Jasmine (a pseudonym) is a 15-year-old from Boston. When she was 7 years old, her father was incarcerated.
“It wasn’t for any violent crimes, but they gave him four years,” Jasmine told Rewire. It was a separation that affected her deeply, she said: “I didn’t get to see him a lot because he was sent so far out of Massachusetts, and I could only talk to him over the phone.”
Jasmine feels strongly that jail weakened her relationship with her father. “He missed four birthdays that I’ll never get back,” she said. “And when he came back home, we were both totally different people. We didn’t know each other anymore.”
But Massachusetts has a unique opportunity to change the lives of kids like Jasmine—and their parents. The state’s Joint Judiciary Committee is currently considering a bill that seeks to provide “community-based sentencing alternatives for primary caretakers of dependent children who have been convicted of non-violent crimes.” HB 1382 would allow these caregivers to remain in their communities and with their children. Legislators must take action on the bill, which is sponsored by Rep. Russell Holmes (D-Boston), before May 2, or it will die in committee without a chance of becoming law.
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According to Andrea James, the founder of Families for Justice as Healing and the author of the bill, the seeds for HB 1382 were planted during conversations with other women she met while incarcerated in a federal prison in Danbury, Connecticut.
“We looked at what was happening to our families,” James told Rewire.
And it’s not just the women James met in prison. U.S. Department of Justice data shows that the number of children with a mother in prison has more than doubled since 1991, and most of these mothers were living with and caring for their children at the time of their conviction. Pew Charitable Trusts puts the number of mothers behind bars at more than 120,000 nationally, and the number of fathers at more than 1.1 million.
When primary caregivers of young children are sent to jail or prison, families are torn apart, and the trauma can affect family members for generations. As indicated in the 2015 Ella Baker Center report Who Pays? The True Cost of Incarceration on Families, 39 percent of formerly incarcerated parents had lost custody of their children or had their parental rights terminated while they were incarcerated.
The report also found that a parent’s incarceration can negatively affect a child’s health, economic stability, and mental well-being. This trauma is not inflicted equally across racial groups—according to research done by the Pew Charitable Trusts, one in nine Black children have had a parent in prison or jail.
Ayana, who asked that her last name not be used, is a 21-year-old from Cambridge, Massachusetts. She told Rewire, “My father was incarcerated and that put a lot of stress on my mother, who had to care for us and take his place. You have no idea where they’ve gone and why, especially as a young child.”
The Who Pays? report found that those family members deal with economic hardship as a result of the incarceration, and many show signs of post-traumatic stress disorder, depression, and anxiety.
The negative impact of incarceration on families was something that James heard over and over again from the other women with whom she was incarcerated. And so the women talked about alternatives that might improve their own lives and those of their children.
“Our bill really just was a way to say, ‘Look, we don’t need to be in a prison. We don’t need to be separated from our children,’” James said. “The things we’d been convicted of are not things that are going to be healed or made better if we just continue to put people in a prison.”
According to the Massachusetts Department of Corrections (DOC), 53 percent of women in Massachusetts correctional facilities were convicted of nonviolent offenses—22 percent of incarcerated women were convicted of property crimes and 19 percent were convicted of drug offenses. The majority of these women are Black women.
In the process of brainstorming what such a bill could look like, James spoke with advocates and legislators in California who had recently passed a bill in support of their state’s Alternative Custody Program. That program allows eligible incarcerated people to finish their sentences outside of prison in order to care for their families. James said it was a good model for what might be possible in Massachusetts.
California is not the first state with lawmakers who have begun implementing policies to lessen the toll that incarceration takes on families. In 2010, Washington state passed legislation that allows for either a community custody sentence (where offenders are supervised and must participate in treatment and programming) or partial confinement (in which offenders can be transferred to the community on ankle monitoring) for eligible nonviolent offenders with minor children.
Following suit, Oregon proposed (and passed) its own bill in 2015, which would allow a judge to sentence someone to 24 months of probation instead of incarcerating them, as well as the ability to reduce sentences by six months for parents who are already incarcerated. In order to be eligible, parents must prove that they had legal custody of their children at the time of their incarceration, and had to have been convicted of a nonviolent offense.
If the Massachusetts bill becomes law, judges may consider community alternatives if the defendant is a primary caretaker of minor child. Alternatives could include drug treatment programs, parenting classes, mental health services, or even housing assistance, and could be tailored to the unique situation of the person being sentenced.
Ayana was one of the many people who testified in front of the judiciary committee at a hearing for the bill in October. Ayana explained to Rewire that “people who wouldn’t be in favor of this act, they’re perpetuating violence on poor communities in [Massachusetts], and this violence is racialized.”
At October’s hearing, no one in the packed room offered testimony against HB 1382.
Lois Ahrens, founder and director of the Northampton-based Real Cost of Prisons Project, said, “This bill is an important step because putting women—and especially women with children—in prison is expensive. It’s harmful, and it’s incredibly costly, in terms of people’s lives. It’s also costly and unproductive in terms of outcomes for someone who gets incarcerated as opposed to what happens to someone who goes in front of a judge who allows them to stay in their community and be involved in community services, someone who doesn’t detach from their community or kids.”
The costs that Ahrens refers to are staggering. For the fiscal year 2014, the average cost per year to house an inmate in the Massachusetts DOC was $53,040. That comes to more than $4,000 per month. “Four thousand dollars per month could buy a lot of services,” said Ahrens. “It could be housing, health services, mental health counseling, drug treatment,” or an assortment of other services.
This advocacy becomes even more urgent for supporters of HB 1382 because, as their bill sits in the judiciary committee awaiting a vote, a proposal to establish a new women’s correctional facility in the state has been voted affirmatively out of the senate’s Public Safety Committee.
In a statement to Rewire, the office of the bill’s sponsor, Sen. Karen Spilka (D-Ashland), said that SB 1297 was filed “in response to the real problem of overcrowding in detention facilities in the state …. Senator Spilka will also be using this bill to create a conversation among her colleagues in the Legislature about much-needed reforms and updates to the prison system.”
“Senator Spilka would like to find ways to decrease the incarceration rate for women in Massachusetts, not increase it, and also to ensure that women who do face prison time receive the best treatment possible,” the statement continued.
But advocates argue that filing a bill for a new facility is a misguided way to achieve these goals. They fear it ensures more people will end up behind bars—not fewer.
A 2015 study by the Massachusetts Women’s Justice Network found that the number of incarcerated women who are pretrial or awaiting sentencing continues to increase. What this means is that they are incarcerated because they cannot afford bail, and sometimes that amount is as low as a few hundred dollars. This is not only leading to an overcrowding of jails, but is having a real impact on the children of those women, Black mothers in particular.
Advocates in Massachusetts already have solutions to this issue in place, just waiting to be passed: this primary caregivers bill; HB 1584, which would allow authorities to place people in community corrections programs during the pretrial process; and SB 802, a bail-reform measure.
“If Senator Spilka is saying she cares about women and doesn’t want to send them to an overcrowded jail, what we’re saying is, ‘Good, don’t send them. Have alternatives for primary caregivers, have bail reform,’” said Ahrens. “For now, let’s put a moratorium on new jails until we do these other things, and if we still need a new women’s jail after all that, then we can talk.”
Advocates believe that by proposing alternatives to incarceration for primary caregivers, Massachusetts could set an example for the rest of the country about what criminal justice reform could look like. Advocates “spend all of our time trying to stop bad things from happening, like stopping a new jail,” explained Ahrens. “It’s rare that we get to advocate for something that is positive and will have a positive outcome for people.”
But Ahrens feels strongly that if this bill does pass, it could have a huge influence on criminal justice reform, not just in Massachusetts, but nationwide. Finding alternatives to help “primary caregivers says to people that there is an alternative out there,” she said. “The default could be community-run, community-based services. It doesn’t have to be sending a woman somewhere, behind walls, divorced from everything she knows and loves.”