In recent years, the term “family separation” has become associated with the federal government’s practice of separating children and their parents when they attempt to enter the United States at its southern border. But family separation is also a common consequence of criminal conviction. As of 2016, more than 5.1 million children had a parent who was incarcerated at some point during the child’s life.
While family separation is an expected result of incarceration, it often continues beyond the prison gates. Probation, parole, and supervised release conditions regulate—and often ban—contact between supervisees and their loved ones.
This Article is the first work of legal scholarship to systematically analyze family separation conditions in the American carceral state. This Article documents the widespread use of such conditions, explains the legal doctrines that courts and supervision authorities use to justify them, and argues for reform.
Community supervision programs are a critical yet understudied part of the criminal legal system. With over two million people in jails and prisons, the United States incarcerates more people than any other country in the world.
Even more—approximately 4.5 million people—are supervised by probation, parole, and supervised release programs.
In recent years, in part because of calls to end mass incarceration, states have begun to rely heavily on community supervision programs, which allow people to live in their communities rather than behind bars.
Indeed, the number of probationers and parolees more than tripled between 1982 and 2007.
Given the extraordinary deprivations associated with prison life—lack of freedom of movement, often appalling living conditions, the threat or experience of solitary confinement, frequent outbreaks of violence, and the risk of abuse at the hands of correctional officers
—one might assume that life outside of prison is, by definition, better than life inside. This view does not, however, account for the stringent conditions often placed on supervisees. In fact, those conditions can be so stringent that supervisees sometimes prefer incarceration to community supervision.
Family separation conditions provide the paradigmatic example of stringent community supervision conditions.
This Article begins by documenting the prevalence of family separation conditions, drawing on original research to report on two common family separation conditions in the states that make heavy use of parole. As used in this Article, the term “family separation conditions” refers to those conditions that ban or severely limit contact between supervisees and their loved ones, with whom they hold constitutionally protected relationships, such as parent–child and spousal relationships.
The first family separation conditions scrutinized here are those that prohibit contact with persons who have felony records or are otherwise subject to carceral control. Since carceral control in the United States is both racially and geographically concentrated, these conditions have an outsized impact on Black families and other members of marginalized communities who bear the brunt of mass incarceration.
A ban on contact with people who have felony records can effectively cut a supervisee off from large swaths of their community.
The second is a condition banning all contact with children under the age of eighteen for supervisees who have been convicted of sex offenses—without an exception for contact with one’s own children. A New York case is emblematic. There, AB
was prosecuted at age twenty-two for kissing and fondling a fourteen-year-old girl. He was convicted of sexual abuse of a minor in the third degree—a misdemeanor.
New York law requires sex offenders to register for at least twenty years.
Eleven years after the conviction, he became homeless and did not update his address on New York’s sex-offender registry—a felony.
He was convicted of this crime and incarcerated for over two years.
During that time, his two sons regularly visited him in prison, and he communicated with them by phone and letter.
Once released, his parole conditions prohibited any contact with his sons.
This ban on contact applied even though a family court had previously adjudicated a custody dispute involving one of the children and permitted AB to have regular contact with that child.
In AB’s case, the parole condition barring contact with his son served no sincere purpose (other than cruelty). AB is one of many who have endured incarceration only to be followed by the trauma of family separation at the whim of parole authorities.
As Part II details, numerous states bar sex offenders from contact with minors, regardless of whether the underlying crime involved a minor or whether there is any reason to believe the supervisee is a threat to children.
When such a restriction is unjustified, it can have unfair and devastating impacts. Critically, it also violates the rights of parents to maintain contact with and direct the upbringing of their children.
After documenting the prevalence of family separation conditions, this Article offers a critical analysis of the legal doctrines that courts use when evaluating them. Given that family separation conditions are usually applied without an individualized analysis, they frequently violate familial integrity rights protected by due process.
In the rare cases when family separation conditions are challenged, courts often review the conditions for mere “reasonableness,” offering undue deference to the supervision authorities who imposed them.
This approach does not accord with the constitutional demand for heightened scrutiny and is not justified by simple reference to a probationer’s or parolee’s supervision status. Aside from constitutional questions, family separation conditions are a legal curiosity for another reason: their complete disconnection from the family law systems designed to adjudicate disputes of this kind. As for parental access to children, family courts across the United States regularly use the “best interests of the child” standard to decide whether a parent’s contact with their children would be detrimental or otherwise pose an unacceptable risk of harm.
But despite the fact that an entire judicial apparatus exists for the very purpose of deciding these extremely challenging questions, there is no connection between most community supervision programs and these specialized courts. Instead, it is common for individual probation or parole officers to make these sensitive and complex determinations.
While doctrinal changes are needed, broader institutional reforms are also necessary. Decisions regarding contact between supervisees and their children should rest in family courts, particularly with regard to supervisees’ parental rights. There, judges and other key actors have expertise in the weighty questions that attend decisions regarding the appropriate level of contact between parents and children as well as spouses. In addition, supervision authorities should assure that administrative review is available when conditions bar contact between supervisees and other close relatives.
By documenting the prevalence of family separation conditions and explaining the pathways for reform, this Article contributes to several literatures. While criminologists, social scientists, and other researchers have analyzed the effectiveness and real-world impacts of parole and probation on recidivism and successful reentry,
legal scholars often focus on incarceration
and the collateral consequences of convictions
rather than community supervision. Notable exceptions include scholarly explorations of whether community supervision systems accord with rehabilitation goals
and works that analyze whether parole release processes accord with due process standards.
By exploring the connection between community supervision and family separation, this Article makes a novel contribution to the conversation about the constitutional rights of people living under carceral control. It rejects the notions, commonly proclaimed by courts, that supervision authorities’ views of family separation are entitled to deference and that the constitutional rights of parolees and probationers are circumscribed to the same extent as those of incarcerated people. It further asserts that the legal system must recognize the profound infringements of constitutional rights created by family separation conditions and ensure that adequate protections are afforded to the relationships of supervisees and their loved ones.
This Article proceeds in four parts. Part I describes the different types of community supervision programs and the procedures state and federal authorities use to impose the conditions. It also documents the widespread use of the two supervision conditions described above that often result in family separation: those that limit contact with people due to conviction records or other involvement in the criminal legal system, and those that bar people convicted of sex offenses from any contact with children. Part II explores the constitutional rights and family law concepts at issue, as well as cases in which supervisees have challenged family separation conditions. Part III critiques the predominant judicial treatment of conditions that lead to family separation, arguing that constitutional rights concerning familial integrity cannot be abrogated merely because of criminal supervision status and that heightened scrutiny is required. Part IV calls for criminal justice policymakers to devise mechanisms by which family separation conditions are subject to review at the appropriate level of scrutiny.