Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens—detrimental consequences that can continue even long after a parent has been released. Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them. The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory. Although some scholars have suggested amending the Guidelines or making other legislative changes that would bring children’s interests forward at the sentencing phase, these suggestions are less likely than ever to bear fruit. In light of the Trump Administration’s “tough on crime” rhetoric, new Attorney General Jefferson Sessions’ “law and order” reputation, and Republican control of the House and Senate, policy change that is viewed as “progressive” is highly unlikely. Therefore, this Article proposes two other avenues for change. First, in a new and unique proposal, this Article suggests federal judges can and should independently order the inclusion of Family Impact Statements into a defendant’s presentence investigation report via a heretofore largely unused “catchall provision” of the Federal Rules of Criminal Procedure. Second, this Article makes three modest policy recommendations that are aimed at improving the ability of children to visit their incarcerated parents. Visitation has been shown in studies to be a powerful tool of mitigation for many of the harms children experience when their parents are incarcerated, but visitation rates are woefully low. The options for improving circumstances for children of incarcerated parents may well be limited, but there are viable options, and there is no time to waste