The Unintended Consequences of Parental Incarceration PART ONE of TWO 1/19/17 01/19/17 4:56:47 PM
At the Forum on Mass Incarceration, six panelists explain the complex issues that must be addressed to uphold sentencing standards while alleviating the impact on those left behond.
The Unintended Consequences of Parental IncarcerationPrison Doesn’t Just Punish the Guilty
PART ONE of TWO
By Lorraine Boyd
The Daily Record
On Christmas Day, as many as 4,500 Nebraska families spent the day without one of their parents. That’s because their dad, or mom, was in prison.
However heinous their crimes were, innocent families are paying the price as well. It’s all part of the unintended consequences of parental incarceration. And that phenomenon not only negatively impacts the families, but also is likely to continue influencing the futures of all family members.
Nebraska is trying to do something about that.
The problems and some solutions were spelled out by the American Bar Foundation (ABF), the Nebraska Bar Foundation (NBF), and Nebraska judicial and legislative leaders at a special forum held in conjunction with the State Bar Association’s annual meeting in October.
Headlining the meeting was ABF prize-winning researcher Professor John Hagan, Ph.D., a professor of sociology and law at Northwestern University.
As ABF Vice-president David S. Houghton said, “If we know we’re going to put dad or mom in jail, we have an idea what’s going to happen to the family. Should we put something in place to try to mitigate those effects? Should the bar and the judiciary think about that?”
The statistics are sobering. For example, “If a parent goes to prison, the percentage of kids graduating from college goes way down. Is there something
John Hagan Burke Harrwe can put in place so that doesn’t happen? Is there a way NOT to punish the family?” Houghton asked.
Houghton and Burke J. Harr, his colleague at Houghton Bradford Whitted, who is also a Nebraska State Senator, discussed it and became convinced that the Nebraska judicial system needs to look at the unintended consequence of incarceration.
Nebraska Supreme Court Chief Justice Michael G. Heavican concurred and made it the centerpiece of the judges’ annual meeting in October.
Experts in all areas of the punishment phase of justice served on the half-day panel, starting with Professor Hagan.
Besides Sen. Harr, others on the panel were Sen. Bob Krist, Nebraska State Legislature; Hon. Gerald E. Moran (Ret.), retired Douglas County District Court judge and former defense attorney and prosecutor; Hon. Leigh Ann Retelsdorf, Douglas County District Court judge and former prosecutor, who also serves as a judge for one of Nebraska’s Problem-Solving Courts; Hon. Randall L. Rehmeier (Ret.), retired Lancaster County District Court judge and a Nebraska Board of Parole board member.
Chairing the forum, Sen. Harr set the scene, noting that while Nebraska crime is down 4 percent, the prison population is at 161 percent of capacity. Building new beds to accommodate those numbers would cost $262 million. In light of the current budget shortfall, that expenditure is unlikely.
After President Lyndon John-son’s War on Crime, the federal government took a look at the state of corrections. The President’s Report of Ronald Reagan concluded there was “too much crime and too little justice,” Sen. Harr said.
The increased punishment of street crimes and strict sentencing guidelines grew the prison population from 5,700 to 8,500, a 31 percent increase in 20 years. There were 132 revisions to DUI laws from 1991 to 2013, with no way to determine what was working. The percentage of the state budget spent on corrections doubled while education money decreased. “By 2014, it was a perfect storm.”
Professor John Hagan
For a national perspective, Sen. Harr called on guest speaker, Professor John Hagan, the inaugural and continuing editor of the Annual Review of Law and Social Science.
“After searching for a title for this talk, I came up with a song from Bruce Springsteen’s album, ‘Nebraska.’ The last tune is ’Reason to Believe.’ Even though the song itself is pretty bleak, I think the title is apt,” Prof. Hagan said.
Hopes for legislation on prison reform, tantalizingly close in recent years, were dashed in the last session of Congress, he said. “We didn’t get there, and probably won’t anytime soon. A steadily declining number of laws have been passed, with some members of Congress against reducing mandatory sentencing. So, what can we do? Where can we go from here?” Prof. Hagan asked.
He underlined that children are innocent of the crimes of their parents. “Mass incarceration leads to dashed hopes and expectations. Maybe we don’t need prison reform to move ahead. There are existing laws on the books that actually set a foundation for better protection of children of incarcerated parents.
“We could embark on a systematic expansion of existing laws that can protect children. It’s been done before.”
He said in the early 20th century, to combat crime, we invested in education of new immigrants, and in social programs to provide a safety net, and shored up the infrastructure. We had the resources to reduce poor living conditions. It was a success story. In the period from 1960 to 1970, we again invested heavily in social programming and reversed childhood poverty.
Then in the 1970s, ’80s and ’90s, poverty levels began creeping up, he said, and have never gotten back down again. Part of the reason was that we had exchanged our investment in social programming and welfare supports for a very concentrated, bipartisan investment in punishment, mainly involving mass incarceration.
“In punitive states – defined as ‘more or less punitive in applying criminal sanctions to convicted offenders’ – there is an upturn in incarceration and a downturn in investment,” Prof. Hagan said.
“Nebraska is a non-punitive state [it ranks 40th of 50 states]” but it still incarcerates 263 out of 100,000 residents. Its ‘punishment’ rate is 333. [Louisiana ranks first in incarceration rate at 847; Maine is last at 148.]
According to the Public Safety Performance Project at the Pew Charitable Trusts, the imprisonment rate increased by 149 percent between 1983 and 2013, while the punishment rate increased by 165 percent for the United States as a whole. All states became more punitive from 1983 to 2013, but the changes varied widely among states.
That could be devastating for children as well. Frank Edwards, a University of Washington Ph.D. candidate in sociology wrote in the June print edition of the American Sociological Review, “States with more punitive criminal justice systems tend to remove children from their homes far more frequently than those with generous welfare programs – meaning that two states with similar rates of child abuse and neglect could have very different rates of foster care entry.
“We see across the board that politics are great predictors of policy,” Edwards said. “If a state prefers more punitive criminal justice and less generous welfare benefits, then it’s very likely that it will prefer a certain approach to child welfare as well.”
What does all that mean? It means that while we try to find alternative punishments for those convicted of crimes in problem-solving courts, we are still incarcerating higher and higher numbers. It has led to unprecedented prison overcrowding, not only in Nebraska but the country as a whole.
The unintended consequence? Longer sentences mean more time away from the family and loss of income, contributing to the family’s ability to care for their children, which could result in their removal. (On an upbeat note, Sen. Krist noted that the number of children in foster care in Nebraska has been reduced by 30 percent since 2009, a number that continues to go down.)
Findings from Prof. Hagan’s August 2013 White House Conference on Parental Incarceration in the United States include these key factors:
• The United States already incarcerates more people per capita than any other country in the world – five times greater than any other industrialized democratic nation. [In the U.S., there are currently 2.1 million people in prisons and jails or waiting in jail to go to trial.]
• Since 1970, the proportion of nonviolent offenders in prison has increased dramatically. This increase is mostly due to a shift in sentencing law and policy (getting “tough on crime”), not an increase in criminal activity.
• Approximately half of all imprisoned persons in the U.S, are parents.
• Parental incarceration disproportionately affects communities of color. One in four African-American children – as well as one in five Hispanic children and one in 13 white children – have had a parent incarcerated.
Consequences for families and communities:
• The non-incarcerated parent or caregiver may be distressed and unprepared for changing parenting roles … creating pressure for the family unit.
• Traumatic separation for children and spouses is created, along with economic and health decline for families.
• Children demonstrate difficulty transitioning to successful adult lives, with a greater risk of involvement in the criminal justice system.
Prof. Hagan singled out two pieces of legislation that have an impact on the problem.
“The first is a program to balance out the funding of schools.” In the 1960s, it was called the “Elementary and Secondary Education Act (ESEA)” as part of President Johnson’s War on Poverty. President George W. Bush continued it with the “No Child Left Behind Act (NCLB),” and today it is known as the “Every Student Succeeds Act (ESSA).” The renewal of this legislation provides a foundation for improvement, he said.
These laws are designed to address the effects of parental incarceration – to reduce economic insecurity, increase the availability of health care, increase educational achievement, provide a path to college access and completion, and correct the neglect of innocent children, he said. “We must provide a path of optimism, and a break in the [negative] trajectory of fragile families.”
Besides being impacted in terms of household income, availability of food and health care, the educational opportunities of the children suffer greatly. The odds of students with an incarcerated parent graduating from college are dismal. The figures dive even lower if they are attending disadvantaged schools. If a student with an incarcerated mother attends a school where the maternal incarceration rate is near 10 percent, they have just a one percent chance of graduating from college.
“This isn’t just a problem for the children of incarcerated parents, but for the other children in school too. Some schools are a prison pipeline.” Charts show how schools with more incarcerated parents lower the educational opportunities for all students.
Prof. Hagan said that while “we can’t immediately change the incarceration rates or the current prison population, we can change and increase social programming and welfare support.”
The compromised ability to pay for housing, utilities and food are real problems in America. One in four families suffer in poverty. That jumps to 30 to 40 percent when mothers are incarcerated. That is significant because the number of women imprisoned has increased to nearly 10 percent, and two-thirds of them are mothers. Of them, one-third to one-half of them were employed. They come out of prison owing money.
“The American Bar Foundation is committed to doing work on important public policies. We try to bring the evidence and leave the implementation to others. The problem is a national one. We can do a better job of protecting our children,” Prof. Hagan said.
He said there is an argument for the expanded enforcement of protections already in place. One way is to give judges more discretion in sentencing.
An information sheet provided for defense counsel to bring to sentencing hearings could help produce results. He cited the case of a Massachusetts defense attorney who referred the judge to the ABF research findings and got his client’s sentence set at eight months instead of the 18 months sought by the prosecutor. In that case, the defense attorney had urged the judge to look at the consequences.
“There’s always hope,” Prof. Hagan said. “Even the Cubs win the World Series every 100 years.”
– Tomorrow we will look at solutions in Nebraska to mitigate the negative consequences of a parent being incarcerated that are offered by other members of the panel.