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December 5, 2010

Notable new article on the rights of children of the incarcerated

I just came across this new article available via SSRN titled "Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship."  Here is the abstract:

This Article describes the vast population of children with incarcerated parents.  The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights.  It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest.  The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.

The author of this notable article is also notable. The article is authored by Chesa Boudin, a 3L at Yale Law School and the son of the Weather Underground radical Kathy Boudin.  Kathy Boudin served 20 years in New York State prison after she was convicted in 1984 of felony murder for her participation in an armed robbery that resulted in the killing of three people.

December 5, 2010 at 11:41 PM | Permalink


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I would think in most cases where a parent is incarcerated that completely severing the relationship of both parents with the child would produce far better results, even given the abysmal state of foster care in much of the country. Even where one parent is not themselves a convict I would be amazed if most of the time the non-offender parent was unaware of the other parent's transgressions. Such easy acceptance of close ties to criminality can not be good for breaking free of such influences.

Posted by: Soronel Haetir | Dec 6, 2010 1:27:05 PM

Without having read the article, and without trivializing the extent to which it must be difficult for any individual to be denied regular access to one's parents, I wonder if the author concedes that the children and family members of the people in whose murder his mother was a participant had their rights to associate with the victims severed permanently and without warning.

Posted by: guest | Dec 6, 2010 7:16:26 PM

Yale. No more need be said.

Posted by: Supremacy Claus | Dec 7, 2010 1:38:13 AM

Fascinating way to turn what is typically viewed as a prisoner right's issue into a family rights issue. We too often forget that the prison system impacts many who have not committed a crime. Chesa has put together a very creative way of making this perspective a matter of constitutional law.

Posted by: Alan Mills | Dec 8, 2010 8:37:47 PM

I work in an agency whose mission is to improve outcomes for children of criminal justice involved parents.

I cannot let the comment recommending that the child of an incarcerated parent is better off having his/her relationship with both parents terminated. I must assume that the commenter is ignornant of the issues, needs, and wants of children separated from their parents. Children love their parents and the parent's involvement in the justice system does not alter that emotion or the need for connection. I must also assume that he/she is ignorant of the important role family connections play in an inmate's successful reentry.

Research over a period of many years has shown that in the preponderance of cases, a child is far better off and has better outcomes if he/she can maintain a relationship with the incarcerated parent. I refer you to two excellent books: All Alone in the World: Children of Incarcerated Parents by Nell Bernstein, and Children of Incarcerated Parents: A Handbook for Researchers and Practitioners, edited by J. Mark Eddy and Julie Poehlmann.

The dramatic increase in the prison population in this country started with our ill-conceived "war on drugs" when we ceased to see substance abuse as an illness and began to treat it as a crime. In a recent study by the Pew Center on the States researchers found that of the more than 66,000 mothers in prison, two thirds have been incarcerated for non-violent drug crimes. Surely these mothers and their children do not deserve to be arbitrarily separated for the rest of their lives.

I encourage the previous commenter to understand the issues before making such sweeping generalizations as all children of justice involved parents should have their relationships with both parents permanently severed.

Posted by: Mindy Clark | Dec 17, 2010 1:16:42 PM

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