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June 20, 2018

Suggesting home confinement as an incarceration alternative to avoid family separation back home

Tyler Cowen has this notable new commentary bringing home a controversy over immigration policies.  The piece is headlined "American Families Shouldn't Be Separated, Either: What if more parents, when convicted of crimes, were sentenced to house arrest for the benefit of their children?".  Here is how it starts and ends:

One of the worst American policies today is the decision of President Donald Trump’s administration to separate many immigrant parents from their children after they illegally cross the U.S. border.  Obviously, a case can be made for enforcing the border, but deliberate cruelty is never a good idea.  Those children — innocent victims all of them — will likely be traumatized for life.  I am uncomfortably reminded of the U.S.’s long history of separating parents and children from the days of slavery and during Native American removal and extermination.

If you agree with me on this, I’d like to push you one step further.  It’s horrible to forcibly separate lawbreaking parents from their young children, but we do that to American citizens, too.  According to one 2010 study, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17.  These separations can be traumatic, and they help perpetuate generational cycles of low achievement and criminal behavior.

These problems are especially pressing for female prisoners and their children.  From 1991 to 2007, the number of children with a mother in prison more than doubled, rising 131 percent. About two-thirds of the women in state prisons are there for nonviolent offenses.  Sixty percent of those women have children under the age of 18, and in one survey one-quarter of the prisoners’ children were under the age of 4. Forty-one percent of the women in state prison had more than one child.

I have a simple proposal: Let’s take one-tenth of those women and move them from prison to house arrest, combined with electronic monitoring.  That would allow for proximity to their children.  If the U.S. isn’t plagued by a subsequent wave of violent crime — and I don’t think it will be — let us try the same for yet another tenth.  Let’s keep on doing this until it’s obviously not working.  In some of these cases the court might rule that the mother — especially if she is prone to child abuse or substance abuse — will not have full custody rights to her children.  Many other children, though, will benefit, and even visitation rights can help a child....

One estimate suggests that 11 percent of the children of imprisoned mothers end up in foster care.  This is not an area of investigation where data collection has been thorough or systematic, another sign of our neglect of the issue.  Nonetheless it seems that after the arrest of a parent, treatment of the children by the police is irregular across the country and often poorly handled.

In citing this evidence, I don’t mean to normalize the current treatment of illegal immigrant families — I consider it a moral disgrace.  What I am saying is that our treatment of outsiders is rarely an accident, and it so often mirrors how we have been treating each other all along.  That is yet another reason to be nicer to those who are most vulnerable.

June 20, 2018 at 10:55 AM | Permalink


"The piece is headlined "American Families Shouldn't Be Separated, Either"

Correct. This is why I have been laughing at the whole media drama of families separated at the border. It is not because I think the idea is correct. It is because it is ludicrous to suggest that foreign-born children should got more protection than native born kids do. What is going on at the border is what is going on every day at the state level.


This post on Lawfare is astonishing in that respect. She writes, "Generally, in a law enforcement context, families are separated when an adult is arrested or convicted of a crime, if the penalties involve jail time.... But in these circumstances, due process has been provided: a complaint has been filed, a grand jury has indicted, or a judge has issued a warrant or heard evidence supporting the argument for detention. Moreover, when a parent is arrested for a crime, the government does not place the child in a government facility or in foster care unless the child has no other parent or family member, or is in danger, or removal is otherwise deemed to be in the child's best interests."

That can only be described as a malicious misstatement of the facts. Families are separated all the time without any due process, only on the say so of some case worker. There is no functional difference between what the border patrol agents are doing and what the social service workers at the state agency is doing other than the facts that (1) one is operating under state law as opposed to federal law and (2) the border patrol agent is probably better trained and more humane.

Posted by: Daniel | Jun 20, 2018 11:33:29 AM

This so called "simple proposal" ignores the fact that we imprison people for "non-violent" crimes for a reason. The reason is not because we think they will commit a violent crimes later. It is because the crimes committed, while not necessarily violent, warrant a criminal sanction. Likely, most of those non-violent offenders are repeat offenders. Some of them failed home detention already. In my experience, most of the non-violent offenders have already failed, many times, a probation grant with minimal to no actual custody time.

That being said, the classification of violence means different things to different people. For example, in California, the law considers domestic violent with injury, assault with a deadly weapon, and attempted robbery, among many other crimes that have violence or threats of violence as a component, as "non-violent" crimes. The federal courts have managed to find that under certain circumstances, murder is not a violent crime (only lawyers could come up with that one). Therefore, even if the issue is violent recidivism, without a clear understand of what Mr. Cowen means by violent reoffending, I question the soundness of this simple proposal.

The solution of home detention with electronic monitoring is not a punishment, it is the status quo. In my experience the amount of exemptions to being required to stay home is so vast that the punishment becomes hardly that. Instead it simply becomes a requirement that they live the life they had before being caught. I, for one, wouldn't mind getting home detention as it is currently practiced. It would allow me to work, run errands, and see the doctor. In my county, the probation officials even allow the home detention inmate to do entertainment activities, "for the children" of course.

Mr. Cowen's simple proposal is simple to the extent that it contemplates a one dimensional solution. The absurdity is that the only thing Mr. Cowan is concerned with is whether those inmates thereafter commit a violent crime. Is that the only concern? What about the so called non-violent crimes that got them into custody in the first place? What about the highly questionable lessons given to their children watching from the sidelines?

In Mr. Cowen's world, those that have children get a free pass for that behavior. Absurd, non-serious, blather from someone who so cavalierly tosses out the crimes that put the inmate in custody in the first place is no value added to the discussion of the very real question of whether or not children are better off when a parent is incarcerated.

As an aside, I find Mr. Cowen's simple proposal to exclude all fathers from his get out of custody "for the children" to be interesting. How would Cowen address the constitutional problems that would be presented by so nakedly favoring women over men, not to mention parents over the childless? That his simple proposal would likely be unconstitutional shows how simple solutions to complex problems, are rarely so simple. That he cannot even see that it might be unlawful demonstrates he should think before he speaks.

I have to admit, that such articles can get us talking can be a good thing. But because his sentiments are unserious, and so simplistic as to be bordering on the juvenile, I have some questions why Professor Berman highlights them.

Posted by: Eric | Jun 20, 2018 3:08:50 PM

I would go further and say that a felony conviction should be a presumptive basis for the revocation of parental rights, a non-criminal parent at that point can either choose to ditch the criminal parent or the kiddies. Misdemeanors are a harder call, there I would say while not presumptive that it should still be an option.

Posted by: Soronel Haetir | Jun 20, 2018 4:50:08 PM

He does make a good proposal for electronic monitoring. I have long thought that we over incarcerate low-level, nonviolent offenses. The more offenders are exposed to others who are criminal, the worse the influence, and the longer kids go without parents.

And he IS offering a solution that is reasonable and workable. What does everyone else propose we do, treat them inhumanely???

The feds with no parole and requiring 87 1/2% of the sentence to be spent in prison, really??? Not achieving our goals of reducing crime or recidivism! Punishment is not a deterrent. Get to the source of the problem.

As to the present issue, we are a country of immigrants. We take in those who are oppressed as many of our ancestors were. We need to help others who are oppressed. Clearly Mexico, Honduras and other similarly situated countries do not provide safe environments. Do we let them all die, including children? Or do we find a reasonable solution? Let's document them, get them working and paying their way.

Professor of Criminal Justice - Master's Degree

Posted by: Shelly | Jun 21, 2018 9:26:44 AM

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