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Law Reviews on Harms...

Home > Law Reviews on Harms of Mass Incarceration
Law Reviews on Harms of Mass Incarceration

*Please note: This page is still in progress. More links will be posted soon.*

This page also includes articles from legal bulletins and bar publications.

(in alphabetical order)

Harms from Arrest

 

Harms from Incarceration

By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available. This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

This law review article addresses the benefits and costs of using technology to help incarcerated defendants communicate with their families. As background, Part II of this Article describes the importance of such communications. Part III addresses the traditional forms of communication for inmates. Part IV discusses the technological alternatives to the traditional methods, focusing on the benefits and abuses associated with these communication methods. Finally, Part V provides recommendations to help promote better communications and curb some of the abuses associated with providing contact between inmates and their families.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

The author in their own introduction recognized American legal scholars borrowed from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law’s protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality. This Article proposes that civil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences.

Family law scholars and advocates have expressed the importance of providing counsel to parents in the family regulation system, especially parents who are incarcerated, because of the system’s complexities. This article establishes, however, that when mothers must navigate both the family regulation and criminal legal systems, the protections appointed parents’ counsel are supposed to provide are weakened. These harms are heightened especially for Black mothers within the carceral state. As this article shows, appointed lawyers in family regulation cases cannot properly protect the due process rights of mothers who are incarcerated because of the added challenges both mothers and their lawyers face. As a result, families are destined to experience trauma, and are likely to end with the termination of parental rights. This article offers concrete recommendations to address these critical issues and demands a reduction in the number of mothers who are incarcerated and in the family regulation system.

The Article contains three parts. Part I draws a parallel between the emotional register of current reforms that rely on discretionary leniency and examples of the premodern use of mercy to legitimate the harshness of English criminal law as reported by legal historians. Part II demonstrates how the meritocracy-of-punishment trope fits within reforms that rely on discretionary leniency. Part III addresses how neoliberal leadership philosophy has elevated the discretionary criminal legal professional to new heights. 

 

 

Incarceration and Family Policing System

This law review article focuses on how children and parents interacting with the child welfare system experience the removal process, the genesis of a foster care case. It analyzes the gaps and emergent issues in practice, research, and policy related to child removal.  The Article concludes with specific policy and practice recommendations aimed at curbing child welfare’s reliance on removal to foster care as its predominant safety intervention.

This part of a legal secondary source discusses the involuntary termination of parental rights and the effect of a parent’s incarceration on a court’s decision whether to terminate the parent’s rights to his or her child.

This Article suggests reconceiving the state’s role in intervening in these families. It suggests that the ubiquitous “best interests of the child” standard fails to adequately protect incarcerated parents’ liberty interests in maintaining ties with their children and that, in these cases, the standard has metamorphosed into a “best parent” standard. To address this problem, this Article proposes a number of reforms including using a higher standard of proof than is currently required in termination proceedings and instituting policies to preserve families during periods of parental incarceration.

The ramifications of the COVID-19 pandemic on prisons and the court system have been wide-reaching. We are still seeing, and will likely continue to see, the tentacles of these issues stretch into cases for years to come. The North Carolina Supreme Court recently issued a decision tackling one such issue: whether a parent who was unable to attend a termination of parental rights hearing because he was incarcerated during a pandemic-related prison lockdown was entitled to a continuance so he could be present for the hearing. In re C.A.B., 2022-NCSC-51.

This article will set forth how U.S. state and federal law enforces and reifies the perception that people in prison are not suited to be mothers, providing examination of these principles in California state prisons. The authors also set forth how the U.S. government has failed to uphold the human rights to family, information, health, bodily integrity, dignified treatment, life, and the right to be free from cruel, inhumane or degrading treatment. The article concludes with a call for all people, especially mothers, to work together to protect the rights of mothers by bringing the U.S. into compliance with international law by opposing stereotypical notions of who is a good or bad mother. 

This law review is the first to comprehensively examine why the harm of removal should be a featured part of every child welfare decision. After doing so, it continues to analyze existing law and legal practices to demonstrate how consideration of the harms of removal can be built into existing legal frameworks to achieve the stated purpose of the child welfare system and truly protect our children.

This article explores selected recent decisions and case law trends. It also provides practice tips for lawyers and judges handling cases involving children in care who have a parent in prison or jail.

This Comment explores the disparate effect of Adoption and Safe Families Act (ASFA) on families with incarcerated parents and examines the structure and impact of Washington State’s incarceration exception to the termination requirement. The author argues that more states should adopt exceptions for incarcerated parents, that Washington’s exception should go further to protect these parents, and that, ultimately, a wide variety of non-legislative changes are necessary to protect families before and during incarceration.

Competing narratives about incarcerated parents and their children are provided by the Adoption and Safe Families Act (“ASFA”) and the Children of Incarcerated Parents Bill of Rights (“Bill of Rights”). Both the “child-at-risk” narrative of ASFA and the “good mother” narrative of the Bill of Rights are stereotyped and oversimplified and contribute, in opposite ways, to misperceptions about incarcerated parents and their children by suggesting a uniformity of situations and appropriate responses that does not actually exist. The time-driven approach of ASFA—and many state termination of parental rights statutes—is overly rigid, while the Bill of Rights overlooks important differences among families, as well as tensions and trade-offs among policy choices. In actuality, the situations of the parents and children involved vary widely and defy easy analysis and solutions. In this article, the author argues for an individualized, qualitative approach that is nuanced and based on actual information about incarcerated parents and their children, rather than a quantitative, categorical approach based on generalized and simplistic assumptions. The author further suggests that only by recognizing and grappling with the complexities of parental incarceration can we develop sound legal and social policy to meet the needs of these families.

The author recognized that, particularly with respect to incarcerated mothers, imprisonment of a parent disrupts intact, viable families. The overwhelming majority of incarcerated mothers were active parents to their children prior to their incarceration and intend to continue in that role after their release. The time of parental confinement must therefore be viewed as an interlude, during which the parental ties must be nurtured and supported so that, to the greatest extent possible, the parent-child relationship is as strong after the parent’s release as it was before.  This law review notes how the exact opposite occurs due to legal frameworks and social work practices.

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims. 

In this blog post, the author examines the federal law, called the Adoption and Safe Families Act (ASFA).  While noting that the name of the law was “Orwellian” in that it was not about adoption or safe families, they examine the law Congress passed in 1997, one year after the welfare law, with a similar aim to target or demonize impoverished women, especially women of color, and take away their children.

 

Incarceration and Social Change

Author’s Abstract: Our inability to have empathy and seek changes that support incarcerated people beyond those with nonviolent crimes has the unintended consequence of creating more violence, less safety, and instability for individuals and our communities. This is particularly true for people marginalized by race, ethnicity, class, age, ability, gender, sexuality, religion, and immigration status. Strategies grounded in theories of anti-oppression and prison abolition may help legal and policy leaders work more closely with people on the inside of prisons allowing us to address the root causes of incarceration, find forms of accountability that do not rely on prisons, move beyond gender binaries, and uplift entire communities.

 

Prior Conviction or Incarceration and Character Evidence

This article examines the baseline reflected in the formal rules addressing prior conduct or character-related testimony, the methods of proof permitted, and the tacit endorsement of certain applications of the rules, as well as what the rules have refused to address. The author also notes it is a testament to the enduring strength of this baseline and the assumptions that go with it that, in this fiftieth year of the Federal Rules, we still lack a formalized definition of character.  Understanding the problem through this lens sharpens our view of the deep problems of inequality brought about through the character evidence rules themselves. And it suggests an urgent need to find a way to pivot the baseline. The author argues that making such an epistemic change requires new perspectives in our rule makers themselves.

This article suggests some of the ways that the defense bar can push back against the widespread practice of prior conviction impeachment right now. The suggestions include arguing the balancing tests that already exist in many rules on prior conviction impeachment, making constitutional arguments against impeachment of defendants in criminal cases, and making sure to create a record that can support appellate arguments. This article also discusses rule changes that could be good options in jurisdictions receptive to reform.

This article emerges out of our collaboration with NACDL and is another part of our reform effort. The authors pulled together what they see as the strongest set of arguments for reform and the strongest set of reform proposals. This Article is therefore explicitly designed as an aid to anyone seeking to change the rules or practice on prior conviction impeachment. It builds on their own work and that of many others, but it is constructed as an instrument for activism.