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“When a Parent Is Taken Away, It’s Like a Death”: Two States Consider Bills to Keep Parents Out of Jail

The dehumanizing environment of a jail is no place to visit a parent, but millions of US children have no choice.

In a number of states, legislation is emerging that would allow parents and other primary caretakers convicted of nonviolent crimes to request a non-prison alternative. (Image: Jared Rodriguez / Truthout)

Ayana Aubourg has one childhood memory of her father that does not involve a jail or prison visiting room. “The only thing I can remember is him making spaghetti,” said Aubourg, whose father was sentenced to 10 years in prison when she was seven years old. She saw him once a year in a visiting room that she remembers as being “cold and controlled.” Later, a playroom was added for the children visiting their fathers, but the presence of a few toys did little to make the atmosphere warmer or cheerier. “It’s still a very traumatic experience,” she told Truthout.

Spaghetti remains her favorite dish. Aubourg is now 22; her father was released from prison five years ago. But the prison visiting room lingers in her mind, and she is now working to change the laws that rip so many families apart. Aubourg is pushing for Bill S.770, popularly known as the Primary Caretakers bill, which would allow parents and other primary caretakers convicted of nonviolent crimes to request a non-prison alternative. Before sentencing, the court must make written findings about the person’s caregiver status and the availability of non-prison alternatives. “I really appreciate this bill because it’s not trying to change [prison] conditions. It’s trying to get parents out of prisons and jails,” said Aubourg.

In Massachusetts, 69,000 children, or 5 percent of the state’s children, have been affected by parental incarceration at some point during their childhood. Nationally, the number of children affected by past or present parental incarceration is estimated at 5.1 million, which may be a conservative estimate given that no agency or organization is tasked with keeping track of children with incarcerated parents. Looking back, Aubourg remembers that she and nearly every other child in the visiting room were Black, reflecting the disproportionate impact of parental incarceration on children of color. African American children are seven times more likely than white children to have a parent in prison; Latino and Latina children are twice as likely.

If passed, the Primary Caretakers bill could affect a large percentage of women behind bars. Compared to other states, Massachusetts has a relatively low women’s prison population. In 2016, 459 women were sentenced to prison; nearly half (48 percent) had nonviolent convictions. Though the exact number of mothers the bill may affect is yet unknown, studies show that it may be significant. In 2004, the Bureau of Justice Statistics found that, among women (of all ages) in state prisons, 62 percent were mothers to minor children. More recently, the Annie E. Casey Foundation report “A Shared Sentence” estimated that 55 percent of incarcerated women below age 25 are mothers.

Half of 220 women may not seem like a large number. But, noted Mallory Hanora, a member of Families for Justice as Healing, an organization of formerly incarcerated women that drafted the bill, this small number means “we could easily find places in the community for each and every one of them. There is no reason for women, let alone mothers, to be in jail or prison.”

The bill would also affect fathers in prisons, though fewer might qualify. Nationally, more than half of men in state prisons are fathers, though only 42 percent had lived with their children before arrest. (In contrast, 61 percent of mothers lived with their children before arrest.) In Massachusetts, of the 8,637 men sentenced to prison, 30 percent (2,591 people) had nonviolent convictions.

“Massachusetts is a resource-rich state,” said Hanora. “We have a lot of programs here. If people were home in their communities, they could go to the organizations that are already here. We can funnel them into these rather than into cages.”

The organizing behind the Primary Caretakers bill lies not only in convincing legislators to back it, but also in reminding existing social service programs that formerly incarcerated people are community members who need services. One shelter in Dorchester has already agreed to set aside a certain number of beds for formerly incarcerated women or women who are sentenced to alternatives to incarceration.

“We need more programs willing to say, ‘I have five slots or 10 beds that can go to women instead of sending them to prison,'” she said.

Primary Caretakers Bill Gains Steam in Tennessee

The Primary Caretakers bill inspired a similar effort in Tennessee. Ten percent (or 144,000) of the state’s children have been affected by parental incarceration. It’s an issue that Dawn Harrington and her organization Free Hearts have been addressing through support groups at the local women’s jail, parenting support and reentry services.

Harrington herself is not a parent or caregiver. Her impetus comes from the nine months she was incarcerated at Rikers Island, New York City’s infamous island-jail complex. There, she was surrounded by mothers struggling to navigate the family court system, maintain their parental rights and try to parent from behind bars.

Upon release, Harrington returned to her hometown of Nashville. She founded Free Hearts to provide support for mothers who were in the local jail and upon release. But the group wanted to do more than provide individual support; Harrington and others also wanted to change the systems that were impacting the lives and families of women behind bars.

In 2016, members of the National Council for Incarcerated and Formerly Incarcerated Women and Girls arrived in Nashville. The women held a public symposium at Vanderbilt University’s divinity school, where they spoke about a variety of issues related to incarceration and reentry. The following day, they held a meeting specifically for women and girls who had been impacted by incarceration. Harrington attended both.

At the meeting, Andrea James, a cofounder of the Council and the director of Families for Justice as Healing, spoke about the Primary Caretakers bill in Massachusetts. James was the mother of a five-month-old baby and two older daughters when she entered prison on a 24-month sentence. There, she met other mothers serving even longer sentences, which translated to extended absences from their children. Some of these women became the cofounders of Families for Justice as Healing. In 2011, when James was released after 18 months, the women gave her what she calls “marching orders” to begin dismantling mass incarceration.

In 2015, the group drafted the first Primary Caretakers bill (HB 1382), which pushed judges to determine whether a person was a primary caregiver and, if so, sentence them to an alternative to incarceration. Though the bill was sent for study and quietly expired at the end of the legislative session, James and other Families members weren’t giving up. They had the bill reintroduced when the next legislative session began; they also started traveling to other states to spread the idea of alternatives, rather than prison sentences, for parents and other caregivers.

At the Nashville meeting, James shared the bill’s wording. That inspired Harrington to push for a similar bill in Tennessee: HB 825 and SB 919. Like their Massachusetts counterparts, formerly incarcerated women in Tennessee are pushing to make sure that lawmakers understand the bill’s potential impact. They’ve paired up to visit legislators, share their personal stories and ask for their support.

“It’s all of our first time doing so! None of us have ever gone and spoken to legislators before,” recounted Harrington of their initial visit to the capitol. She still remembers the collective nervousness on their first day inside the legislative building. “First of all, you go in a hallway and there’s nothing but white men everywhere. You feel like you don’t belong,” she explained. But, when they reached each legislator’s office and began speaking, the women realized that they weren’t engaging in a battle; they were simply having a conversation, one that could change outcomes for women and children in the foreseeable future. “You’re trying to change the narrative and see what the concerns are,” explained Harrington.

A hearing has yet to be scheduled about the bill, but women are already preparing their testimonies about the impact of incarcerating primary caregivers. Among them is Martavia Wilson, whose early childhood was disrupted by her mother’s incarceration.

Wilson doesn’t remember if she was in first or second grade, but for nearly two years, she and her younger brother lived with their grandmother. Their mother spent weekends with them, but disappeared during the week. At the time, neither child understood why. Later, they learned that their mother was in jail for driving on a suspended license. The court allowed her to break up her sentence and spend weekends with her children, but this dragged her sentence out for over a year and a half. Her mother eventually spent two solid months in jail to finish her sentence.

Wilson only remembers snippets from those years. She recalls that her mother missed the school’s Field Day. Students at her elementary school spent the day outside playing games and sports while their parents cheered them on. “Other kids had their parents there; I didn’t have mine,” she said. Her mother also missed Christmas, the one and only time that she was separated from her children during the holidays.

Wilson, now age 23, works with Free Hearts and is part of legislative visits where she shares that early childhood experience with lawmakers. “I was lucky,” she told Truthout, noting that her grandparents were physically and financially able to take care of her and her brother. But for other children, incarceration, even a relatively short sentence, can mean foster care or placement in an abusive home.

“When you take a parent from a child, you can’t predict the outcome,” Wilson said. “You don’t know what that child will experience without their parent.”

“The Family Is Left to Pick Up the Pieces”

Meghann Perry understands the importance of alternatives to prison, particularly for parents. In 2001, she was living in Maine and two months pregnant when she sold 40 dollars of heroin to support her own habit. After refusing to cooperate with the Drug Enforcement Administration — which would have involved wearing a wire in order to entrap another person — she was sent to jail and faced two years in prison. That meant that she would give birth to her daughter under armed guard and, because Maine had yet to prohibit shackling during childbirth, in handcuffs and leg irons. In addition, Perry was on methadone (an opioid used to help treat heroin addiction), which meant that her daughter would need to be weaned from the drug after birth. If Perry was in prison, her newborn would spend that time in the hospital alone.

But Perry’s situation took a twist. Maine Pretrial Services, a nonprofit agency that provides pretrial supervision, interviewed her and determined that she was not a flight risk. Perry was allowed out of jail and was able to receive prenatal care, give birth to her daughter without shackles and chains, and stay with her daughter in the hospital as she was weaned off methadone. Perry slept in the hospital every night. Every day, she swaddled her newborn, held her and rocked her to sleep. Two months later, she brought her daughter home.

When she appeared in court, the judge sentenced her to drug court rather than to prison. “Had I been in custody, I probably would not have been sent to drug court,” said Perry, noting that people jailed pretrial are three to four times more likely to be sentenced to jail or prison. Perry was sent to drug court, a time that she calls “the hardest 18 months of my life.” On her first day, she was arrested and sent to jail for testing positive for methadone. During those 18 months, Perry was sent to jail eight times for failing drug tests. But even with these short jail sentences, she was able to live with and raise her daughter. Had she been sentenced to prison, her daughter would have been nearly 2 ½ by the time Perry stepped back into her life.

In 2005, when their daughter was 4 ½, both Perry and her husband, an immigrant from England, relapsed. They lost custody of their daughter, who was eventually sent to live with Perry’s aging parents in Massachusetts. Perry’s husband was deported and, in 2008, three years after relapsing, Perry was arrested for drug trafficking. She pleaded with the judge to send her to a faith-based treatment center. The judge agreed, though Perry had to plead guilty to the felony, which remains on her record. In 2010, Perry completed treatment and began rebuilding her relationship with her daughter, then 10 years old.

The process has been far from easy, said Perry, but the fact that she was not sent to prison for either charge meant that she had that opportunity. She and her daughter, now 15, live in Massachusetts and have a closer relationship than many mothers and teenagers. “We appreciate that we get to be together,” she said. “We don’t take it for granted.”

It’s an opportunity she wants all parents to have. “When you take the caregiver away, the family is left to pick up the pieces,” she reflected. Even relatively short sentences can negatively impact a family. “The loss is greater than just time. For a child, two years is a lifetime.”

“We Bring These Traumas Back Into Our Communities”

The Primary Caretakers bills in both Massachusetts and Tennessee are making their way through the legislature. In Massachusetts, the bill has been referred to the joint judiciary committee, while in Tennessee, the bills aren’t scheduled for a hearing until the legislative session reconvenes in January. But organizers plan to make the most of these next months to rally support. “This is a strategic time for organizing and rallying people,” said Harrington, noting that plans include coalition building and connecting with rural communities. “They need to understand that this is a women’s issue and this is a children’s issue.”

In both states, advocates, including formerly incarcerated women and children whose parents have been imprisoned, are preparing to share their stories once legislative hearings are scheduled.

Even if passed, the Massachusetts bill comes too late for Aubourg and her family. Aubourg’s father was released from prison when she was 17 and died a few years later. But, she says, her family’s grieving started much earlier, with her father’s absence. “When a parent is taken away from you, it’s like a death,” she explained. “It really hurts.”

What would a Primary Caregivers bill have meant for her earlier on? Aubourg finds that question hard to answer. “Just feeling his presence — picking me up at school, being there for birthdays and holidays, getting to know him as a person,” she ventured. “It’s hard for me to imagine. I’ve never experienced that.”

But even without those experiences, she knows that the bill is vital for children and families.

“There’s no reason why babies, youth, young people should be visiting their parents in jail and subject to these dehumanizing practices,” Aubourg said. “We bring these traumas back into our communities.” Instead of subjecting people to prisons, she added, our society should “give people the healing and support that they need — I think that’s key.”

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