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