Testimony of The Legal Aid Society on the Effects of Incarceration on Families
There is a lot we don't know about crime, about its causes and cures. But there are a couple of things we are pretty sure of at this point: that strengthening family ties is one of the best ways of reducing recidivism among criminal offenders; and that children without parents are at great risk of turning to a life of crime.(1) Yet New York State and the federal government pursue policies seemingly designed to destroy family ties and separate children from their parents.
The Prisoners' Rights Project is a unit of the Legal Aid Society that has successfully brought litigation challenging a variety of policies and practices in the New York State prisons and New York City jails. These
have included challenges to the inadequate provision of medical care to inmates in certain New York state
prisons; failure to provide educational services to inmates in City custody consistent with the requirements of
state and federal law; and the mis-use of force by correctional staff. In addition to our litigation, each week our office receives as many as 200 letters and requests for assistance from inmates incarcerated in New York
state and local facilities. We respond to all of these requests and attempt to remedy the problems brought to
our attention by intervening administratively with the Department of Correctional Services ("DOCS") and other
appropriate agencies. This daily contact with inmates and their families has given our office an overview of many of the problems confronting inmates in maintaining family ties. It is on that basis of our direct contact over the past several years with literally thousands of prisoners and their family members that we offer these comments and recommendations to the legislators and the citizens of New York.(2)
Recent Trends Promote Family Disintegration During Incarceration
As we all know, the number of people incarcerated has grown beyond expectation, and, we believe, beyond all
reason. On a national level it was recently announced that the United States is now holding almost 2 million
people behind bars,(3) giving us one of the highest rates of incarceration among the industrialized countries in
the world. And here in New York State, our present leaders, rather than offering us a vision of restorative justice
and community safety, have contributed to the problem by racing to build more prison cells and keeping more
people behind bars for longer and longer periods. These prisons are being built in depressed areas upstate to
foster economic growth. Experience has shown that once built, these prisons will be filled, primarily with
African-Americans and Hispanics(4) who are from the depressed inner cities downstate.(5)
In a step in the right direction, this year's budget does not include the governor's funding request for yet another
new maximum security prison. In order to ensure that this represents genuine progress rather than an
election-year anomaly, we call on the State Legislature immediately to implement a moratorium on all prison
expansion while the legislature conducts a serious in-depth review of the social and economic costs of recent
criminal justice policies, including harsher sentencing laws. The legislature should also investigate how, in
recent years, positive programs including merit time earned eligibility and work release have been undermined. The arbitrary use of repeated unjustified parole denials for prisoners with demonstrated records
of continuous good conduct should also be investigated.(6) The present policies have contributed to a situation
where in recent years nearly half of the inmates who are confined in prison for non-violent crimes and who have
demonstrated a commitment to rehabilitating themselves by earning an "earned eligibility certificate" or a
"merit time award," have nonetheless been denied parole.(7)
We believe that over-incarceration and the various means through which the practices of DOCS and the
Division of Parole have contributed to the problem and subverted the purposes of these legislative enactments
are so substantial as to warrant a public hearing. We ask that the various Committees of the legislature hold a
series of public hearings on these topics and solicit testimony, not just from the families of prisoners but from
the affected prisoners themselves. If you undertake a full and complete investigation into the current status of
incarceration and parole in New York State, you will find that we are wasting both taxpayers' money(8) and
human resources by incarcerating people who have paid their debt to society and could be living productive
lives in the community.
The over-incarceration of New York State residents has had a devastating impact on the family, and
particularly on relationships between parents and children. Imposing longer sentences and releasing fewer
people on parole has the obvious -- and devastating -- cost of keeping family members apart for increasingly
longer periods of time. This cost is borne by the more than 86,000 children in New York State who have a
parent in prison.(9)
This must be changed. The sentencing laws must be revised to give judges discretion in sentencing.
Mandatory sentencing, for both drug offenses and predicate felonies, should be eliminated.(10) Parole should be made more available to people who have shown that they have been rehabilitated and do not pose a threat
to society, and should not be denied based solely on the nature of the crime.
Alternatives to incarceration should be more widely available. As part of these alternatives to incarcerations,
services to enhance family ties, such as training in parenting skills, should be made available in lieu of
sentencing people to prison, as has begun in some of the specialized courts.
Not only does incarceration keep families apart, it can lead to the complete dissolution of the family when the
State terminates parental rights. Termination of parental rights has been made easier with enactment of the
federal Adoption and Safe Families Act, 42 U.S.C.A. §§ 670-679a. This law requires that the State file for
termination of parental rights for children who have been in foster care for 15 of the past 22 months. Thus, for
those incarcerated parents whose children are in foster care -- which means those who are without the
financial resources to provide for the child and without a family support system to care for the child -- a criminal
sentence of even fifteen months can mean they will lose all rights to contact with their child for life. Under these
time frames, it is simply too easy to break up a family.
The draconian nature of termination is particularly distressing given the drastic increase over the past decade
in the number of incarcerated women, which has resulted in 3,500 women currently in DOCS' custody.(11) Of
these women, 1,969, or 56%, are in prison for nonviolent drug offenses.(12) This may not be the forum to debate the injustice of confining people for years, and possibly for life, simply for the possession or sale of drugs. But this is the forum to discuss whether, as a society, we want to add the permanent loss of one's children as an additional sanction for the use or sale of drugs. When we talk about criminal sentences, we talk about a limited and certain sanction that society has condoned as proportional and appropriate to the misconduct. We all understand that incarceration means the loss of freedom and of many other rights and privileges. But I do not think most people know, or would agree, with the proposition that because someone -- male or female -- commits a crime and goes to prison for a sentence of 15 months or more, they should be
separated from their children for life. Would most judges agree that by sentencing a person to 15 months in
prison, the collateral consequence should be the permanent loss of one's children? Is that an appropriate
penalty for making the kind of mistake that 56% of the women in custody have made? And is this permanent
revocation in the best interest of these children? Or is it a simplistic attempt to "erase" a difficult situation through draconian measures?
One option that ought be considered is whether something short of complete severance of all parental ties to the child should be available, if it is in the best interests of the child. For many years in this state, a parent's length of prison sentence has been considered in termination proceedings. But so-called "open adoption," whereby the parent and child maintain some relationship even if limited, is not currently permitted in New York state. See In the Matter of Gregory B., 544 N.Y.S.2d 535 (1989). Given the substantial numbers of families in which a parent is incarcerated, and the increasingly quick timetables under which termination may occur, it is time for the Legislature to consider options short of the complete destruction of a family unit.
The State Must Adopt Policies that Promote Visitation Between Inmates and Families
Visitation between children and their incarcerated parent is plainly a crucial factor in maintaining family unity.
Yet a variety of state policies and practices work against visitation. Too often, the support and structures that
are supposed to be in place, or that easily could be in place, are just not there. The result is increased stress
on families with incarcerated parents.
a. Children in Foster Care Have Insufficient Contact with Incarcerated Parents
If the child of an incarcerated parent is in foster care, he or she is under the supervision of a local agency to
which the state Office of Children and Families Services has delegated responsibility, such as New York City's
Administration for Children's Services (ACS), who in turn may delegate such responsibility to a private foster
care agency. These agencies rarely bring children to prison to visit, particularly if the prison is distant from the
Under the law, monthly visits, at least, should take place if the permanency plan for the child (a plan that each
foster care agency must prepare for a child) calls for eventual re-unification with the parent. N.Y. Soc. Serv.
Law § 384-b(7)(f)(5); 18 NYCRR § 430.12(c)(2)(d)(1); Department of Social Services Administrative Directive
85-ADM-42.(13) If these visits do not take place, termination of parental rights is theoretically not permitted.
N.Y. Soc. Serv. Law § 384-b(7)(f)(5). For years, however, ACS and the foster care agencies have failed to
bring children to see their incarcerated parents. When advocates and families have complained, agencies
have routinely -- and incorrectly -- maintained that they are not required to take a child in foster care more than
50 miles, or outside of the metropolitan area, to visit a parent. In fact, the law permits no such exceptions to the
agency's duty to bring the child to visit.
When ACS or other foster care agencies fail to bring the child to visit, the incarcerated parent has no viable
recourse. In theory the parent can complain to the foster care agency or to a supervisor at ACS. However, many prisoners do not know how, or with whom, to file a complaint. Even if they file a complaint, they may be
given the same misinformation about a 50-mile limitation. Indeed, when this office has intervened with foster
care agencies, high-ranking agency officials have cited this non-existent "50 mile rule"to us.
Furthermore, when a prisoner considers filing a complaint, inmates have reported to us that they have been
cajoled into not making waves. Mothers and fathers are legitimately wary of possible termination of their
parental rights. Foster care workers, who make recommendations to the courts, are in a position of
overwhelming power. We have heard numerous complaints of incarcerated parents being told that if they want the foster care worker to recommend re-unification upon the parents' release from prison, the parent should
waive his or her right to visitation; after all, the parent is told, any caring and loving parent would not ask their
child to go through such an arduous journey and then have to face a prison visiting room. Thus parents are
pressured into waiving their only opportunity for direct contact with their children
In theory, another option is available to the incarcerated parent whose child is in foster care and is not being
brought for visits: the parent can raise the lack of visits at the family court hearings where continued foster care
placements are ordered. But this does not work either. When such complaints are made, judges will often tell
the agencies to arrange visits. Then, perhaps, a visit or two will take place, often while the parent remains at
Rikers Island in New York City for the family court hearing, but once the parent is taken to state prisons upstate, no more visits will take place for months. If the judicial visitation order is ignored, as often seems to occur, the parent has no one to contact to advocate on his or her behalf. He or she is assigned counsel at each hearing from the 18-B panel. Our clients report, however, that ordinarily different counsel will be present at different court appearances. As there is no continuity in representation for all proceedings, the attorneys believe that have no responsibility to their clients other than to appear for them at a given hearing. If incarcerated parents call or write to complain about the lack of visitation, the attorney does not advocate on their behalf between formal court appearances. On occasion we have tried to assist parents to see their children who are in foster care. Appointed attorneys assigned to represent the parent at a given foster care placement hearing have told
us that it is not their responsibility to help with these matters.
It is clear that current system does not work, and visits do not take place between incarcerated parents and
their children who are in foster care. We therefore recommend that the following changes be made with
respect to visitation by children in foster care:
-- A clear statutory mandate should be enacted requiring visitation at some designated frequency with
incarcerated parents, so long as it is in the best interest of the child. This is needed since currently the only
requirement for visitation between an incarcerated parent and his or her child is set forth in the context of
termination; i.e., an inmate's parental rights cannot be terminated unless a foster care agency can show that it
made diligent efforts to maintain contact between the child and the parent. N.Y. Soc. Serv. Law § 384-b(7)(a);
-- The state should implement a requirement of continuity of counsel in Family Court proceedings for
incarcerated parents whose children are in foster care.
-- In order to streamline the process for the foster care agencies and permit the visit to take place in a less
crowded and stressful environment,(14) DOCS should build upon the model recently developed for Rikers
Island, in which visitation with children in foster care takes place separately from other visits.
-- Because of the unique problems confronting visitation of children with their incarcerated parents, OCFS
should require, and then monitor, that ACS and other local foster care agencies: 1) create a separate bureau
to deal with these children in particular;(15) 2) specially train foster care workers to assist children in these
sometimes painful situations and assist foster parents in easing the burden on the children; 3) coordinate visits
with incarcerated parents so as to minimize the burden on each foster care agency worker; and 4) designate
persons with oversight responsibility for maintaining visitation schedules, coordinating visitation and providing
b. Prison Policies Discourage Visitation by Children and Family Members. Problems with visitation
between incarcerated parents and children occur even when the child is not in foster care, but is with a
non-incarcerated spouse or partner. An overarching problem is that DOCS has built, and continues to build,
virtually all of its prisons hundreds of miles from New York City, even though more than 70% of the people in
DOCS custody come from the New York City area.(16) By definition, the distance makes visiting extremely
difficult, even when there is someone who is willing to bring the child to visit. The largest medium security
prison for women is Albion Correctional Facility, located between Rochester and Buffalo. Albion houses 1296
women, or 37% of the women in DOCS' custody.(17) These are the women who are no more than four years
from possible release,(18) who therefore are going to be re-united with their children. Yet the remote location
of the prison makes visiting with their children exceedingly difficult.
Since incarceration in remote parts of the state impacts fathers as well as mothers and affects all children of
incarcerated parents, we recommend the following policy changes to encourage family visitation:
-- DOCS' practice of locating prisons hundreds of miles from New York City should not be permitted to
-- DOCS should be required to take into consideration the fact that an inmate has children, and where the
children live, in deciding where to house its prisoners, and should house prisoners near their children.
-- DOCS should temporarily move incarcerated parents closer to their homes to allow visits with their children,
and then immediately return them to the prison in which they ordinarily are housed. This would place the burden
of travel on the adult incarcerated parent, rather than on the child.
Visiting in prison is not pleasant for children because of security arrangements and the sometimes grim
physical setting of prison visiting rooms. But to limit visits on this ground would have an even worse effect on
the bond between parent and child. To make visitation easier for children, all DOCS visiting rooms should have
play areas set aside for children, and efforts should be made to create as child-friendly an environment as is
possible, consistent with security concerns.
In most situations, the custodial parent or relative is more than willing to bring the child to see the incarcerated
parent difficult as it may be, because they recognize the importance of the relationship between the child and
the incarcerated parent. But sometimes, because parental or family relationships are strained, they are not
willing to bring the child to visit. In that situation, the incarcerated parent is without much hope. In theory the
incarcerated parent can petition the Family Court for an order of visitation; in practice, this is extremely difficult
for a lay person and rarely succeeds. We receive many requests for assistance from incarcerated persons,
particularly fathers, in these situations. But there is no one within DOCS whose responsibility is to help the
inmate see the child. Nor is seeking intervention from the Family Court necessarily the best approach. But
there is no one in DOCS who will help an inmate try to reconcile with the custodial parent when the relationship
between them is strained. DOCS should have counselors and staff available to help prisoners in such
DOCS' other policies that render visiting even more difficult should be changed. Visits to medium security
prisons are limited to weekends. DOCS Directive 4403.III.A. At some prisons, visits are even more restricted,
to only one day per week. Additional visiting time for children should be made available.
The Family Reunion Program is an extremely valuable program that allows family members to spend time
together with the incarcerated person in a situation that mirrors, as closely as possible, real family life.
However, this critically important component of strengthening ties between parent and child is available at only
a few DOCS facilities. Sadly and outrageously, it is not available at Albion or virtually all of DOCS' medium
security prisons for men.(19) The Family Reunion Program should be made available at Albion immediately
and should be expanded as soon as possible to other prisons.
People make mistakes, even while in prison. No one questions that they should be punished. But when the
punishment consists of restrictions on visitation, it can significantly impact family unity. Under current DOCS
policy, many inmates found guilty of committing an infraction are permitted to receive only non-contact visits
(i.e., in which there is a barrier, usually plexiglass, that precludes all meaningful physical contact between the
prisoner and his or her family). Any one who has seen a young child trying to reach and touch his or her parent
in such a situation knows how harsh a punishment that can be. Contact visits between incarcerated parents
and young children should be provided notwithstanding disciplinary sanctions.
Revocation of visitation between family members as a punishment should be minimized. For example, in one
situation we saw visitation privileges permanently revoked between family members, simply because the
prisoner was found to have used drugs hours after the family had visited. There was no evidence to indicate
that the prisoners' relatives had brought the drugs, yet their right to visitation was permanently revoked. In that
case, this office intervened administratively with DOCS and visitation was reinstated. But discipline by means
of permanent revocation of visitation rights between family members, including parents and young children, is
extremely harsh and should be minimized.
Exorbitant Telephone Rates from Prison Impede Contact With Families
Problems in maintaining family ties are not limited to problems in visitation. Contact by telephone is impeded
by the exorbitant rates charged by MCI and DOCS.(20) For large numbers of inmates for whom face to face
visitation is extremely difficult, talking by telephone is the best means available to maintain family bonds. In fact,
for many people in DOCS custody whose lack of literacy makes letter-writing an inadequate means of
communication,(21) phone calls are an essential means of communication. And, despite the fact that
maintaining telephone contact with foster care agencies and with children in foster care is required if parental
rights are not ultimately to be terminated, many foster care agencies are not willing to, or make no provision to,
accept collect calls from prisoners, a problem exacerbated by the extraordinarily high charges for collect calls.
Given these barriers in visitation and telephone access, the best-intentioned parent may not be able to remain
in contact with his or her children. The rates for collect phone calls should be reduced and DOCS should be
required to provide reasonable telephone contact free of charge between incarcerated parents and their
children, particularly those in foster care.
Coping with Death or Illness of a Family Member in Prison.
Family members become severely ill and even die while in prison. At these times, maintaining contact,
acknowledging love, and learning to grieve and mourn as a family is critically important. A child should be with
their parent or loved one during such death if at all possible. New York State has a compassionate release
program, pursuant to the Medical Parole Law, N.Y. Exec. Law § 259-r, and the Parole Board's Full Board
Case Review. This program permits some terminally ill inmates to be paroled early to be with their families at
the last stages of their illnesses. It permits the dying patient to be at a local nursing home or hospital at which
there can be unrestricted access.
Unfortunately, the compassionate release program is extraordinarily limited; few inmates have been paroled
through these mechanisms and in recent years the program has been used less frequently. During the years
1997-1999, there were an average of 210 deaths in DOCS' prisons, while an average of only 17 dying inmates
were paroled each year through the compassionate release program. These programs are inadequate
because the eligibility requirements are too stringent and because the review process is too slow. Each year
twice as many inmates die during the review process than are released. The Medical Parole Law should be
modified to make the process more equitable and efficient, without jeopardizing the public safety.
Terminally ill persons confined in DOCS' custody are confined in prison infirmaries, area hospitals and DOCS;
Regional Medical Units. Many of these patients die with little or no contact with their families or other prisoners
with whom they have developed close relationships. Maintaining contact with a dying inmate can be
extraordinarily difficult. The RMU's and most prison infirmaries are far away from prisoners' families and
visiting hours are limited to weekends, although, upon request, they can be extended. There are some hospice
programs at the RMUs, but not all inmates are enrolled in these and most inmate die at prison infirmaries or
outside hospital where there are no hospice services. Hospice services should be expanded for all DOCS'
facilities and for those family members who are able to go the long distance to see their dying relatives,
additional visiting hours should be provided as the norm, not the exception.
Recently, attention has begun to be paid to the large numbers of prisoners who are mentally ill. It is important to
recognize the particular problems faced by this population in attempting to maintain family ties. The mentally ill
are easily overwhelmed by the stresses of their incarceration. Even if they want to maintain contact with their
families, they may not be able to navigate the complex bureaucracies facing them, including the Family Court
system and the foster care agencies. To assist mentally ill prisoners in maintaining family ties, we recommend
-- As part of its mandate, the Office of Mental Hygiene should assist mentally ill prisoners to maintain contact
with their family members, through services such as helping inmates locate their children, helping them contact
their attorneys in Family Court, and helping them resolve problems with other family members.
-- Therapy directed toward dealing with family problems should be offered to mentally ill prisoners.
-- Some form of family therapy for the entire family unit should be available as well.
-- Training in parenting skills should be offered to parents at all facilities.
Indeed, assistance in dealing with the Family Court and with foster care agencies, training in parenting skills,
and programs to help inmates enhance family ties should be available to all prisoners who care about their
children, not just those who are actively mentally ill. DOCS has assigned no one to perform this essential
function. DOCS counselors' caseloads are in the hundreds. There is no one whose responsibility is to help
prisoners remain a part of their families, unless an exceptionally dedicated counselor goes the extra mile.
It is universally recognized that one of the most effective ways to reduce recidivism is to strengthen family ties.
It is also recognized that if the cycles of violence and incarceration are to be broken, children need to be with
their parents. Not only has this State chosen to incarcerate more people and keep them in confinement for
longer, this State's agencies have consistently erected virtually insurmountable barriers between family
members. The State has chosen a course guaranteed to result in the breakdown of families, rather than
choosing strategies and policies that will bring families closer. The State's policies are not just a shame; they
are a danger, and they should be changed.
Senior Supervising Attorney
Prisoners' Rights Project
The Legal Aid Society
90 Church Street
New York, NY 10007
(212) 577 3530
dated: May 30, 2000 (Note: The Prisoners' Rights Project subsequently moved. It is now located at 1 Battery
Park Plaza, New York, New York, 10004)
1. See New York County Lawyers' Association Drug Policy Task Force, October 1996, at 8, citing
L.F.Lowenstein, Recent Investigations into Criminality, The Criminologist (1992) at 5.
2. This document was originally prepared as testimony for the Assembly Standing Committees on Children
and Families, Correction and Codes.
3. See U.S. Department of Justice Prison and Jail Inmates at Midyear 1999 (April 2000).
4. DOCS reports that 50.8% of the inmates incarcerated in its prisons are African-Americans, 32% are
Hispanic, and the remainder are white (15.4%) or other (1.8%). DOCS The Hub System: Profile of Inmates
Under Custody on January 1, 1999 (DOCS Division of Program Planning, Research and Evaluation 1999) at
5. See id. at pages 9-10.
6. For example, the overall percentage of parole releases (for initial appearances, re-appearances, and
violator re-release hearings) decreased from 59% in FY 96-97 to 45% in FY 98-99. This represents a
proportional reduction in the release rate of nearly 25%. See Division of Parole, Report to Division of Criminal
Justice Services. The decreased parole releases over this short period necessitated approximately 4,000
additional prison beds.
7. Prisoners serving sentences for non-violent crimes are granted "merit time" only after successfully
participating in a work and treatment program and obtaining a GED, an alcohol and substance abuse
treatment certificate, a vocational trade certificate, or completing at least 400 hours of service on a community
work crew, and avoiding serious disciplinary infractions. An inmate who receives such merit time certification
is granted an allowance of one-sixth against the minimum sentence as the reward for diligent efforts at self
rehabilitation. Correction Law § 803(1)(d). However, for the six month period between October 1998 and
March 1999 (the most recent period for which data from DOCS is available), 740 of the 1,863 inmates
(approximately 40%) who had been awarded merit time were denied release when they appeared before the
Parole Board. DOCS Earned Eligibility Program Summary, October 1998-March 1999.
In the earned eligibility program, inmates who have been judged by prison officials to have successfully
participated in their work and treatment program are awarded a "certificate of earned eligibility" which by law
provides that the inmate is to be released by the Parole Board unless the Board determines that the inmate
cannot remain at liberty without violating the law and that his release is "incompatible with the welfare of
society." Correction Law § 805. Thus, while not mandating the inmate's release, the earned eligibility
legislation makes community release under parole supervision -- not continued incarceration -- the
presumption for inmates who successfully complete their prison programs before they meet with the Parole
Board. According to DOCS for the period October 1998 - March 1999, 3412 of the 7400 inmates
(approximately 46%) who had received earned eligibility certificates were denied release when they appeared
before the Parole Board. DOCS Earned Eligibility Program Summary, October 1998-March 1999.
8. Just last week, the non-partisan Citizens Budget Commission issued a new report, Making More Effective
Use of New York State's Prisons, detailing how the State could save nearly $100 million in prison expenses
through a variety of alternative sentencing measures and improvements in the parole system which would also
increase -- not reduce -- public safety. The report points out that the costs of maintaining a prisoner under an
enhanced parole supervision system are 80% less than those associated with imprisonment, and each inmate