Based on the most recent data available, about 250,000 American children have a mother in jail, either awaiting trial or serving time for a minor offense. An additional 150,000 children have a mother in prison, serving time for a felony. The number of incarcerated women has only increased since that data was collected. The first step "prison reform law" has a way to help the family get together.
With regard to children whose fathers are incarcerated, that number is even higher. In fact, about one in four African-American children can expect to have their father incarcerated before they reach the age of 14.
What happens to children whose parents are incarcerated? The statistics are not promising. While having a parent in prison could increase the chances of a child going into foster care, children with incarcerated mothers are five times more likely to move to foster care than those with incarcerated fathers.
Moreover, myriad negative consequences flow when a child has his or her parent sent to jail. Those consequences could include homelessness, poor performance at school, behavioral or mental health issues, and a greater likelihood of interactions with the criminal justice system themselves as they get older.
How Does the First Step Act Help Families that are Separated by Incarceration?
One important facet of the First Step Act that tries, as best as possible, to stem the negative consequences that flow for children who have parents in prison, is the Act’s 500-mile-rule. It is a rule that makes a strong effort to keep families as close as possible when a family member is incarcerated.
Specifically, the First Step Act mandates that the Federal Bureau of Prisons (BOP) “place [a] prisoner in a facility as close as practicable to the prisoner’s primary residence,” and to the extent possible, within 500 driving miles of the inmate’s home. In addition, those who are already incarcerated are given the choice to decide whether they wish to stay at their current prison, or transfer to a facility that is closer to their home. The option is even provided to those who are already within 500 driving miles of their home.
It is important to note that the request to transfer to a facility closer to home must be initiated by the inmate. An inmate’s family request to have an inmate moved closer does not need to be considered by the BOP.
This 500-mile-rule is an improvement from what the law was prior to the First Step Act. Prior to the Act, the BOP had full discretion to decide where an inmate was to be housed. In fact, before the First Step Act, it was common to have a federal inmate who was convicted in Miami, Florida, be sent to California to serve his or her sentence. Even though the BOP had an internal policy of keeping inmates within 500 miles of their home, the BOP was not required to follow that policy.
Are There Any Exceptions to the 500-Mile Rule?
As with any kind of rule, there are a few exceptions. The placement of an inmate at any particular facility must be in line with the inmate’s “security designation.” That means that an inmate’s placement needs to be decided in connection with the type of prison for which they are eligible. A person who is slated to go to a high-security prison, will not be allowed to be housed in a minimum-security prison based on the 500-mile rule.
In addition, the BOP reviews other factors to determine the appropriate facility for an inmate, including:
- Bed availability,
- The inmate’s need for particular programs,
- The inmate’s need for certain mental health or medical treatment,
- Any faith-based requests made by the inmate,
- Any requirements stated by the sentencing court, and
- “Other security concerns” of the BOP.
Finally, even though the First Step’s 500-mile rule is encouraging, there is no enforcement process in place to make sure the rule is followed. The First Step Act does not provide for a court mechanism to review a BOP placement decision. That can pose a problem for those who want to be close to their families because there is no clear way to challenge the BOP’s decision except by appealing to the BOP itself.
Family separation does not only occur in the immigration context. The issue of family separation has been around for a long time for those who have parents or other family members currently incarcerated.
The First Step Act’s mandate that inmates be placed within 500 driving miles of their families is a great move forward. It will help thousands of families keep in touch, and is of particular benefit for children whose parents are incarcerated.