NO FURTHER HARM

WHAT WE OWE TO INCARCERATED FATHERS

More than 1.5 million children currently have a parent in prison; for
94 percent of these children, that parent is the father. In 1999 an
estimated half of men incarcerated in federal prisons and 55 percent
in state prisons had children under age eighteen. Sixty-two percent
reported monthly contact with their children by letter, phone, or
visit; a majority, however, have never been visited by their children
since entering prison.

There are strong temptations to overlook or dismiss the parental
interests of incarcerated fathers: they are often not married to the
mothers of their children, they cannot financially support their
children, and their criminal activity makes them bad role models.
Moreover, children grow and develop rapidly, and extended lack of
contact may foreclose the possibility of resuming a prior
relationship after prison. Maintaining one's role as a father in
prison, thus, is deeply vexed.

Vexed, but not impossible. The fact that people imprisoned for crimes
are by definition not ideal fathers does not mean that they are not
fathers. Even when they are in prison they can have significant
responsibilities, as nurturers and as emotionally important figures
in their children's lives. And fulfilling those responsibilities may
have considerable consequences for their own successful return to
ordinary life.

Public policy has a large role to play in making this happen.
Policies on the assessment of child support obligations can promote
or undermine the roles of economic provider, just as policies on
parent-child contact (letters, phone calls, and visitation) make an
essential difference to the role of psychological caregiver. The
first reflects traditional notions of father as breadwinner, while
the second suggests traditionally female forms of care-giving, such
as attentive presence and emotional support and affirmation. More
supportive policies of both kinds during incarceration help to foster
rehabilitation and reintegration into the community, and are also
requirements of justice.

To be sure, paternal involvement is not the only important value.
Both parents have responsibilities of economic and emotional support.
And men's parenting from prison must not undercut the authority or
wellbeing of the mother (or other adult) providing daily care.
Responsible fatherhood involves willing two-way cooperation; it is
collaborative parenting. And because children's wellbeing is affected
so directly by the wellbeing of their caregiver, good policy should
not challenge but rather support the custodial parent-usually the
mother-and her relationship with her children.

States often impose financial obligations on fathers in prison.
According to some estimates, 20-25 percent of all incarcerated men
are under child support orders. In 2005 these incarcerated fathers
accounted for 16-18 percent of the $107 billion in child support
arrears nationally. Many fathers who enter prison are poor to begin
with and have not proved themselves able to support their children
even before prison. Several studies-from Massachusetts, Colorado, and
elsewhere-find that, on average, inmates with child-support orders
owe about $10,000 at the time of incarceration. And since
incarcerated fathers as a group earn well under the minimum
wage-about $50 a month-few are able to contribute more than a
symbolic sum to child support.

To some extent, the imposition on incarcerated men who have limited
opportunity to earn income is an example of the neo-liberal impulse
to privatize responsibility for the welfare of citizens, including
children. But while government should be more generous in supporting
children and caregivers, child-support obligations should not be
abolished; child support payments are financially consequential for
all poor families, constituting about a quarter to a third of the
income received by families below the poverty line. And child support
acknowledges and reinforces one aspect of paternal responsibility.
What is not acceptable, however, are current state policies imposing
child support obligations that incarcerated men cannot fulfill.

Yet many states have policies that impose child-support orders on
incarcerated men while setting wages that make it impossible for them
to meet their obligations. In states that do not suspend or modify
the accumulation of child-support debts, fathers leave prison with
anywhere from a 60 percent to a 200 percent increase in child-support
arrears. This accumulated debt is not the result of indifferent work
habits (showing up for work in prison is mandatory) or refusal to pay
support (prison accounts are often garnished); it is simply the
result of the disparity between state-set "awards" and state-set
wages. Under these policies, the men can only fail.

The state's role in turning fathers into failed breadwinners is
obscured by the general rationale for state policies that prohibit
adjustment of child-support obligations while fathers are in prison.
Roughly half of the states consider incarceration to be volitional-an
act by an individual offender who knew or should have known the
consequences of his chosen behavior-and treat incarceration as a
period of "voluntary unemployment." Of these states, about twenty-one
take a "no-justification" approach: incarceration is not a good
reason for eliminating or modifying child-support orders, and
child-support obligations are burdens the prisoner should have anticipated.

Some states that reject the no-justification model use a
"modification" approach that encourages prisoners to contact the
courts and seek some temporary reduction of their child-support levy
on the pragmatic but untested grounds that if less is required, more
will be paid. Other states have asserted a clearer "principled"
position: Oregon, the only state whose Constitution requires all
inmates to work, exempts inmate accounts from garnishment up to the
sum of $2000 on the argument that a "person returning to the
community without any funds leads them to revert to criminal activity."

Policies that treat incarceration as voluntary unemployment are,
then, neither universal nor immutable, and there is significant
variation in case law in the different states about whether the
commission of an offense leading to incarceration constitutes
voluntary unemployment. The 1998 Alaska case of Bendixen v. Bendixen
gives the flavor of this disagreement. In that year the Alaskan
Supreme Court overruled a Superior Court judgment that had likened
incarceration to voluntary unemployment because "crimes are willful
conduct, just as voluntary unemployment is willful conduct." The
Supreme Court observed that serving jail time is "seldom a goal of
criminal misconduct" and that, absent such intent, child-support
obligations of an incarcerated individual should be based on ability
to pay. They require the father to pay only the minimum support
obligation of $50 a month-no inconsequential sum given that the
better paid industry jobs in Alaska Corrections at the time paid
about fifty cents an hour. Although child support policies continue
to vary by state, Senators Evan Bayh and Barack Obama have
cosponsored and introduced legislation in Congress, that would
prohibit states from considering any part of a period of
incarceration as voluntary unemployment that would disqualify the
parent from obtaining a review and adjustment of a child support obligation.

Such legislation would bring us closer to European social policy. The
German Civil Code bases child-support requirements even for
incarcerated parents on a person's ability to pay. Provided there is
no immediate connection between the felony and the desire to avoid
support obligation, the operative assumption is generally that
incarcerated individuals will not be in an economic position to pay
child-support payments. In Sweden a prisoner acquires child-support
debt while in prison but is considered unable to pay while
incarcerated. After release, a plan to pay support is then set based
on whatever sum an ex-offender can afford-a sum that may take a
lifetime to pay.

As these examples demonstrate, American states are not passive
bystanders in a process of "fatherhood decertification" of men in
prison. By piling on penalties-by requiring imprisoned fathers to
accumulate child-support arrears impossible to cover with prison
wages-the state undermines the fulfillment of obligations after
release. In some instances men who are in arrears in child support
break off contact with their families because they do not want to be
harassed about payment and because they want their children to be
eligible for Temporary Assistance to Needy Families benefits.
Allowing individuals to emerge from prison with $16,000-$18,000 or
more in debt, the state in effect encourages newly released prisoners
to seek illegal employment, renew criminal activity, or "tax" family
members who feel pressured into making loans to the former inmates.

Levying excessive child support also undermines men's social
citizenship and in a few instances nullifies their right to vote.
Current law in Tennessee allows individuals convicted of felonies
(exempting certain crimes) to register to vote upon release, but
individuals who continue to owe money for child support payments are
disenfranchised. Such payment-dependent voting eligibility looks
little different from debtors' prison or the Constitutionally
proscribed poll tax of an earlier era.

Although Tennessee's constitutionally-inscribed requirement is now
unusual among the fifty states, it is not the only state in which
child-support obligations can affect voting rights. Nine states
condition the restoration of voting rights on an applicant's full
payment of at least some of the court-ordered costs associated with
conviction. In Florida the "clemency" rules on rights restoration say
that the "Executive Clemency Board will consider, but not be limited
to, the following factors when determining whether to grant clemency:
(1) The nature of the offense, (2) Whether the applicant has any
history of mental instability, drug or alcohol abuse . . . (5)
Whether the applicant is delinquent on any outstanding debts or child
support payments . . ." (emphasis added). When a state predicates
voting eligibility for those convicted of felonies on the full
payment of child support, citizenship quite literally carries a price.

In short, state policies that impose arduous child-support
obligations during incarceration increase the likelihood that a
failed father will exit the prison gate.

Like policies that impose unrealistically high child-support
payments, prison practices that hinder incarcerated fathers' ability
to maintain contact with their children undermine a man's status as
father and citizen. As with adjusting child support, fostering the
parent-child relationship is both expedient and just. Maintaining
family ties improves behavior while men are incarcerated, helps
prevent recidivism, and lowers the chances of a prisoner's children
engaging in criminal activity. The capacity to participate in family
life should be a right guaranteed the citizen. As long as prison
order and security are not compromised and the custodial parent's
ability to care for the children is undiminished, prisoners and their
children should be entitled to a sustained relationship.

Yet some policies-those regulating phone, letter, and email
communication, and those governing visitation-impose unnecessarily
high hurdles to maintaining contact with children while incarcerated.

Letters, phone calls, and visits are the backbone of relationships
across prison walls. Snail mail has some obvious advantages. Letters
are less expensive than phone calls, and writers can reflect on what
they want to say and how to say it. Both child and father can also
keep and reread a letter, maintaining a sense of contact beyond the
length of a phone conversation. But letters require that both sender
and recipient read and write easily, and children may be embarrassed
by the stamped advisory on the envelope indicating that the letter
has been sent from a correctional facility. Email and other forms of
Internet communication are almost universally barred because of
monitoring difficulties.

A phone call might seem the simplest and most direct way to stay in
touch, but policy in some states stands in the way of this otherwise
ordinary form of parent-child contact. Some states limit the number
of calls a prisoner can make: a Texas regulation allows offenders who
demonstrate good behavior no more than a five-minute phone call every
three months. But the major impediment to frequent phone contact is
the cost. Many states award an exclusive contract to one service
provider, and in exchange for the contract those companies regularly
return a substantial part of their profits to the state as
commission. Service is often limited to outgoing collect calls. Not
surprisingly, rates are exorbitant. In recent years, in one state,
the cost of a fifteen minute collect call to another part of the
state was $17; in another, the rate for an interstate collect call
was $0.89 per minute plus a $3.95 connection fee totaling $17.20 for
a fifteen minute call. C. F. Hairston, a University of Illinois
professor whose pioneering research on the impact of incarceration
and reentry on families has inspired much of the work in the field
for a decade, found in 1999 that a thirty minute state-to-state
collect call placed from prison on the weekend cost $15; from outside
prison, $5; and dialed direct from a residence, $1.50. Such fee
structures are patently unfair.

The phone companies contend that the additional security measures
required by serving the prison drive up their costs. There are
legitimate security concerns involving telephone contact between
those in prison and those on the outside: inmates have arranged drug
deals, robbery, gang activity, assault, and even murder from behind
bars. Unlimited and unmonitored phone access would both increase the
risk to corrections personnel and in many cases impede efforts at
rehabilitation. Technology, however, has lowered the cost of
monitoring calls. Until recently security involved operators
listening in on telephone conversations as they occurred. Today the
kinds of technological advances that have brought caller-ID,
three-way calling, and call-forwarding to the general public allow
prison phone systems to automatically monitor and record all calls
without operator assistance. Computer interfaces also enable
authorities to analyze conversations later.

Regardless of the rationale, the effect of high rates for collect
phone calls is devastating for prisoners' families. Maintaining
regular phone contact between parent and child can put severe stress
on the finances of the caregiver. Family members may refuse to accept
collect calls, or block all such calls. Fathers may not be able to
congratulate a child on a birthday, holiday, or significant
achievement, much less keep abreast of the mundane but essential
events in a child's life.

High phone costs are not, however, an immutable characteristic of
American prisons. Nebraska charges $1 for a fifteen-minute collect
local call and $3.75 for a fifteen-minute collect out-of-state call;
Washington, D.C., charges a flat rate of $3 for fifteen minutes local
or long distance; and West Virginia, New Hampshire, Missouri, New
York, North Dakota and Wisconsin also have low rates. States can
decline to charge commissions, as New York has recently done, and
allow prisoners to place outgoing calls using debit phone cards
rather than forcing them to rely exclusively on collect calls.

In addition to phone contact, child advocates say that visitation is
integral to maintaining, and in some cases improving, a parent-child
relationship. The obstacles to visitation between incarcerated
parents and their children are, however, truly daunting and exact a
high toll in money, time, and dignity. Correctional institutions are
often located at a considerable distance from the child's home; a
visit can entail the expense of bus tickets, an overnight stay in a
motel, and food on the road and from vending machines in the
visitation room. The trip to the prison may also mean the loss of one
or two days' wages. The cost of visiting a parent incarcerated in
another state can be prohibitive.

Even for children able and eager to see an incarcerated parent,
visitation can be a frightening experience. In her 1999 memoir The
Prisoner's Wife, Asha Bandele describes the procedures for passing
through security as "ceremonies of belittlement" for women, and
pat-downs and scanning with a wand can be upsetting or humiliating to
a child. Most prisons have no separate waiting rooms for children,
and visits usually take place in crowded rooms or through Plexiglas
or wire barriers. One study of juvenile prisons in Northern
California shows that initial excitement often gives way to
awkwardness or disappointment for incarcerated fathers and their
visiting children because of the lack of opportunity for casual
interactions. Eating together is one shared activity they enjoyed,
but it is allowed for less than half an hour. Strikingly, in most of
the facilities there were no toys or games, making it hard for
fathers to interact with their children. Simply improving the
visitation area and providing games, toys, or structured activities,
as has been done in Sing Sing in New York State, would go a long way
to fostering bonds between father and child.

In Overton v. Bazzetta (2003), the Supreme Court unanimously upheld a
Michigan regulation that limited visitation in prisons. The
regulation bars prisoners who have twice committed drug infractions
from receiving family visits, including non-contact visits from
behind a reinforced window. The regulation also precludes visits for
all inmates by a minor unless the minor is the child, stepchild, or
grandchild of the prisoner and accompanied by a guardian or adult
member of the prisoner's immediate family. Children of a prisoner
whose parental rights have been terminated are not allowed to visit,
regardless of the custodial parent's views about the desirability of
visitation.

The Court said that since a prisoner could write letters or use the
phone, neither the regulation denying visitation to a prisoner found
guilty of two violations of disciplinary rules due to substance
abuse, nor the regulation that a minor child of the prisoner be
accompanied by an immediate family member, severed communication
between parent and child. The ruling gave insufficient weight to the
claims of both prisoners and their families, especially the children,
who are most likely to suffer from not seeing their fathers. The
Michigan regulation punishes family members just as surely as prisoners.

The goals that the regulations were intended to serve-reduction of
the overall number of visitors and reduction of smuggling of
contraband-could have been met by more careful screening of adults,
by restrictions on the number of visits or the number of visitors
allowed each prisoner each month, or by restricted non-contact
visits. The ACLU points out that "a decree that one shall never again
see one's family and friends . . . entails the total destruction of
the individual's very personhood." If a choice must be made
concerning who may visit, minor children seeking to visit a parent
should receive high priority. The destruction of a relationship is
hardly incidental to either father or child, but affects personality,
identity, and personhood.

Improved conditions for visitation are not unrealistic. The Osborne
Association, a long-established service organization that supports
prisoners and their families, has organized both parenting classes
and a Children's Center at Sing Sing. Nell Bernstein describes the
Children's Center in All Alone in the World: Children of the
Incarcerated (2005):

Within the Children's Center-a small, Plexiglas-enclosed enclave off
to the side of the larger visiting room-all this [environment
frightening to a child] evaporates. Inside the center, fathers can
hug and hold their children, read books to them, play computer games
with them, or help them weave key chains out of colored string.
Security dictates the transparent walls-correctional officers must be
able to see in-but their effect is the opposite of the Plexiglas that
separates parent and child in a traditional window visit . . . the
expanse of the visiting room disappears, creating a sense of shelter
and privacy, a glass-enclosed island in an ocean in a bottle.

In addition, some prisons use technology to foster parent-child
interaction even without physical visitation. Florida, Illinois,
Iowa, Mississippi, New Hampshire, and Oregon have programs that
promote literacy for prisoners and their children by allowing parents
to create an audio or video recording of themselves reading a book,
and both tape and book are then sent to the child. The parent can, in
effect, read aloud to the child, a positive and nurturing activity.

Elizabeth Gaynes, Executive Director of the Osborne Association, has
argued against "relieving" incarcerated fathers from parental
responsibilities. Writing of the incarcerated father of her own
children, she said, "I expected him to participate in raising his
children, and he did. We entered into a covenant, as important to us
as marriage vows, about how we would raise our children." The value
(both symbolic and real) of such a covenant is inestimable. Yet the
state, in addition to parents, must commit itself to making parental
responsibility to children possible. A three-way covenant would need
to ask what obligations the state/correctional facility also bears in
maintaining, or at least imposing no further harm upon, the paternal bond.

Families are crucial to civil society. They foster personal wellbeing
and help people develop the moral capacities necessary for
self-governance and public deliberation. Throughout U.S. history, the
ability to form and maintain a family has been a mark of dignity,
what NYU Law Professor Peggy Cooper Davis has called "a badge and
incident of democratic freedom." One of the marks of full membership
in civil society is recognition of and respect for one's status as a
family member.

Fatherhood is not only an important dimension of an individual's
sense of identity, but is also related to his social and civic status
in complex ways. Recognition of and respect for family relationships
is due all U.S. citizens and care must be taken that state action not
weaken family ties. At the same time, "good parenting" must not be a
prerequisite for exercising the vote, just as voting is not a
prerequisite for exercising the right to custody of or visitation
with one's child. It is of both practical and theoretical interest
that we recognize the importance of family to incarcerated men.
According to a John Jay College of Criminal Justice study, by
disrupting family connections, prisons in fact contribute to the
increased criminality among youth. Researchers at Harvard University
and the University of Maryland have also shown that marriage reduces
incidence of crime over the course of one's life.

One of the impediments to maintaining incarcerated fathers'
relationships with their children has been the tendency-in law,
political culture, and political theory-to depict individuals as
isolated persons, rather than as having identities formed through
relationships. But family relationships are not "add-ons" or
incidental to a person's identity; they are in part constitutive of
that identity. As a result, the state must respect the right of
people to form relationships even when they are incarcerated, as the
Supreme Court did when it upheld a prisoner's right to marry in
Turner v. Safley (1987). But it cannot stop there. It should also
avoid unnecessary disruption of relationships.

The federal Department of Health and Human Services' "responsible
fatherhood" initiatives fund a growing number of parenting programs
in prisons. These programs are helpful when they encourage
incarcerated fathers to consider how they can support the
child-rearing efforts of the child's mother or guardian, and not when
they draw on traditional tropes of masculinity and male authority for
legitimacy. Family reunion programs, which combine conjugal and
family visitation, exist in six of the fifty states. The surge of
interest in reentry has fostered a renewed focus on job/training
programs in prison that could have great import for fathers in
prison. These are valuable initiatives, but they are still few in number.

Whatever the reasons for limited support of prison programs for
fathers, prison security is not one of them. The wide variation in
state systems' approaches to child support or prison visitation/phone
rules implies that "penological interests" (the typical judicial
invocation in striking down prisoner-rights claims) is not the
driving imperative preventing more expansive fatherhood policies.

The stakes in these more expansive policies are large and extend to
basic issues of justice. Suspending, or at least modifying,
child-support obligations for fathers who cannot meet assigned awards
on state-set wages earned in prison, abrogating any child-support
"poll tax" on voting eligibility, and facilitating communication
between fathers and their children concern both the prisoners who
seek to move beyond a sense of failed fatherhood and the children who
bear the collateral damage of measures that distance them from their
fathers. Recognizing that intimate and caring relationships are
essential to human wellbeing, the Supreme Court has determined that
prisoners must have the right to marry. Law and public policy need to
extend these relational interests to the maintenance of ties between
parents and children.

When remediable conditions of incarceration make it unnecessarily
difficult or impossible for an inmate and his family to maintain
ties, this is not simply a private wrong and a personal misfortune.
It is also an unjustifiable diminution of the inmate's civic status.
Contemporary citizenship entails the right of both adults and
children to form and maintain relationships that are central to the
development and expression of autonomy and to the dignity and mutual
respect that citizens owe one another. The recognition and
encouragement of fatherhood behind bars is a vital step in
maintaining and fostering the interrelated-indeed,
inseparable-commitments of both intimate and civic life.