why a Victim’s Rights Constitutional Amendment is a Bad Idea: Practical Experiences From
Crime Victims, 68 U. CIN. L. REV. 357, 359 (2000).
227
United States v. Johnson, 964 F.2d 124 (2d Cir. 1992). The case is cited in 46 law review articles.
228
MARKEL, supra note 135, at 49.
229
Chapter II of the Comprehensive Crime Control Act of 1984; P.L. 98-473, supra Part II(A).
230
LISA M. SEGHETTI & ALISON M. SMITH, CONGRESSIONAL RESEARCH SERVICE, FEDERAL SENTENCING
GUIDELINES: BACKGROUND, LEGAL ANALYSIS, AND POLICY OPTIONS 13 (2007).
226

43

and the offender, but also for society as a whole.231 The simple reality, as the Second Circuit
recognized in Johnson, is that sentencing a non-parent to prison generally has few grave social
implications, while sentencing a mother and active caretaker for four young children to prison
does. In fact, no one would seriously suggest that sentencing and prison conditions should be
determined solely on the basis of the facts of the crime committed. Even the Guidelines require
incorporation of prior criminal record, and other relevant factors. Why should innocent children
who face losing their primary caregiver and potentially being transferred to state custody not be a
relevant factor as well? Children have a First Amendment right to association; they have a due
process liberty interest in maintaining family integrity. These rights should apply with equal
vigor in the context of parental incarceration.
D. Prudential Considerations
The argument here is not for a particular sentencing statute or visitation standard. Rather
it is for the progressive, incremental realization of children‘s rights in the context of parental
incarceration. Nonetheless a few policy specifics may help to illustrate the legal argument.
Whether through incremental impact litigation232 and the courts, or through legislative initiative,
eventually, if the theory put forward here is successful, the outcome might look something like
this. Lawmakers would fund a wide range of non-carceral punishments tailored to specific
classes of crime: treatment for addicts; intensive community service for vandals; reparations for
thieves; Global Positioning Satellite monitoring of gang members, and so forth. These programs

231

See supra Part I.
Impact litigation is bringing cases designed to affect large numbers of people and impact social policy rather than
simply settle the disputes of individual litigants. An incremental approach to impact litigation was, perhaps, most
famously and successfully employed in the line of cases that led to Brown v. Board of Education, 347 U.S. 483
(1954). See Derrick A. Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation
Litigation, 85 YALE L.J. 470 (1976) (describing the long-term litigation strategy that made Brown possible).
232

44

tend to be significantly cheaper than incarceration and with fewer third-party harms to children
and families.233 These alternatives to incarceration would be available sentences at judicial
discretion and not limited to parents only. Where public safety requires incarceration, the best
interests of the child234 might suggest shorter sentences than under the current regime, and prison
facilities located in areas easily accessible from urban centers. Public transportation235 would
facilitate access to existing remotely located facilities. The best interests of the child might
require development of improved visitation facilities and prison programming. The prison
nursery and children‘s center in Bedford Hills might become a statutory norm rather than an
discretionary exception. Incarcerated parents might be required to enroll in continuing education
courses and parenting classes. Overnight visiting and furlough programs could be considerably
expanded to allow for the maintenance of family bonds and ease the transition to freedom at the
end of prison terms. Some judges may already implement some of these recommendations
unilaterally,236 but the argument here is for a systematic approach through statute or USSC
Guidelines to establish a balancing test like that set out by Justice Sachs in South Africa. All of
these changes could save untold millions of tax dollars and ease prison crowding, as well as
fulfilling children‘s rights.237

233

See generally Nora V. Demleitner, Replacing Incarceration: The Need for Dramatic Change, 22 FED. SENT. R. 1
(2009) (advocating alternatives to incarceration).
234
This standard is already well-established in the United States. See, e.g., Troxel v. Granville, 530 U.S. 57, 84
(2000) (―myriad other state statute‘s and court decisions at least nominally‖ apply the best interest of the child
standard) (Stevens, J., dissenting).
235
For example special buses set up and subsidized by the department of corrections to provide families of prisoners
with access.
236
See Gertner, supra note 131.
237
See, e.g., THE RISING COSTS OF INCARCERATION: CRIMINAL INVESTMENT DECISIONS, URBAN STRATEGIES
COUNCIL (2007) (detailing the costs of incarceration per inmate and its impact on state budgets) available at
http://www.urbanstrategies.org/programs/csj/documents/CostsofIncarcerationFlyer_08.06.07_BH.pdf.

45

Sentencing judges would engage in balancing designed ―to promote uniformity of
principle, consistency of treatment, and individualisation of outcome.‖238 First, all sentencing
judges would inquire into whether a given convicted person is a primary caregiver. Next, if the
person is a primary caregiver and is facing incarceration under the existing Guidelines, the judge
would evaluate the likely impact on the child(ren) and consider what steps might be necessary to
ensure the children‘s best interests are adequately protected during the incarceration. Finally, in
deciding what specific sentence to order, the judge would consider not only the Guidelines, the
victim impact statement, the prior criminal history, and the details of the offense, but also the
best interests of the child.239 The proposed process is multifaceted, but one that judges, who
engage in complex balancing and multifaceted analysis regularly, are well-suited to handle.240
When and if primary caregiver parents are sentenced to prison and it is in the best
interests of the child to maintain or develop a relationship with them, the law should require
certain minimum standards. Bedford Hills serves as a model though certainly not all prisons
would be required to meet that high standard. The Bureau of Prisons or state Department of
Corrections should simply facilitate phone calls, written communication, and visitation. Visiting
facilities should provide contact and interactive, child-appropriate spaces. Children should not be
forced to travel hundreds of miles to see their parents. To the extent possible, in light of the
individual offender‘s security status and other relevant factors, overnight visitation, furloughs,
and simulations of real life family interactions should be promoted. Child-friendly visitation

238

S v. M 2008 (3) SA 232 (CC) (S. Afr.).
The specific outcome of this approach would vary. A clearer, simpler test focused more narrowly on children‘s
rights to the exclusion of other factors, would simply require that a primary caregiver of a dependent children not be
sentenced to prison unless required by public safety considerations and then only for the minimum appropriate time.
240
If, in this context, judges fail to factor children into the sentencing determination, that failure should be grounds
for appeal.
239

46

policies would help reduce recidivism rates241 and break the cycle of intergenerational
incarceration potentially impacting millions of American youth.242 These visiting programs
should not be a rare privilege doled out selectively as is current practice. Rather, child-friendly
visitation opportunities should be based on Constitutional rights of children to intimate
association and family integrity with their incarcerated parent.243
V. Conclusion
The recognition of children‘s rights in the context of parental incarceration may be a long
way from realization. Nonetheless, there are concrete proposals and promising developments that
warrant brief mention here. Advocacy groups in the United States have promoted an aspirational
document called a ―bill of rights‖ for children with incarcerated parents.244 While the proposal is
far from being binding law, this Article has argued that many of the principles in the bill of rights
for children with incarcerated parents may have legal basis in the Constitution. Over time,
perhaps, impact litigation and judicial interpretation could expand and entrench the legal basis
theorized here.
Another approach to the realization of children‘s rights to a relationship with their
incarcerated parents is through legislative action. In January 2010, with broad bipartisan support,
the New Jersey Legislature passed a historic package of bills seeking to reduce recidivism rates,

241

Supra note 148.
Johnston, supra note 51, at 138; JEREMY TRAVIS ET AL., URBAN INSTITUTE, FAMILIES LEFT BEHIND: THE HIDDEN
COSTS OF INCARCERATION AND REENTRY 2 (2005); Keva M. Miller, The Impact of Parental Incarceration on
Children: An Emerging Need for Effective Interventions, 23 CHILD & ADOLESCENT SOC. WORK J. 472, 478 (2006);
Nkechi Taifa & Catherine Beane, Integrative Solutions to Interrelated Issues: A Multidisciplinary Look Behind the
Cycle of Incarceration, 3 HARV. L. & POL‘Y REV. 283, 289 (2009).
243
The right could be further developed through a statute with a built-in cause of action to more readily allow for
judicial enforcement.
244
Children of Incarcerated Parents: A Bill of Rights, available at
http://www.fcnetwork.org/Bill%20of%20Rights/billofrights.pdf. See also Tanya Krupat, Invisibility and Children’s
Rights: The Consequences of Parental Incarceration, 29 WOMEN‘S RIGHTS L. REP. 39 (2007) (describing the ―Bill
of Rights‖ initiative)
242

47

protect children of prisoners, and break the cycles of recidivism and intergenerational
incarceration.245 For example, the Women and Families Strengthening Act establishes a
commission to strengthen bonds between incarcerated parents and their children and encourages
incarcerated individuals to be placed in facilities as close as possible to family.246 The Act also
lifts the ban on food stamps and Temporary Assistance for Needy Families (TANF) benefits for
individuals with felony drug convictions who have dependent children.247 While these steps by
the New Jersey legislature do not address the specific problems or legal issues raised in this
Article, they represent a major advance for children of prisoners and suggest the possibility of
legislating an expanded role for children in the criminal justice proceedings of their parents.
This Article has argued for the recognition of children‘s right to a relationship with their
parents in the context of criminal justice. Through a comparative analysis of the New York State
and federal system sentencing and visitation policies it demonstrated that the status quo criminal
justice system is largely sanitized of the needs and interests of children. When and where
children are taken into consideration, it is discretionary, and as a matter of privilege rather than
through any claim of right. The approach mapped out here in broad strokes has vast implications
for sentencing guidelines, prison visiting conditions, the outcome of cases like Overton, the
political geography of prison construction, and more. What is called for is nothing less than
adding, incrementally, a new dimension to the way law and policy approach the administration
of criminal justice.

245

Chris Megerian, N.J. Assembly Passes Bills Aimed at Curbing Recidivism, NJ.COM, Jan. 11, 2010, available at
http://www.nj.com/news/index.ssf/2010/01/nj_assembly_approves_bills_aim.html.
246
Women and Families Strengthening Act, (A4197/S1347) 2008-2009 Session.
247
Id.

48