Judge Robert McBurney

Yolanda Lewis

When the two of us — a Georgia superior court judge and a former trial court administrator — presented on the impact of parental incarceration at the National Association of Court Management's conference in July, we asked the court officials from across the country a question: "How many of your jurisdictions track the number of criminal defendants awaiting sentencing who have children at home?"

Only two out of 100 hands went up.

These results were not surprising. By design, our country's criminal courts are laser-focused on the defendant's rights — the right to counsel, a speedy trial, an impartial jury and the other protections afforded by the Sixth Amendment.

But such a narrow gaze has led to a significant blind spot: who those defendants have left behind. By looking at criminal defendants in a vacuum, we have too often ignored the impact that parental incarceration registers on the lives of children, trapping this underserved population in a cycle of justice involvement and intergenerational poverty.

Consider the scope of the problem: According to the Bureau of Justice Statistics, approximately 7 million people are booked into county jails each year.[1] But we don't know how many of these defendants awaiting trial or sentencing are custodial parents.

The most current data tells us that in 2016, nearly half of all people incarcerated in state prisons (47%), and more than half of those incarcerated in federal prisons (58%), were the parents of a minor child.[2] Extrapolating from that data, we can infer that at least half of county jail inmates — some 3.5 million people — are also custodial parents.

When a parent is removed from the home by way of arrest and incarceration, the children left behind suffer myriad negative and long-lasting consequences due to the "ambiguous loss" they experience,[3] tantamount to a death in the family.

A May study in the journal Academic Pediatrics found that children with a family history of incarceration are more likely to be diagnosed with physical and mental health conditions than other kids.[4]

Parental incarceration is also an established risk factor for child antisocial behavior. A 2011 study published in the Journal of Offender Rehabilitation found that "[a]dolescents with a history of parental incarceration consistently had higher levels of problem behaviors between the 5th and 10th grades," including substance use, delinquency, and disruptive and disorderly conduct, and they are more likely to fall behind in school.[5]

There are negative economic repercussions, as well. Indeed, research shows that one of the strongest risk factors for unemployment in adulthood is parental incarceration in childhood.[6]

In highlighting these well-documented deleterious effects of parental incarceration on children, we are not arguing that parents who commit crimes should be allowed to escape punishment. But the evidence is clear that parental incarceration is associated with downstream problems. We must do more to guard against causing these additional harms, particularly for those most vulnerable to becoming collateral damage.

We can start, right now, by employing a "train, track and connect" approach.

The first step of this process is to train court actors — judges, attorneys and other court personnel — to better understand the unique sense of loss and grief that children experience as a result of parental incarceration, and the impact that loss and grief have on the children.

The next step is to track the flow of custodial parents into our local jails by expanding screening strategies to include queries about whether a defendant has minor children at home, and collecting this data at the earliest stages of a criminal proceeding — e.g., at pretrial intake.

The federal government requires reporting of certain biographical and substance use data for all arrestees, but does not mandate the tracking of parental status as a health metric in local jails. We hope that, in the future, the federal government will address this gap, but in the meantime, local jurisdictions must take the initiative.

County jails should begin collecting this information during the intake screening process and make it accessible to all stakeholders. Most county jails already perform health screenings at the time of admission. Adding a single question about children and dependents in the home is not burdensome — especially given the proven adverse health consequences of parental incarceration on children.

The last step would be to create a system of care that enables courts to connect the children of incarcerated parents to effective community resources that promote well-being and resiliency before any trouble begins. We cannot wait until a minor ends up in the juvenile court system to intervene. We need to get farther upstream and provide care sooner.

Courts will be key to piloting successful strategies, but they cannot succeed alone. The legal community must find new ways to collaborate with other stakeholders, such as school districts, community foundations and counseling centers.

Many of these pieces are in already place. We should work together to connect them to each other — and to the children who need them.

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Robert C. McBurney is a judge in the Superior Court of Fulton County, Georgia.

Yolanda L. Lewis is the executive vice president for justice and health, and the executive director of the Center for Justice and Health, at the Meadows Mental Health Policy Institute. She previously served as the district court administrator for the Atlanta Judicial Circuit.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://bjs.ojp.gov/document/ji22st.pdf.

[2] https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf.

[3] https://www.urmc.rochester.edu/behavioral-health-partners/bhp-blog/december-
2023/ambiguous-loss-the-grief-is-real.aspx#:~:text=Ambiguous%20loss%20is%20a%20term,physically%20absent%
20but%20psychologically%20present.

[4] https://linkinghub.elsevier.com/retrieve/pii/S1876285924001645.

[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3060779/#:~:text=Adolescents%20with
%20a%20history%20of,association%20increased%20slightly%20over%20time.

[6] https://doi.org/10.1086/520070.