by Victoria Law

Ayana Aubourg was seven years old when her father was sentenced to 10 years in prison. For the next decade he parented through letters, weekly phone calls and once-a-year visits. He missed most of her childhood – picking her up from school, helping her with her homework, celebrating her birthdays and holidays, and even negotiating the trials and tribulations every parent has when their child becomes a teenager.

Aubourg’s experience is not exceptional. In Massachusetts, 69,000 children, or five percent of the state’s children, have been affected by parental incarceration at some point during their childhood. She is one of an estimated 5.1 million children who have been affected by past or present parental incarceration nationwide.

Most people who wind up in jails and prisons lived below the poverty line before their arrest and incarceration. A report by the Prison Policy Initiative found that incarcerated men earned a median of $19,650 before their imprisonment; in contrast, men who had not been incarcerated earned a median of $41,250. The gender pay gap also affected incarcerated women, who earned even less – $13,890 before their incarceration; in contrast, their non-incarcerated counterparts earned $23,745.

Just like in the world outside of prison, parenting behind bars is often gendered. The U.S. Bureau of Justice Statistics found that the majority of incarcerated mothers lived with and were the sole or primary caretaker of their children before their arrest and conviction. This means that when mothers are incarcerated, their children are more likely to have no other parent at home, ending up either with other relatives or in foster care. Children of incarcerated mothers are five times more likely to wind up in foster care than children of incarcerated fathers, rendering them more vulnerable to having their rights terminated and their children taken from them forever.

In 1997, Congress passed the Adoption and Safe Families Act (ASFA), which mandated that states begin termination of parental rights if a child was in foster care for 15 of the past 22 months. At the time, only two states made exceptions if a child was in foster care because of parental incarceration. Across the country, termination of parental rights rose from 60,000 in 1998 to 73,000 in 2000. Termination proceedings involving incarcerated parents more than tripled from 260 in 1997 to 909 in 2002.

Regardless of gender and gendered expectations, their low incomes mean that many imprisoned parents and caregivers lack the financial resources to not only fight their criminal charges, but also to fight back in family court when threatened with the termination of their parental rights. But even when parental rights are not threatened with termination, a parent’s extended separation from their children takes its toll.

“It’s hard to show love when you’re being watched,” recalled Aubourg of the various prison visiting rooms where she saw her father once a year.

Aubourg was 17 and a senior in high school when her father was released from prison. He attended her graduation, beaming proudly as she walked across the stage and grasped her high school diploma. Still under a post-release curfew, however, he wasn’t able to stay for the ensuing celebrations. Though the pair spent more time together, often debating capitalism during long car rides, the pallor of his long absence still affected their relationship.

They were still rebuilding their relationship when Aubourg’s father died in a car accident three years after his release from prison. But, she says, “I’d already felt that loss before because of his incarceration.”

That’s why Aubourg co-founded Sisters Unchained, a group for young women of color with incarcerated loved ones. Sisters Unchained grew out of Coding for Justice, which brought together young women whose parents had been incarcerated and not only taught them to code, but established a space for them to talk about the impact of their parents’ absence.

From there, Sisters Unchained joined efforts to advocate for the Primary Caretakers bill. The bill was drafted by Families for Justice as Healing, an organization of formerly incarcerated women, many of whom are mothers. The legislation encourages judges to consider the impact of incarceration versus a community alternative when sentencing a parent who has been convicted of a non-violent offense. It’s estimated that approximately 2,500 parents who are currently incarcerated in Massachusetts would have been eligible for alternatives had this law been passed earlier.

In 2016, Aubourg testified about the bill at the Massachusetts State House. She recalled that the committee members seemed disengaged. “They were falling asleep or on their phones,” she recalled. The bill did not pass that year.

The Primary Caretakers bill was reintroduced the following year and Aubourg was once again at the State House, this time with five other members of Sisters Unchained as well as formerly incarcerated mothers with Families for Justice as Healing. The women, both young and older, waited seven hours for the bill to come up and their chance to testify.

“It takes a lot of stamina to sit and listen to testimony for seven hours,” Aubourg recalled.

But they waited and waited, struggling to keep their energies up, until the Primary Caretakers bill was called. Aubourg, then age 22, testified; so did two other members of Sisters Unchained, ages fifteen and sixteen. Three formerly incarcerated mothers were next and spoke about the impact of their prolonged absences on their children.

In April 2018, the bill was signed into law as part of a larger criminal justice package. But even before it passed, some attorneys were using the bill and the information within to press judges to consider non-prison sentences.

Josina Raisler-Cohn is a trial attorney for the Committee for Public Counsel Services in the Somerville Superior Court Office. She learned about the bill after it had passed the legislature but had not yet been signed into law. Armed with this information, including the research and data about the benefits of not tearing families apart, she was able to convince a judge to sentence a client, who was a single mother, to probation rather than jail time. Another client was able to do the same more recently.

Would judges have been willing to sentence these parents to probation if the bill had not become law? It’s hard to say. But Raisler-Cohn points out that the law requires judges to give written findings as to why they chose to sentence a primary caretaker to jail or prison. In other words, a judge needs to not only consider the impact of parental incarceration, but also provide written reasons for choosing incarceration anyway.

Advocates with Families for Justice as Healing have trained nearly 130 attorneys about the new law, how to advocate for their clients and how to identify and challenge racial biases as well as assumptions that parents who are arrested and/or incarcerated are not involved in their children’s lives.

“I feel like there’s going to be a paradigm shift,” reflected Aubourg.

That’s not the only paradigm shift. After her release from prison in 2011, Andrea James, co-founder of Families for Justice as Healing, spent four years traveling around the country, meeting and establishing relationships with formerly incarcerated women doing advocacy in their home states. Four years later, in 2015, many of these women traveled to New York City for the first convening of the National Council for Incarcerated and Formerly Incarcerated Women and Girls. The Council’s mission is two-fold – to ensure that the voices and expertise of women who have been affected by mass incarceration are part of the discussions around criminal justice policy, reform and organizing, and to support the work that their sisters are doing, often in isolation and with little encouragement.

Council members share tactics and strategies to decrease prison populations. That includes sharing drafts of their legislative efforts. James has credited Council members in California, who successfully passed a similar bill (SB 1266) in 2010 and then spent hours on the phone with her talking about their tactics, strategies, successes and failures, with providing a blueprint for the Massachusetts bill. She and members of Families for Justice as Healing have, in turn, shared their legislation with Council members in other states.

Now, buoyed by the success in Massachusetts, formerly incarcerated women in Oklahoma, Illinois, Tennessee and Texas have introduced similar bills.

“The right to your children is the most fundamental one you have, but we strip it from incarcerated parents so casually. This is the family separation crisis that no one knows about,” said Kathleen Creamer, an attorney with Community Legal Services of Philadelphia.

Texas: “I Still Could Have My Children”

In 2010, Lauren Johnson’s relapse led to arrest and her fourth felony drug conviction. “It was really just a relapse,” she recalled, noting that she had been sober for the previous five years.

“But they [the prosecutor and the judge] didn’t view it as me doing well [for five years]. They viewed it as me not getting caught.”

By then, Johnson had two children under the age of three and an elderly grandmother who lived alone, whom Johnson regularly checked on. Johnson’s husband would care for their children, thus avoiding foster care, but without her income he would be unable to pay for childcare and keep a roof over the family’s head. (The financial burden was eased when another couple moved into their house, helping with both the bills and childcare during Johnson’s absence.)

But it was Johnson’s grandmother who pushed her to fight for a more lenient sentence. When Johnson told her about her impending incarceration, her grandmother cried. That inspired Johnson to write to both the prosecutor and judge begging them to give her another chance. They did – in part, sentencing her to seven months in jail rather than a longer sentence in the state’s prison system.

From that experience, Johnson knows that prosecutors and judges already have the discretion to consider a person’s responsibilities as a caregiver. But they often don’t, which might be part of the reason why Texas has over 200,000 people in its jails and prisons (not counting the 27,000 in federal prisons or 5,700 in youth prisons or involuntary commitment).

That’s why Johnson, now the criminal justice outreach coordinator of the ACLU of Texas, is advocating for HR 1389, Texas’ version of the Primary Caretakers Act.

“The bill gives them cover to use their discretion more broadly,” Johnson explains.

Under the Texas bill, a defendant who has either pleaded guilty or been convicted can file a post-conviction plea asking the judge to consider their status as a primary caregiver. The bill only applies to people whose cases are already eligible for a diversion, such as probation or parole, but Johnson notes that the state’s current rate for diversion-eligible cases hovers between 25 and 30 percent. She’s hoping that the bill, if passed into law, would increase the number of caregivers sentenced to diversions instead of locking them away from their families.

That’s Maggie Luna’s hope too, though the bill, if passed, will come too late for her and her children. In 2011, Luna was a single mother raising three children – ages three, one and 21 days old – while struggling with a heroin addiction. When she was arrested for writing hot checks, she told the investigator that she was a single parent. The investigator told Luna that, if she cooperated, she would not be incarcerated. Luna admitted to everything; 30 days later, she was indicted and held on a $50,000 bond.

Luna scrambled to find someone to care for her children. The father of her oldest child offered to care for all three children while she was in prison. She signed over temporary guardianship. Luna was sentenced to two years in prison and served 14 months. When she was released, she retrieved her children and tried to rebuild their lives. But with no money, no resources, three small children and a felony conviction, the family ended up in a small apartment where the children shared a single bed. That caused someone to call child protective services, which removed her children. Her parental rights were terminated two years later.

“If the bill had been in effect and the investigator went to the judge, I still could have my children,” Luna says. She knows that the bill comes too late for her. “I may never get my children back,” she acknowledged. “But my children will come and find me one day. I want them to know that what we went through was not in vain and that we helped somebody else, another family, stay together.”

This is the first year that the bill has been introduced. It was passed unanimously out of the House committee and passed by a 145 to 2 vote from the House floor. It now heads to the Senate for its first hearing.

In Oklahoma, Incarcerated Parents Might be Eligible for Retroactive Release

D’Marria Monday also knowsfirsthand the devastation of parental incarceration. Monday’s son was six months old when she was sentenced to 10 years in federal prison. She was sent to a facility in Tallahassee, over 1,000 miles from Midland, Texas, where her mother was caring for her baby. Three months later, her mother brought her son to visit; by then he was nine months old. Monday recalls that the cost of the flight and the hotel room was such a financial burden that she didn’t want to ask her mother to do it again. Instead, she applied to be transferred closer to home.

Over a year later, she was transferred to Carswell, Texas, approximately 300 miles away – a 4½ hour drive. By the time she saw him again, her son was two years old. “He was walking and talking by then,” she recalled.

Monday spent seven years in prison. She now lives in Oklahoma, which has the country’s highest incarceration rate and, for years, had the country’s highest female incarceration rate. Inspired by the Massachusetts victory, she’s pushing for a version of the Primary Caretakers bill to give other parents the chance that she didn’t have.

The Oklahoma bill (HB 2019), introduced in February 2019 for the first time, differs from the Massachusetts law in several ways. For one, the bill’s definition of primary caretaker includes not only a person caring for a minor child, but also anyone caring for an adult with disabilities and/or an older person. It also doesn’t restrict eligibility to people charged with or convicted of a non-violent crime. Instead, the bill states that eligibility hinges on whether “the offense does not pose a substantial risk of physical harm to the community.”

“We were intentional not to make a distinction between non-violent and violent charges,” Monday says. She notes that the bill to prohibit shackling incarcerated pregnant women, which she also advocated for and was signed into law in May 2018, contains similar language that does not separate mothers-to-be based on violent or non-violent convictions, but does include a provision if they pose “immediate and serious threats of harm.” That language, Monday notes, does not automatically disqualify a caregiver, but does ease legislators’ potential worries about voting for the bill.

HB 2019 also includes two prongs – one is for people who might be jailed pre-trial; the other is for people who have been convicted.

Oklahoma currently has over 12,000 people in its county jails on any given day. Many have not had their day in court; they are simply jailed because they cannot afford to post bail. As in other states, Oklahoma courts do not tailor bail amounts to the individual person’s ability to pay. Instead, judges rely on preset bail amounts. In a state where one in six families lives below the poverty line ($24,600 for a family of four), bail ranges from $5,000 to $25,000.

Under HB 2019, a judge must ask the accused person about their pregnancy or status as a primary caregiver. If the person is pregnant or is a primary caregiver and is determined not to pose a “substantial risk of physical harm to the community,” the court will allow them to be released on their own recognizance rather than imposing bail. While the court may impose conditions of pretrial release, they must be conditions that are considered least restrictive and appropriate for a caregiver. The bill is retroactive, meaning that some percentage of those 12,000 people currently awaiting their day in an Oklahoma court can request a bail modification hearing and ask the court to consider their pregnancy or primary caretaking responsibilities. There is no data specifically about the number of parents jailed in Oklahoma on any given day. Nationwide, approximately 80 percent of women in jails have minor children.

HB 2019 also has provisions for people who have been convicted. Under the bill, if the person is pregnant or has caregiving responsibilities and their conviction “does not pose a substantial risk of physical harm to the community,” the court shall impose an individually assessed sentence, one that does not include imprisonment. The court can impose non-prison requirements, such as drug or alcohol treatment, domestic violence classes, physical and sexual abuse counseling, anger management, job training and placement, and assistance in finding affordable and safe housing. A person’s inability to pay for these programs would not constitute a willful violation of the court’s order. In other words, they would not automatically be remanded to jail for not being able to pay.

That portion of the bill is also retroactive, which means that people who are pregnant or primary caretakers can file for a sentence modification. If they do, the bill instructs that “[t]he courts shall thereupon modify the sentence in accordance with the provisions of this section.”

No one is sure how many families HB 2019 would affect. Those numbers may be fairly high; according to the Annie E. Casey Foundation, 12 percent of Oklahoma children (or 108,000 children) have a parent or guardian who has spent time in jail. And that’s only counting the number of caregivers of minor children. No agency tracks the numbers of people who, before their incarceration, were primary caretakers of disabled or older adults.

HB 2019 only affects people facing state charges. Monday was charged with and convicted of a federal offense, which would have made her ineligible for a sentence modification even if the bill had become law years ago. But she knows that it will allow potentially hundreds of caregivers to avoid being separated – perhaps permanently – from their children and dependent loved ones.

Washington: “My Crime Has No Bearing on My Ability to Parent”

Washington State has had its own versions of the Primary Caretakers law since 2010. The Parenting Sentencing Alternativehas two parts: one, the Family and Offender Sentencing Alternative (or FOSA) allowscourts to sentence parents to a 12-month community sentence instead of to prison.

The other, the Community Parenting Alternative (CPA), allows incarcerated parents to apply for a transfer to spend the last year of their sentence with their family. But it’s not simply house arrest – it’s also a mandate to repair bonds with their children: Participants must agree to family dinners at a table without the distraction of a television or other electronic devices, and must read to or help their children with homework for at least 20 minutes each day. During the initial weeks of the program, the parent is not allowed to obtain employment; instead, their focus is on reestablishing their relationship(s) with their children. In addition, all of their daily activities must be pre-approved by a community corrections officer, with whom the participant must speak to daily. The community corrections officer also conducts frequent home inspections.

During the first 16 months after the law’s implementation, 83 parents were able to leave prison and reunite with their children under the Community Parenting Alternative; another 57 parents were diverted from prison altogether. By February 2015, 274 parents had either reunited with their children earlier or been sentenced to non-prison alternatives. As of February 28, 2019, 791 parents had either been diverted from prison (354) or released from prison a year early (437).

Those numbers might be even higher if the Parenting Sentencing Alternative weren’t limited to parents with non-violent convictions. Now, currently and formerly incarcerated parents are fighting to expand these alternatives to give parents and caregivers with violent convictions the opportunity to bond with and care for their children.

Minna, who asked to only be identified by her first name, is one of those parents. Minna had recently given birth to identical twin boys when she was convicted of robbery and sentenced to seven years in prison. She was among 15,888 parents in a Washington prison and her twins among 109,000 children of incarcerated parents. She remembers hearing about FOSA and CPA while in jail and, later, in prison, but also knew that, since robbery is a violent conviction, she was ineligible.

Minna’s parents cared for her twins during her incarceration, thus avoiding entanglement with the child welfare and foster care systems. She built her relationship with her sons through phone calls and visits.

Being absent meant that Minna missed her boys’ first smiles, first words and first steps. She missed their first birthday (and the subsequent six) as well as their first day of school.

What she also missed was the chance to identify her sons’ developmental disability. Minna’s sons often used cryptophasia, or a twin language that no one else understands. Cryptophasia isn’t uncommon between twins. Nor are speech delays or behavioral issues, like tantrums. But the twins’ behavior was concerning enough that the boys’ preschool teachers raised the issue with Minna’s parents, who kept those concerns from Minna.

“Everything was sugar-coated or withheld from me,” she recalled.

Though the twins were brought for visits several times a year, Minna had virtually no experience with small children and, during those precious few hours, wasn’t able to notice that their behaviors weren’t developmentally appropriate.

Her twins were seven years old when Minna was released from prison in 2018. Once she immersed herself in their lives, she realized the gravity of the situation and immediately began seeking help. Later that year, both boys were diagnosed with autism. Now, Minna is waiting for the twins’ health insurance to approve behavioral and speech therapy.

Reflecting on the months-long waiting lists at the local children’s hospital, Minna said, “If I had been able to come home earlier, even a few months or a year earlier, they would have gotten the help they needed sooner.” She notes that the stringent requirements of the Community Parenting Alternative, including the prohibition against employment during the initial weeks, would have meant that she would have been able to devote herself solely to having her sons diagnosed and treated.

Minna is not the only parent excluded from FOSA and CPA solely due to a violent conviction. While no study has correlated the number of parents convicted of violent crimes, the Department of Corrections notes that, of the nearly 19,000 people imprisoned in Washington, almost 72 percent have been convicted of violent offenses.

In 2016, state lawmakers introduced a bill to expand eligibility for parenting alternatives so that a violent conviction is not an automatic disqualifier. Instead, applicants would be assessed case-by-case on their current risk to society. The expanded eligibility does not guarantee a caregiver’s acceptance into either alternative. They must still apply and be vetted, but having a violent conviction, such as robbery, no longer disqualifies them from applying. For Minna, this would have meant the opportunity to walk her sons to school when they started first grade, help them with their homework and start navigating the bureaucracies of having their developmental delays diagnosed.

Even from behind prison walls, Minna pushed for the bill’s passage. While incarcerated, she wasn’t allowed to travel to the state legislature to testify before lawmakers, but she sent written testimony that was read aloud.

“My crime, though classified as violent, has NO bearing on my ability to parent, has NO bearing on my ability to succeed on this program, and has NO bearing on the love I have for my sons and my determination to give them the best life possible despite my mistakes,” she wrote.

She also spread the word about the bill to the other women around her and tried to keep a tally on how many more parents and caregivers would be eligible to rejoin their children sooner if the bill passed.

Despite advocates’ efforts, the bill did not pass in 2016 or 2017. It was introduced again for the 2018/2019 legislative session, and has already passed the Senate. It is now in the House.

Minna is ready. She has updated her testimony to include her current reality, including the delays in diagnosing her sons’ autism – and how an earlier release from prison could have enabled her to notice the warning signs and seek help earlier.

It’s important to note that all of these legislative efforts are aimed at keeping families together by not sending them to jail or prison (and, in the case of Washington, to allow caretakers an earlier release). They are not efforts to create family programs within the prisons or to ameliorate existing conditions. Instead, these efforts force judges to consider the impact of incarceration not only on the person standing before their bench, but also on their children and other family members.

“There are real costs and consequences to parental incarceration,” reflected Ayana Aubourg, who notes that, had the Massachusetts law been in place years ago, her father could have remained in the community and been able to fully parent her.

Maggie Luna in Texas agrees, noting that tearing families apart instead of providing resources for them to remain together simply fuels cycles of mass incarceration. “Hurt people hurt people,” she says. “I have three little babies out there who are hurt. It’s a vicious cycle.”

Legislative Success in Tennessee

In Tennessee, 10 percent (or 144,000) of the state’s children have been affected by parental incarceration. But on May 8, 2019, days before Mother’s Day, the governor signed the state’s own version of the Primary Caregiver Act.

Modeled after the Massachusetts bill, the new Tennessee law allows courts to impose a non-prison sentence on a primary caregiver who is convicted of a non-violent offense. Organizers with Free Hearts, a Nashville-based advocacy group of formerly incarcerated women, drafted and began lobbying for the bill in 2017. Formerly incarcerated mothers met with legislators, shared their personal stories and requested their vote. Some of the women had been incarcerated when the bill was first introduced in 2017; upon release, they became the most vocal advocates. For many, this was their first time speaking with lawmakers – and at first the prospect was intimidating.

“Most of us had never been in the legislature, didn’t know anything about the legislative process and weren’t sure that this would ever become law,” recounted Free Hearts director Dawn Harrington.

What they did know – from their own experiences and from providing programming in the city jails – is that the majority of women in the jails are detained pretrial and most are mothers or caregivers.

“The empowerment has been the biggest win,” reflected Harrington.

The law only applies to caregivers who are convicted of a non-violent offense, but have not yet been sentenced. Efforts to broaden the bill to include caregivers with violent convictions failed to gain support in the majority Republican legislature. In future legislative sessions, says Harrington, they plan to follow Washington organizers’ example and push for another bill that would extend these same considerations to caregivers facing violent felonies. Meanwhile, they’re making sure that public defenders, judges and other court officials know that the law exists – and how to use it after it went into effect on July 1, 2019.

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Ed. Note: Indiana’s legislature passed a bill related to parental incarceration (HB 1432) that was signed into law by Governor Erin Holcomb on May 5, 2019. The legislation requires that services be made available to incarcerated parents, including visitation with their children, to ensure they can maintain familial relationships. Also, prisoners facing termination of their parental rights may move to dismiss the termination petition if their current or prior incarceration is a “significant factor” in their child’s placement in state custody, with certain exceptions. According to The Marshall Project, two formerly incarcerated women, Christina Kovats and Kristina Byers, helped draft the bill and lobbied lawmakers to vote for it. 

Victoria Law is a freelance journalist who focuses on the intersections of incarceration, gender and resistance. Her first book, Resistance Behind Bars: The Struggles of IncarceratedWomen, examines organizing in women’s jails and prisons across the country. Her forthcoming book, Prison By Any Other Name, examines ways in which popularly proposed alternatives to incarceration widen the carceral net. She wrote this article exclusively for Prison Legal News. For more information, visit www.victorialaw.net.

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