Staggering Sentences and the Children of Incarcerated Parents

The instances where staggered sentences have been used reveals that they are an exercise of judicial discretion usually reserved for wealthy defendants.
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Teresa Giudice, 41, (L) and her husband Giuseppe "Joe" Giudice, 43, exit the Federal Court in Newark, New Jersey, March 4, 2014. REUTERS/Eduardo Munoz (UNITED STATES - Tags: CRIME LAW ENTERTAINMENT)
Teresa Giudice, 41, (L) and her husband Giuseppe "Joe" Giudice, 43, exit the Federal Court in Newark, New Jersey, March 4, 2014. REUTERS/Eduardo Munoz (UNITED STATES - Tags: CRIME LAW ENTERTAINMENT)

After Joe Giudice, husband to Real Housewives of New Jersey reality star Teresa, turned himself in last week to federal authorities to begin his 41-month sentence for fraud, his four daughters went home to live with his wife and co-defendant. Teresa's home from prison because she was allowed to serve her sentence before him.

Giudice and her husband were allowed to stagger their sentences so that at least one parent was home with their daughters at all times. The instances where staggered sentences have been used reveals that they are an exercise of judicial discretion usually reserved for wealthy defendants. Often only fortunate people can keep their children out of a system where poverty and law seem to work together to separate children from incarcerated parents.

Staggered sentences came into public view when Lea Fastow, an assistant treasurer at Enron was charged with crimes alongside her husband, Andrew, a top executive at the energy company. In exchange for assistance to the Enron Task Force, Andrew served a 10-year sentence, only after wife Lea completed her one-year stint and was home to raise their two sons.

In 2013, before the Giudices, Jesse Jackson, Jr. and his wife served staggered sentences for their dual role in misusing $750,000 of campaign money.

Keeping one parent out is probably the only way to keep a family intact throughout parental prison time, One reason why staggered sentences are so rare among an indigent populations is the cash bond system; anecdotally, I can see that the setup usually requires at least one parent to be out on bond already taking care of the children so they never enter foster care.

When both parents are defendants in criminal cases at the same time and both are sentenced to a term of incarceration simultaneously, they lose their rights over their children. A Child Welfare League of America 2005 case study determined that this happened in a whopping 100% of cases.

While we know that approximately 2.3 million children have at least one parent in prison, no specific data exists on how many children have lost both parents to incarceration.

From my six plus years in prison, I know that the number of children who have both parents in prison is significant. They're not always co-defendants in the same crime; unfortunately many families' dysfunction envelops both parents in separate crimes and both are taken away. This almost always results in a child protection agency's becoming involved and placing the child in foster care.

While many of those foster care placements are with family - 65% of incarcerated mothers reported that their children were placed with grandparents or other relatives - a good number of them are placed with other families they don't know.

Then the Adoption and Safe Families Act (ASFA) of 1997 kicks in and sets a 15-month limit on the amount of time a child can remain in foster care; actions to terminate parental rights are supposed to commence after this time if the child's foster care placement is with someone other than family. Considering that the average prison sentence is three years, termination of parental rights is practically guaranteed if the two incarcerated people's children are not placed in "kinship foster care" - with family.

It doesn't make sense that 100% of families with both parents incarcerated would lose parental rights. Surely some of their extended families take care of their children, even we have no formal data that indicates such placements.

The only explanation for this statistical completeness is that a child protection agenda is advanced more forcefully against prisoners than others and, when both parents are incarcerated, the targeting is doubly strong. More than twenty states permit parental rights to be terminated absent proof of parental wrongdoing that places the child in danger. These states have adopted an "impliedly bad parent" approach. If one parent in prison is impliedly bad, then two behind bars can be explicitly disastrous, at least according to the patterns in terminating their rights.

The approach actually runs counter to the canon of family and child law. Termination should happen only when it is the last resort to protect the child.

By virtue of their separation from their children, incarcerated parents cannot pose immediate risk to their children so there is an argument that prisoners' parental rights shouldn't ever be severed as the corrections system goes about its task of rehabilitating them for their return to society. Conviction data shows that parents who are justice-involved are no more likely to neglect or abuse their children than those people without criminal convictions.

Of course, the unfortunate truth is that it is better for some children not to be reunited with their incarcerated parent for safety and other reasons.

But that can't be the case in for all prisoners; their children have rights to parental relationships. In fact, it may endanger the child's emotional well-being to terminate their parents' rights to see and raise them.

While the effects of termination on children is surprisingly understudied, we know that approximately 50% of school age children separated from a parent who is incarcerated suffer academically, develop aggression and relate to peers in less skillfully. If that is how they react to temporary separation, imagine what will be revealed when a researcher examines the effects of permanent parental exile.

More research must be done on families with two incarcerated parents to determine if staggered sentencing should be used more often, even built into sentencing guidelines. Termination of parental rights is a shield to protect children, not a sword to punish parents, yet that is how we seem to be using the proceedings. Until we know more about two-incarcerated-parent households, the real threat to children of incarcerated parents is the justice system as it commits one of the biggest sins: using a child to achieve its own goals.

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