Tamar Lerer


Hundreds of thousands of incarcerated persons are parents; in many instances, their incarceration has profound effects on their young children. Despite the predictable harm that the these children experience when their caretakers are incarcerated, the criminal justice system lacks a uniform, principled, and transparent way to consider their interests at critical stages in the process.

In this Article, I argue that the interests of the children of incarcerated offenders should be considered and demonstrate how this can be done. The paper proceeds in three Parts. In the first Part, I explain why we should care about caretaker incarceration: it harms individual children, it may be criminogenic and therefore harm society in the future, and it disparately impacts children of color. These harms, I argue, threaten the very legitimacy of our criminal justice system and undermine our society’s liberal values. In the second Part, I make explicit the way in which these interests can be taken into account, by drawing on the experience of family law and the best interests of the child standard. In Part II, I also attempt to refine the category of “caretaker” offenders, who are the focus of this paper, with the help of the concept of a “psychological parent”—a person who fulfills a child’s physical and psychological needs on a continuous basis. Finally, I put this standard into use in three contexts that incarcerated caretakers face—bail, sentencing, and visitation policies—and show how consideration of the interests of children can be easily inserted into already existing balancing tests. By building upon these tests, we can create formal protections to help structure the use of prosecutorial and judicial discretion.

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