Mothers in Prison and the Cycle of Incarceration

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Melissa Brock
August 9, 2024

As many as 2.7 million children have a parent in jail or prison on any given day in the United States, half of whom may be under the age of nine. It is estimated that over 5 million children may experience the incarceration of a parent during his/her childhood. The majority (58 percent) of incarcerated women are mothers, and the number of mothers in prison increased by 96 percent between 1991 and 2016. Parental incarceration is a known adverse childhood event (ACE), with the potential to negatively impact health and well-being outcomes over a child’s lifespan. Children of incarcerated mothers in particular face a potential path of foster care to permanent severance of the maternal relationship, and the creation of an intergenerational cycle of criminal behavior.

Mothers held in custody are more likely to be the sole caretakers of minor children. Only 18 percent of mothers who lived with their child before incarceration report sharing caretaking duties, compared to two-thirds of imprisoned fathers. The vast majority of incarcerated fathers report the other parent to be the child’s current caretaker but incarcerated mothers tend to name the child’s grandparent or other family members. Mothers were also five times more likely to report the child as being in foster care than fathers, and as such, are at greater risk of being permanently separated from their child based on federal and state laws.

Termination of Parental Rights Due to Incarceration

The Adoption and Safe Families Act of 1997 (ASFA) established the “15/22  provision” which compels states to seek termination of parental rights when a child has been housed in foster care for 15 of the past 22 months. While the provision has some exceptions, incarceration is not one of them. Nearly 1 in 8 incarcerated parents with children in foster care will see their parental rights terminated, despite not being charged with child abuse, neglect or endangerment. Incarcerated mothers are disproportionately affected due to higher instances of being the sole caretakers of minor children.

Parents in jail and prison face more challenges than non-incarcerated parents when it comes to retaining parental rights depending on the state in which they are held. Several states statutorily define incarceration itself as child abandonment. Others list failure to maintain regular communication and visitation, inability to maintain a normal parental relationship and/or failure to participate in a suitable reunification plan as causes to pursue termination of parental rights based on child abandonment.

Incarceration can create circumstances that constitute legal abandonment. Incarcerated individuals have very little control of their environments and may be unable to participate in any counseling, education or training mandated as part of a reunification plan. Further, incarceration inhibits parents’ abilities to maintain regular communication and visitation with a minor child, which can support an allegation of abandonment. For example, mothers are often held in facilities a great distance away from their children, making visitation time-consuming and expensive for families. Visits occur behind glass or with limitations on physical touch which may make it difficult or frightening for children to visit a parent comfortably. Writing materials and stamps must be purchased. Incarceration would strain any healthy parent-child relationship; in some cases, however, the essence of imprisonment is designed to eradicate it.

Implications for Policy

The effects of increased maternal incarceration on children are persistent and pervasive. The National Institute of Justice (NIJ) reports children of incarcerated mothers as having higher rates of imprisonment, and earlier and more frequent arrests, versus children of incarcerated fathers. The foster care and criminal justice systems are also closely related. Foster care is a known pipeline to incarceration, with half of foster children encountering the juvenile justice system by age 17. Children of women who have come in contact with the legal system and whose parental rights have been terminated are also less likely to be adopted than other children in foster care, increasing the chances of referral to the criminal justice system. And children of women whose history includes foster care and juvenile incarceration are at greater risk of being incarcerated themselves, facilitating the intergenerational cycle of criminal behavior.

Disrupting this intergenerational cycle of criminal behavior requires intervention on multiple fronts. While some advocates call for the repeal of ASFA, a more tenable solution may be to codify incarceration as an exception to the 15/22 timeline. Kennedy (2012) offers a second potential solution in an integrated family court approach to termination cases wherein aspects of the case ordinarily presented by professionals across multiple systems and courtrooms would be coordinated by a single judge. She also suggests incarceration should be barred from consideration in parental termination cases.

In cases when preserving the parent-child relationship is in the child’s best interests, policies should support parents and encourage success in parenting, even from behind bars. Some states have made progress in expanding opportunities for incarcerated parents. In New Jersey, all incarcerated parents are entitled to regular contact visits with their children and are provided with parenting classes, and state prisoners must be housed in facilities as close as possible to the child’s residence. Colorado names incarceration as an exception to its adoption policies when it is established that the incarcerated parent has maintained a meaningful and safe relationship during the period of incarceration. It creates opportunities for incarcerated parents to do so by sponsoring child-friendly events at correctional facilities and appointing a jail employee to coordinate between the criminal justice and human services departments. These efforts can serve to reduce motions for termination of parental rights that are rooted in the failure to maintain a normal parental relationship and to maintain regular communication and visitation. Ultimately, this has the potential to alleviate the deleterious effects of maternal incarceration on children and disrupt the cycle of intergenerational offending.

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Author: Melissa Brock is a graduate fellow with IGEPS, the Initiative for Gender Equity in the Public Sector. She recently earned her Master of Public Administration degree from the John Jay College of Criminal Justice She previously earned a Master of Arts in Forensic Psychology and Counseling. Melissa currently works as a counselor in an adult county correctional facility. She is a certified Disaster Response Crisis Counselor, has provided instruction to correctional police officer recruits enrolled in her county’s public safety training academy, and was recently appointed to her town’s Board of Education.Contact: [email protected]

 

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