{"id":14467,"date":"2023-02-27T09:12:14","date_gmt":"2023-02-27T14:12:14","guid":{"rendered":"https:\/\/www.prisonpolicy.org\/blog\/?p=14467"},"modified":"2026-01-02T12:05:53","modified_gmt":"2026-01-02T17:05:53","slug":"caregivers","status":"publish","type":"post","link":"https:\/\/www.prisonpolicy.org\/blog\/2023\/02\/27\/caregivers\/","title":{"rendered":"How 12 states are addressing family separation by incarceration — and why they can and should do more"},"content":{"rendered":"

\nFamily separation due to a parent’s incarceration has impacted over 5 million children<\/a> and has profound negative impacts on a child’s well-being.<\/a> But some states are addressing this crisis. We reviewed recent legislation and found that, in response to pressure from advocates to address the crisis of family separation by incarceration, 12 states and the federal prison system have taken legislative action to lessen parental incarceration’s disruptive effects. \n<\/p>\n

\nIncarcerated women have been one of the fastest-growing prison populations<\/a> in recent decades, and incarcerated mothers are five times as likely to have their children placed in foster care and are more likely to have their parental rights terminated due to incarceration than fathers<\/a>.<\/span> These trends suggest that the number of kids separated from their primary caregivers by incarceration may be growing, increasing the urgency of an already serious problem.\n<\/p>\n

\nParental incarceration can have lasting effects on children into adulthood<\/a>. Child development experts consider a child’s household member becoming incarcerated an “Adverse Childhood Experience<\/a>,” which correlates to challenges throughout childhood development, negative effects on health, and adverse impacts on employment and educational outcomes. The state’s typical responses to parental incarceration often worsen this crisis, permanently changing a family’s relationships by placing children in foster care or terminating parental rights<\/a>, but advocates are fighting for creative and holistic solutions<\/a>.\n<\/p>\n\"Map\n<\/picture>\n

\nAs a result of tireless advocacy, often led by formerly incarcerated women<\/a>, legislatures are finally addressing this problem. Four states and the federal prison system have implemented requirements that parents be detained within a specified distance of their kids, making it easier for children to access their caregivers. Eight states have passed legislation requiring a convicted person’s status as a caregiver to be considered a mitigation factor in their sentencing, or allowing parents priority access to diversion and alternative-to-incarceration programs<\/a>. (Caregiver laws are also currently being considered in the Connecticut, Maine, and Rhode Island state legislatures.)\n<\/p>\n

Caregiver mitigation and diversion laws: The best existing reform targeting family separation
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\nOf course, the best way to maintain a bond between a parent and their child is to avoid separating them, so some states have implemented caregiver mitigation or diversion laws. Mitigation laws, like those in Illinois<\/a> and Massachusetts<\/a>, require judges to consider a person’s status as a caregiver when sentencing them. In other states, including California<\/a>,1<\/a><\/sup> Louisiana<\/a>, Oregon<\/a>,2<\/a><\/sup> Tennessee<\/a>, Washington<\/a>, and Missouri<\/a>, 3<\/a><\/sup> 4<\/a><\/sup> caregiver diversion laws create specialty programs for parents or give parents priority access to diversion or alternative-to-incarceration programs such as drug treatment programs, electronic monitoring, or other community-based alternatives. The successful implementation of these laws in states with very different political climates suggests that this is a type of criminal justice reform which — since it places the welfare of children at the center — draws support from legislators across political divides. (For model legislation, see the original bill<\/a> proposed in Tennessee.)\n<\/p>\n

\nIt’s worth noting that the strength of existing caregiver laws varies widely by state: Some laws merely suggest that judges take a person’s caregiver status into account, while Massachusetts, for example, outlines a clear and formal process that requires a judge to either give an alternative community-based sentence or write a justification for why they are not doing so.\n<\/p>\n

\nUnfortunately, states that assign parents to alternative or diversion programs have faced limitations to funding, scarcity of available programs, and stipulations like sunset policies and “pilot programs” that leave programs precariously funded and vulnerable to ending. Nationally, diversion and alternative sentencing programs are underfunded. Demand often exceeds capacity in successful but resource-strained programs (for instance, in Seattle<\/a> and Los Angeles<\/a>). Unless caregiver mitigation and diversion laws include provisions to allocate funding for a new court, program, or alternative sentence, these laws risk enhancing the burden on already overburdened programs. (A federal bill, the FAMILIES Act,<\/a> introduced by Sen. Ron Wyden and Rep. Pramila Jayapal, has the potential to alleviate some of this strain: The bill would not only offer primary caregivers in the federal system opportunities for diversion, but fund grants for states to create new diversion programs. The FAMILIES Act has unfortunately repeatedly died in committee.)\n<\/p>\n

\nEven when diversion programs are available, not all are not created equal. Many diversion programs effectively funnel people into prison anyway<\/a>,5<\/a><\/sup> and strict eligibility policies often exclude deserving individuals — especially those with violent offenses (a problematic and fluid category<\/a>) — from these programs. For maximum impact, diversion opportunities should not include broad exclusions (or “carve outs”) based on offense type.\n<\/p>\n

Proximity laws: A promising reform facing major implementation challenges<\/h2>\n

\nWhile the best scenario is for children and parents to remain in the home together, continued family contact<\/a> can mitigate harmful impacts when a parent is incarcerated. Between 2007 and 2020, Florida<\/a>, Hawaii<\/a>, New Jersey<\/a>, New York<\/a>, and the federal prison system<\/a> created a maximum distance allowed between parent and child. Ideally, this decreased distance will make in-person visits more accessible, which can lead not only to benefits for the child but improvements in the incarcerated parent’s mental health<\/a> and a reduced risk of recidivism<\/a>.6<\/a><\/sup>\n<\/p>\n

\nUnfortunately, legislative and logistical challenges have limited the impact of these laws. Prisons isolate people by placing them in geographically remote areas, which makes it difficult for many states to implement their proximity legislation. For example, in Florida, “the measure originally encouraged the Department of Corrections to place inmates within 150 miles of their families, but [a legislator] amended the bill to widen the radius to 300 miles. ‘Our problem is, most of the prisons are in the Panhandle, and most of the people are down south.’”7<\/a><\/sup> Similar challenges exist in New York; although 41% of incarcerated New Yorkers are from New York City, almost all of the facilities are upstate, hundreds of miles from the city.8<\/a><\/sup> Further, many states only have one women’s prison<\/a> that is often located rurally.<\/span> This limitation makes it hard to preserve bonds between incarcerated mothers and kids in major cities.\n<\/p>\n

\nQuality proximity legislation must include funding and infrastructure for visitation and transportation for children of incarcerated parents. Traveling great distances is time-consuming and inaccessible for families who do not have cars and need to reach loved ones locked up in areas that aren’t accessible by public transit. While some non-profit organizations and social service agencies have attempted to remedy this by providing free “reunification rides,”9<\/a><\/sup> such programs are a private sector band-aid fix to an issue that better legislation and policy could solve.\n<\/p>\n

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Case Study: A Look At Parental Incarceration in Illinois<\/h2>\n
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The experiences of advocates in Illinois show effective implementation of laws is essential for success.<\/p>\n<\/div>\n

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\nWhile Illinois advocates have won several reforms that expand incarcerated parents’ rights, many barriers have hindered their implementation. Observing this long uphill battle offers interesting insights about the limited value of passing legislation without effective implementation measures in place.\n<\/p>\n

\nIllinois is one of seven states with a nursery where incarcerated new mothers can spend up to two years with their newborns, but there are often more than three times as many pregnant people in the Illinois Department of Corrections than there are spaces in the Moms and Babies program<\/a>. Even though demand outweighs capacity, admissions requirements are so strict that spaces in the program often sit empty. At the beginning of the COVID-19 pandemic, all program participants were released, which is a promising reminder that simply releasing parents from prison is possible. As of April 2021, the program had not resumed accepting participants even though the DOC had started re-admitting people, including pregnant people.10<\/a><\/sup>\n<\/p>\n

\nAdditionally, the 1998 <\/a>Women’s<\/a> and Children’s Pre-release Community Supervision Program Act<\/a> requires the state to create a community-based program where mothers and young kids can live together outside of prison, but according to 2021 reporting, “the directive has been underutilized … only one program, the Women’s Treatment Center in Chicago, has been contracted.”11<\/a><\/sup> An article in Truthout reported<\/a> that over a four-year period, the Women’s Treatment Center received only three women from prison. Newer reporting from the Chicago Tribune indicates<\/a> that this center has since closed.\n<\/p>\n

\nIn 2019, Illinois attempted to expand incarcerated parents’ rights by passing the Children’s Best Interest Act<\/a>, inspired by legislation crafted by members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, such as the original Tennessee bill<\/a>. The Children’s Best Interest Act requires that a court consider whether a defendant is the parent of a child or a caregiver for a relative who will be negatively impacted by the defendant’s absence. The act specifies that the following factors be considered:\n<\/p>\n