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Criminal Justice Magazine
Spring 2001
Volume 16, Issue 1

Prosecutor Seeks Alternatives to Incarceration

By Charles J. Hynes

The explosion in the number of incarcerated women, many of whom are mothers, undermines the very foundation of our society-the family unit. The abrupt and prolonged separation of mother and child as a result of the mother's imprisonment has dire consequences for the child, including placement in foster care and increased incidence of delinquency and substance abuse. The criminal justice system and society at large can no longer afford to ignore these consequences and needs to create programs to ameliorate this severe strain on the family.

I am confident that my fellow prosecutors can act as catalysts for change in this area. Just as many prosecutors' offices, including my own, have supported innovative, nontraditional drug treatment alternatives to incarceration, we should back community-based alternatives for nonviolent female offenders and their children. In Brooklyn we have already taken steps to create such a program. It is called PACT: prison alternatives in community treatment, and is expected to be operational in early 2002.

Since I took office in 1990 as district attorney of Kings County, I've witnessed a dramatic increase in the number of incarcerated women, one that parallels the nation that has seen the number of women prisoners triple from 1985 to 1995. ( See Merry Morash, Timothy S. Bynum, and Barbara A. Koons, Women Offenders: Programming Needs and Promising Approaches, Nat'l Inst. Just. Res. in Brief, at 1 (August 1998).)

In June 1999, approximately 3,600 women were incarcerated in New York State prisons. (Allen J. Beck, Prison and Jail Inmates at Midyear 1999, Bureau of Just. Stat. Bull., Table 3, at 4 (April 2000).) The crimes committed by these women were, for the most part, nonviolent, i.e., property crimes that include forgery, larceny, fraud, and embezzlement, and low-level drug offenses, including charges that resulted from a woman's presence at a time and place where a search warrant was executed.

The national picture is much the same. In 1997, only 12 percent of women held in local jails, 28 percent of women held in state prisons, and 7 percent of women held in federal prisons were incarcerated for violent crimes. (Lawrence A. Greenfield and Tracy L. Snell, Women Offenders, Bureau of Just. Stat. Special Rep., Table 15, at 6 (Dec. 1999).)

The alarming increase in the number of incarcerated women is due, in large part, to an increase in convictions for drug possession, drug dealing, and property crimes. From 1990 to 1996, the number of women convicted in state courts for drug possession felonies increased 41 percent. The number of women convicted for drug trafficking felonies increased 34 percent, and the number of women convicted for property felonies increased 44 percent. In 1996, 37 percent of women convicted of a felony in state courts had been charged with a drug offense, and 27 percent had been charged with a property offense. ( Id. at 6.)

Although their crimes are overwhelmingly nonviolent, many women are sentenced to lengthy, statutorily mandated prison terms. Overall, mothers incarcerated in state prisons in 1997 were sentenced to an average term of 94 months, of which they were expected to serve an average of 49 months. Those incarcerated in federal prisons were sentenced to an average term of 83 months, of which they were expected to serve an average of 66 months. (Christopher J. Mumola, Incarcerated Parents and Their Children, Bureau of Just. Stat. Special Rep., Table 8, at 6 (August 2000).)

Prison takes an enormous toll on women. Women prisoners receive poor medical care. (See related article, Bad Medicine, in this issue, page 38.) Under the supervision of male corrections officers, they've reported incidents of sexual harassment, sexual assault, and rape. Body searches and communal showering often give rise to complaints of embarrassment and humiliation.

Women offenders also have needs different from those of male offenders, and these needs are often inadequately addressed during their incarceration. The differences in their needs stem in part from their disproportionate victimization from prior sexual or physical abuse and their responsibility for children. (Morash et al., supra, at 1.)

Women offenders are also more likely than men to be addicted to drugs, to have mental illnesses and to be unemployed before incarceration. ( Id.) Indeed, about 60 percent of women in state prisons report that they were active drug abusers when arrested. Forty percent report that they were under the influence of drugs when they committed their offenses. And one in three report that they committed their crimes to obtain money to support their drug habits. (Mumola, supra, at 8; Greenfield and Snell, supra, at 9.)

Many incarcerated women have dependent children. In 1998, according to statistics compiled by the United States Department of Justice, more than 99,000 women held in local jails or state and federal prisons were mothers with minor children. (Greenfield and Snell, supra, Table 17, at 7.) An estimated 70 percent of the women held in local jails, 65 percent of the women held in state prisons, and 59 percent of the women held in federal prisons have minor children. ( Id. at 7.)

Forty-five percent of the mothers in state prisons have more than one child. (Mumola, supra, at 2.) In 1997, according to Justice Department statistics, about 195,000 minor children had mothers incarcerated in jails or state and federal prisons. (Greenfield and Snell, supra, Table 18, at 8.)

When mothers are incarcerated, the bonds they share with their dependent children are often severed for protracted periods of time, if not irrevocably. Children need to know that their mothers did not abandon them and that they miss them. Yet 54 percent of all mothers in state prisons report that they have never had a personal visit with their children since admission. (Mumola, supra, Table 6, at 5.) In addition, 12 percent of all mothers in state prisons report that they have never had any type of contact with their children. ( Id.) Most of these mothers (64 percent) lived with their children prior to their incarceration. ( Id., Table 4, at 3.) After their imprisonment, 51 percent of the mothers in state prisons were housed more than 100 miles from where they last lived. ( Id. at 5.)

Unfortunately, the federal Adoption and Safe Families Act of 1997 (ASFA) is about to make matters worse. ASFA accelerates the time frame within which states can terminate an incarcerated mother's parental rights, even requiring states to sever the woman's legal ties with her child when the child has been in foster care in 15 of the previous 22 months. As a result, many incarcerated mothers will now be permanently separated from their children, unless the children are in the care of relatives or the mothers can establish "compelling reasons" for a waiver.

While their mothers serve out their prison terms, the children of incarcerated women are relegated to the care and custody of others. About 28 percent of mothers incarcerated in state prisons report that their children are cared for by the fathers. ( Id. at 1.) In most of the remaining cases, relatives or friends step in to fill the void, but these fragile arrangements may begin to unravel if the surrogate caregivers cannot provide an appropriate level of care. Furthermore, while some caregivers may be willing and able to provide stable and nurturing care, they may also resist having the mother reunite with her children because they fear the mother is incapable of proper parental care.

A small but significant number of children face even more precarious arrangements. The members of this group are forced to make new homes for themselves in the foster care system. Ten percent of mothers in state prison report that they now have a child living in a foster care or agency home. ( Id.)

There have been periodic reports on the destructive impact of long-term incarceration on specific families:

A mother of four minor children in Astoria, New York, was addicted to crack and was convicted and sentenced to a four-year term for selling drugs from her apartment. The family fell apart after her imprisonment. Her two oldest sons dropped out of school and went to jail for selling drugs. Her youngest son and daughter stayed with their grandmother until they were removed by child-welfare officials because their step-grandfather beat them. Her youngest son was then transferred to two different foster homes and her daughter to three group homes. Although the family is now back together, the wounds persist. The youngest son looks to his sister for mothering, not his mother. One of the older sons is in college, but the other is back in jail after violating parole on a robbery conviction. The daughter, who was 17 at the time the article was written, attempted suicide at age 15. She now has a young child of her own. She reports she is still angry with her mother for all their suffering. (Mireya Navarro, Mothers in Prison, Children in Limbo; When Inmates Are Parents, the Pain of Incarceration Is Spread, N.Y. Times, July 18, 1994, at B1.)

A mother of four with no criminal or drug-use history was sentenced to 10 years in federal prison for unwittingly mailing a package that contained crack cocaine. She mailed it for a friend, who paid her $44. An aunt reported that the woman's children were having "considerable trouble" growing up without their mother, and were angry and bitter that she left them. (Timothy Egan, Crack's Legacy: First of Two Articles, N.Y. Times, Feb. 28, 1999, at A1.)

A 12-year-old boy from Lisbon, Ohio, told authorities that he wanted to be in jail with his mother, and briefly held his sixth-grade class at gunpoint before a teacher hugged him and persuaded him to give up his weapon. ( Sixth-Grader Holds Class at Gunpoint, USA Today, Mar. 24, 2000, at A3.)

The incarceration of mothers by our criminal justice system is plainly a form of triple punishment, not only of the women themselves, but also of their children and, ultimately, society at large. A mother's incarceration in turn penalizes and victimizes her children, who will then be far more likely in the future to become victimizers themselves. ( See Barbara Bloom, Imprisoned Mothers, Children of Incarcerated Parents, at 28 (1995).)

Separating children from their mothers traumatizes children of any age and thwarts their successful development. Studies show that children of incarcerated mothers experience anger, alienation, hostility to authority, feelings of abandonment, and overall dysfunction. ( See L. Wright & C. Seymour, Working with Children and Families Separated by Incarceration: A Handbook for Child Welfare Agencies , Table 7 at 23 (2000).) These children are far less likely than their peers to succeed in school and are much more likely to succumb to truancy, substance abuse, gangs, sexual misconduct, and delinquency.

Incarceration of a mother does more than simply deprive her children of the opportunity to be loved and guided by her. The children, and often the whole family, are thrown into emotional turmoil as they experience the stigma, shame, guilt, and pain of dealing with their mother's incarceration. (Wright & Seymour, supra, at 5, 25.)

The difficulties that these mothers and children endure cry out for substantial reform, beginning with community-based alternatives to incarceration that would avoid all these evils while offering real hope of rehabilitation, instead of only retribution. Those of us who hold leadership positions in the criminal justice system have a duty to pursue real change. District attorneys have unique opportunities to suggest and promote reforms in the criminal justice system, lending legitimacy to reforms that others in the system cannot.

Traditionally, district attorneys serve the public by prosecuting criminals and sending them to prison. But prosecutors have a broader social responsibility to protect the health and safety of their communities. When feasible, prosecutors should consider a crime-fighting strategy developed in the early 1990s called community prosecution. It advocates that prosecutors reach out to others in the criminal justice system and the community at large to find effective, creative solutions to the problem of crime.

Establishing an alternative to incarceration program for female offenders with children is a natural outgrowth of such an effort. First, it advances the objective of reducing crime by rehabilitating the female offender and intervening in her family's crisis before another generation follows in her path. Second, it will bring an end to the personal despair that so many of these family members have had to endure, thereby permitting them to continue or start along a course toward s healthy self-development. And third, the community will benefit not only from a reduction in crime, but also from the productive reentry of these families into society.

Under the PACT program that my staff and I are developing, women will be permitted to remain with their children in a secure residential community facility for a period of 18 months while the women receive intensive trauma-focused services to address their needs. The program is intended to address the needs of the children as well because studies suggest that many children experienced various detrimental stresses even before their mothers were arrested. We are also developing a comprehensive educational program for both the mothers and children.

When I started developing PACT, I asked members of my staff to survey alternatives to incarceration programs across the country, so that our program could serve as a model for other localities. My staff found a small number of programs, all of which differ from PACT in important respects.

Among these differences is the fact that this is the only program spearheaded by a district attorney rather than the traditional advocates for social reform. As a result, PACT has received very positive responses from government agencies, other organizations, and the community. We also found that other programs limit the number of children per family who can participate. PACT will include all children under the age of 18, as long as the children are willing to participate and it is in their best interest to do so. In addition, PACT will also follow a deferred-sentencing structure. The female offender pleads guilty to a felony, with the understanding that if she does not successfully complete the program, she will be subject to a certain term of incarceration as determined by the court pursuant to mandated sentencing guidelines. If she successfully completes the PACT program, the charges will be dismissed. Moreover, unlike some of the other alternative-to-incarceration programs identified by my staff, a woman does not have to be a substance abuser to be eligible for the PACT. Finally, PACT will offer a comprehensive array of services for both the women and the children. This differs dramatically from the other programs, which require that mothers take full responsibility for their children, including day care selection, medical care, provision of food, and other necessities. Such requirements often impair a woman's ability to focus, at least initially, on her own treatment and rehabilitation. It also does little to help the children move beyond issues that might be impeding their own growth and development.

PACT's goal is to prepare offending mothers for successful, law abiding, and productive reentry into the community. In a secure, supportive, and constructive setting within the community, all participants will be provided with intensive case management as well as careful supervision of their activities. After undergoing a full needs assessment upon their admission to the program, the mothers will be mandated, as appropriate, for treatment as well as for educational/vocational assistance and training. The mothers will be encouraged to move beyond any dependencies, difficulties, or traumatic life experiences that may have impeded their growth and the well-being of their family. The mothers will also learn to assume full care taking responsibility for their minor children and to strengthen their emotional bonds with them. After receiving any needed remedial assistance and training, the women will be assisted in securing jobs and acceptable permanent housing before their release from the program. Once families have returned to the community, ongoing support and aftercare services will be available to help them maintain their independence and stability.

Special emphasis will be placed on the safety, permanency, and well-being of the children participating in the program. They, too, will undergo a full needs assessment upon entering the program, and they will have access to an array of special services, such as Early Head Start. Children will also receive counseling and other supportive or remedial services as required. All services will be provided by a staff of trained professionals.

Eligible candidates for the PACT program will be mothers with dependent children who are charged with nonviolent felonies and are facing significant terms of incarceration. After conferring with their counsel at arraignment, defendants who are willing to enter the program will be screened by members of my staff. Additional screening will then be conducted by social service professionals and representatives from any government agencies whose approval is required by law.

An important factor in determining a woman's eligibility will be her willingness to meet the program's requirements. A mother must understand that when she agrees to enter PACT, she is committing herself to active participation in her treatment, active assistance in the care of her children, and eventual work in the community.

Although PACT is still in the planning stages, it has already captured the enthusiasm and support of many representatives from the criminal justice community, other public and private organizations, and providers of social services throughout New York City. In response, my office has convened a planning group to enhance the program's design and implementation. The group includes the United Way of New York City, the Vera Institute of Justice, HELP USA, the Corporation for Supportive Housing, Project Return Foundations, Justice Works Community, the Correctional Association of New York, the Women's Prison Association, the Bank Street College of Education, other local educators and academics, the Administration for Children's Services (a government child-welfare agency), local legislators and other government officials, and other criminal justice, community support, and advocacy groups.

The project's pro bono counsel, Cravath, Swaine & Moore, has formed a nonprofit foundation that will oversee the program's implementation and operation. The foundation, named DREW in honor of my mother, a victim of domestic violence, is designed to promote the replication of the program in other communities.

In addition to PACT, I created a domestic violence bureau to investigate and prosecute crimes of spousal abuse, stalking, and elder abuse. My office has also established a crimes against children bureau that investigates and prosecutes child cruelty, including physical and sexual abuse. I've also created a program to teach children about the law, called Project Legal Lives, that sends assistant district attorneys and office staff into the schools. In 1988, I initiated the TRACK program in New York City to respond to school truancy. I also started the Drug Treatment Alternative to Prison program, called DTAP, in 1990; it was the first of its kind in the nation to offer nonviolent drug addicts, charged with drug-related crimes, an alternative to incarceration. Most recently, my office began Treatment Alternatives for Dually Diagnosed Defendants (TADD) to address the unique needs of the mentally ill substance abuser.

If we can use alternatives to incarceration to successfully rehabilitate drug offenders, surely we can use the same approach to rehabilitate nonviolent mothers while keeping their families intact. Society, and the criminal justice system in particular, must own up to the social costs that are incurred when mothers are forcefully removed from their children in retribution for nonviolent offenses. Programs that promise to prevent crime, that intervene in the lives of those at risk for committing crime, and that promise to rehabilitate offenders are just as important as prosecutions.

Charles J. Hynes is the district attorney of Kings County (Brooklyn), New York. He was also the first special state prosecutor for nursing homes and Medicaid fraud, and a special state prosecutor for the New York City criminal justice system. Hynes teaches law at St. John's University Law School, Brooklyn Law School, and Fordham Law School.


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